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C:\Documents and Settings\Walter\Desktop\Done Judgments\Labour Plus\Mothibe v CCMA.rtf
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IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case No. JR283/04
In the matter between:
MARIA MOTHIBE Applicant
and
THE COMMISSION FOR CONCILIATION,
MEDIATION & ARBITRATION First Respondent
DESMOND LYNCH Second Respondent
PREMIER FOODS LIMITED Third Respondent
JUDGMENT
Nel, AJ:
1. When this matter came before the court on 18 Aug ust 2005, the Applicant
requested a postponement. The Third Respondent oppo sed this application and
contended that, at the very least, the condonation application should be argued
and determined. I agreed with this proposition and accordingly what is now being
considered by me is the Applicant's condonation application.
2. In order to place the condonation application in its proper context, I briefly set out
the material background facts.
3. The Third Respondent contended that it terminate d the Applicant's services on the
basis of its operational requirements. The Applicant, however, referred an alleged
unfair dismissal dispute to the First Respondent (h ereinafter referred to as "the
CCMA").
4. The dispute remained unresolved and the Applican t requested that it be arbitrated
before the CCMA.
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5. The Third Respondent challenged the CCMA's juris diction as it alleged that the
dismissal was based on its operational requirements . This jurisdictional point was
argued before the CCMA on 27 September 2002. The Applicant maintained that
the CCMA had jurisdiction, also submitting that res olution of a dispute in the
CCMA would be more cost effective.
6. The Second Respondent who heard the arguments on the jurisdictional point gave
his ruling on or about 3 October 2002, finding that the CCMA had jurisdiction to
hear single cases of retrenchment in light of the a mendments to the Labour
Relations Act. I shall hereinafter refer to the Sec ond Respondent as "the
Commissioner".
7. The legal representatives of the Applicant and t he Third Respondent thereafter
held a pre-arbitration conference on 29 January 2003 in terms of which it was also
recorded that " the jurisdictional point in limine raised by Third Respondent has
already been ruled upon by the CCMA and the parties have agreed to have the
matter arbitrated upon in the CCMA ."
8. The arbitration proceeded on 13 February 2003 be fore the Commissioner. The
Third Respondent's present attorneys of record repr esented it in this arbitration
and Mr Marius Bezuidenhout (“Bezuidenhout”) represe nted the Applicant in the
arbitration proceedings.
9. The Commissioner, in an award dated 18 February 2003, (“the award”) found the
Applicant's dismissal to have been substantively an d procedurally fair, upheld her
retrenchment and dismissed the Applicant's dispute.
10. On 28 May 2003, more than 3 months after the is suing of the award, the Applicant
applied for the rescission of the award. The Third Respondent opposed this
application. Although the application was out of ti me and not accompanied by a
condonation application, the Applicant's rescission application was dismissed by a
condonation application, the Applicant's rescission application was dismissed by a
different Commissioner than the Second Respondent on 17 September 2004 (“the
rescission ruling.
11. On 1 April 2004, approximately seven months aft er the issuing of the rescission
ruling, the Applicant served the review application , which is the subject of this
judgment, on Third Respondent.
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12. The Third Respondent argued that it was common cause that the arbitration award
was issued and received by the parties on 18 Februa ry 2003. On this basis the
Third Respondent argued that the Applicant should h ave delivered her application
for the reviewing of the arbitration award by 31 Ma rch 2003 and the application
was accordingly twelve months out of time. Technic ally I believe this is correct. It
is perhaps open to the Applicant to argue that, as her rescission application was
only dismissed on 17 September 2004, her review app lication is only
approximately six months out of time.
13. With regard to periods of delay, the Third Resp ondent referred me to a number of
examples of how this court has treated various periods of delay:
13.1 A delay of six months was considered unreasona ble in Ruijgrok vs Foschini
(Pty) Ltd & Another (1999) 20 ILJ 1284 (LC) .
13.2 A delay of nine months was regarded as excessi ve in Van Niekerk vs Zondie
NO & Another (2001) 22 ILJ 1202 (LC).
13.3 A delay of eight months was found to be substa ntial in Grilo vs Julius
Solomon Group & Others (2002) 23 ILJ 2052 (LC).
13.4 A statement of defence that was filed six mont hs out of time was found to be
a " long delay " in National Union of Metalworkers of South Africa & Others vs
Ebersp ǿcher SA (Pty) Ltd (2003) 24 ILJ 1704 (LC).
