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IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: JR 848/15

In the matter between:

GODFREY SEGAKWENG                                                          Applicant

and

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION                                                                   First Respondent

COMMISSIONER ERIC MYHILL N.O                                        Second Respondent

SOUTH AFRICAN POST OFFICE                                             Third Respondent

Enrolled:       19 May 2020 (Decided on the Papers)

Delivered:         This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date and time for hand-down is deemed to be at 10:00 on 14 September 2020 at 15:00

JUDGMENT

TLHOTLHALEMAJE, J

[1]           In this opposed application, the applicant seeks an order condoning the late filing of the record of the arbitration proceedings; condonation for the late filing of the supplementary affidavit; and the reinstatement of the review application.

[2]           The orders as sought above are intertwined. Thus, where condonation is granted in respect of the late filing of the record and the supplementary affidavit,  the review application will be reinstated. If condonation is however not granted, that would be end of the matter.

[3]           The following background is not seriously in dispute;

3.1         The applicant was employed by the respondent, South African Post Office (SAPO) for about 30 years, and was at the time of the dispute, employed as an Area Manager. He was charged with gross misconduct related to acting violently towards two fellow employees on 25 June 2013 by attacking them with an ‘Okapi’ knife; unauthorised possession of a dangerous weapon (knife) on company premises; and violating the terms of his suspension.

3.2         The applicant referred an alleged unfair dismissal dispute to the first respondent, the Commission for Conciliation Mediation and Arbitration (CCMA) following his dismissal on 24 July 2014. When attempts at conciliation failed, the dispute came before the second respondent (Commissioner). The Commissioner issued an award on 1 April 2015, finding that the dismissal of the applicant was procedurally and substantively fair.

3.3         The applicant launched a review application on 14 May 2015 as assisted by his union, Communications Workers Union (CWU). The record of arbitration proceedings was made available for collection by the Registrar of this Court on 28 May 2015. SAPO also filed its notice of intention to oppose on the same date.

3.4         The dies in respect of the 60 day period contemplated in Clause 11.2.2 ended at most on 24 August 2015. The review application was accordingly deemed withdrawn. The transcribed record and the supplementary affidavit were only filed on 5 July 2017, some  two years out of time, hence this application before the Court

[4]           Paragraph 11.2 of the Practice Manual of this Court provides that;

“11.2.2 For the purposes of Rule 7A (6), records must be filed within 60 days of the date on which the applicant is advised by the registrar that the record has been received.

11.2.3   If the applicant fails to file the record within the prescribed period, the applicant will be deemed to have withdrawn the application, unless the applicant has during that period requested that the respondent’s consent for an extension of time and consent has been given. If consent is refused, the applicant may, on notice of motion supported by affidavit, applied to the Judge President in chambers for an extension of time. The application must be accompanied by proof of service on all other parties, and answering and replying affidavits may be filed within the time limits prescribed by Rule 7. The Judge President will then allocate the file to the judge for a ruling, to be made in Chambers, on any extension of time that the respondent should be afforded to file the record.

11.2.7  A review application is by its nature an urgent application. An applicant in a review application is therefore required to ensure that all the necessary papers in the application of filed within twelve (12) months of the date of the launch of the application (excluding heads of argument) and the registrar is informed in writing that the application is ready for allocation for hearing. Where this time limit is not complied with, the application will be archived and be regarded as lapsed unless good cause is shown why the application should not be archived or be removed from the archive.”

[5]           Paragraph 16 of the Practice Manual regulates the archiving of files, and provides under 16.3 that where a file has been archived, it has the same consequences as to the further conduct by the respondent party as to the matter having been dismissed. Under 16.2, the applicant whose review application is archived is required to lodge an application on affidavit, for the retrieval of the file on notice to all other parties to the dispute.

