IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO.
JR1158/02
In the matter between:
PATRICK KHUMALO
APPLICANT
and
BARGAINING COUNCIL FOR THE
ENTERTAINMENT INDUSTRY OF SA FIRST
RESPONDENT
D J CLAASSEN (Deceased) SECOND
RESPONDENT
THE MAGIC COMPANY (PTY) LTD THIRD
RESPONDENT
__________________________________________________________________
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JUDGMENT
__________________________________________________________________
____________
NDLOVU AJ
[1] The Applicant was dismissed by his former employer (the Third
Respondent herein) on 4 April 2002 after a misconduct enquiry.
He was not satisfied with the dismissal, which he claimed was
both substantively and procedurally unfair. Hence, he referred
the dismissal dispute to the CCMA for conciliation, on the same
date, that is 4 April 2002.
[2] No conciliation process was conducted by the CCMA when it
turned out that the dispute ought to have been referred to the
First Respondent (the Council) which was, presumably, the
accredited council, in terms of Section 127 of the Labour
Relations Act No. 66 of 1995 (the Act), to perform conciliation
functions and under whose registered scope the Third
Respondent’s industry fell.
[3] By the time the Applicant finally referred the dispute to the
Councils it was already late by 27 days, according to the
Applicant’s calculation. In his Statement of Claim, he did not
specify the exact date on which he referred the dispute to the
First Respondent. The Council, however, calculated the lateness
as being 24 days, alleging that the dispute was referred to it on
27 May 2002. This was also confirmed by the conciliator (the
Second Respondent herein) in his ruling, which is the subject of
this review.
[4] In the ensuing application for condonation of the Applicant’s late
referral of the dispute for conciliation, the Second Respondent
gave a ruling whereby he declined the condonation application.
It is against this ruling that the Applicant seeks an order
reviewing and setting it aside. The Second Respondent has
since passed away.
[5] The Applicant contended that he referred the dispute to the
CCMA on 10 April 2002, which was within the 30 days’ period
provided for in the Act. He said he completed the referral forms
which he had taken to Ms Debbie Pauw, the Third Respondent’s
Human Resources Manager, for her attention. He further alleged
that at the time that he took the forms to Miss Pauw, the latter
was on leave, which resulted to the referral forms lying on her
desk for about two weeks.
[6] According to the Applicant, when Ms Pauw eventually attended to
the forms she had then pointed out to him that he ought to have
referred the forms to the First Respondent and not the CCMA.
When he came to the Council’s offices he had encountered a
further delay which was occasioned by the fact that the Council’s
agent, Mr Maleka, to whom he had been referred for assistance in
terms of filling in the forms, was on sick leave. He claimed that
he had prospects of success in the main application.
[7] The Third Respondent opposed the application. Ms Debbie
Pauw, referred to above, deposed to the answering affidavit on
behalf of the Third Respondent. She admitted, among other
things, that the Applicant approached her with the referral forms.
She had then referred him to the Council. She denied that the
referral papers lay on her desk for two weeks as alleged by the
Applicant. However, she did not specifically deny that at some
point she was on leave when the Applicant might have initially
approached her with the referral forms. She denied that the
Applicant had any prospects of success in his main application.
[8] The Court is empowered to entertain this application in terms of
Section 158(1)(g) of the Act.
