IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO:
J1946/99
In the matter between:
Applicant
and
COMMISSION FOR CONCILIATION
1 st Respondent
2 nd Respondent
3 rd Respondent
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REASONS FOR JUDGMENT
Granted on 6 February 2001
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REVELAS J:
1. This is the second time I give reasons for the order I gave on 6 February 2001. The
cassettes containing the first judgment were sent to Snellers Inc. Upon inquiries it
transpired that the cassette types containing the judgment had been mislaid by
Snelllers. A delay occurred in searching for these cassettes, which were thought to
be forthcoming. The file in this matter then went missing for some period. I gave
51 reasoned and signed judgments during the first term in which I gave this
judgment. I am unable to state what happened to the matter, but accept that the
delay was unacceptable as both parties were prejudiced.
2. The third respondent was dismissed by the applicant in absentia with effect from 9
December 1998.
1.
3. On 26 February 1999 the third respondent filed a condonation application for the
late referral of his dispute to the first respondent. On 8 April 1999 the condonation
application was considered by the second respondent and he granted condonation
without stating reasons for his decision , at that time.
4. However, on 24 February 1999, the applicant was notified of the application for
condonation of the late referral of the third respondent’s dispute to the first
respondent. The applicant responded to the notification by writing a letter dated 26
February 1999, to the first respondent, noting its opposition to the application. A
copy of the lengthy findings of the disciplinary hearing chairman was attached to
the letter. In the same letter, the applicant noted its desire to formally address the
CCMA on the question of condonation. The lack of any prospects of success in
the application of condonation and the main case was also set out in the same
letter. The case management officer of the first respondent, Miss Verna Agatha
Simpson confirmed receipt of the letter and filed a confirmatory affidavit to this
effect.
5. In the absence of any other explanation to the contrary, it could be assumed that
this letter was in the file containing the application for condonation.
6. The applicant was not notified of the date of the hearing of the application, even
though it appears that a notice of setdown had been faxed to the applicant. The
applicant had at all times shown an interest in the matter. Fax machines are not
infallable and, furthermore, the applicant is a relatively large organization where
faxed documents may not always reach their destination. In these circumstances I
have to accept the applicant’s explanation, namely that he did not receive the
notice of setdown, and consequently did not attend the condonation hearing.
7. The applicant then brought this application for review of the ruling in question.
The application was served on the 3 rd of June 1999 and was opposed. The matter
was set down for hearing. On 28 February 2000, Basson J postponed the matter. It
appears from the file that heads of argument were not filed timeously. However,
from a letter written by the third respondent’s attorneys to the CCMA, it appears
that Basson J, also indicated that the second respondent should give reasons on
affidavit for his ruling.
8. The second respondent then filed an affidavit which stated that he granted
condonation on the basis of the unopposed application before him. He also stated
that “on the papers before me the respondent (the applicant in the review
application) did not oppose the application for condonation.” No reference is made
to the applicant’s papers that were indeed filed according to the first respondent’s
case management officer. The affidavit was also signed on 4 September 2000,
more than a year and a half after the application was heard. The second respondent
simply does not deal with the fact that the applicant had indeed filed papers
opposing the condonation application, in circumstances where he should have. I
have considered whether this was not a matter where the review application
should have been suspended pending an application for recission of the
condonation ruling. However, for the reasons advanced hereinbefore, I came to the
conclusion that the matter is reviewable at the time the ruling was made, no
reasons therefore were advanced. The applicant was entitled to bring an
application for the review of the ruling and on the facts before me and in absence
of a proper explanation by the second respondent, it appears that the second
respondent did not apply his mind to facts before him when granting condonation.
There is also no indication that in circumstances where he should have, he made
There is also no indication that in circumstances where he should have, he made
any inquiries as to the applicant’s absence at the condonation application hearing.
It is not apparent whether there was an appearance for the third respondent or
whether there was any argument heard at the hearing, if one was held. The
application only contains a bold statement as to the prospects of success. In the
circumstances, the ruling is set aside. I now turn to the third respondent’s
prospects of success if the matter was referred back to the CCMA.
