THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case N o: JR2415/18
In the matter between:
NUMSA obo ISAAC MAPHOTO Applicant
and
DIALE NTSOANE N.O. First R espondent
MOTOR INDUSTRIES BARGAINING COUNCIL Second R espondent
OTRACO SOUTHERN AFRICA (PTY) LTD Third Respondent
Heard: 25 June 2024
Delivered: 10 February 2025 (This judgment was handed down electronically
by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing -
down is deemed to be 11h00 on 10 February 2025).
JUDGMENT
ZWA NE, AJ
Introduction
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[1] On 12 October 2018, the first respondent commissioner acting under the
auspices of the second respondent found that the dismissal of the applicant was
substantively fair.1
[2] Dissatisfied with the arbitration result, on 8 February 2019, the applicant filed
this application for review in terms of Section 145 of the Labour Relations Act, 66 of
1995 (LRA).
2 The applicant seeks an order reviewing and setting aside the
commissioner’s arbitration award (award) which was in favour of the third respondent
(employer ). The review application is opposed.
The relevant background
[3] At the time of his dismissal, the applicant was employed by the third
respondent as a Tyre Service Man. The applicant was also NUMSA’s shop s teward
at the time of his dismissal.
[4] The applicant was dismissed for calling the third respondent’s Regional
Manager, Mr Frederick Christoffel Louw (Louw), a liar via a WhatsApp text.
3 The
genesis of the dispute is this: Louw approached the applicant concerning an issue
pertaining to a safety officer . In this meeting, Louw assured the applicant that his
presence was not required as this was not going to be a disciplinary process but an
informal discussion. [5] It is common cause that Louw had a meeting with the safety officer, and
upshot of that discussion was a verbal warning. A few days after the said discussion,
the applicant received a call from the safety officer advising that he received a verbal
warning from the third respondent. The applicant was not happy with this. He sent Louw a text message on WhatsApp in which he accused him of being a liar.
[6] In his testimony at arbitration, the applicant stated that he felt disappointed in
Louw in that the latter reneged on his word. The applicant indicated that he intended
1 Pleadings : arbitration award, page 8.
2 Pleadings: condonation - founding affidavit, pages 2 6 to 27.
3 Pleadings , founding affidavit, pages11 to 12.
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to represent the safety officer in that discussion, but Louw assured the applicant that
the safety officer would not be subjected to a disciplinary process.
[7] Louw’s testimony was that he enquired from human resources if he could
issue the safety officer with a verbal warning without involving the applicant. According to Louw, human resources gave him the go ahead.
[8] It is further common cause that on 7 July 2017, the applicant was charged
with misconduct for calling Louw a liar. The charge against the applicant was phrased as follows:
‘4.2.2 Serious misconduct in that on 20.02.2017 your (sic) behaved in
disrespectful manner toward your Regional Manager by falsely accusing him
of lying rendering working relationship irreparable.’
4
[9] The applicant was dismissed for misconduct on 11 July 2017 after the
conclusion of the disciplinary hearing, which he did not attend for reasons best
known to him.
5 Aggrieved by his dismissal, the applicant referred an alleged unfair
dismissal dispute to the second respondent. It is common cause that the
commissioner found against the applicant.
The review application
[10] The substratum of the applicant’s attack of the award on review is that the
commissioner committed a gross irregularity, failed to properly apply his mind to the
evidence presented before him and in doing so, the commissioner reached an
unreasonable conclusion and result.6
[11] The applicant avers further that the commissioner did not appreciate or
otherwise failed to have regard to the context in which the applicant called Louw a liar, and that the prescribed sanction for the misconduct the applicant was found
guilty of is a written warning. According to the applicant, there was also no evidence
4 Record, bundle: notice to attend disciplinary hearing, page 147.
5 Record, bundle: termination of service letter, page 159.
6 Pleadings, founding affidavit, page 14, at para 22.
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led to the effect that the employment relationship between himself and the third
respondent was beyond sal vation.7
[12] For the sum of the above reasons, the applicant contends that the
commissioner ought to have found that he had no intention of disrespecting Louw and that if the commissioner found against him in this regard, the latter should have found that a written warning instead of dismissal was an appropriate sanction.
