---

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

Case no: JS2341/05

In the matter between:

JOB GAOSHUBELWE AND OTHERS Applicant

And

PIE MAN’S PANTRY (PTY) LIMITED 1^st Respondent

JUDGMENT

MOLAHLEHI J

Introduction

1. This is an application in terms of which the applicants who claim to have been unfairly dismissed by the respondent seek condonation for the late filing of their statement of case.

2. The respondent has opposed the condonation application and further raised two points in limine relating, first to prescription of the applicants’ claim and secondly lis pendens.

Background facts

3. The applicants were dismissed on the 1^st August 2001, for participating in an unprotected industrial action. The applicants contended that their dismissal was unfair in that they did not participate in the industrial action. In the alternative they pleaded that the alleged unprotected industrial action was terminated by agreement prior to the dismissal and an agreed sanction had been implemented by the respondent. A further alternative prayer of the applicants is that the respondent had invited them to resume their duties during the industrial action but locked them out when they tendered their services.

4. During July 2001, the applicants represented by FAWU obtained an interim order from this Court interdicting the lockout under case number J3153/01. The interim interdict was however discharged on the return date.

5. Turning to the issue of procedural fairness, the applicants contend that they did not receive individual notices of the disciplinary hearing, were not afforded adequate opportunity to prepare for the hearing and were not afforded adequate opportunity to consider their position prior their dismissal.

6. Arising from the alleged unfair dismissal, the applicants assisted by their union FAWU, referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (the CCMA) on 7^th August 2001.

7. The dispute was conciliated on the 3^rd September 2001, and the certificate of non resolution was issued the conciliation having failed to resolve the dispute. And on the basis of this certificate the dispute was referred to arbitration.

8. At the arbitration hearing which was conducted during March 2001, the respondent raised a point in limine concerning the jurisdiction of the CCMA to arbitrate over the dispute. The CCMA ruled that it did not have jurisdiction to arbitrate over the dispute, the reason for the dismissal being related to the alleged participation in the unprotected industrial action.

9. Thereafter the applicants instituted review proceedings in the Labour Court seeking an order to review and set aside the ruling that the CCMA did not have jurisdiction to arbitrate the matter. The review application under case number JR400/02 was dismissed with costs which meant that the dispute fell within the jurisdiction of the Court and therefore the applicants had 90 (ninety) days within which to file their statement of case.

The points in limine

10. The respondent did not pursue the lis pendens point. There was some suggestion that the matter upon which the point was based was settles reason that this matter was postponed to afford the parties an opportunity to assess the prospects of settling this matter on the same basis.

11. I now proceed to deal with the second point in limine being prescription of the applicant claim.

12. The respondent contended that the applicants’ claim became due at the very latest on 3^rd September 2001 when the CCMA issued the certificate that it had not been able to settle the dispute. To this extent the respondent argued that the debt which was due to the individual applicants had become prescribed, as prescription began to run as soon as they acquired the right to institute the proceedings against the respondent in terms of section 191(11) of the Labour Relations Act 66 of 1995 (the LRA).

13. As concerning the process envisaged in section 15(1) of the Prescription Act 68 of 1969 (the Act), the respondent argued that the running of prescription would only have been interrupted if the applicants had filed their statement of claim in terms of rule 6 of the rules of the Labour Court. The applicant relied on the cases of Peak v Global Technology Ltd (2003) 24 ILJ 1580 (LC) at page 1584, Embling and Another v Two Oceans Aquarium 2000 (3) Sa 691 (C ), Standard Bank of South Africa Ltd v Oneate Investment (PTY) Ltd (In Liquidation) [1997] ZASCA 94; 1998 (1) SA 811 (SCA) at 826 and Waveley Blankets Ltd v Shoprite Checkers (PTY) Ltd and Another 2002(4) SA 166 (C).

14. The above authorities do not support the case of the applicant. The facts in Peak v Global Technology, are distinguishable from the present case in that the Court in that case dealt with an amendment to a statement of claim. Francis J held that even if the statement of claim was excipiable on the basis that it did not disclose the cause of action, it can nonetheless interrupt prescription. It was on this basis that the Learned Judge granted the application to amend the statement of claim which amendment he saw as clarifying the cause of action.