[6]           The effect of the deemed withdrawal provisions as contemplated in Paragraphs 11.2.2;  11.2.3; 11.2.7 and 16.3 of the Practice Manual have received attention in this Court and from the Labour Appeal Court. It is now accepted that the provisions of the Practice Manual have a binding effect. The consequences of a review application which is deemed to have been withdrawn, lapsed or dismissed in terms of these provisions, is that for all intents and purposes, the review application ceases to exist as a pending application, and this is not akin to a mere suspension or stay[1].

[7]           Further flowing from Macsteel Trading Wadeville v Francois van der Merwe N.O and Others^[2], once the review application was archived and regarded as lapsed as a result of a party’s failure to comply with the Practice Manual, and there was also no substantive application for reinstatement of the review application, and no condonation was sought for the undue delay in filing the record, the Court is as a matter of law, obliged to strike the matter from the roll on the grounds of lack of jurisdiction or alternatively, to give the party affected by the undue delay, an opportunity to file a separate Rule 11 application demonstrating why the matter should be dismissed or struck from the roll on the basis of that delay.[3] Thus, if and when a review applicant succeeds in bringing an application to reinstate it or to retrieve it from its archival state, its status as a pending application will be restored[4].

[8]           In Samuels[5], the Labour Appeal Court set out the approach to be adopted when considering whether to resurrect the review application that was archived as follows;

‘In essence, an application for the retrieval of a file from the archives is a form of an application for condonation for failure to comply with the court rules, time frames and directives. Showing good cause demands that the application be bona fide; that the applicant provide a reasonable explanation which covers the entire period of the default; and show that he/she has reasonable prospects of success in the main application, and lastly, that it is in the interest of justice to grant the order. It has to be noted that it is not a requirement that the applicant must deal fully with the merits of the dispute to establish reasonable prospects of success. It is sufficient to set out facts which, if established, would result in his/her success. In the end, the decision to grant or refuse condonation is a discretion to be exercised by the court hearing the application which must be judiciously exercised.’

[9]           The issue for consideration therefore is whether the applicant has shown good cause why the late filing of the record and the supplementary affidavit ought to be condoned, and why the review application should be reinstated.

The submissions and evaluation:

[10]        The applicant correctly points out that there are two periods of the delay that needs an explanation, viz. from May 2015 when the review application was filed to June 2017, when the Notice in terms of Rule 7A(8)(a) was ultimately filed; and from June 2017 after the filing of the Notice in terms of Rule 7A(8)(a) to April 2018 when the application for condonation was filed. The delay in filing the record and supplementary affidavit is about two years, whilst that in respect of filing the condonation is about nine months. The delays are obviously excessive in the extreme.

[11]        The applicant’s explanation for the delay was that from ‘early part of 2017’, he and CWU decided to hand over the matter to his current attorneys of record (Evershed Sutherland Attorneys). The delay in that regard was due to the fact that the applicant and CWU wanted Mr Tasso Anestidis to handle the matter, who had represented the applicant at the arbitration proceedings whilst still with another firm, Schindlers Attorneys. Anestidis has since moved to Evershed Sutherland attorneys, who came on record on 7 June 2017.

[12]        A supplementary affidavit was then filed on 7 June 2017 and when SAPO objected on 21 June 2017 on the basis that a record of proceedings had not been filed, the initial Rule 7A(8)(a) Notice was then withdrawn on 5 July 2017 and a new notice in terms of Rule 7A(8)(a) was filed on the same day.

[13]        On the same date that the new Rule 7A(8)(a) was filed, Evershed Sutherland attorneys addressed correspondence to SAPO’s attorneys of record, enquiring about whether they would agree to condone the late filing of the record. On 10 July 2017, SAPO’s attorneys of record responded and refused to grant an indulgence.

[14]        The applicant’s further explanation was that;

14.1      There were a ‘variety of logistical and monetary issues experience by CWU in regard to collecting, transcribing, perusing and considering the voluminous record of proceedings.

14.2      There were difficulties experienced by CWU in locating Mr Anestidis in order to give instructions.

14.3      There were difficulties between the applicant, CWU and Evershed Sutherland attorneys to effectively consult over the matter, which were exacerbated by the fact that the applicant resides at his family home in Limpopo Province.