[9] In an application for condonation the Court has a discretion,
which it must exercise judiciously. Further, the factors which
must be taken into account when considering the application are
now settled law. In the well-renown case, Melane v Santam
Insurance Co Ltd 1962(4) SA 531(A), the Appellate Division
held as follows:
“In deciding whether sufficient cause has been shown, the basic
principle is that the Court has a discretion, to be exercised
judicially upon a consideration of all the facts and in essence it is
a matter of fairness to both sides. Among the facts usually
relevant are the degree of lateness, the explanation therefor, the
prospects of success, and the importance of the case. Ordinarily
these facts are interrelated: they are not individually decisive, for
that would be a piecemeal approach incompatible with a true
discretion, save of course that if there are no prospects of
success there would be no point in granting condonation. Any
attempt to formulate a rule of thumb would only serve to harden
the arteries of what should be a flexible discretion. What is
needed is an objective conspectus of all the facts. Thus a slight
delay and a good explanation may help to compensate for
prospects of success which are not strong. Or the importance of
the issue and strong prospects of success may tend to
compensate for a long delay. And the Respondent’s interest in
finality must not be overlooked. I would add that discursiveness
should be discouraged in canvassing the prospects of success in
the affidavits”. (at 532 C - F)
[10] What purports to be the Second Respondent’s Ruling are notes
covering some 4½ pages of a Bench pad. The heading of the
covering some 4½ pages of a Bench pad. The heading of the
notes reads: “My reasons for not granting condonation”. They
are in manuscript form. There is no signature or name appended
at the end of the notes. I would assume that the intention was
to have the notes typed and then signed by the Second
Respondent. Otherwise there would have been no sense in
Second Respondent writing the Ruling and not signing it at the
same time. This situation poses a problem for the Court in
accepting an unsigned ruling.
[11] In the same way as an arbitration award, it seems to me that
where a conciliator has made a Ruling of the nature as in the
present case, such Ruling must be transcribed (See Rule 7(A)(5)-
(7)) and be signed by the maker thereof. (See Section 138(7)(a)
of the Act). However, the Second Respondent is now deceased.
Therefore, although the Ruling could be transcribed, it would still
remain unsigned. In this regard, the Council submitted a copy of
its letter dated 9 July 2002 addressed to the Applicant, whereby
the Council sought to amplify the Second Respondent’s Ruling
and his reasons therefor. In my view, this attempt or effort by
the Council is not permissible. To the extent that the letter
purports to verify the Second Respondent’s reasons for his
Ruling, this is inadmissible hearsay evidence.
[12] Although I have no reason to disbelive the averment that the
Second Respondent has since passed away, the informtion of this
kind should be brought to the Court’s attention in a formal
manner. For instance, one would have expected that such
submission was accompanied by the death certificate of the
Second Respondent.
[13] In the light of the circumstances of this case I decided, however,
to proceed and deal with the application on the basis of the
papers presented before me, which I propose to do presently.
The degree of lateness:
[14] It is common cause that the Applicant was dismissed on 4 April
2002. The 30-day period envisaged in Section 191(1)(b),
therefore, expired on 4 May 2002. According to both the Council
and the Third Respondent the referral to the Council was made
on 27 May 2002. The Applicant did not indicate his version in this
regard. The referral forms themselves were not in the Court file.
[15] I am inclined, therefore, to accept the Council’s and the Third
Respondents’ version that the referral to the Council was made
on 27 May 2002. However, I find the degree of lateness to be 23
days, and not 24 days, as submitted by the Council and the Third
Respondent. The Applicant alleged that the lateness was 27
days, which was way out. In any event, without indicating the
date when he delivered the referral to the Council, it is not
possible to discern how he came to determine 27 days lateness.
[16] It is not disputed that the Applicant initially delivered,
erroneously, the referral forms to the CCMA, instead of the
Council. In his Statement of Claim he stated that this was on 10
April 2002. However, in his ruling, the Second Respondent held
that the Applicant referred the dispute to the CCMA on 4 April
2002, the date of the dismissal. Further, according to the Second
Respondent’s ruling, on the same day (that is, 4 April 2002) the
Applicant approached Ms Pauw with the referral forms.
[17] The Applicant averred that the factors which contributed to him
referring the dispute late to the First Respondent included the
following:
17.1 The initial erroneous referral to the CCMA, already mentioned
above.
17.2 Ms Pauw being on leave when the Applicant delivered the CCMA
referral to her, thus causing a 2 weeks’ delay of the referral
forms lying on Ms Pauw’s desk.
