9033800 IN THE LABOUR COURT OF SOUTH AFRICA
(Held in Cape Town)
9033800 Case No
C463/04
In the matter between: REPORTABLE
GIWUSA obo PG HEYNEKE Applicant
And
KLEIN KAROO KOOPERASIE BEPERK 1st Respondent
JUDGMENT
STELZNER AJ
1. This is an application for condonation for the late filing of the
Applicant’s statement of claim, which application is opposed.
2. The matter was originally referred to the CCMA for conciliation after the
Applicant was dismissed with effect from 30 August 2003. The CCMA
conducted a brief conciliation by telephone. It was quickly apparent
that the matter was not capable of settlement and a certificate of
outcome was issued on 22 October 2003. The certificate did not
indicate to which forum the matter should be referred. The statutory
form allows the CCMA commissioner to tick a box indicating that the
matter is to be referred to the Labour Court or to arbitration. These
boxes were left unmarked.
3. On 1 November 2003 the Applicant referred the matter to the CCMA for
arbitration. The arbitration was postponed on two occasions and
eventually came before a commissioner on 17 August 2004. On that
date for the first time, the Respondent raised by way of a preliminary
point that the CCMA did not have jurisdiction to hear the matter
because it concerned a retrenchment (a dismissal for operational
requirements).
4. On 17 August 2004 the commissioner indicated her ruling verbally to
the effect that the CCMA did not have jurisdiction to arbitrate as more
than one employee had been retrenched at the same time as the
Applicant. A written ruling to that effect was issued on 1 October 2004.
5. The Applicant filed a statement of claim with this Court on 10 December
2004. The statement of claim was not accompanied by an application
for condonation. The Respondent filed its opposing papers on or about
30 December 2004. In those papers the Respondent took the point that
the referral had not been made within 90 days after the certificate of
outcome was issued as prescribed by section 191(11) the Labour
Relations Act, of 1995 (“the Act”).
6. An application for condonation in respect of the late filing of the referral
was made by the Applicant on 17 March 2005 and was opposed by the
Respondent in papers filed on 1 April 2005. It is this application for
condonation which is before me.
7. The main line of argument for the Applicant which was set out in the
papers and which was pursued by Mr Vosloo who argued the matter
before me was that in fact no application for condonation was required.
The argument went like this. The Act requires of the CCMA to attempt
to conciliate a dispute. The telephonic ‘conciliation’ conducted by the
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CCMA was not conciliation in the proper sense and as required by the
Act. Therefore, the first event that could properly be regarded as a
conciliation was the arbitration of 17 August 2004 which proceeding
should thus be regarded as having been a con-arb. If the proceedings
of 17 August 2004 were, properly construed, a con-arb, then the ruling
which was issued in writing on 1 October 2004 should be construed as
the ‘certificate of outcome’. If the ruling of 1 October 2004 was the
certificate of outcome then the referral of 10 December 2004 was not
late and no application for condonation was required. In the
alternative, however, and almost by way of afterthought, the Applicant
argued that good cause had been shown for condonation for the late
filing.
8. The Respondent made the point in its papers and in argument that the
Applicant was represented by his union from at least 24 November
2003, when a meeting took place between the parties at which the
Applicant was represented by GIWUSA. (The Applicant initially referred
his dispute to the CCMA on his own and GIWUSA only became an
Applicant itself, representing Heyneke, in the referral to this Court.)
9. The Respondent also argued that the fact that conciliation took place
telephonically did not detract from the fact that the CCMA had
attempted to resolve the dispute. It is frequent practice in the CCMA to
conduct telephonic conciliations and this practice does not contravene
any provision of the Act. The Act simply requires that the Commissioner
appointed by the CCMA must attempt to resolve the dispute through
conciliation (section 135(1)). The Act does not prescribe that a meeting
between the parties be convened for that purpose. In fact section
135(3) goes on to provide that the Commissioner must determine the
135(3) goes on to provide that the Commissioner must determine the
process for the purposes of attempting to resolve the dispute. Further
conciliation did not take place as the Applicant had indicated clearly
that he did not regard the matter as being capable of settlement.
10. The Respondent pointed out that the proceedings of 17 August 2004
were clearly conducted as arbitration proceedings and not as a con-arb.
This much appears from the ruling itself which starts with the words
“The arbitration hearing was held …”. The Respondent raised its point
in limine regarding jurisdiction. The Applicant raised no point in regard
to an alleged failure by the CCMA to properly conciliate the dispute.
Indeed, the Applicant referred the dispute to arbitration on the strength
of the certificate of outcome issued on 22 October 2003. If he had been
dissatisfied with the attempt at conciliation and had thus disputed the
validity of the certificate of outcome his remedy would have been to
take the CCMA on review in relation to its issuing of the certificate of
outcome, with a view to having that certificate set aside. This he did
not do.
