Sneller Verbatim/HVDM
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J1451/00
2002-03-08
In the matter between
MEGWU o.b.o A. KNOX Applicant
and
C.A. DU TOIT (PTY) LTD Respondent
_______________________________________________________________
_
J U D G M E N T
Delivered on 8 March 2002
_______________________________________________________________
_
REVELAS J:
1. The applicant has applied for condonation for a late
referral of a dismissal dispute to the Labour Court.
She claims that she was unfairly dismissed and that the
reason for the dismissal was based on the respondent's
operational requirements. The respondent has placed
the dismissal in dispute and contends that the
applicant had resigned voluntarily.
1. 2. The applicant referred the dispute to the Commission
for Conciliation Mediation and Arbitration (“CCMA”) and
a certificate of outcome was issued on 28 February
2000. The dispute remained unresolved. The applicant
then had to refer a dispute to the Labour Court for
adjudication within 90 days in terms of section 191(11)
of the Labour Relations Act 66 of 1995 (“the Act”).
The applicant only referred her dispute to the Labour
Court on 22 March 2001. The delay is therefore 306
days. The applicant did not apply for condonation
prior to referring the dispute but only did so after
the respondent raised it as a point in limine in
response to the applicant's referral.
3. The Labour Court may condone the late referral of a
dispute, on good cause shown. The factors to be
considered are the degree of lateness, the explanation
for the lateness, the prospects of success and the
importance of the matter and the prejudice to be
suffered. In this regard see Melane v Santam Insurance
Co Ltd 1962 (4) SA 531 (A) at 532CF.
4. In so far as the degree of lateness is concerned, it is
an excessive delay. The applicant waited 10 months
before referring her dispute.
1. 5. Insofar as the explanation for lateness is
concerned, the applicant has placed the blame squarely
on the shoulders of her union. The applicant claims
that her union had a duty to ensure the timeous
referral. The union official in question has deposed
to an affidavit. He avers that the file was lost when
the union moved offices. The files were packed into
boxes and there was no need to unpack the closed boxes
as the files were not in use. However, the matter was
diarised for 1 May in the union's books and the files
were only located on the computer during October,
according to the affidavit.
1. 6. The applicant’s own explanation for not finding the
file before March 2001 is that the filing clerk had to
search through 750 files.
7. I accept the argument of counsel appearing on behalf of
the respondent that this explanation is somewhat far
fetched. It should not take five months to search
through 750 files. The union was negligent. This much
I accept. But the applicant sat by, passively and did
not make any effort to find out how her matter was
progressing.
8. The evidence indicates that since the certificate was
issued, the applicant waited for 13 months before she
acted. It has been held in several cases, that a
litigant may not rely on the laxity of his or her
representative if they just passively by and did
nothing to ensure that the matter proceeds.
9. In my view the applicant has not shown good cause for
the late referral of the dispute. Furthermore the
prospects of success are not dealt with, save for a
bold allegation that her prospects of success are good.
10. In the circumstances I make the following order:
1. The application for condonation for the late referral
of the applicant's dismissal dispute to the Labour
Court is dismissed.
___________________
E. Revelas