15. In Waveley Blankets Ltd v Shoprite Checkers, dealt with the issue of whether a joinder application would interrupt prescription. The Court held that where the defendant is joined in its own application, there would be no “process whereby the creditor claims payment of the debt” from the debtor. However, the important principle enunciated by the Court (at page 174H), taken from the Cape Town Municipality and Another v Allianz Insurance Co Ltd 1990 (1) SA 311(C) at 334H, which is apposite to the present case and is discussed later in this judgement is that:

“It is sufficient for the purposes of interrupting prescription if the process to be served is one whereby the proceedings begun thereunder are instituted as a step in the enforcement of a claim for payment of the debt.”

16. It should be noted in this regard that the notion of a “debt” in the Act has been described as referring to an obligation to something either by way of payment or by delivery of goods and services or not to do something. See HMD Properties (PTY) Ltd v King 1981 (1) SA 906 (N) at 909A-B. In Electricity Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd 1981 (3) SA 340(A) at 344F-G, the Court held that a debt is:

“that which is owed or due; anything (as money, goods or services) which one person is under an obligation to pay or render to another.”

17. It is now well established that extinctive prescription as envisaged Prescription Act does apply to employment issues. See in this regards Mpanzama v Fidelity Guards Holding (Pty) Ltd [2000] 12 BLLR 1459 (LC), Cape Town Municipality v Allie NO 1981 (2) SA 1 (C) and Uitenhage Municipality v Mooley 1998 (19) ILJ 757 (SCA). A “debt” would in the context of the present case mean that the respondent had an obligation not to unfairly dismiss the applicants.

18. Sections 10(1), 11(d) and 12(1) of the Act provide that a debt shall be extinguished by prescription after the lapse of a period of three years from the date upon which the debt is due. Section 15(1) provides that the running of prescription shall be interrupted by the service of any process whereby the creditor claims payment of the debt.

19. In the present instance the date upon which the debt in issue became due is 1^st August 2001when the applicants were dismissed and the period of three years would have elapsed in August 2004. The running of the prescription from the 1^st August 2001 however interrupted by the referral of the dispute in terms of s191 (1) of the Labour Relations Act 66 of 1995 (the LRA) to the CCMA by the applicants. Thus, in my view, this referral which was made prior to the lapse of the three year period constitutes the process envisaged in s15 (1) of the Act. In other words the referral of the dispute to the CCMA constituted the process whereby action was instituted against the debtor being in this instance the respondent. Put differently, by serving the respondent with the 7.11 referral form the applicants instituted legal proceedings for the enforcement of the right not to be unfairly dismissed. The running of prescription was interrupted by this process.

20. It is therefore, my view that in the light of the above the applicants’ claim has not prescribed and the point in limineraised by the respondent stand to be dismissed. I now proceed to consider the application for condonation for the late referral of the statement of case.

Reasons for the lateness

21. The reason for the late filing of the statement of claim is according to the applicants due to the fact that they were not aware of the outcome of the review application which was instituted on their behalf by the union. They contended that they were under the impression that the review application was firstly necessary and secondly that it received proper attention by the union and its attorneys.

22. The reason they did nothing after the 1^st June 2004, was because they were under the impression that their case was receiving attention from FAWU and its attorneys. This impression arose from the letter by FAWU addressed to COSATU which stated as follows:

“RE:PIE MANS PANTRY

We refer to the above

Kindly be advised that Pie Mans Pantry case is now referred to the Labour Court. Indeed Mr Jay Surju is the Attorney handling this case and Puleng is the organiser. I have since asked the attorney and the organiser to liaase (sic) frequently and ensure that members are informed about developments.

I further phoned Grace Mncube to explain where the process is.

Your assistance is appreciated.”

23. The delay was further occasioned by enquiries into the progress of the matter and it was only after instructing their attorneys of record that they discovered that their review application was dismissed on 9^th December 2003. As concerning the delay of three months after discovering that the review had been dismissed the applicants explained that it was due to having to find out which of the applicants would be interested in proceeding with the prosecution of their claim. A further delay was occasioned by having to locate both the CCMA and the Court files in order to launch their claim. They also could not after a two day search at the CCMA find the certificate of outcome.