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[13] In opposing the applicant’s review, the third respondent submits that the
commissioner arrived at a reasonable conclusion. According to the third respondent, the applicant is guilty of misconduct , and that dismissal was an appropriate sanction
as found by the commissioner.
Condonation application
[14] Extent of the delay . The application for review is two months’ late. According
to the applicant, he received the award on 19 October 2018. The review application
was thus due for filing by no later than 30 November 2018. However, the application
was only filed on 11 February 2019.
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[15] The condonation application is not opposed. However, it is trite law that
condonation is not for the taking. This Court is required to consider, inter alia , the
explanation for the delay, the reasons for the delay, the degree of the delay and other relevant factors.
[16] Reason and explanation for the delay . The applicant’s representative, Mr
Vivani Shezi (Shezi) admitted that the failure to file the review on time was an
oversight on his part. He submitted that he has 4 other matter s he was seized with at
the time that this review was due for filing with this Court. This review fell through the cracks as it were.
10
7 Pleadings, founding affidavit, page 15, at paras 27 to 28.
8 Pleadings, founding affidavit, page 14, at para 25.
9 Pleadings, application for condonation, page 26, at paras 9 to 10.
10 Pleadings, condonation application, para 11, page 26, and pages 27 and 28.
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[17] Prospects of success. The applicant argues that the employee is not guilty of
misconduct for calling his superior a liar. To the extent that the applicant is guilty of
misconduct, the third respondent’s disciplinary code and procedure prescribes a
written warning as a sanction.11
[18] It is common cause that at the time of his dismissal, the applicant was sitting
on a valid final written warning. In considering the condonation application in this
case, the question of whether the applicant has reasonable prospect s of success
becomes paramount.
Evaluation
[19] In Nair v Telkom SOC Ltd and Others
12 stated that:
‘[14] Without a reasonable and acceptable explanation for the delay, the
prospects of success are immaterial, and without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused. In this regard, in National Union of Mineworkers v Council for Mineral Technology [1998] ZALAC 22 at para 10, the court held as follows:
“The approach is that the court has a discretion, to be exercised judicially upon a consideration of all facts, and in essence, it is a matter of fairness to both parties. Among the facts usually relevant are the degrees of lateness, the explanation therefore, the prospects of success and the importance of the case. These facts are interrelated; they are not individually decisive. What is needed is an objective conspectus of all the facts. A slight delay and a good explanation may help to compensate for prospects of success which are not strong. The importance of the issue and strong prospects of success may tend to compensate for a long delay. There is a further principle which is applied and that is that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused”.’
11 Pleadings, review application, at paras 16 and 17, page 13.
12 [2021] ZALCJHB 449 (7 December 2021) .
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[20] In NUMSA obo Thilivali v Fry’s Metals (A division of Zimco Group) and
Others13 (Thilivali) , the Court held that:
‘… general principles applicable to condonation applications are even more
stringently applied where it comes to a condonation application for the late
filing of a review application. In review condonation applications, the explanation that needs to be submitted must be compelling and the prospects of success need to be strong. Where it comes to the issue of prejudice, the
applicant in fact has to show that a miscarriage of justice will occur if the applicant’s case is not heard. The reason for these more stringent requirements is that review applications occur after the parties have already been heard, presented their respective cases and a finding has been made. Under such circumstances, considerations of justice, fairness and expedition require that challenges of such findings must not be delayed and must be completed as soon as possible.’
[21] As already stated, the applicant was sitting on a valid final written warning at
the time of the commission of the misconduct in question. It follows that there is no room for the implementation of progressive discipline in this instance. Accordingly ,
and there being no prospects of success, the condonation application should be
refused.
Costs
[22] In terms of Section 162 of the LRA, this Court has a broad discretion to make
appropriate cost orders in accordance with the requirements of law and fairness.
[23] In my view, this is one of those cases where the interests of justice will be
best served by each party bearing its own costs.
[24] In the result, I make the following order:
Order
13 [2014] ZALCJHB 115; (2015) 36 ILJ 232 (LC) at para 22.
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1. The application for condonation for the late filing of the application for
review is refused.
2. The application for review is dismissed.
3. No order as to costs.
N.I. Zwane
Acting Judge of the Labour Court of South Africa
Appearances
For the Applicant: Mr Vivani Shezi of NUMSA
For the Third Respondent: Advocate Malcolm Lennox
Instructed by: Harrington Johnson Wands Attorneys