14. The Third Respondent further appealed to me tha t I should also bear in mind that
the entire process herein had been characterised by lengthy delays on the part of
the Applicant. In this regard it was pointed out that, after the award, the rescission
application was brought some three months later and then, obviously with
reference to this review application, it was brough t, as stated above, either
technically twelve months late, or if a more lenien t approach is adopted, about six
months late. We are herein dealing with what I rega rd as a considerable and
months late. We are herein dealing with what I rega rd as a considerable and
lengthy delay, whether it is 6 or 12 months.
15. It was argued before me that, in reality, no ex planation for the lengthy delay in
bringing the review application was provided by the Applicant.
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16. In considering the Applicant's condonation appl ication, one finds that there are a
number of periods of time for which the delay is no t explained either in any detail,
or at all.
17. In the first instance one sees that, whilst the CCMA rescission ruling was on 22
September 2003 faxed to the particular union the Ap plicant had consulted, the
Applicant contends that she only received the rulin g " on (sic) October 2003 ". The
Applicant does not give a specific date. In any ev ent, what I know is that, on 26
October 2003, more than a month after the ruling was issued, the Applicant visited
the Department of Labour for assistance.
18. The next time stipulated by the Applicant is th e broad period January/February
2004, when the Applicant alleges that she was advis ed by the CCMA (and not the
Department of Labour) that the best was for her to apply for review. Very little, if
any, explanation is given for the reasons for the d elay over the period from 26
October 2003 till January/February 2004.
19. Then again one is confronted with the fact that the Applicant simply states that she
visited the Labour Court in February 2004, and was referred to the Wits Law Clinic
for assistance. The Applicant then becomes specific and says that she proceeded
to the Wits Law Clinic on 3 March 2004. Again one is left in the dark as to what
exactly the reasons for the delay were. As a resul t of the absence of specific
dates, one is also left to speculate whether the vi sits to the Labour Department
and later the Labour Court were in the beginning, t he middle or the end of the
broad periods stated namely January/February 2004 a nd February 2004.
Whatever the specific period of the delay is, there is no explanation for it.
20. The Third Respondent, in dealing with the Appli cant's explanation for the delay
broke up the delays in specific periods. In summary, the Third Respondent argued
broke up the delays in specific periods. In summary, the Third Respondent argued
that, for these stipulated periods, the Applicant s hould have made full and frank
disclosure and should have provided as full an expl anation as possible for her
failure to comply with the Rules of Court. In this regard I was referred to MM Steel
Construction CC vs Steel Engineering and Allied Wor kers Union of South Africa &
Others (1994) 15 ILJ 1310 (LAC) at 1314 E – G , where Nugent J stated the
following:
"The bald allegation is made that after having instr ucted its consultant, the
Appellant 'on numerous occasions thereafter … contacted the labour consultancy
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to enquire about the case and was informed that the statement of defence had
been filed with the Court and that it was awaiting a trial date.' No detail at all is
provided of when these conversations took place, wh o participated in them, the
context in which they took place, or the precise co ntent thereof. In my view this
falls far short of the full and frank disclosure wh ich is required of an Applicant for
an indulgence. "
21. These sentiments, with which I agree, apply to the present matter as I find that the
Applicant did not at all provide me with a full and frank disclosure which she is
required to give as she is seeking an indulgence from this Court. On this leg of the
enquiry, the Applicant in my view falls short of what is required of an applicant who
seeks an indulgence from a Court by way of condonin g a failure to comply with
time periods stipulated.
22. I turn to deal with the Applicant's prospects o f success. I do not intend in any
great detail dealing with the applicable law in review applications.
23. I agree with the Third Respondent's contention that it appears as if the Applicant is
alleging that the Commissioner committed misconduct and a gross irregularity in
the arbitration proceedings. I will consider whethe r I believe that the Applicant has
prospects of success on any one of these two ground s for review on which she
relies. I will also consider whether there are perhaps any other reasons or grounds
why the Applicant may have prospects of success in her review application.
24. In respect of the Applicant's actual grounds of a review that the Commissioner
refused certain evidence which the Applicant intended to present at the arbitration,
I am satisfied that the Applicant has not substanti ated this allegation and I could
not find anything in support of this proposition of the Applicant.
not find anything in support of this proposition of the Applicant.