14.4      Mr Booysen Mashego, the CWU official responsible for assisting the applicant with his case was during 2015 and 2016, was exceptionally busy and overwhelmed with a number of cases he had to attend to, whilst CWU was significantly understaffed. CWU also had limited resources and office equipment, had severe financial issues and was almost deregistered.

14.5      In early 2016, Mashego’s brother was gravely ill and has since passed away in March 2016. Mashego was then under the circumstances compelled to take considerable family responsibility leave.

14.6      In early 2017, the matter had to be handed over to another legal officer, who needed the permission of CWU to transfer it to Evershed Sutherland attorneys. However, a mandate to instruct attorneys could only be obtained from CWU’s president, who in turn he needed to first obtain the approval of the Deputy General Secretary, the board, and also of the National Executive Committee, which only sits on specific dates throughout the year. That process took three months to be finalised between January and March 2017.

14.7      The applicant was only able to brief and instruct Evershed Sutherlands in the middle part of 2017 (being around March 2017). At about the same time Mashego had another family bereavement, which necessitated that he take another considerable family responsibility leave.

14.8      In regards to the delay between the filing of the supplementary affidavit and the bringing of this application, the applicant attributed that to being unable to raise legal fees, and the comprehensive nature of the application, which took a considerable time involving consultations between him, CWU and Evershed Sutherland attorneys.

[15]        Central to SAPO’s opposition to the application for condonation is that it took the applicant and CWU a period of two years to make a decision on whether the matter should be handed over to legal practitioners despite being aware of the time frames, and that the applicant had condoned the inaction of CWU, and thus could not be absolved from that inaction.

[16]        SAPO further contended that the entire period of the delay has not been accounted for, and that taking into account the period between the filing of the record and supplementary affidavit, it took the applicant and CWU a further period of three years to bring the application for condonation despite being advised to do so by SAPO for a period of almost a year. On the whole, it was submitted that the applicant has failed to provide a reasonable and acceptable explanation for the delays, and that the gross neglect and ineptitude of the applicant could not be a reasonable and acceptable explanation of delays over two years.

[17]        Several difficulties arise from the explanation proffered by the applicant, and I agree with SAPO’s contentions that the entire explanation is neither acceptable nor satisfactory. From the explanation proffered, it is apparent that since the review application was launched in May 2015, any further steps in prosecuting it were taken only in 2017.

[18]        A further observation is that it is apparent that notwithstanding the provisions of Clause 11.2.3 of the Practice Manual, there does not appear anywhere in the founding papers that the applicant or CWU had sought an indulgence from SAPO before 2017, or an extension from the Judge President of this Court despite the alleged difficulties he and CWU had at the time. An indulgence or extension must be sought within a reasonable period where it is anticipated that the 60 day deadline would not be met, and definitely not some two years after that deadline as it happened in this case. Clearly the request for an extension by the applicant on 5 July 2017 was belated.

[19]        A second observation to be made is that other than the unfortunate personal tragedies that befell Mr Mashego in early 2016 and  early 2017, the bulk of the applicant’s explanation relates to CWU’s its own internal problems, or protocols and processes; or that Mashego was overwhelmed with limited resources at his disposal; or that he and CWU were waiting to locate Mr Anestidis to assist him in taking the review forward.

[20]        In regards to the excuses related to CWU’s own administrative or financial problems and protocols, or its lack of capacity, or Mashego being overwhelmed, it is my view that these amounts to no explanation at all. It has long been stated that in instances where there has been dilatoriness and negligence on the part of a trade union, that union cannot avoid liability for its neglect to prosecute claims by its members merely because it has a constitutional right to determine its own administration[6].

[21]        Equally unsatisfactory is the excuse that the applicant or CWU were attempting to locate Mr Anestidis in order for him to pursue the review application. Not much is said in the founding affidavit in regards to what those attempts were. It is not known as to when Mr Anestidis had left his erstwhile firm and joined Evershed Sutherland attorneys. What is clear however is that despite it being contended that the applicant only managed to brief and instruct Evershed  Sutherland attorneys in or around March 2017, the latter only came on record on 7 June 2017. At the time that the attorneys came on record, this was some two years since the review application was filed.

