IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEINCASE NO J1808/00
In the matter between:
CHARLES MOSES Applicant
and
P ROOPA NO First Respondent
SAFIKA HOLDINGS (PTY) LIMITED Second Respondent
THE DIRECTOR OF THE COMMISSION
FOR CONCILIATION MEDIATION AND
ARBITRATION NO Third Respondent
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
REASONS FOR JUDGMENT
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
JAMMY AJ
1.On 6 October 2000, having heard comprehensive argument from Counsel for the
parties in this matter, I made an order in terms of which the application for the
review and setting aside of the Ruling in question by the First Respondent was
granted with costs, the matter was to revert to the Third Respondent for
consideration and determination by another Commissioner and the Second
Respondent was ordered to pay the Applicant's costs. I indicated that I would
furnish full reasons for that order and they are the following.
2.This is an application which, although not so stated on the papers, is brought
implicitly in terms of s158(1)(g) of the Labour Relations Act 1995 ("the Act"), for
the review and setting aside of a Ruling by the First Respondent acting in his
official capacity as a Commissioner of the Third Respondent, in which the
application by the Applicant for the condonation of the late referral for
conciliation of his alleged dispute with the Second Respondent, was dismissed.
3.The following aspects of the matter are common cause:
3.1The referral in question was approximately seven days late;
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3.2Both in the referral Form 7.11 and in his Affidavit supporting his condonation application,
the Applicant expressly recorded his submissions that he had been employed by
the Second Respondent, that his employment had been terminated and that that
termination was substantively and procedurally unfair. He referred further to the
denial by the Second Respondent that an employment relationship existed
between them.
3.3The Second Respondent opposed the condonation application and filed an Affidavit in
which the sole ground of opposition was expressly stated thus -
"The Respondent opposes the application for condonation filed by the Applicant
because the Applicant was never employed by the Respondent. It was
therefore impossible for the Respondent to terminate the Applicant's
employment."
3.4Certain allegations of fact were then briefly set out in substantiation of this contention
and it was on that ground and that ground only, that the application for
condonation was contended to be "fatally defective."
4.Section 191(2) of the Act provides that, on good cause shown by the employee, the
Commission may permit the referral of a dispute about unfair dismissal after the
expiration of the 30-day time limit prescribed in s191(1).
5.The reason submitted by the Applicant for his late filing of the referral was stated in
his supporting affidavit as follows:
"My Attorneys have attempted to settle the matter with the employer but
attempts to settle have failed............... I have up until now believed
the matter could be settled."
If condonation was not granted, he averred, he would be prejudiced because -
"I have a substantial claim against the employer and I believe the merits are
good."
6.The Second Respondent, in its Opposing Affidavit, did not challenge that reason as
being one which would not justify the default. Its succinct and only response was
that -
"There is no obligation on the Respondent to settle this matter because the
that -
"There is no obligation on the Respondent to settle this matter because the
Applicant has never been employed by the Respondent. This has been
made clear to the Applicant and his Attorneys of Record. In the
circumstances the Applicant was not entitled to refer a dispute to the
CCMA and the CCMA does not have jurisdiction herein."
7.By Government Notice No R245 dated 31 March 2000, the Department of Labour
promulgated RULES REGULATING THE PRACTICE AND PROCEDURE FOR
RESOLVING DISPUTES THROUGH CONCILIATION AND AT ARBITRATION
PROCEEDINGS. Adv A Snider, representing the Second Respondent, submitted,
correctly in my view, that although promulgated after the events in issue in this
matter, those rules encapsulate the guidelines previously published by the
Commission and in fact, by Rule 27, they expressly repeal them.
8.Rule 5.3, dealing with applications for condonation of late referrals, defines the
factors to be taken into account. They are the following:
"(a)The degree of lateness;
(b)The reasons for the lateness;0
(c)The referring party's prospects of succeeding with the referral and obtaining the relief
sought against the other party; and
(d)The balance of convenience, including any prejudice to the other party."
9.Mr Snider stressed the fact that, although entitled to do so, the Applicant failed to file
a sworn reply to the Second Respondent's Opposing Affidavit before the
Commissioner. The formal Rules to which I have referred were not, he
acknowledged, in force at that time and although the Applicant may have been
entitled to do so, there was no obligation on him then, as indeed there is none
even now, to have followed that course. In my view he was entitled to assume
that the substantive jurisdictional issue raised by the Second Respondent and
which was patently in dispute on the papers, was not relevant to the core issue
of condonation and should properly be dealt with in due course in the conciliation
or arbitration processes which he was seeking to invoke.
10.The First Respondent was, as I have said, confronted with a dispute of basic fact on
the papers before him - on the one hand, a sworn statement by the Applicant
that he was employed by the Second Respondent and on the other, a sworn
statement by the Second Respondent that he was not. The latter was
augmented by a recital of alleged facts that had not been responded to at that
augmented by a recital of alleged facts that had not been responded to at that
stage by the Applicant but this notwithstanding, and without any substantiation
of the "weighing up" process followed by him or any elaboration of his reasons
for reaching it, the First Respondent presented the following conclusion:
"In weighing up the versions of the two parties, I find Mr Moses' explanation in
respect of his prospects of success most unsatisfactory when evaluated
against the employer's detailed defence, and that Mr Moses has not
shown 'good cause' in respect of s191 of the Act and accordingly
dismiss this matter."