The applicable legal principle.

24. In seeking the extension of the time frames provided for in the Act, through the indulgence of the Court, the applicant has: (a) to show that the degree of lateness or non compliance with the prescribed time frame is not excessive, (b) to provide an explanation for every aspect of the period of the lateness or the failure to comply with time frames, (c) to show that there prospects of succeeding or has bona fide defence when the matter is considered when considered in the main case; (d) to show the importance of the case, (e) to show interest in the finality of the matter and the convenience of the court; and (g) has to show avoidance of unnecessary delay in the administration of justice. See Foster v Stewart Scott Inc (1997) 18 ILJ 367 (LAC).

25. The court in excising its judicial discretion to grant condonation does so taking into account that the above factors which the applicant has to show are not individually decisive but are interrelated and must be weighed against each other. And in weighing these factors for instance, a good explanation for the lateness may assist the applicant in compensating for weak prospects of success. Similarly, strong prospects of success may compensate the inadequate explanation and the long delay.

26. An applicant in an application for condonation has to show good cause by providing an explanation that shows how and why the default occurred. There is authority that the court could decline the granting of condonation if it appears that the default was wilful or was due to gross negligence on the part of the applicant. In fact the court could on this ground alone decline to grant an indulgence to the applicant.

27. The prospects of success or bona fide defence on the other hand mean that all what needs to be determined is the likelihood or chance of success when the main case is heard. See Saraiva Construction (PTY) Ltd v Zulu Electrical and Engineering Wholesalers (Pty) Ltd 1975 (1) SA 612 (D) and Chetty v Law Society 1985 (2) SA at 765A-C.

28. In Melane v Santam Insurance Co Ltd, 1962 (4) SA 531 (A) at 532C-F, the Court held that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused. Another important consolidation of whether or not to grant condonation is the steps that the applicant took as soon as it became aware that he or she was late in terms of the required time frames. In other words the applicant should bring the application for condonation as soon as he or she becomes aware of the lateness of its case.

29. The Labour Appeal Court in National Union of Mineworkers v Council for Mineral Technology (1999) 3 BLLR 209 (LAC), held that:

"The approach is that the court has discretion, to be exercised judicially upon a consideration of all facts, and in essence, it is a matter of fairness to both parties. Among the facts usually relevant are the degrees of lateness, the explanation therefore, the prospects of success and the importance of the case. These facts are interrelated, they are not individually decisive. What is needed is an objective conspectus of all facts. A slight delay and a good explanation may help to compensate for prospects of success which are not strong. The importance of the issue of the delay, the prospects of success no matter how good the explanation for the delay, an application for condonation should be dismissed."

30. Turning to the facts of this matter and having regard to the period prescribed by the provisions of s191(11) of the LRA, the period of 3 (three) years and 3 (three) months is excessive.

31. It may well be that the letter of 1^st June 2004, was referring to the case of Philimon Mabunda and 81 Others, case number JS118/04. In that case Ncamu AJ granted condonation for the late filing of the statement of case after accepting that the explanation for the delay was reasonable in that it was due to the fact that the applicant had initially referred their dispute to the CCMA and thereafter had to wait for the outcome of the review application. The Court found that the applicants could not refer their dispute to the Court pending the review application. That application was 27 (twenty seven) months late.

32. It is apparent, as would appear to have been the case with case under case number JS118/04, that there was a communication breakdown between the applicants and FAWU. Whilst it is not clear who made the enquiry that led to the letter of 1^st June 2004, it is apparent from the reading of the letter that an enquiry was made regarding progress in the prosecution of the case by FAWU. In fact it would appear the enquiry was not made directly with FAWU but through COSATU as that is where the response was directed to in the said letter. This communication break down is in my view critical in the assessment of whether the applicants were aware of the outcome of the review proceedings and whether the impression they developed from the contents of the letter that their matter was receiving attention was reasonable.