[22]        In regards to the delay between the filing of the supplementary affidavit and the bringing of this application for condonation, it was submitted on behalf of the applicant that the application for condonation and reinstatement was not late, as there was no prescribed time period stipulated in the Rules in which such an application must be brought. It was further submitted that the need to bring an application for condonation only arose once a party had objected to the delivery of a pleading or affidavit. To this end, it was submitted that the need to bring an application for condonation arose only when the record and supplementary affidavit were delivered on 5 July 2017 and when SAPO objected to the late delivery of the record.

[23]        The application for condonation was filed and delivered on 11 May 2020. This was some 9 months since the record and the supplementary affidavit were filed. That delay, even on the applicant’s own calculations and submissions, is indeed excessive.

[24]        The applicant attributed these delays to being unemployed and unable to pay legal fees or even a deposit for Evershed Sutherland Attorneys to pursue the review application. This explanation is nonetheless unacceptable and unsustainable in view of the fact that at the time that the record and the supplementary affidavit were delivered, Evershed Sutherland attorneys were already on record. The applicant was a CWU member and I fail to appreciate how his inability to pay his legal fees becomes an issue when CWU was responsible for those costs having briefed and instructed the attorneys.

[25]        Any contentions surrounding the applicant being resident out of Gauteng is equally unsatisfactory in that the responsibility remained with CWU to ensure that he was able to travel to Gauteng to attend to any matter related to his application, inclusive of attending to consultations.  As further already indicated, CWU’s own financial woes cannot amount to an acceptable excuse. It follows that the submissions made on the applicants’ behalf that he was a mere layperson reliant on his union, or that the delays occasioned by the union should not be visited upon him ought to be rejected. I agree with the submissions made on behalf of SAPO that there is a limit beyond which a litigant cannot escape the result of his or her representative’s lack of diligence.

[26]        It has long been stated that condonation is not merely for the asking, and that one of the primary purposes of the Labour Relations Act[7] is to ensure that disputes are resolved expeditiously, especially dismissal disputes. Thus where condonation for non-compliance with set time frames is sought, applicants are obliged to set out full explanations for each and every delay throughout the process, and that an unsatisfactory and unacceptable explanation for any of the periods of delay will normally exclude the grant of condonation, no matter what the prospects of success on the merits[8].

[27]        Even if in this case there was any cause to consider the applicant’s prospects of success, these are hopelessly non-existent,  and in such circumstances, the interests of justice would militate against condonation being granted. I have had regard to the detailed arbitration award of the Commissioner, and there is no basis for any conclusion to be reached that the decision that he had reached fell outside the bounds of reasonableness.

[28]        The applicant attacked the arbitration award on a variety of grounds including that the Commissioner had unreasonably used and relied on the record of his internal disciplinary hearing in finding that the dismissal was procedurally fair despite SAPO not having testified in that regard; improperly drew inferences which were not supported by evidence; committed gross misconduct and/or gross irregularities in finding that the dismissal was substantively fair.

[29]        As already indicated, the Commissioner’s award is detailed and there is no reason to believe that it is susceptible to a review. In regards to the allegations of misconduct which included acting violently towards two fellow employees whilst in unauthorised possession of a knife, the Commissioner had regard to all the testimony before him and in his analysis, had on countless occasions, found that the applicant ‘lied’ in regards to certain material events and versions, changed his versions, contradicted himself, relied on hearsay evidence, and sought to rely on evidence not put to SAPO’s witnesses.

[30]        In regards to the allegations, the Commissioner had rejected the applicant’s principal contentions that the charges were a fabrication and a conspiracy to dismiss him, based on inter alia, an alleged Protected Disclosure he had made in 2020 in relation to acts of corruption and maladministration, and an internal grievance he had lodged against his superior. The Commissioner also accepted that the applicant had violated the conditions of his suspension by going to SAPO’s premises on 25 June 2013.

