South Africa: Johannesburg Labour Court, Johannesburg

the labour court of South Africa

(Held at johannesburg)

JUDGMENT

                                                                                                Not reportable

                                                                                    CASE NO: JR 1354/2018

In the matter between:

PUBLIC SERVANTS ASSOCIATION

obo FRANCINA MANAMELA                                                            Applicant

and

GENERAL PUBLIC SERVICES SECTORAL

BARGAINING COUNCIL                                                                    First Respondent

LUFUNO RAMABULANA N.O.                                                          Second Respondent

MINISTER OF HOME AFFAIRS                                                          Third Respondent

Date enrolled: 18 August 2020 (in Chambers)

Date of judgment: 25 August 2020. Judgment distributed by email by 16:00

JUDGMENT

VAN NIEKERK J

[1]        This is an application to review and set aside a ruling issued by the second respondent (the arbitrator) on 28 February 2018. In his ruling, the arbitrator dismissed the applicant’s case in circumstances where the issue before him was whether the matter ought to be postponed or dismissed in terms of section 135 (5)(a) on account of the applicant’s inability to proceed with her case.

[2]        The facts are recorded in the papers and there is no need to burden this judgement with a repetition of the factual background. It is sufficient to record that the applicant was dismissed in October 2015 on three counts of misconduct relating to the fraudulent use of departure stamps at the OR Tambo International Airport. The matter was ultimately referred to arbitration and remain part heard after numerous postponements granted by the arbitrator. On 24 January 2018, yet another date which the arbitration had been postponed, the applicant’s representative indicated that she was not able to proceed as she did not have the benefit of listening to testimony given prior to her involvement in the case. An application for postponement was made on this basis and the proceedings adjourned. On 28 February 2018, the arbitrator issued a ruling dismissing the whole of the applicant’s referral.

[3]        In his ruling, the arbitrator recorded that the applicant and the union were unable to proceed with scheduled arbitration because the applicant’s representative was not in a position to proceed on account of a lack of preparedness. The applicant sought a postponement in order to consult. The arbitrator found that there would be no merit in postponing the case and that the reasons for seeking a postponement were not satisfactory. He then exercised the discretion vested in him and dismissed the referral.

[4]        The present application was filed only on 26 July 2018, outside of the six-week time limit established by the LRA. The application ought to have been filed by 11 April 2018; it was only filed on 26 July 2018 and therefore more than three months late. By any account, that is an excessive delay. There is no proper explanation for the delay. The applicant says no more than that the union that represented her in the proceedings under review (and which represents her in these proceedings) had to conduct an investigation and obtain legal opinion on what may have amounted to a failure to represent the applicant in a diligent manner and that the union further had internal approval controls which needed to be met prior to the application being filed. The application for condonation does not address the prospects of success and submits that any prejudice to the third respondent should condonation be granted is minimal.

[5]        The applicant is required to show good cause for the late filing of her statement of case. The court must necessarily take into account the degree of lateness, the reason for lateness, the applicant’s prospects of success, any prejudice to the respondent and any other relevant factors. In regard to prospects of success, it is not necessary for an applicant to prove that he or she will succeed when the merits of the matter considered; it is necessary only to provide a basis to establish that the applicant has a good chance of succeeding when the matter is heard. This requires an elucidation of the prospects of success beyond a broad and sweeping statement to the effect that the applicant has good prospects – the averment must be substantiated. None of these factors is on its own decisive, and the court is required to exercise a discretion on the basis of an objective conspicuous of all of the relevant facts. ‘Good cause’ requires the applicant to provide an explanation to establish how and why the default occurred, for each period of the delay. Condonation is not to be had merely for the asking, a full and detailed account of the causes of the delay and their effects must be furnished so that the court is in a position to understand clearly the reasons for the delay and to assess the responsibility for it. Further, the application for condonation must be brought as soon as reasonably possible after the applicant becomes aware of his or her default.

[6]        Although this court has emphasised that none of the factors referred to above is individually decisive, it has consistently been held in this court (and others) that where the delay is excessive and the explanation for the delay is not satisfactory, this in itself justifies a refusal to grant condonation. Put another way, if there is no reasonable and acceptable explanation for a lengthy delay, the applicant’s prospects of success are immaterial, and without prospects of success, no matter how good the explanation for the delay might be, condonation ought properly to be refused.

[7]        In the present instance, the delay is excessive. The explanation for the delay is scant. There is no explanation save for the bald statement that the union was required to conduct its own investigation into what transpired before the arbitrator prior to filing this application. One might have thought that having on its own version admitted to exposure to a claim for damages by its member, that the union would have ensured that the present application was filed in time. The fact of an investigation into their dismissal ruling that is the subject of these proceedings is no excuse for a failure to file a review within the prescribed time limit. To the extent that the applicant relies on internal approval controls as a reason for delay, this is not an acceptable explanation. The union must have been aware of the applicable time limit and any need to meet internal approval controls must necessarily have been addressed timeously. The union is a registered and recognised trade union and well versed in the review process. The union has been handling this dispute from inception and must have been cognisant of the existence of a time limit, and the importance of compliance with that time limit. In the absence of an acceptable explanation for an excessive delay, that is the end of the enquiry. The applicant’s prospects of success are irrelevant. Even if I were to have regard to what the applicant avers (that her prospects of success are ‘very high’), frankly, I doubt that this court even has the jurisdiction to entertain the review application. The record of the proceedings under review was filed on 13 August 2018. In terms of the practice manual, the record was to be filed within 60 days. In the present instance, a notice in terms of Rule 7A (8) was served only on 11 February 2019. There is no indication as to when the record was served and filed, but more likely than not, it was served as the Rule requires, with the Rule 7A (8) notice. In these circumstances, the application is deemed to have been withdrawn in terms of clause 11.2 of the practice manual, and this court has no jurisdiction to entertain the application.

[8]        Insofar as costs are concerned, the third respondent seeks an order for costs, including the costs occasioned by the employment of the services of counsel. This court has a broad discretion in terms of section 160 of the LRA to make orders for costs according to the requirements of the law and fairness. In my view, these requirements are best satisfied by an order to the effect that costs ought to follow the result, such costs to include the costs of counsel. The application for condonation had little merit and I fail to appreciate why the third respondent (and ultimately, the taxpayer) ought to pay the costs of opposition.

I make the following order:

1.    Condonation for the late filing of the review application is refused.

2.    The review application is dismissed, with costs, such costs to include the costs occasioned by the employment of the services of counsel.

André van Niekerk

Judge of the Labour Court of South Africa