33. Regard being had to the contents of the letter, it seems to me reasonable in these circumstances for the applicants not to have taken any further step in terms of enquiring about progress regarding their claim. The letter is not specific as to what is meant by, “case is now referred to the Labour Court.” There is nothing in the letter suggesting that the Court has already made a determination in relation to the review application. It is therefore reasonable for the applicants to have assumed that their claim was receiving attention by both FAWU and its attorney. The need to enquire further within a short space of time did not arise in particular having regard to the comment in the letter that:

“I have since asked the attorney and the organiser to liaase (sic) frequently and ensure that members are informed about developments.”

34. This explanation by the applicants must be understood within the context where they did not have direct contact with the attorney but it was FAWU who instructed the attorney. I do however accept that the applicants had as members mandated FAWU to instruct the attorney. It would be unfair and a miscarriage of justice if the applicants were to be punished for the failure by the FAWU to communicate to the applicants the outcome of the review application. I do also accept there is a limit to which a litigant can escape negligence of his or her representative. In the circumstances the explanation for this period is reasonable and accordingly accepted. If it was to be found to be unreasonable, I do not belief that it would be such that it is not necessary to evaluate the prospects of success and other factors in the assessment of whether or not to grant condonation..

35. I now proceed to consider the explanation of the delay after the applicants became aware of the outcome of the review application. The explanation for this period is as indicated earlier that, firstly, Mr Gaoshubelwe, had to find the other applicants and also seek funds to pay an attorney to assist them in processing their claim. I align myself to the view expressed by Ncamu AJ in Mabunda’s case (supra) that it is not in every case where the delay is occasioned by the applicant seeking funds that the application for condonation should be dismissed. The explanation based on lack of funds has to be evaluated within the context of the facts and the circumstances of a given case.

36. In my view there is no rule that the explanation that the delay was occasioned by lack of funds should automatically lead to the dismissal of the application for condonation. If this was to be the case then in my view the Court would be ignorant of the economic reality that in most instances faces unrepresented dismissed employees. I do however agree that as a general approach that lack of funds should not on its own constitute reasonable explanation. In this particular instance it seems to me that it cannot be disputed the applicant had based their hopes of access to justice on the union which apparently deserted them without any notice. Faced with this and in the context where free legal assistance is not readily accessible, it cannot be said that the period of three months is unreasonable regard being had to the fact that the applicant had to contact the affected employees to seek the mandate to include them in the claim, including having to ask them to put forward a contribution for the legal fees.

37. Turning to the prospects of success, it is my view that the applicants’ papers do make out a case that there is a good chance of succeeding when the merits are considered in the main case. The applicants have raised serious challenges as concerning both the substantive and procedural fairness of the dismissal.

38. The applicants contend that they have throughout denied participation in the alleged unprotected industrial action and that is the reason why they insisted that their case should be referred to the CCMA for arbitration. The applicants further contended that they were during their employ with the respondent categorised in terms of those involved in production, packaging and distribution. The evidence of the single witness of the respondent, Mr Double, revealed that the reduction of 14,3% occurred in the production section of the operations during the week of the alleged industrial action. He testified that there were insufficient products during the go slow to make full deliveries. As concerning procedural fairness the key point raised by the applicants in as far as prospects of are concerned relate to the refusal by the chairperson of the disciplinary hearing to grant a postponement to afford the union representative to consult with 250 (two hundred and fifty) employees who were alleged to have been involved in the alleged industrial action.

Conclusion

39. For the above reasons I am satisfied with the explanation proffered by the applicants as to why their statement of case was filed after the expiry of the 90 (ninety) days from the date of the issuance of the certificate of outcome. If it was to be found that the explanation was unsatisfactory, I am of the view that that would be compensated by the prospects of success as set out in their papers.

40. In the circumstances of this case I am of the view that law and fairness would not support granting costs against the respondent. The circumstances of this were such that it cannot be said the respondent was unreasonable in opposing the application.

41. In the premises I make the following order :

1. The applicant’s late delivery of the statement of claim is condoned.

2. The plea of prescription is dismissed.

3. There is no order as to costs.

MOLAHLEHI J

DATE OF HEARING: 04 March 2008

DATE OF JUDGEMENT :22 July 2008

APPEARANCES

F or the Applicant: Adv Smit

Instructed by: Matsepe Molefe Attorneys.

F or the Respondent: Ms Ntsoane

Instructed by: Snyman Attorneys

---