IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case No. JS3256/98
In the matter between:
NATIONAL UNION OF METAL WORKERS OF SA First
Applicant
S KHOZA & 9 OTHERS
Second/Further Applicants
and
PIPE SPECIALS CC
Respondent
J U D G M E N T
NTSEBEZA AJ:
1. In its founding affidavit, the deponent representing the First Applicant,
David Cartwright, states that the individual Applicants, S Khoza and Nine
Others, were retrenched on 23 July 1998. This case therefore is about an
alleged dismissal based on operational requirements. The First Applicant
declared a dispute and referred the matter for conciliation on 3 July 1998.
A conciliation was conducted, and in a certificate of outcome issued by the
CCMA on 27 August 1998, the dispute was recorded as one that remained
unresolved as at that date.
2. More than a year later, on 16 September 1999, the dispute was referred to
this Court. On 21 September 1999, the Respondent filed its intention to
oppose the application and its response to the Applicants’ statement of
claim. Almost another year went by before the Applicants filed an
application for condonation on or about 18 September 2000, an application
which was opposed by the Respondent in its answering affidavit filed on
28 September 2000. The Applicants do not seem to have ever filed a
replying affidavit. This is therefore an opposed application for condonation
of the late referral of the dispute to this Court in which on 18 July 2002,
about four years from the date of retrenchment of the individual Applicants,
Ms Craven appeared for the Applicants with Ms Anderson opposed the
application on behalf of the Respondent. There is no dispute about the
fact that this matter has been referred to this Court well beyond the period
of 90 days allowed for such referral in terms of section 191(11)(a) of the
Labour Relations Act, 66 of 1995 (“the Act”).
3. This Court and the Labour Appeal Court have held that an Applicant, in
order for condonation to be granted, must show good cause . Both Courts
have followed the approach encapsulated in the speech made by Holmes
JA in Melanie v Santam Insurance Company Limited 1962 (4) SA 531 (A)
at 532CF, in which the Court held that the facts that the Court usually
takes into account in a judicial exercise of its discretion are the degree of
lateness, the explanation thereof, the prospects of success, and the
importance of the case. Condonation will not be granted if the Applicant
has shown wilful or reckless disregard of the requirements of the rules of
Court or of a statute. Where an Applicant either does not explain default
or does so unsatisfactorily, condonation will not be granted. These Courts
have gone so far as to say that in such circumstances, there is not even a
need to examine prospects of success. See NUM v Council for Mineral
Technology [1999] 3 BLLR 209 (LAC) at para [10]; NUM and Others v
Western Holdings Gold Mine (1994) 15 ILJ 610 (LAC) at 613E; NEHAWU
v Nyembezi [1999] 5 BLLR 463 (LAC) at 465J466A; Waverley Blankets
Ltd v Ndima and Others, Waverley Blankets Ltd v Sithukuza and Others
(1999) 20 ILJ 2564 (LAC), at para [11] and the further authorities cited
thereat.
DEGREE OF LATENESS OF REFERRAL
4. Ms Craven did not seek to mislead the Court by endeavouring to argue
spurious grounds for contending that the degree of lateness was not
excessive. It is almost a year late when, in terms of section 191(11)(a) the
dispute ought to have been referred to this Court before or on 25
November 1998. The application for condonation, as I have stated above,
was itself filed more than 12 months after the statement of claim, which
therefore makes the application for condonation to have effectively been
filed almost two years after the date on which the referral was due.
Indeed, Ms Anderson, for the Respondent, argued that even though the
matter was postponed sine die on 18 June 2001, there is no indication on
the Court file that the Applicants requested the Registrar to enrol the
matter for hearing. As it is, so argued Ms Anderson, the matter was
enrolled for hearing at the instance of the Respondent. Her submission, in
this regard, was that since the matter was postponed on 18 June 2001, a
further 12 to 13 months have gone by without the Applicants doing
anything positive to have the matter heard. As indeed Ms Anderson
argued, it is now almost four years since the date of the alleged unfair
retrenchment of the employees, and that in itself is an excessively long
period to resolve a dispute when it is clear, on the authorities, that in
disputes that arise within the framework of labour relations, there is a need
for an expeditious resolution thereof. See Queenstown Fuel Distributors
CC v Labuschagne N.O. & Other [2000] 1 BLLR 45 (LAC) at para [25].
5. Indeed, this Court in Ntshangane v Speciality Metals CC (1998) 7 LC
1.11.2 BLLR [4], stated that “… one of the purposes of the Act is the
effective dispute resolution of labour disputes. An important facet of
this object is finality.” (per Mlambo J)
APPLICANTS’ EXPLANATION FOR LATENESS
6. The Applicants’ explanation consists of an unsubstantiated claim that after
making an application for a case number, no response was forthcoming
from the Registrar of this Court which therefore made it impossible for
them to refer the matter. The Applicants have provided no proof of their
application in the prescribed manner for a case number as contemplated in
Rule 3 of the Rules of this Court. In the affidavit filed by David Cartwright,
the Unions legal officer, reference is made to one Mrs Jennifer Joni who
allegedly applied for the case number in question. No affidavit has been
filed by Mrs Joni, neither are there any copies of the letters which Mrs Joni
alleged sent to the Registrar requesting a case number and to which she
received no response.