11.Neither the degree of lateness nor the justification submitted for it are anywhere in
that Ruling critically examined. The conclusion reached is, as I have said,
conveyed with no further elaboration or explanation.
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12.Following the fundamental dicta in that regard in the Appellate Division case of -
Melane v Santam Insurance Co Limited 1962(4) SA at 532
the concept of condonation in the context of the Labour Relations Act was
comprehensively examined by this Court in -
Northam v UU Net Internet Africa (Pty) Limited & others (1998) 5 BLLR 492.
At 496(G) Pretorius AJ said this -
One is obviously aware of the fact that applications for condonation are not
always dealt with in a formal manner. Often, it is not necessary to do
so. This is especially so where an application for condonation is not
opposed and where the facts are not controversial. But where, as in
this case, difficult questions of fact and law are involved both in
establishing whether an application for condonation is necessary at all
and also in regard to the application itself the parties must be given a
proper hearing. No specific, all encompassing tests can be laid down
for determining whether a hearing is fair - everything will depend upon
the circumstances of the particular case (See Administrator, Transvaal
and others v Theletsane and another 1991 (2) at 206A-B). In the
circumstances of this case, however, what the Third Respondent should
have done was to obtain the facts in the presence of both parties and
to afford each party a reasonable opportunity to controvert facts given
by the other side. This was not done in this matter and accordingly the
procedure followed by the third respondent did not comply with the
rules of natural justice.
13.Applying that dictum in -
NUMSA & another v Voltex (Pty) Limited t/a Electric Centre & others (2000) 5
BLLR 619, Van der Riet AJ commented -
"In my view the same can be said about the manner in which the third
respondent dealt with the condonation application in this matter. He
relied on prejudicial allegations made by the first respondent in its
opposing letter without giving the applicant any opportunity to deal
opposing letter without giving the applicant any opportunity to deal
with it. In the circumstances of the case that amounts to a failure to
comply with the rules of natural justice and on its own, forms a basis
for the setting aside of the decision of the third respondent in refusing
condonation."
14.The Labour Appeal Court, in a line of leading cases relating to reviews in terms of
s145 of the Act of arbitration awards made under the auspices of the
Commission, has enunciated a set of principles to be applied which, in my view,
have equal relevance to reviews under s158(1)(g) relating to matters of this
nature.
See for example -
Carephone (Pty) Limited v Marcus NO & others (1998) 19 ILJ 1425.
15.Cardinal amongst them, is the requirement, inter alia, that what is required to
render an award unassailable, is a rational objective basis justifying the
connection made by the decision maker between the material properly available
to him and the conclusion he or she eventually arrived at.
16.I am left in no doubt that no such rational basis existed in this matter. The
conclusion reached by the First Respondent was not justifiable on the papers
filed and which comprised the only material to which, at that stage, he had
recourse.
17.What the First Respondent was obliged in my view to do when faced with the
factual allegations submitted to him by the Second Respondent, was either to
convene a meeting of the parties in order to hear the Applicant's response or to
call on the Applicant to deal with them by way of a Replying Affidavit. There was
no "version" of the Applicant before him which, in relation to the factual
averments by the Second Respondent, could, in his terminology, have been
"weighed" and with proper regard to the dictates of natural justice and fairness
to which I have referred, it was incumbent upon him to procure one.
18.The issues of the degree of lateness, which in any event was insignificant in my
opinion, and the reasons given for it, were not, save for a bald reference thereto,
examined by the First Respondent as material aspects of his conclusion and
Ruling and nor, as I have said, did they constitute any ground of opposition in the
Second Respondent's Opposing Affidavit. If, as must therefore be assumed, it
was not felt necessary by either Respondent to deal with them in the
condonation application, I can find no valid reason to reject them in the context
of this review.
19.Finally, with regard to the criteria of balance of convenience and prejudice, there is
19.Finally, with regard to the criteria of balance of convenience and prejudice, there is
no doubt in my view that any objective assessment thereof must emphatically
favour the Applicant and no material submissions to the contrary have been
presented to me.
20.The full terms of the order which, for all of these reasons, I accordingly made on 6
October 2000, were as follows:
20.1The Ruling by the First Respondent in terms of which he dismissed Applicant's application for
condonation of the late referral of his dispute with the Second Respondent for
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conciliation in terms of the Labour Relations Act 1995, is reviewed and set aside.
20.2That application is to revert to the Third Respondent for consideration and determination by a
Commissioner other than the First Respondent and with specific regard to the
substance of this judgment.
20.3The Second Respondent is to pay the Applicant's costs of this application.
Acting Judge of the Labour Court
Date of hearing: 6 October 2000
Date of Judgment: 6 October 2000
Representation:
For the Applicant: Adv F Boda instructed by Dison Ndlovu Attorneys
For the Second Respondent: Adv A Snider instructed by Brian Kahn Inc