17.3 The Council’s agent, Mr Maleka who was to have assisted the
Applicant in completing the referral forms and who was
reportedly on sick leave when the Applicant went to see him.
17.4 The Applicant had an “ongoing eye infection” which presented an
“acute” condition during the relevant period of the referral.
[18] In his ruling, the Second Respondent’s appeared to have relied
on the information he apparently gathered from Ms Pauw and Mr
Maleka. However, the ruling did not reflect whether these two
persons testified before him (the Second Respondent) or whether
someone told him that such were the versions of Ms Pauw and Mr
Maleka. For instance, the Second Respondent stated that:
“(Ms Pauw) informed him (the Applicant) that there is a
Bargaining Council and that this office has jurisdiction to deal
with disputes arising in the industry”; and that “Agent Maleka
also explained to the Applicant that the application for referral of
dispute has to be served on the employer within 30 days .....”.
[19] It is not clear, ex facie the ruling how Ms Pauw so informed the
Second Respondent and how Mr Maleka so explained to the
Applicant”. The Second Respondent further recorded that Mr
Maleka denied the Applicant’s allegation that he (the Applicant)
tried on at least two occasions to contact Mr Maleka on his
cellphone, but in vain. Again, it is not clear how such denial was
obtained from Mr Maleka. In any event, it was not reflected in
the Ruling why the Applicant’s allegation was rejected and
Maleka’s denial accepted.
[20] The Applicant’s alleged eye infection testimony was also
rejected, apparently for the reason that he could not produce
“sick notes” from the doctor or hospital. However, there is no
suggestion that the Applicant claimed to have gone to hospital or
seen a doctor for his eye ailment.
The prospects of success:
[21] The Applicant was charged with 6 counts of misconduct, namely
(as cited from the Ruling):
21.1 Disorderly behaviour;
21.2 Inciting arguments and fights at work;
21.3 Insolence/Rudeness to Management;
21.4 Abusive language;
21.5 Undermining the labour relationship;
21.6 Sabotaging of work in that he allegedly copied invoice numbers
incorrectly and handed them to the data capture for processing.
[22] According to the Second Respondent’s Ruling, the Applicant was
convicted on all charges except on the charge relating to “foul
language”, which was count 4. To the contrary, however, the
Third Respondent, in its answering affidavit, alleged that the
Applicant was only acquitted on the charge of “Sabotage” (Count
6). Furthermore, the Third Respondent averred that there were
in fact 7 charges with which the Applicant was arraigned, the
seventh one being the “Alleged refusal to work co-operatively
with his colleagues and management”. However, the Ruling was
silent about this charge.
[23] With the exception of “Sabotage”, there was absolutely no hint
whatsoever in the Ruling of how the offences were allegedly
committed by the Applicant. What is there are only the names or
nature of the so-called misconduct offences. Accordingly, on the
basis of the Ruling, it is not possible to know how the issue of
prospects of success was determined.
[24] At the end of the Ruling the Second Respondent made what
appears to be a conclusive pronouncement:
“The Applicant will not be successful if condonation is granted”.
I do not understand on what basis the Second Respondent
reached that conclusion. Besides, he was not competent to
prejudge the final outcome of the dispute. This fell outside of his
domain. He, therefore, acted ultra vires his powers in this
regard. In my view, what he said did not relate to the issue of
prospects of success, but he went beyond and prejudged the final
outcome of the matter.
The importance of the case to the parties:
[25] There is no doubt that the case is particularly important to the
Applicant, who lost his employment and, therefore, his source of
income from which he supported himself and his family.
[26] The fact that the Applicant referred the dispute (albeit
erroneously) to the CCMA on 4 April 2002, being the very date of
his dismissal and thereafter referring the CCMA referral forms to
Ms Pauw on the same day (in terms of the Second Respondent’s
Ruling) is, to me, a clear indication of how serious and important
the Applicant regarded this case.