11. I accordingly find that there is no merit in the Applicant’s argument that
his referral was not late and that condonation was therefore not
required.
12. Since the referral was late and condonation is required I turn to
consider whether or not the Applicant has made out a case showing
good cause. The law in this regard is well settled and laid out clearly in
the case of Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at
532C-F.
“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 therefore,
the prospects of success and the importance of the case.
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Ordinarily these facts are interrelated, they are not individually
decisive, 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
prospects 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 interests in finality must not
be overlooked. I would add that discursiveness should be
discouraged in canvassing the prospects of success in the
affidavits.”
13. The respondent also referred me to a number of decisions in which it
was held that where there is an absence of a reasonable and acceptable
explanation for the delay prospects of success need not be examined
and condonation should not be granted on that basis alone. Further, if
a party realises that he has not complied with a statutory time period or
rule of court he must apply for condonation without delay. See Arnott v
Kunene Solutions & Services (Pty) Ltd [2002] 8 BLLR 722 (LC) at 727
paras 34 and 36 and NUMSA & others v Duro Pressing (Pty) Ltd [2002]
11 BLLR 1087 (LC) at 1088 para 6 to 1089 para 7, and the cases quoted
in those decisions.
14. In this matter the Applicant referred his dispute to this Court some 14
months after the certificate of outcome was issued i.e. some 11 months
late. This is a lengthy delay in the context of a 90 time period within
which to make such a referral. Furthermore, the Applicant was already
aware on 17 August 2004 that he had referred his dispute to the wrong
forum, yet he still took until 10 December 2004 to make the correct
referral to this Court.
referral to this Court.
15. The Applicant also did not immediately apply for condonation for his
late referral. Instead he took another 78 days before he filed an
application for condonation, on 17 March 2005.
16. His explanation for the delay is bedevilled by the (ill-advised) stance he
takes (or his representative takes on his behalf) to the effect that his
referral is in fact not late. I have already dealt with and disposed of the
arguments in that regard. Had the Applicant on hearing the outcome /
ruling of the commissioner on 17 August 2004 immediately taken steps
to refer his dispute to this Court together with an application for
condonation, it is likely that this Court would have viewed his
application with sympathy. The reason for the lateness would clearly
have been that the Applicant had erroneously referred his dispute to the
wrong forum but had expeditiously, on discovering his mistake, rectified
the problem with a referral to the correct forum. However, he chose not
to follow this path. In the result I am faced with an incomplete and
unsatisfactory explanation for a very late referral. There is simply no
explanation before me as to why the Applicant took until 10 December
2004 to file his statement of claim and no explanation as to why it then
took him a further 78 days to file his application for condonation (other
than the one in which he relies on the point that in fact no application
was necessary). The point about the late referral had already been
taken by the Respondent in the opposing papers filed late in December
2004. At the very least it was clear to the Applicant then that the point
would have to be argued yet he chose to take until 17 March 2005 to
file such an application.
17. It appears that the Applicant has been poorly advised and that this has
contributed to the predicament he now finds himself in. It is trite law
that there are limits to the extent to which a litigant can hide behind
delays caused by his representative or lay blame at the door of his
delays caused by his representative or lay blame at the door of his
representative. (See for example Kunene Solutions (supra) at 727 paras
7
31-3 and Duro Pressing (supra) at 1089 para 8). In this case the
representative chose, somewhat stubbornly in my view, to pursue a line
which was patently incorrect. The artificial attempt to construe the
arbitration of 17 August 2004 as a con-arb was clearly conjured up to
create an argument to the effect that condonation was not required and
a belated attempt was then made, in line with this argument, to
discredit the telephonic attempt at conciliation. Had the Applicant
genuinely felt that no proper conciliation had been attempted and that
his rights had been prejudiced in this regard one would have expected
him at that stage already to take the certificate of outcome on review.
Although the representative is a union official and not an attorney, the
contrary arguments were drawn to his attention by the Respondent and
he still chose not to deal with the issues until the belated filing of an
application in March 2005 which application still failed to provide a full
and proper explanation for the full period of the delay and in which the
Applicant persisted with the ill-advised stance described above.
18. In the circumstances it is not necessary for me to consider the
prospects of success as the application must fail on this ground alone.
19. The application for condonation for the late referral of applicant’s
dispute is refused with costs.
………………………………
Stelzner AJ
Date of hearing 26 April 2005
Appearance for
Applicant
Mr JN Vosloo of GIWUSA
Appearance for 3 rd
Respondent
Adv R Eksteen instructed by
Viljoen - Wasserman
attorneys
Date of judgment 6 May 2005