IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN CASE
NO.JR502/01
In the matter between:
SOUTH AFRICA TRANSPORT AND ALLIED
WORKERS UNION O.B.O SIMEON SIMELANI
APPLICANT
And
NATIONAL BARGAINING COUNCIL FOR
THE ROAD FREIGHT INDUSTRY FIRST
RESPONDENT
THE DISPUTE COMMITTEE OF COUNCIL SECOND
RESPONDENT
W. K. VAN DER MERWE TRANSPORT THIRD
RESPONDENT
JUDGMENT
ZILWA AJ
INTRODUCTION
1. This is an application brought in terms of section 158 (1) (g) of the Labour
Relations Act no. 66of 1995 ( Athe Act @), for the review and setting
aside of the ruling made by the second respondent under the
auspices of the first respondent on the 13 th March 2001, in
terms of which the second respondent refused to grant
condonation to its member, SIMEON SIMELANI ( Athe
employee@) for the late referral of the dispute to the first
respondent in terms of section 19(2) of the Act.
The third respondent opposed the application.
2. The court was asked to determine whether, on the facts and applicable law, the
second respondent has failed to apply its mind properly when it considered the
applicant=s application for condonation that was placed before it.
BACKGROUND FACTS
3. The employee was dismissed by the third respondent on the 28 th September
2000. The employee then approached the applicant with a view
to pursue the matter in terms of the dispute resolution
mechanism.
4. The applicant referred the dispute to the Commission for Conciliation Mediation
and Arbitration ( Athe CCMA @) on the 27 th October 2000.
5. On the 14 th November 2000 the applicant received a letter from
the first respondent dated the 1 st November 2000 stating that
the dispute is required to be referred to the first respondent
being the appropriate Bargaining Council that has jurisdiction in
the matter.
6. The applicant referred the dispute to the first respondent on the 22 nd
November 2000 without an application for condonation for the
late referral thereto.
7. On the 7 th December 2000 the first respondent addressed a
letter to the applicant advising, inter alia, that the applicant must
apply for condonation, and a requisite application form was
attached thereto with the instruction that it must be completed
by the employee in detail. This letter was apparently received
by the applicant on the 21 st December 2000.
8. The application for condonation, in a form of an affidavit, was submitted by the
employee to the first respondent under cover of the applicant =s attorneys of
record on the 15 th January 2001.
9. The second respondent considered the employee =s application for
condonation on the 13 th March 2001 and was refused by
second respondent. It concluded, from the facts presented
before it, that the employee failed to explain the delay in the
referral of the matter to it, that the applicant was clearly
negligent in not correctly referring the matter, and in particular
the prospects of success had not been adequate dealt with.
FACTS PRESENTED BY THE APPLICANT TO THE FIRST
RESPONDENT
10. In his affidavit in support of his application for condonation the
employee stated the date of dismissal (28 September 2000),
the date of referral of the matter to the CCMA (27 October
2000), the date on which the applicant received the letter from
CCMA (14 November 2000) and the date on which the dispute
was referred to the first respondent (22 November 2000).
11. It further stated that as at the referral date the matter was
already out of the 30 days limit and that the cause of lateness
was due to the applicant referring the matter to a wrong body
and the applicant had to be blamed for that situation, for being
24 days late.
12. On the issue of the prospects of success, the employee
merely stated that Athere are prospects of success because
the dismissal is substantively and procedurally unfair @.
13. The issue of prejudice was addressed by stating that a notice
will be given to the third respondent in order to have their
representative present, and that if the application is not
granted he will be prejudiced because that will be the end of
the matter.
FACTS PRESENTED BY APPLICANT IN THIS COURT
14. In his affidavit submitted in support of the review application in
this court, the employee has in essence reiterated the facts
deposed to in the affidavit presented to the first respondent.
However, of more significance, for the first time the employee
discloses that an internal disciplinary hearing was held on or
about the 19 th June 2000, constituted by the third respondent
to determine certain charges against him which was chaired
by an external chairperson, that he was found not guilty, and
that the third respondent held a further hearing in form of an
appeal which took place on the 28 th September 2000, where
he was found guilty and dismissed. (paragraph 6.2 of
employee=s affidavit)
15. When addressing the issue of prospects of success, the
employee refers to his averments in paragraph 6.2 of his
affidavit which facts were not presented to the first
respondent.
16. The applicant contends that the 24 days delay was not
substantial and that he has tendered a reasonable explanation
thereof, and that there is no prejudice to be suffered by the
third respondent.
