IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG OF INTEREST
CASE NO. JR 347/02
In the matter between :
VUSI EPHRAIM MASEKO APPLICANT
and
CCMA FIRST RESPONDENT
NKOSINATHI MASEKO SECOND RESPONDENT
TELKOM S.A. ( LTD) THIRD RESPONDENT
___________________________________________________ ____
JUDGMENT
___________________________________________________ ____
P. Zilwa. A.J:
[1] The applicant, a former employee of the Third R espondent, was
dismissed from the Third Respondent’s employ after a misconduct
enquiry, on 18 June 2001. The charge on which he was
convicted and dismissed was for misuse of a Company vehicle on
21 and 22 May 2001 without authorization. At the en quiry the
Applicant had pleaded guilty to such charge.
[2] An aggravating circumstance that was placed bef ore the presiding
officer for purposes of assessing the appropriate sanction was that
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the Applicant had received a final written warning in September
2000 for a similar offence, which warning was still valid at the time
of the transgression in issue. This is one of the factors that led the
presiding officer to impose the sanction of dismissal.
[3] At the enquiry the Applicant was represented by the Regional
Secretary of his Union (Communication Workers Union ), one Mr
Kahishi Mphahlele. After the passing of the sanction the Applicant
was apprised of his right to appeal to the Labour R elations
Department of the Third Respondent, which right he exercised on
21 June 2001. The appeal or Αin Βhouse conciliation meeting ≅ (as
it was termed) was proceeded with on 12 July 2001 u nder the
chairpersonship of one Ms Ursula Dos Santos Nunes, who upheld
the dismissal sanction. In dismissing the Applicant =s appeal Ms
Nunes further informed the applicant of his right to refer the matter
within 30 days of his dismissal to the Commision for Conciliation
Mediation and Arbitration (CCMA).
[4] It was only on 16 November 2001 that the Applic ant referred the
matter to the CCMA. In referring the matter to the CCMA the
Applicant also applied for condonation of his late referral of the
matter beyond the prescribed 30 day period.
[5] In his condonation application to the CCMA the Applicant cited his
reasons for such lateness to be
Αdue to appeal ≅.
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[6] Having been served with the referral documents and the
Applicant =s condonation application the Third Respondent file d
with the CCMA a notice to oppose the application an d an
answering affidavit in response to the condonation application. In
such affidavit the Third Respondent’s deponent, a M r M.M.L.
Lesela, in dealing with the lateness of the referra l, deposed as
follows:
ΑThe referral form is dated 15 November 2001. The
application is 118 days late. The applicant has submitted no
reason to explain the late referral. The Applicant was
informed of his right to refer the matter within 30 days from
date of dismissal at the representation meeting.
Furthermore the Applicant was represented by a regi onal
shop steward of Commercial Workers Union (CWU), who is
well vest (sic) with the requirements of the Labour Relations
Act, at the internal enquiry
≅
[7] The applicant never filed any further affidavit in response to the
averments of the Third Respondent =s deponent set out above.
This, then, was the sum total of the documentation and
information put before the CCMA Commissioner, who is the
Second Respondent herein, at the time that he had t o consider
the Applicant =s condonation application.
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[8] On 6 November 2001 the Second Respondent issued his decision
on the Applicant =s condonation application in writing. It is
appropriate to set out the decision in its entirety. It reads thus:
ΑThe applicant claims that his referral is ninety (9 0) days late. He
attributes the delay to the appeal process.
Regarding the prospects of success, he claims that his dismissal was
unfair.
The respondent on the other hand submits that the dispute was lodged
119 days outside the prescribed time limit. He subm its that the
applicant was advised of his rights. He was also advised to present his
appeal to the Industrial Relations Department. He failed to act as per
the advice.
On prospects of success, the respondent contends that prospects of
success are poor as the applicant was fairly dismissed.
DISCUSSION.
There seems to be a dispute of facts regarding the degree of lateness.
Be that as it may, I find same to be high.
The applicant has failed to give good reasons for t he delay, and he
does not appear to have good case.
The application must therefore fail.
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Per, Commissioner Nkosinathi Maseko
THUS DONE AND SIGNED IN JHB ON 6 NOVEMBER 2001.”
The decision was dispatched to both the Applicant and the Third
Respondent on 21 February 2002.
[9] On 7 March 2002 the Applicant launched the pres ent application.