25. The Applicant alleged that the Commissioner was biased or partial and
unreasonable in dealing with the arbitration hearin g. As is the case with so many
of the allegations made by the Applicant, she fails to provide any substantive
support for what she alleges. I could also again no t find anything in the record to
support this allegation of the Applicant. It was ar gued before me that this is a very
serious allegation to be made by a litigant and tha t this unfounded allegation must
be met with an adverse costs order. I shall deal with this later.
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26. In respect of the proposition that the CCMA did not have jurisdiction to arbitrate
the dismissal dispute, I am satisfied that the part ies have clearly and expressly
agreed to have the matter arbitrated before the CCM A. I agree with the Third
Respondent's proposition that Section 141(1) of the LRA does not provide the
CCMA with a discretion and that it must arbitrate a dispute if the parties agree
thereto.
27. As far as the proposition that the Commissioner committed misconduct and/or a
gross irregularity in allowing the Third Respondent to seek a postponement on 27
September 2002, having considered the circumstances in which the
Commissioner acted, I am satisfied that the Commissioner’s conduct in this regard
is also not a ground for review.
28. The Applicant's allegation that the Commissione r failed to apply his mind, as best I
can determine, appears to be based on the allegatio n that the Commissioner had
two other arbitrations to deal with on the same dat e. This being the only
discernible basis of attack by the Applicant in thi s regard, the Applicant has not
satisfied me that there is substance in this allega tion. I could find no specific
allegations made by the Applicant in respect of the Commissioner's award itself on
which she relies in support of the allegation that the Commissioner failed to
properly apply his mind.
29. As to the proposition that the Commissioner's c onduct, in standing the matter
down for one hour, amounts to a reviewable irregula rity, this suggestion is also
devoid of substance.
30. I am also of the view that the Applicant's alle gation is unfounded that the
Commissioner accepted the instructions of the Third Respondent's attorneys to
rule out her evidence. The Applicant led evidence o n her own behalf and her
witnesses gave evidence. The Applicant again failed to direct me to any specific
witnesses gave evidence. The Applicant again failed to direct me to any specific
facts in support of these allegations of hers and t his ground of review also stands
to be rejected.
31. Likewise, I find the Applicant's contention tha t the Commissioner was at all times
listening to the evidence presented by the Third Re spondent, but disallowing the
evidence brought forward by her and her representat ive, as again being without
substance, unsubstantiated and destined to be rejected.
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32. Having regard to all the allegations contained in paragraph 7 of the Applicant's
Founding Affidavit, it is not entirely clear whethe r these paragraphs all are in
support of the contention (made in paragraph 7.9) t hat the Commissioner had
failed to apply his mind in the matter. What is ap parent to me is that some of the
specific grounds contained in this paragraph are al legations that belong more
appropriately in an appeal. I could not find suppor t for any of these allegations
made by the Applicant. They certainly do not make o ut grounds for reviewing the
award. I do not intend dealing with each and every allegation contained in the
Applicant’s paragraphs 7.1 to 7.9 as I am satisfied that there is no substance
therein contained in support of a possible successful review.
33. On the whole, I am satisfied that there are no prospects of successfully reviewing
the arbitration award herein as:
33.1 I am of the view that there was no wrongful or improper conduct on the part of
the Commissioner that amounts to misconduct in rela tion to the arbitration
proceedings under consideration;
33.2 I am likewise satisfied that the arbitration p roceedings in issue were such that
the Applicant was afforded the opportunity to have her case fully and fairly
determined and that the Commissioner in no way cond ucted himself in any
manner other than to allow a fair trial of all the issues;
33.3 I am of the view that no gross irregularity oc curred which renders the
arbitration in question reviewable.
34. Applicant further for the first time is in her heads of argument attempting to raise
the ground of review that her representative at the arbitration proceedings,
Bezuidenhout, had misrepresented himself as an admi tted Attorney and that he
accordingly was not entitled to represent her. The Law Society of the Northern
Province, in a letter dated 4 November 2004, advise d that Bezuidenhout served
Province, in a letter dated 4 November 2004, advise d that Bezuidenhout served
articles from 2 October 2000 until 1 October 2002, but that according to their
records, he had not been admitted as an Attorney at that time (being November
2004).