GROUNDS OF REVIEW
17. It is trite law that the Labour Court has wide jurisdiction to
review decisions and ruling made by other relevant bodies in
terms of section 58 (1) (g) of the Act. However, this court does
not have unlimited powers to review and substitute its own
decision with that of the relevant body under review.
18. I refer to the relevant case of MOOLMAN BROS V. GAYLARD
N. O. AND OTHERS (1998) 19 ILJ 150 LC,
where Seady AJ said the following:
AThe decision of a commissioner to condone the late
referral of an unfair dismissal dispute in terms of section
191 (2) of the Act is discretionary in nature. It is not a
purely judicial decision, although of course the decision
must be exercised judicially, on a consideration of all the
facts and what would be fair to both sides. This court
should not readily interfere with the exercise of discretion.
If in the exercise of this discretion, a commissioner makes
an error in law, this does not render the decision of the
commissioner reviewable unless it is a material error in
the sense that it results in the commissioner =s asking the
wrong question or basing his or her own decisions on a
matter not prescribed by the statute. The Act does not
suggest that the legislature intended this court to interfere
more readily in decisions of this nature. Accordingly if the
first respondent made an error in law in coming to her
decision to grant condonation, this court must accept that
discretionary decision whether right or wrong and not
interfere with the first respondent =s views merely
because it believes these views to be wrong @. (emphasis
added)
19. The learned judge further stated at page 156 A through to D
the following:
AThis is not an appeal from the decision of the
commissioner, it is an application for review and set aside
her decision on the grounds that it was grossly
unreasonable or seriously irregular. I doubt that this court,
on the facts before the first respondent would have
granted condonation. However, this does not make first
respondent=s decision reviewable. In determining
whether good cause was shown, first respondent applied
her mind to the factors set out in Melane =s case and
having considered them and the philosophy behind the
Act, she decided to grant condonation. I do not think that
it can be said that she acted in a way that was grossly
unreasonable or seriously irregular because of the weight
that she attached to each emphasis to the explanation for
the lateness cannot be regarded as grossly unreasonable
or seriously irregular. First respondent weighed the
Melane factors against the other, not treating any one of
them as individually decisive. In doing so, she applied her
mind and exercised her discretion judicially . This
approach to condonation has a long history and has
recently has been endorsed by the labour Appeal Court in
Forster V. Steward Scott Inc. (1997) 18 ILJ 367 (LAC) at
369 CE @ (emphasis added).
20. see also Edgars Stores (PTY) LTD V. Director, CCMA and others
(1998) 1 BLLR 35 LC
21. It is apparent from the second respondent =s reasons for
refusing the application for condonation that they followed the
principles enunciated in MELANE V. SANLAM INSURANCE
CO. 1962 (4) S. A. 531 (A) , it considered the degree of
lateness, reasons or grounds for lateness, prospects of
success and the potential prejudice to the parties.
22. It seems to me that it was critical that the applicant failed to
state any ground in support for his prospects of success as
required by the Melane case which was duly adopted by this
court in the Foster case supra.
23. In reading the case of JAMELA V. ACCORD (2001) 2 BLLR
150 (LC) referred to by the applicant, which I consider as an
obiter dictum , I am not persuaded that it stands as an authority
in support of an applicant who has failed to mention any
prospects of success in his application for condonation. I can
only conclude that it only assists an applicant who has not
dealt comprehensively with the prospects of success and
cannot assist an applicant who has failed to do so at all. I am
not convinced that my brother Waglay intended to jettison the
Melane principles.
24. In any event, without necessarily making a finding on whether
on the facts presented by the employee to the first
respondent were sufficient or not, I am inclined to follow
Seady J. in the Moolman case supra in that the second
respondent did apply its mind to the application, consider the
relevant principles in the Melane case and exercised its
discretion judiciously on the facts presented before it.
Consequently this court must accept this discretion in the
absence of gross unreasonableness on its part. In the
circumstances I am not convinced that the second
respondent did not apply its mind when it considered the
application for condonation.
25. In the circumstances I make the following order:
a. The application is dismissed
b. There be no order as to costs
ZILWA A J
DATE OF JUDGMENT : 28 MAY 2003
FOR APPLICANT : G. N. MOSHOANA OF
MOHLABA & MOSHOANA INC.
FOR RESPONDENT : D. J. COETSEE OF
DIRK COETSEE ATTORNEYS