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[2025] ZALCCT 14
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Boumbeyi v Commission for Conciliation, Mediation and Arbitration and Others (C312/2021) [2025] ZALCCT 14 (3 March 2025)
THE
LABOUR COURT OF SOUTH AFRICA
AT CAPE TOWN
Of interest to other
judges
case
no: C 312/2021
In
the matter between:
CHARLES
LANDRY BOUMBEYI
Applicant
And
THE
COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION
First
Respondent
COMMISSIONER
RICHARD HEATH (
N.O.
)
Second
Respondent
TARSUS
DISTRIBUTION (PTY) LTD
Third
Respondent
Heard
:
25 February 2025
Delivered
:
3 March 2025
Summary:
(Review application – condonation
ruling – late referral of unfair dismissal claim - very
excessive delay – Explanation
lacking any material detail –
arbitrator not unreasonable in dismissing condonation application
without considering merits)
JUDGMENT
LAGRANGE, J
Nature
of the application
[1]
This is an opposed application to review a condonation ruling by a
CCMA arbitrator, refusing to condone the late referral
of the Mr C L
Boumbeyi’s unfair dismissal dispute. Boumbeyi was retrenched by
the respondent (‘Tarsus’) on 19
June 2020.
[2]
The review application was previously enrolled for hearing on 5
October 2023 but neither party appeared at court, so it
was struck
off the roll. It was re-enrolled on 25 February 2025. As
the second matter on the roll was more substantial
and would take
more time, this application was heard first and the hearing lasted
approximately 30 minutes. Tarsus’s legal
representative was not
present at that time, so only Boumbeyi presented argument. Tarsus’s
legal representative arrived around
11h00 after the matter had been
heard. He advised the court his flight had been delayed and the
court had been phoned but
the message had not reached the court in
session. Be that as it may, the court could not re-open the matter in
the absence of Boumbeyi,
but Tarsus does have the opportunity to
apply for rescission of the judgment if it wishes to.
[3]
Boumbeyi claims he referred his dispute to the CCMA on 21 October
2021, but Tarsus denies receiving such a referral and
also states
that there is no evidence in the CCMA file of the referral of the
dispute to the CCMA at that time. A second referral
form signed on 2
March 2021 was received by Tarsus.
The condonation ruling
[4]
The arbitrator found that there was no proof of the referral being
made in October 2020. Consequently, the only referrals
he could
consider was the one made on 2 March 2021. In the circumstances, he
had to consider whether he should excuse a delay of
211 days,
following the expiry of the 30-day period in which Boumbeyi should
have referred his claim. The arbitrator correctly
described the delay
as ‘very substantial’.
[5]
He accepted that Boumbeyi had summarised in some detail the way he
was retrenched, but did not make it clear why he claimed
his
dismissal was unfair. He noted that Boumbeyi claimed to have
difficulty recovering his provident fund contributions. Tarsus,
on
the other hand, denied that the retrenchment was unfair as it was
preceded by a fair consultation process and there were genuine
operational reasons for the retrenchment.
[6]
The arbitrator found that, apart from claiming he did refer the
matter in October 2020, for which no proof of submission
was
provided, no explanation was provided for the delay. In the absence
of any details explaining the very lengthy delay, the arbitrator
decided that it was not necessary to consider the prospects of
success in the unfair dismissal claim and dismissed the condonation
application.
[7]
When Boumbeyi filed his application to review the ruling, he also
sought a costs order against the CCMA and the arbitrator.
In the
light of this unusual relief, the arbitrator filed an explanatory
affidavit supplementing his reasons for the award, as
he was entitled
to do. In that affidavit, he repeats the absence of proof of any
referral in October and also explains the legal
authority for his
decision to dismiss the application without considering the prospects
of success.
The review application
Basic principles of
review proceedings.
[8]
Before discussing the review application, the nature of the procedure
needs to be emphasised.
[9]
The Labour
Court rules prescribe that a notice of motion and founding affidavit
must be filed. Once the record has been received
an applicant should
file a supplementary affidavit, adding to or amending grounds of
review set out in their founding affidavit.
The respondent, in
this case Tarsus, must file an answering affidavit and the applicant
has an opportunity to file a replying affidavit
[1]
.
[10]
In this case, Tarsus filed an answering affidavit without waiting for
a supplementary affidavit from Boumbeyi.
Boumbeyi still had the
option of filing a supplementary affidavit if he wished to add to his
grounds of review, or he could have
just filed a replying affidavit
to Tarsus’s answering affidavit. He did neither. As a
result the only affidavits before
the court in the review application
are Boumbeyi’s founding affidavit and the answering affidavit
of Ms H Liebenberg on behalf
of the company.
[11]
In assessing factual disputes in a motion proceeding such as this one
the court is bound to follow this principle:
“
It is correct
that, where in proceedings on notice of motion disputes of fact have
arisen on the affidavits, a final order, whether
it be an interdict
or some other form of relief, may be granted if those facts averred
in the applicant's affidavits which have
been admitted by the
respondent, together with the facts alleged by the respondent,
justify such an order.”
[2]
[12]
Accordingly,
if Tarsus in its answering affidavit disputed an allegation made by
Boumbeyi then Tarsus’s version of that fact
will be accepted,
unless it is a bald denial or wholly implausible
[3]
.