35. I do not express myself on the question whether , assuming it to be true that
Bezuidenhout misrepresented himself as an admitted Attorney, and could therefor
not represent the Applicant before the CCMA, this i n and by itself is indeed a
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ground to review the Commissioner's award as I am s atisfied that this ground of
review was not raised before and it therefor cannot be entertained now.
36. Turning to deal with the importance of the matt er and the possible prejudice to the
parties, should condonation be granted or refused, it is a matter of fact that the
termination of employment herein took place on 31 J anuary 2002. That
constitutes a period of nearly 3½ years ago. It is trite that one of the important
purposes of the Labour Relations Act is that matter s should be dealt with
expeditiously. The facts and/or the law herein do not involve the public interest
nor are they novel or unusual legal points. I am s atisfied that the Applicant herein
is to a large extent, if not totally, responsible for the fact that this matter is only now
serving before this Court. It would appear to me t hat in the process she already
was granted an indulgence when her rescission appli cation was heard out of time
without her having applied for condonation. I do not believe that the Applicant has
made out a case that this matter is of such importa nce, and that the prejudice that
she will suffer, if condonation is granted, is of s uch a nature that, on this leg of the
application, the Applicant has made out a case.
37. The way in which the Courts approach condonatio n applications has long been
established very clearly namely that a Court will, in the exercise of its discretion,
look at the length of the delay, the explanation or reasons therefor, the prospects
of success in the main matter as well as the prejudice which the parties may suffer
should condonation be granted or refused. (Melane v s Santam Insurance Co Ltd
1962 (4) SA 531 (A) at 532B-F)
38. It has further repeatedly been held by this and other Courts that, where an
Applicant for condonation has not provided a suffic ient or proper explanation for
Applicant for condonation has not provided a suffic ient or proper explanation for
the delay in taking the relevant action, a Court will not be prepared to condone the
default, even if the prospects of success are good.
39. Then there is a line of authorities which suppo rt the proposition that where an
Applicant has not demonstrated any prospect of succ ess, condonation should be
refused as, to grant condonation, will be without purpose.
40. Then another possible approach is that, if ther e is not a reasonable and
acceptable explanation for the delay, the prospects of success are immaterial.
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41. Whichever one of the approaches the Court adopt s, it has been driven to the same
conclusion, namely that condonation herein should not be granted. The Court has
arrived at this conclusion first of all looking at the matter in its totality, considering
the length of the delay, the explanation and reason therefore, prospects of
success and the importance of the matter and the possible prejudice to the parties.
On this basis the Court concludes that the application should fail.
42. On the basis that there are no prospects of suc cess in the review application,
which is the view of this Court, the application should also fail.
43. On the basis that the Court finds that there wa s not a reasonable and acceptable
explanation for the delay, the prospects of success are immaterial, and the
application should also be refused.
44. The end result is, accordingly, that the applic ation for condonation is dismissed. It
follows that the application to review also fails.
45. The Third Respondent urged me to grant a costs award against the Applicant on
the attorney and client scale. In support of this r equest it was alleged that the
Applicant deposed to blatant untruths and made deli berate attempts to mislead
this Court. I have considered the manner in which t he Applicant has conducted
this whole process. In particular I view in a negative light the fact that the Applicant
resisted the jurisdictional point the Third Respond ent initially argued, then agreed
to proceed to arbitration before the CCMA, yet now argues that the CCMA lacked
jurisdiction. I will give the Applicant the benefit of the doubt I have as to her
behaviour and particularly whether she intentionall y tried to mislead and lie to this
Court. This does not assist the Applicant in avoiding an award of costs against her
as I am satisfied that, having regard to how this C ourt normally approaches the
as I am satisfied that, having regard to how this C ourt normally approaches the
determination of whether to award costs to a party, there are no reasons why the
costs should not follow the result in this matter.
46. In the result, the following Order is made:
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46.1 The applicant’s condonation application is dis missed;
46.2 As a result, the Applicant’s review applicatio n is also dismissed;
46.3 The Applicant is ordered to pay the Third Resp ondent’s costs.
NEL AJ
DATE OF HEARING: 8 AUGUST 2005
DATE OF JUDGMENT:
APPEARANCES:
FOR THE APPLICANT: ADV V J M MALEMA
INSTRUCTED BY: MZAMO ATTORNEYS
FOR THE RESPONDENT: MS N VAN DER WESTHUIZEN
INSTRUCTED BY: SONNENBERG HOFFMANN GALOMBIK