REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN JOHANNESBURG
CASE NO J2927/2000
In the matter between:
MERLEA GREENS Applicant
and
CCMA - PIETERSBURG First Respondent
GERHARD LOMBAARD Second
Respondent
WILLEM FOUCHé Third
Respondent
ON BEHALF OF APPLICANT MR J L PIENAAR
ON BEHALF OF RESPONDENT MS BEAN
TRANSCRIBER
SNELLER RECORDINGS (PROPRIETARY) LTD - DURBAN
J U D G M E N T
GERING AJ
[1] By agreement between the parties the applicant's application
for review in terms of section 145 of the Labour Relations Act,
Act 66 of 1995 (hereinafter referred to as the Act) and the
respondent's application to have the arbitration award made
an order of Court in terms of section 158(1)(c) would be
argued together.
[2] Prior to the hearing of the review it was necessary to have
argument on the question of condonation and I heard this in
Johannesburg on 29 April 2002, after which I reserved
judgment.
[3] There is a bundle relating to the application in terms of
section 158, which has been numbered "A" and there is a
further bundle relating to the review application which has
been numbered "B". Page references to these bundles will be
denoted by capital letter "A" or capital letter "B" followed by
the relevant page reference.
[4] The award dated 3 April 2000 appears in A7-A13. In this
award the CCMA Commissioner ordered the employer, Merlea
Greens to pay compensation to the employee, Willem Fouché,
having held that the employee had been unlawfully dismissed
without any compliance with the provisions of the Act.
[5] I may mention that in the bundle of documents, B86 and B92,
the applicant is described as the fifth largest producer of green
beans in South Africa, having a staff of some 60 people. The
co-owners of the firm are Mr and Mrs Strathearn.
[6] I may mention that the correct procedure for a party to adopt
against whom an award has been made, is to apply to court to
stay the execution of the award. See the case of Siyakha
Cleaning Services CC v Ndlanga [2002] 5 BLLR 482 at 483
(para.4) In the Notice of Motion filed in these matters no such
application was made.
[7] The principles governing the grant of condonation for late
compliance with the rules are set out in Melane v Santam
Insurance Company Limited 1962(4) SA 531 (A) at 532. This
was followed in the Labour Appeal Court case of Mziya v
PUTCO Limited [1992] 2 BLLR 103 [LAC] at 106-107. See also
the case of United Plant Hire (Pty) Limited v Hills 1976(1) SA
717 (A) at 720.
[8] In addition the following authorities are relevant.
"In the absence of an acceptable explanation for non-
compliance with the rules of Court, condonation will not be
granted."
See Allround Tooling (Pty) Limited v NUMSA [1998] 8 BLLR 847
at 850 (para.10).
[9] In Classiclean (Pty) Limited v CWIU [1999] 4 BLLR 291 at 293
(para.6) the Labour Appeal Court stated:
"In the recent past this Court has had to deal with a depressing
and monotonous number of matters where the failure of
practitioners and the parties to adhere to the rules has come
to the fore. In my view the rules are drafted in simple,
understandable language. They provide procedures to deal
simply and inexpensively with problems such as those that
arose in this matter. Failure to adhere to them will be viewed
with an increasingly jaundiced eye in the future."
[10] In CWIU v Ryan [2001] 3 BLLR 337 at 340 PILLAY J stated:
"While there are many similarities about the practice in the
High Court and the Labour Court, there are some important
differences. A significant difference is the acknowledgment by
the Legislature that labour disputes must be resolved
effectively. [Section 1(d)(iv)] That is not to suggest that
disputes in the High Court are not resolved effectively. What it
means is that there are special considerations that apply to
labour disputes that may not apply to other disputes."
Then again at page 342 (para.36):
"Of late proceedings in this court are too frequently prefaced
by applications for condonation. Rather than being an
exceptional procedure, it is fast becoming a standard practice.
More often than not, fault rests with the representatives and
not the litigants personally. This is posing an unnecessary
burden on the Labour Court and its diminishing resources. The
time has come when such representatives should not be
allowed to go unscathed for their own sins."
[11] In the present case the award dated 3 April 2000 was received
by the employer/applicant for condonation on 20 April 2000.
The last day of the six-week period was 1 June 2000. The
application for review and condonation was made on 3 August
2000. It is common cause that the application is 64 days late,
in other words just more than nine weeks (or two months).
This is a substantial period and requires a full and proper
explanation for the entire period of the delay in question.
[12] No explanation is given in the very scanty application for
condonation, either by the applicant herself or her attorney,
for the delay from 25 April 2000, when she saw her attorney,
until 29 May 2000 when she left for the United Kingdom.
[13] No explanation is given either by herself or by her attorney as
to why her full details could not be obtained by phone, letter or
fax. Furthermore, no explanation has been given either by her
or by her attorney for the period after her return on 21 June
2000 until the consultation was held on 28 July 2000.
[14] The applicant herself seems very articulate and capable of
writing detailed letters and memoranda. (See B15-B22).
[15] Already on 18 May 2000 she had been advised to approach
the Labour Court. (See B12) It appears that her application
for review and condonation only came after the application to
make the award an order of Court in terms of Section 158 had
been served on her on 17 July.
[16] No explanation has been given by the applicant's attorney that
he informed the applicant of the time limits applicable.
[17] The affidavit in support of the condonation (B7-B8 and B133-
B134) is very inadequate and thin in detail.
[18] At the hearing the applicant attempted to rely on a later
affidavit which was filed after the matter had come to court,
namely on 2 April 2002. In my view this affidavit should not be
admitted but in any event it is extremely thin and does not
give any adequate explanation in response to the periods
mentioned above, nor as to why it was necessary to wait to
have a consultation with counsel and that nothing could be
done prior to that.
[19] In the exercise of my discretion I hold that the condonation of
64 days, which has been inadequately explained, should not
be condoned.
[20] In my view the employee is entitled to have the award granted
on 3 April 2000 made an order of Court pursuant to the
application in terms of section 158(1)(c). I accordingly so
order.
[*Sgd] GERING AJ
ACTING JUDGE LABOUR COURT
31/7/2002