7. No explanation is given in Mr Cartwright’s affidavit as to what the attempts
were that were allegedly made and there is no specific reference to dates
on which attempts were allegedly made to obtain the case number from 29
October 1998. In fact, as I indicated above, in argument before me, Ms
Craven took the honourable option of not following the explanation given
by Mr Cartwright in his affidavit, such as it was. She conceded that the
explanation by the Applicants clearly showed that they were negligent but
she contended that there was no wilful negligence on their part. She then
went on to implore me to take into account that the Labour Court is a Court
of fairness and equity, and that in my endeavour to strike a balance in
considering which of the two parties before me would be more prejudiced
than the other were the application for condonation to fail, I should come to
the conclusion that the balance favours the Applicants and on that account
alone I should grant the application for condonation.
8. She passionately made the point that it is important for me to consider
that the opportunity for her clients to state their case should not be
jeopardised by a procedural step that was unfortunately, if inexplicably, not
correctly taken by the Applicants. Indeed, she argued, the Applicants
themselves were let down by their representatives
9. If it was by pleas alone, and by passion particularly, that I should be
persuaded to decide this issue, I have no doubt that Ms Craven did the
best that she could on behalf of her clients. I do not think anybody could
have ably represented them to the extent that she did. Unfortunately, I
have to give regard to the tests and the approaches of this and the other
Courts when considering an issue such as the present one. Firstly, where
there has been no explanation, let alone a reasonable explanation, the
authorities referred to hereinabove seem to be clear that no condonation
can be granted. Secondly, the Court above has stated that there is a limit
to the extent to which the party can rely on the conduct of his or her
representatives for failure to comply with the Rules of this Court. See
Allround Tooling (Pty) Ltd v NUMSA (1998) 7 BLLR 932 (LAC) at [10].
Indeed, in the Waverley Blankets case , supra, the Labour Appeal Court
confirmed that gross negligence by a party’s attorney/representative
cannot be condoned, even when the clients themselves are blameless. I
am not even persuaded that in this case the clients themselves are
blameless.
10. Not only has there been no explanation as to why it took a year for the
condonation application to be filed, there is no replying affidavit on the
basis of which I could assess whether there are prospects of success in
the main action. As things stand, I can only proceed on the basis of the
answering affidavit by the Respondent in which there is very strong
resistance to this matter proceeding, it being the Respondent’s case that it
will be a fruitless exercise precisely because, in its considered view, there
are no prospects of success in the action in which, amongst other points
made by the Respondent, two shop stewards of the First Applicant had
proceeded to enter into negotiations and consultations with the
Respondent because they had become disillusioned with the
representation that they were receiving from the First Applicant. This
statement, standing uncontradicted, because no affidavit in reply has been
filed, already creates a problem for any argument by the Applicants that
they have good prospects of success, even if I were to be persuaded that
the authorities are wrong that say where no reasonable explanation or
none at all is given, it is not even necessary to consider whether or not
there are prospects of success. In any event, I am not persuaded that the
authorities are wrong.
11. I therefore conclude that the Respondent is entitled to finality and should
not be prejudiced as a result of the delay by the Applicants. I also
conclude that the objective of a speedy and effective resolution of labour
related matters in terms of the Labour Relations Act will be frustrated and
compromised if Applicants are allowed the luxury of doing nothing about
their matter for a period of almost four years, and almost as a whim, and
only in response to the Respondent taking the initiative to set the matter
down for hearing, insist that they are entitled to the relief that the present
Applicants seek. Whilst this Court is particularly keen, in the interests of
justice and fairness, to see that there is fair play, especially with regard to
employees who generally are engaged, in my view, in an unequal struggle
with employers, a situation, however, cannot be tolerated where parties,
almost with impunity, and almost as an entitlement, appear to wilfully
disregard the Rules of this Court, a Court that was primarily set up to be of
assistance to many workers who are always at the receiving end of
unscrupulous employers. It would not be justice if, for the reason alone
that these employees would not have an opportunity to state their case,
that they can hope to do so even in circumstances where they disregard
the Rules that should get them to the stage where they can have their day
in Court. There would be chaos, not only in society, but also in the manner
in which these Courts, already sagging under the heavy load of labour
disputes, have to dispense with justice and fairness.
12. I am satisfied that the Applicants have not shown a good cause for
condonation to be granted and the application is accordingly dismissed
with costs.
___________________________
D B NTSEBEZA
ACTING JUDGE OF THE
LABOUR COURT
Date of hearing: 18 July 2002
Date of Judgment: 5 August 2002
For the Applicants: MS CRAVEN
National Legal Officer
NUMSA
For Respondent: MS ANDERSON
Instructed by STEMMETT & COETSEE INC.