In terms of his Notice of Motion the Applicant seek s an order
Α
that the arbitration award dated 6 November under Case No. GA
255503 Β01 be reviewed and set aside ≅ The Notice of Motion
further reflects that the application is in terms of Section 145 of the
Labour Relations Act (LRA) No 66 of 1995.
[10] The First and Second Respondent’s filed a notice on 16 April 2002
indicating their intention not to oppose the application, save for the
costs aspect, but to abide the decision of the Court. On 25 March
2002 the Third Respondent had filed a notice of int ention to
oppose the Application and it also filed its Answering Affidavit on
the same day.
[11] In drawing the initial application papers the appplicant was
unassisted. On 25 October 2002 the Applicant, havin g obtained
some legal assistance, amended his review application . In terms
of the amended Notice of Motion the application was no longer in
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terms of Section 145 of the Labour Relations Act bu t in terms of
Section 158 (1) (g) of the Labour Relations Act. A further prayer
was added for the Court to direct the respondents t o appoint
another commissioner to conduct fresh condonation application /
proceedings in terms of Section 138 of the Act in o rder to
determine the dispute between the Applicant and the Third
Respondent arising out the of Applicant =s dismissal. Together
with the amended Notice of Motion a new Founding Affidavit was
filed by the Respondent.
[12] In the new founding affidavit the Applicant e xplains his delay in
referring the matter to the CCMA in the following terms:
Α Α ΑΑ5.4.1 DEGREE OF LATENESS
The dispute or matter has been referred to the CCMA
about (3) three months from the 12 th August 2001 i.e
due day for Concialiation referral.
It is my submission that the degree of lateness is not
successive (sic) but reasonable.
5.4.2 THE REASON FOR THE DELAY
It is my submission the reason for the delay is, inter alia,
due to late convening and outcome of Appeal.
Further delay was attributed by the fact that the U nion
representative confirm having referred the matter whilst
my own investigation revealed otherwise.”
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[13] At paragraph 6 of his new Founding Affidavit t he Applicant sets
out the grounds for the review thus:
Α6. GROUNDS OR BASIS FOR THE REVIEW
The grounds or basis for the review of the Arbit rator =s
decision are, among other things, that in making condonation
ruling the arbitrator:
6.1 ignored the condonation application or submissi ons which were
presented by the Applicant, and /or
6.2 incorrectly made certain factual findings and/ or
assumptions against the Applicant when he was
not in a position to do so, and/ or
6.3 took into consideration unfounded allegation an d failed to take
into account the condonation application by the Application and
accordingly misconceived the nature of the discretion conferred
upon him and failed to apply his mind properly, fai rly and
reasonable, and/or
6.4 under-emphasise (sic) and /or disregarded the A pplicant
condonation and/or
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6.5 failed to resolve the dispute between the Appli cant and the third
Respondent , due to the failure in exercising his function fairly,
properly and reasonably, and /or
6.6 committed gross irregularity whilst perfoming h is function as an
arbitrator and further failed to convene the Condonation hearing
thus enabling the Applicant to present full condonation details”.
[14] The Third Respondent also filed a new Answerin g Affidavit in
response to the Applicants new Founding Affidavit.
[15] In argument before me Mr Mphahlani, who appear ed for the
Applicant, stated that the main thrust of his argument was that the
Second Respondent erred in making a ruling on the condonation
application without getting proper information before him regarding
the reasons for the Applicant’s late referral of hi s matter to the
CCMA. The Applicant =s terse statement explaining the delay in
condonation application,
Αdue to appeal ≅, amounted to no
explanation at all, so argued Mr Mphahlani. On the information
before him the Second Respondent was correct in fin ding that
Αthe Applicant has failed to give good reasons for the delay ≅, but
then it was incumbent upon him to solicit such reas ons from the
Applicant by convening a hearing of the parties = oral evidence
before making his ruling, submitted Mr Mphahlani. U pon being
requested to refer the Court to relevant legal authorities in support
of his argument, Mr Mphahlani could not. He only co ntented
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himself by seeking refuge in some CCMA document dat ed
03/12/01. Paragraph 3 of such document provides as follows:
ΑIn terms of the Labour Relations Act, section 191(2) the applicant is
required to apply for condonation to the commission because the
matter was referred to us outside the statutory time limit of 30 days. A
commissioner will consider the application and make a ruling, or
convene a hearing and then make a ruling ≅.
[16] Mr Mphahlane argued that because of the dearth of an
explanation for the delay in the Applicant =s condonation
application the Second Respondent was obliged to co nvene a
hearing before making his ruling as the document pr ovides. His
failure to do so constitutes an irregularity in his actions, argued Mr
Mphahlani.
