REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN JOHANNESBURG
CASE NO J3492/1999
In the matter between:
J J HOLTZHAUSEN Applicant
and
NKOSINATHI MASEKO N.O. First Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second
Respondent
DURA PILING (PROPRIETARY) LIMITED Third
Respondent
ON BEHALF OF APPLICANT MR M. A. KRUGER
ON BEHALF OF RESPONDENT MR M. C. J. VAN
RENSBURG
TRANSCRIBER
SNELLER RECORDINGS (PROPRIETARY) LTD - DURBAN
J U D G M E N T
GERING AJ
[1] This is an application for the review and setting aside of a
decision made by the first respondent, a commissioner under
the auspices of the CCMA [the second respondent] whereby
the applicant's application for condonation was refused.
[2] I shall refer to the first respondent as the commissioner.
[3] There is a paginated bundle which I refer to as "B" and page
references in the bundle will be denoted by the capital "B"
followed by the relevant page reference.
[4] The commissioner's ruling on condonation appears in B42. On
B44 the application for condonation was dismissed.
[5] The commissioner's ruling was not an award and accordingly the
relevant provision of the Labour Relations Act 66 of 1995 [the
Act] is not section 145 but is section 158(1)(g).
[6] The applicant wrongly states that what took place was a
conciliation. See B48, para 2.1, where he states that the first
respondent presided in a conciliation hearing. The true
position is that this was not a conciliation hearing but was an
application for condonation of the late referral to conciliation.
Accordingly it was perfectly legitimate for there to be legal
representation, which would have been excluded had this
been a conciliation.
[7] The applicant was retrenched on 20 March 1998, the dismissal
being based on the operational requirements of third
respondent [the employer].
[8] In terms of section 191(1) of the Act the employee had thirty
days from the date of the dismissal to refer the matter in
terms of the Act. Section 191(2) permits the employee to refer
the dispute after the thirty day period has expired, provided
that the Court grants condonation.
[9] More than one year later, on 8 April 1999, the dispute was
referred to the CCMA. [See B42]
[10] It is clear that this was an inordinate delay and the question
arises whether, in the exercise at my discretion, the long delay
should be condoned. It is not necessary to set out the well-
known statements from the Melane v Santam Insurance
Company Ltd 1962(4) SA 531 at 532 or the more recent
Appellate Division case of United Plant Hire (Pty) Ltd v Hills
1976(1) SA 717 at 720. Both these are judgments of HOLMES
JA, which make it clear that the question is one where the
Court has a discretion to be exercised judicially upon a
consideration of all the facts. See also Mziya v PUTCO Ltd
[1999] 2 BLLR 103 (LAC) at 106-7.
[11] In the case of Saloojee v Minister of Community Development
1965(2) SA 135(A) the Court stated that:
"There is a limit beyond which a litigant cannot escape the
results of his attorney's lack of diligence or the insufficiency of
the explanation tendered. To hold otherwise might have a
disastrous effect upon the observance of the rules of this
Court."
[12] In Queenstown Fuel Distributors CC v Labuschagne N.O. [2000]
21 ILJ 166 at page 174, (see paras.24 and 25 of the judgment),
the Labour Court of Appeal stated that:
"Condonation in the case of disputes over individual dismissals
will not readily be granted. The excuse for non-compliance
would have to be compelling. The case for attacking a defect
in the proceedings would have to be cogent and the defect
would have to be of a kind which would result in a miscarriage
of justice if it were allowed to stand. By adopting a policy of
strict scrutiny of condonation applications in individual
dismissal cases, I think that the Labour Court would give effect
to the intention of the Legislature to swiftly resolve individual
dismissal disputes by means of a restricted procedure and to
the desirable goal of making a successful contender after the
lapse of six weeks feel secure in his award."
[13] That was a case where the six weeks period applied and it was a
case where there had already been an award, but mutatis
mutandis these principles apply to the situation here. The
purpose of the Labour Relations Act is to try to ensure the
swift resolution of individual dismissal disputes. Here we have
the case of an individual dismissal dispute. It seems to me
that I cannot say that the excuse for non-compliance in the
present case is "compellng" or that there is a reasonable and
acceptable explanation for the delay of more than one year
beyond the normal time limit.
[14] In the case of Allround Tooling (Pty) Ltd v NUMSA [1998] 8 BLLR
847 at 850 the Labour Appeal Court stated:
"In the absence of an acceptable explanation for non-
compliance with the rules of Court, condonation will not be
granted."
[15] In the case of CWIU v Ryan [2001] 3 BLLR 337 at 340, PILLAY J
stated:
"While there are many similarities about the practice of 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. 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."
And on page 342 she went on to state:
"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 with 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."
[16] In the case of Classiclean (Pty) Ltd v CWIU [1999] 4 BLLR 291 at
293, the Labour Appeal Court stated that:
"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 have 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 future."
[17] In the present case it is clear that the applicant for condonation
has a remedy in claiming damages from his original attorney
Mr Levin who has made an affidavit appearing in the bundle of
papers (see B34/35), in which he admits that it is clearly his
fault, and I was informed when the matter was argued before
me that litis contestatio has already been reached in the
proceedings brought in the High Court by the applicant against
his former attorney.
[18] Furthermore, it is clear from the papers that the applicant
became aware on 5 March 1999 that no referral had been
made to the CCMA. Nevertheless a further period of more than
thirty days lapsed until the application for referral, which was
made on 8 April 1999. There is no explanation at all for this
further delay.
[19] It is clear also from the papers (see B8 para.29) that the
applicant's daughter was an attorney in the firm of Smith
Tabata & Company and it would have been a simple matter for
the applicant to inquire from his daughter as to what the
relevant provisions of the Labour Relations Act were.
[20] On a consideration of the matter it seems to me that there is no
clear indication that there were prospects of success in favour
of the applicant.
[21] In my judgment the ruling on condonation in which the
application for condonation was dismissed by the second
respondent should be confirmed and, accordingly, the
application for condonation is refused with costs.
[*Sgd] GERING AJ
31/7/2002
ACTING JUDGE LABOUR COURT