Perejudice to either party:
[27] Ordinarily, a party to a dispute is entitled to be heard before his
or her fate in the dispute is determined. This is the position
under common law (the audi alteri partem rule) and the
Constitution of the Republic of South Africa Act 108 of 1996.
[28] On the contrary, the Third Respondent conceded that it would
suffer virtually no prejudice if the condonation application was
granted. In this regard, the Third Respondent, in its letter of 9
July 2002 (referred to above) stated:
“With regard to the prejudice to the other party, Ms Pauw
confirmed that her witnesses involved with this particular matter
are all still in the employ of the Magic Company (the Third
Respondent). The only possible prejudice that the company
could experience would be the costs involved should the matter
proceed to arbitration or Labour Court”. ( the penultimate
paragraph).
[29] The Third Respondent’s alleged potential prejudice would only
relate to a legal cost factor which, in my view, is not comparable
to the prejudice already suffered by the Applicant and further
prejudice he stood to sustain if the application was declined.
[30] Having analysed the Second Respondent’s Ruling aforegoing, I
am of the view that it was not rationally justifiable in relation to
the reasons the Second Respondent gave therefor and on the
basis of the material presented before him. For instance, ex
facie the papers before me, he appeared to have considered
matters which were hearsay, as alluded to above. (See:
Carephone (Pty) Ltd vs Marcus N.O. and Others. [1998] 19 ILJ
1425 (LAC), at 1435 E-F).
[31] It is also remarkable that the Third Respondent does not seem to
have come to Court with clean hands. The Applicant appears to
have filed his Notice in terms of Rule 7A(8)(b) on 2 September
2002, whereby the Applicant stated that he stood by his notice of
motion. There is no indication when this notice was served on
the Third Respondent by the Applicant. It would, therefore, not
be possible to compute the time limit by which the Third
Respondent was required to file its answering affidavit, in terms
of Rule 7A(9). However, by its even conduct, it is apparent that
the Third Respondent filed its answering affidavit out of time too.
[32] With respect to paragraph 4.1 and 4.2, in particular, of the Third
Respondent’s answering affidavit, I do not think that the Third
Respondent was assisting the Court in any way by referring, for
instance, to being “a few days late”, when it knew, or ought to
have known, how many days late it was in its filing of the said
answering affidavit. I cannot comprehend why the Third
Respondent did not state the precise date it received the Rule
7A(8) Notice, to enable the determination of the degree of its
lateness. All that is known is that the Third Respondent filed its
answering affidavit on 18 September 2002, which would be 6
days late, if it received the Rule 7A(8) Notice on 2 September
2002, because in terms of Rule 7A(9) the answering affidavit
would have had to be filed within 10 days from 2 September.
[33] I do not know whether the Third Respondent did not regard it as
hypocritical and unfair on its part when it saw fit to oppose its
opponent’s application for condonation of late filing of a court
process, which opposition was itself filed late (by the Third
Respondent) and no condonation application therefor having
been properly made (by itself) before the Court. Indeed, no
cogent explanation for its lateness has been submitted, save to
say that the “Third Respondent has had to conduct a search for
information relevant to this matter and (that) this exercise has
taken a number of days to complete”. To my mind, this was a
vague explanation. It was only intended to evade explaining the
real reason for the lateness.
[34] Having considered the application, I make the following order:
34.1 The Second Respondent’s Ruling in Case No. 0064/02 whereby
the Applicant’s application for condonation of his late referral of
the dispute to the Council, for conciliation, was declined, is
hereby reviewed and set aside; and substituted therefor with the
following:
“The application for condonation is granted”.
34.2 The Applicant is granted leave to refer the dismissal dispute to
the Council, for conciliation, within 30 (thirty) days from the date
of this Order.
34.3 There is no order as to costs.
______________
NDLOVU AJ
Appearances:
For the Applicant : In person
For the Third Respondent: Mr F A Ponelis
Date of Hearing : 26 March 2003
Date of Judgment : 14 April 2003