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[2025] ZALCCT 8
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Qholomashe v Education Labour Relations Council and Others (C442/2022) [2025] ZALCCT 8 (24 January 2025)
THE LABOUR COURT OF
SOUTH AFRICA
AT CAPE TOWN
Not Reportable/Of
interest to other judges
Case
no: C 442/2022
In
the matter between:
NONTSHA VIWE
QHOLOMASHE Applicant
and
EDUCATION LABOUR
RELATIONS COUNCIL First
Respondent
MATHEWS RAMOTSHELA
(
N.O.
) Second
Respondent
WESTERN CAPE EDUCATION
DEPARTMENT Third
Respondent
Heard:
23
January 2025
Delivered
: 24
January 2025
Summary:
(Review
of condonation ruling – late referral of dismissal dispute –
excessive delay of 145 days - explanation of delay
placed before
arbitrator inadequate – arbitrator could not have dismissed
prospects of success on material before him –
Condonation
ruling reviewable as the applicant was denied a fair hearing of her
application - application remitted for rehearing)
JUDGMENT
LAGRANGE, J
Introduction
Nature of the application
[1]
This is an application to review a condonation ruling by the second
respondent (‘the arbitrator’). The applicant, Ms
Qholomashe, had applied for condonation for the late referral of an
unfair dismissal dispute, but the arbitrator dismissed her
application. His main findings are set out below.
[2]
The arbitrator concluded that the delay of 145 days was excessive and
such a long delay required a compelling justification for
taking so
long. He found that the applicant failed to advance any plausible
explanation for taking so long. In his view, it was
unacceptable that
she could have still being attempting to obtain the reason she was
not employed from the third respondent (‘the
department’)
for more than three months without having regard to the time periods.
The arbitrator also noted that the applicant
claimed to have entered
into a fixed term contract of employment, but did not attach a copy
of the alleged contract to her condonation
application. For this
reason, he decided that she did not have a good chance of success.
Joinder application
[3]
The applicant had not joined the department as a party to the review
application, so the department itself applied to be joined
as a
respondent. This application was not opposed.
Evaluation of the review
application
[4]
A review application based on criticising the reasoning of an
arbitrator, is based on the material that was placed before the
arbitrator. The condonation application was decided on the affidavits
of the parties and any documents which they attached to their
affidavits. According to what the applicant said in court, she had a
number of documents supporting her condonation application,
but these
were not attached to her founding affidavit so the arbitrator did not
have them before him when he made his decision.
There was no oral
hearing of the condonation application which was decided on the
applicant’s founding affidavit and the
department’s
opposing affidavit.
[5]
To justify the long delay, this is what the applicant stated in her
founding affidavit in her condonation application:
“
My application is
late because I went to the circuit manager's office immediately after
the dismissal. I spoke to Mr. Sonamzi, who
is also the circuit
manager. He told me Mr. Clinton Spencer is on leave and gave me the
contact details. On the 25th of January,
I sent the email to him and
Mr. Gershwin. Callander. I was advised by Mr. Sonamzi to also send
him the email. He did not respond.
I sent another one in May. And I
have been trying to contact him. No one answers. And he's always not
in his office. My lawyer
has also been trying to resolve this, but
the school doesn't want to work with him at all. I have all the proof
needed.”
[6]
Further, in her affidavit she referred to having signed a “
three
month employment contract with the school
”, but this was
also not attached to her affidavit under the heading “General”
in the pro-forma condonation affidavit,
she also stated:
“
Any other relevant
information:
I have all the proof of
what I have written here. I have the emails I sent to the Circuit
manager, I have Chats with Mr Sonamzi
that shows that I have be
trying to resolve this. I have the proof of my Contract I signed with
the school and I also have the
proof of the response they sent to my
lawyer.”
(
sic
)
[7]
It should be mentioned that the department’s answering
affidavit to the condonation application was not filed as part of
the
record. Both parties were contacted by the judge’s secretary
before the court hearing, but neither party could produce
the missing
document. However, the department’s answering affidavit in the
review application contained a summary of the
main averments in the
missing answering affidavit. It appears that it mostly consisted of
criticisms about the merits of the condonation
application, rather
than adding additional factual information. In any event, the
arbitrator stated that he decided the condonation
application based
solely on the applicant’s affidavit.
[8]
Considering the above, it seems correct that there was little
supporting documentation before the arbitrator. If the arbitrator
relied on the applicant’s affidavit, then he had no basis for
assuming that she had not been employed for three months.
Accordingly, there was no reasonable basis on which he could have
come to the conclusion that the prospects of success were poor.
Even
if he had been provided with the school’s letter of 14 February
2022 explaining why the applicant was not teaching,
that letter is
capable of different interpretations.
[9]
I appreciate that the applicant is not legally trained and
accordingly did not frame her review application properly. However,
and that the department has, correctly in my view, not sought to take
advantage of the limitations of the drafting of her grounds
of
review.
[10]
The overriding question this case raises is whether the arbitrator
ought to have decided the application simply on the affidavit
before
him. The applicant explicitly mentioned that she had supporting
documents to prove why her explanation was justifiable and
which had
a bearing on the prospects of success. Two things should have been
obvious to the arbitrator if he did not ask her to
provide the same.
Firstly, he would be deciding her application without any reference
to documents, which were plainly relevant
to the issue at hand.
Secondly, there was no reason for him to believe that she would have
been aware he would do so or that she
knew she would not be afforded
an opportunity to submit the documents after filing her application.
It should have been obvious
to him that she had unwittingly
prejudiced her case by not attaching all those documents.
[11]
This is one of those
situations, where the court cannot ignore the fact that the applicant
was denied a fair opportunity to present
her case, irrespective of
how strong or weak it might ultimately turn out to be. In my view
this was a gross irregularity in the
conduct of the proceedings
within the meaning of
s 145(2)(b)(ii)
of the
Labour Relations Act, 66
of 1995
.
[1]
At the very least he
should have called upon her to provide the documents and asked the
parties to make further submissions if
necessary. Alternatively, he
could have scheduled an oral hearing with both parties present to
provide an opportunity for the documents
to be tabled and to hear any
supplementary representations from the parties arising therefrom. In
the circumstances, there is no
alternative but to review the ruling
and remit the condonation application for reconsideration.
Order
1.
The condonation ruling of the Second Respondent
dated 20 July 2022 issued under case number ELRC 173-22/23 is
reviewed and set aside.
2.
Within thirty (30) days of receipt of this
judgment, the First Respondent must re-enrol the Applicant’s
condonation application
for an oral hearing before an arbitrator
other than the Second Respondent, at which the parties may provide
additional evidence
and submissions for and against granting
condonation.
3.
No order is made as to costs.
R Lagrange
Judge
of the Labour Court of South Africa
.
Appearances
For the Applicant:In
Person
For the Third Respondent
: Adv F Rodriques instructed by State Attorney
[1]
See Nkomati Joint Venture v Commission for Conciliation, Mediation &
Arbitration & others (2019) 40
ILJ
819 (LAC) at
paragraphs [4] and [5].