[31]        In considering the appropriateness of the dismissal, the Commissioner took into account Schedule 8 of the Code of Good Practice, and weighed the mitigating circumstances of the applicant against the seriousness of the misconduct in question. He also found that the applicant had not shown any contrition but had persisted with his claims that management had conspired to fabricate the charges against him. The Commissioner concluded that the persistence with the conspiracy theories was an aggravating factor, resulting in the trust relationship having been broken, and thus confirmed the dismissal.

[32]        In regards to procedural fairness, the Commissioner had regard to the fact that only the applicant had testified in that regard. He however concluded that this was not fatal to SAPO’s case in the light of the record of the internal disciplinary hearing being common cause and admitted as evidence, and further since the applicant had relied on it in cross-examining SAPO’s witnesses. The Commissioner further rejected any suggestion that the Chairperson of the disciplinary enquiry was biased, or had prejudged the matter, or was hostile towards the applicant, or conducted the proceedings in an irregular manner.

[33]        In the light of the above conclusions reached by the Commissioner, I am satisfied that the prospects of successfully reviewing his award are non-existent. The Commissioner in line with principles enunciated in Goldfieds[9] followed a process that gave the parties a full opportunity to have their say in respect of the dispute, properly identified the dispute he was required to arbitrate, understood the nature of that dispute, dealt with the substantial merits of that dispute, and arrived at a decision that another decision-maker could reasonably have arrived at based on the evidence that was presented before him.

[34]        In the light of the above conclusions, it follows that the interests of justice cannot be served by granting condonation, particularly where the delay in filing the record and the supplementary affidavit, was excessive in the extreme, and the explanation proffered in that regard amounted to no explanation at all, and where in the light of the conclusions reached by the Commissioner, the prospects of the review application being successfully review are non-existent.

[35]        The submissions made on behalf of the applicant that the matter is important on the grounds that in involves ‘a large and controversial parastatal entity which has committed unethical and unfair misconduct towards him’, is indeed extraordinary, especially in the light of the seriousness of the misconduct that led to his dismissal, and the unsustainability of his conspiracy theories. I am uncertain as to since when has gross misconduct by an employee, which  involves the threats of violence with a knife towards other employees at the workplace has become of national importance or public interest. Other than the obvious fact that such acts of misconduct and threats of violence will ordinarily receive public rebuke, I do not see how such a case can be said to be of importance. Clearly the submissions that SAPO had acted unethically or unscrupulously in the conduct of its business affairs are red herring and merely meant to conflate the issues. In any event, these were not issues served before the Commissioner to determine, nor should this Court accord them any significance in determining whether condonation should be granted or not.

[36]        Any ‘immense and irreparable prejudice’ that the applicant alleged he stands to suffer should condonation not be granted is clearly of his own and CWU’s making. The contention that SAPO ought to have brought a Rule 11 application in order to mitigate any prejudice is misplaced, as there is no requirement that such an application should be brought in circumstances where a party has not exercised diligence in prosecuting a review application. That is a choice open to a respondent party in review proceedings. In the end however, it will be SAPO that would be greatly prejudiced should condonation be granted, in the light of the excessive delays and lack of timeous prosecution of the review application.

[37]        I have further had regard to the question of costs. Inasmuch as I am of the view that SAPO ought not to have been burdened with the legal costs in having to oppose this application, in the same token, I am of the view that requirements of law and fairness dictate that an award of costs not be made.

[38]        Accordingly, the following order is made;

Order:

1.            The Applicant’s application for condonation for the late filing of the record of the proceedings, and the late filing of the supplementary affidavit in the review application is dismissed.

2.            The application to reinstate the review application is dismissed.

3.            The review application is dismissed.

4.            There is no order as to costs.

___________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

Representation:

For the Applicant:                       Evershed Sutherland (SA) Attorneys

                                                  Heads of argument prepared by Mr T Anestidis

For the Third Respondent:       Nozuku Nxusani Inc

                                                Heads of Argument prepared by Adv. M Msomi

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