[17] With regard to the issue of the prospects of success on the merits,
which the Second Respondent in his ruling had foun d to be not
good, Mr Mphahlani argued that despite the Applicant =s plea of
guilty to the charges against him in the hearing , this does not
mean that his prospects of success are bad. His ple a of guilty
could have been meant to save time in the hearing and to
indicate remorse on his part, submitted Mr Mphahlani.
[18] In response to Mr Mphahlani =s argument Mr Basson, who
appeared for the Respondent, argued that the onus i s on an
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applicant for condonation to show good cause to mer it
condonation of a late referral, not on a commissioner to solicit or
seek such good cause on his own. He further argued that in the
light of the Applicant’s failure to show the requis ite good cause
and to furnish a tangible explanation for his delay in his
condonation application papers, the commissioner had no duty to
do anything else but to dismiss the application. I find a lot of merit
in this argument.
[19] Factors that need to be taken into account in condonation
applications have been set out in a number of decided cases, one
of which is the well-known case of MELANE v SANTAM
INSURANCE 1962 (4) SA 531 (A). Such factors are, inter alia, : the
degree of lateness, the reasonableness of the explanation given
for the lateness, the prospects of success on the m erits and the
importance of the case. The respondent =s interest in finality must
also not be overlooked. See also MLABA v MASONITE ( AFRICA)
LIMITED & OTHERS (1998) 3 BLLR 291 ( LC); PEP STORE S
(PTY) LTD v LAKA N.O. & OTHERS (1998) 9 BLLR 952 (L C);
TRANSNET LTD v HOSPERSA & ANOTHER (1999) ILJ 1293
(LC); POTGIETESRUS PLATINUM MINE LTD v CCMA &
OTHERS (1999) 20 ILJ 2679 (LC).
[20] The MELANE test has also been accepted and app roved by the
Labour Appeal Court in NATIONAL UNION OF MINEWORKERS
& OTHERS v WESTERN HOLDINGS GOLDMINE (1994) 15 ILJ
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610 and FOSTER v STEWART SCOTT INC (1997)18 ILJ 376
(LAC).
[21] The Labour Appeal Court has held that condonat ion in cases of
disputes of individual dismissals will not be easil y granted. The
excuse for non- compliance has to be compelling, th e case for
attacking a defect in the proceedings has to be cog ent and the
defect has to be of a kind which would result in the miscarriage of
justice if it were allowed to stand. See QUEENSTOWN
DISTRIBUTORS CC v LABUSCHAGNE N.O & OTHERS (2OO0)
21 ILJ 166 (LAC); A. HARDRODT (SA) (PTY) LTD v BEHARDIEN
& OTHERS (2002) 23 ILJ 1229 (LAC).
[22] An anlysis of the facts in casu and the application of the principles
set out in the authorities referred to above leave me unconvinced
that there is any merit to this application. As alr eady stated, the
Applicant was dismissed on 18 June 2001. His appeal against
such dismissal was heard on 12 July 2001. On the same date he
was advised of his right to refer the matter to the CCMA within 30
days of his dismissal, yet it was only on 16 Novemb er 2001,
almost 5 months after his dismissal, that he referred the matter to
the CCMA. Even after the finalisation of the internal appeal it took
him more than 4 months before referring the matter to the CCMA.
This means that even the terse reason furnished for the delay,
Αdue to appeal ≅, cannot be correct. The contention that the
Commissioner had a duty to solicit reasons for the delay from the
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Applicant by convening a hearing wherein he would s olicit such
reasons, after the latter had failed to furnish the reasons as
required in the condonation application, has no merit in my view. I
do not understand the relevent section of the Labour Relations Act
to be impossing any such duty on the Commissioner. The onus
lies foursquare on the Applicant =s shoulders to furnish the
reasons, and he fails to do so at his own peril. I can also find no
fault with the Commissioner =s finding that the Applicant does not
appear to have a good case on the merits.
[23] In the result, I make the following order:
(i) The application is dismissed;
(ii) There will be no order as to costs.
__________________
P. ZILWA
ACTING JUDGE OF THE LABOUR COURT
APPEARANCES
FOR THE APPLICANT : Mr Mphahlani
FOR THE RESPONDENT : Mr Basson
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DATE ARGUED : 9 September 2003
DATE OF JUDGMENT : 25 September 2003
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