VIC & DUP/JOHANNESBURG/LKS
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: J 3001/98
In the matter between:
KOTZE, E Applicant
and
MATLHABA,S.S First Respondent
THE DIRECTOR,CCMA Second Respondent
ROBERTSONS SPECIALIST Third Respondent
INSURANCE BROKERS (PTY) LIMITED
JUDGMENT
BASSON, J
[1] The unfair dismissal dispute in the present matter was referred to the Commission
for Conciliation, Mediation and Arbitration (“the CCMA”), cited through its
director as the second respondent, by the applicant in terms of the provisions of
section 191(1) of the Labour Relations Act, 66 of 1995 ("the Act") on 21 July
1998.
[2] The referral was some 112 days outside of the prescribed time limit.
[3] This brought into operation the provisions of section 191(2) of the Act which read
as follows:
"If the employee shows good cause at any time the Council or the Commission
(the CCMA) may permit the employee to refer the dispute after the 30 time limit
has expired" (emphasis supplied).
[4] In other words, the commissioner concerned (the first respondent) in deciding the
issue of whether to condone the late referral, should have exercised this discretion
in terms of section 191(2), the basis being whether good cause was shown for the
late referral.
[5] The applicable principles in an application for condonation is set out in the locus
classicus decision of Melane v Santam Insurance Co Ltd 1962 (4) SA 531
(A) at 532CF.
[6] In essence, in granting condonation, the degree of the lateness, the reason or
explanation therefor and the prospects of success as well as the importance
of the issue or the case must be weighed up, the one against the other.
[7] Of all these considerations or factors it is the prospects of success which is the
most important.
[8] This view is correct as condonation should not be granted in an instance where
there are no prospects of success.
[9] The importance of prospects of success was also recently reiterated by the
Supreme Court of Appeals in the judgment of Moodley v Umzinto North Town
Board 1998 (2) SA 188 (SCA) at 192BF per Mahomed CJ.
[10] It appears from the arbitration award that the arbitrator did not consider the
prospects of success at all when he refused to grant condonation to the applicant.
[11] Paragraph 6 of the arbitration award (attached at page 27 of the papers) reads as
follows:
"Prospects of success: Both parties did not address me on the question relating to
the prospects of success in the event where I was to grant condonation for late
referral."
[12] It also appears from paragraph 7 that only the reason for the 112 day delay is taken
into account and nothing at all is said about the prospects of success in the
arbitration award.
[13] The applicant (at paragraphs 25 and 26 at page 12 of the papers as well as
paragraph 33.1 at page 15 of the papers) stated clearly that the merits of the case
was debated, in other words, the prospects of success was laid before the arbitrator
by both parties. In the absence of any contradictory averments, or even of any
answering affidavit, I accept that this had happened during the arbitration
proceedings.
[14] The exercise of the discretion not to grant condonation can therefore clearly not be
justified in the absence of taking into account the most important factor, that is,
the prospects of success.
[15] The decision not to grant condonation therefore falls to be set aside on review.
[16] This is not a matter where I can substitute my own discretion for that of the
CCMA to be exercised in terms of section 191(2) of the Act (discussed above).
There is no record of these proceedings and it is accordingly not a foregone
conclusion whether the discretion should be exercised in favour of the applicant or
not.
[17] The appropriate remedy in this review is accordingly to refer the matter back to
the CCMA for a consideration anew of a condonation application in terms of
section 191(2) of the Act.
[18] In the event, I make the following order:
1. The decision of the first respondent dated 30 September 1998 under CCMA Case
No. GA39249 is reviewed and set aside in terms of section 158(1)(g) of the Act.
2. The matter is remitted back to the CCMA for the application for condonation by
the applicant to be considered anew by a different commissioner.
3. No order is made as to costs.
_____________________________
BASSON J
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
ON BEHALF OF APPLICANT : ADV ROSSOUW
: Jaco Scholtz Attorneys
ON BEHALF OF RESPONDENT : NO APPEARANCE
DATE OF HEARING : 21 JANUARY 1999
DATE OF JUDGMENT : EX TEMPORE (EDITED VERSION)