9. On 8 October 1998, the applicant charged the third respondent with thirteen
counts of misconduct. These charges mainly dealt with misconduct such as not
carrying out instructions, delegating instructions to insubordinates where he
should not have done so, making false statements and incompetence.
10. The notice indicated that the disciplinary hearing would be held at 29 and 30
October 1998. On 19 October 1998 the third respondent made an application for
legal representation, indicating that he would be represented by Mtembu
Attorneys. Mnr. Mtembu confirmed that he was instructed in the matter but was
unable to attend the hearing on the scheduled dates and requested a postponement
to dates between 1 and 4 December 1998. The application for a postponement was
formally heard on 29 October 1998 and the matter was postponed to Wednesday,
2 December 1998. A pretrial conference took place on 26 November 1998. Two
days prior thereto, Mr. Mtembu gave notice of his withdrawal as the third
respondent’s attorney of record and it was recorded at the disciplinary hearing that
the applicant would be represented by Mr. R. Bokwa. The hearing was then set
down for 2, 3, 4, 8 and 9 December 1998 and the venue was decided upon.
11. On 2 December 1998, Mr. Bokwa raised an objection to Mr. Dell’s participation
in the case, assisting the prosecutor. The basis of the objection was that Mr. Dell
previously acted on behalf of the third respondent in a disciplinary hearing on
charges of sexual harassment initiated by the third respondent’s secretary. It was
argued that there would be a conflict of interest. Before this issue was finalized
another problem arose. On 3 December 1998 the third respondent was absent form
the disciplinary proceedings. Mr. Bokwa confirmed that his client had contacted
the disciplinary proceedings. Mr. Bokwa confirmed that his client had contacted
him telephonically to previous evening indicating that he was ill and that he would
not be able to attend the disciplinary hearing on 3 December 1998. Upon resuming
of the disciplinary hearing on Monday, 7 December 1998, Mr. Bokwa indicated
that his mandate had been terminated were after he excused himself. Mr. T J
Oksena placed himself on record stating that the third respondent again appointed
Mr. Mtembu of Attorneys Mtembu and Mohammed, to act on his behalf but that
Mr. Mtembu would not be available until February 1999 due to other
commitments. Application was then made on behalf of the third respondent that
the matter be postponed to February 1999. The assistant of the prosecutor, Mr.
Dell, argued that the third respondent was attempting to frustrate the proceedings.
12. The chairman found that the third respondent could not be prejudiced by the
applicant’s representation by Mr. Dell. The objection was consequently turned
down.
13. As far as the application for postponement is concerned, the chairman found that
the third applicant had more than adequate time to instruct an attorney or obtain
proper legal advice and refused the application for the postponement. The
chairman also pointed out that the respondent had not been truthful about his
illness and suggested that he that he be represented by Mr. Bokwa, who was still
prepared to undertake his defense or alternatively that he be represented by a co
employee. This reasoning can not be faulted or criticized and does not constitute
an unprocedural irregularity. It must also be remembered that the third respondent
was the vicerector of administration of the applicant and not an illiterate man who
seriously needed legal representation.
14. The third respondent was found guilty of thirteen charges of misconduct relating,
in some instances to incompetence and in other instances a refusal to carry out
instructions and making false statements.
15. In my view, the third respondent’s prospects of success in succeeding with a
condonation application before another commissioner, are very remote. He also
misled the second respondent. In the circumstances, I substituted the ruling given
by the commissioner, granting condonation with an order that condonation should
not be granted.
16. I have considered whether or not the matter should have rather been referred back
to the CCMA and an application for rescission of the ruling should be made
before the same commissioner. However, on the evidence before, as set out above,
I believe that this was a matter which could be reviewed.
17. However, I am not certain that there is no reasonable prospect that another Court
would come to a different conclusion on this issue. In the circumstances, I grant
leave to appeal in this matter.
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E.
Revelas
17 January 2002