Boumbeyi could have disputed any of the new issues raised in Tarsus’s
answering affidavit, but did not, so new issues in
the answering
affidavit remain undisputed by him. I note also that in the
original condonation application, Boumbeyi also
did not file a
replying affidavit.
[13]
A second principle which applies to review applications needs to be
emphasised. In a review application the court is
not sitting as a
court of appeal but is simply deciding if the arbitrator’s
decision was a completely unreasonable one. This
means, it is
possible even if the court might have taken a different view if it
was deciding the matter afresh, that does not matter,
provided the
arbitrator’s decision was one that a reasonable arbitrator
could have made. Another important issue to emphasise
is that when
the court reviews the arbitrator’s decision, it assesses how
reasonable the arbitrator was only with reference
to the evidence
that the parties placed before the arbitrator. The court cannot take
into account any evidence that was not contained
in the affidavits
and the annexures. Accordingly, any additional evidence offered up to
the court in the review application hearing
cannot play a part in the
court’s assessment of the application. This was explained to
Boumbeyi when he argued his review
application.
[14]
In particular, it was explained that additional details he wished to
add about the reason for his long delay in referring
his dispute were
not ones the court could consider when it decides his review
application.
Merits of the review
[15]
In his founding affidavit to set aside the condonation ruling, he
raises only one complaint, namely that he contends
the arbitrator was
wrong in saying he referred his case to the CCMA only on 2 March
2021. In support of this he appears to
state he sent the case
on the same day his friend or colleague, Bojce Mhalangabezi
Sani, sent a case, with case number WEPT
17286/20. Of course this
somewhat vague statement was not even before the arbitrator, so the
court cannot blame the arbitrator
for not considering it. Even
if this could be considered as a ground of review rather than a
ground of appeal, it does not
shed any more light on why there was no
record in the CCMA file of the referral being served on Tarsus, so
the first recorded referral
was only made in March 2021 , meaning
that the delay he needed to explain was from 31 July 2020 until then.
[16]
In the
circumstances, can the arbitrator be found to have made a ruling no
reasonable arbitrator could have made? In his explanatory
affidavit, the arbitrator mentioned the legal authority for not
considering Boumbeyi’s prospect of success in his unfair
dismissal claim. He relied on a summary of the principles
governing condonation applications in the judgment of this court
in
McCann
Worldgroup SA (Pty) Ltd v Landman and Others
[4]
,
this court summarised the legal principles applicable to condonation
applications:
“
[34]
Condonation for delays in all labour law litigation is not simply
there for the taking. The starting point is that
an applicant in an
application for condonation seeks an indulgence and bears the onus to
show good cause.
[35] In
Melane v Sanlam Insurance Co Ltd it was held that:
’…
. Among
the facts usually relevant, are the degree of lateness, the
explanation therefore, the prospects of success and the importance
of
the case. Ordinarily these facts are interrelated, they are not
individually decisive, for that would be a piecemeal approach
incompatible with a true discretion, save of course that if there are
no prospects of success there will be no point in granting
condonation. What is needed is an objective conspectus of all the
facts.’
[36] In
this Court however, the principles have long been qualified by the
rule that where there is an inordinate
delay that is not
satisfactorily explained, the applicant’s prospects of success
are immaterial.
[37]
The approach that in the absence of a satisfactory explanation for a
delay, the applicant’s prospects
of success are ordinarily
irrelevant, has been conventionally applied and was confirmed
in National Education Health and
Allied Workers Union on behalf of
Mofokeng and Others v Charlotte Theron Children’s Home where
the Labour Appeal Court (LAC)
held that without a reasonable and
acceptable explanation for the delay, the prospects of success are
immaterial.
[38] In
Collett v Commission for Conciliation, Mediation and Arbitration the
LAC held that
without a reasonable and acceptable explanation for
the delay, the prospects of success are immaterial
and without
good prospects of success, no matter how good the explanation for the
delay,
an application for condonation should be refused
.
[39] An
applicant in an application for condonation bears the onus to satisfy
the court or tribunal that condonation
should be granted
and it is
incumbent upon such applicant to provide a full explanation for every
period of the delay. The explanation for the delay
must be both
comprehensive and persuasive and should cover every period of the
delay
.
[40] In
IMATU obo Zungu v SALGBC and Others the principle was confirmed that
it is not sufficient simply to list
significant events that occurred
during the period in question as that does not assist the court
properly to assess the reasonableness
of the explanation.
[41] In
summary: The Courts have endorsed the principle that where there is a
delay with no reasonable, satisfactory
and acceptable explanation for
such delay, condonation may be refused without considering prospects
of success and to grant condonation
where the delay is not explained,
may not serve the interests of justice. The expeditious resolution of
labour disputes is another
fundamental consideration.”
Order
1.
The review application is dismissed.
2.
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
Respondent
No appearance
[1]
The
procedure is set out in more detail in Rule 37 of the recently
updated Labour Court Rules, but the previous Rules contained
almost
identical provisions.
[2]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634H
[3]
Plascon-Evans
at
635C-D.
[4]
(JR 48/19) [2020] ZALCJHB 194 (19 June 2020)