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IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
Case Number: JR 2254/05
In the matter between:
Johann Kritzinger Applicant
and
Commission for Conciliation,
Mediation and Arbitration 1st Respondent
Portia Molefe (Commissioner) 2nd Respondent
Barclays Bank 3rd Respondent
_____________________________________________________________
JUDGEMENT
_______________________________________________________________________________
Molahlehi J
Introduction
[1] This is an application to review and set aside a ruling issued by the second respondent ("the commissioner") under case number GAJB 11065-05 on 14 June 2005. In terms of the ruling the commissioner ruled that the first respondent (“the CCMA”) did not have jurisdiction to hear the dispute.
Background Facts
[2] The applicant who was before his dismissal employed by the third respondent as both Chief Knowledge Officer and Business Partner Treasury was dismissed for operational reasons on 31st March 2005. Prior to his dismissal the parties signed a settlement agreement which amongst others provided that the terms and conditions of the agreement are in full and final settlement of all claims of whatever nature which the applicant may have against the third respondent, arising out of the retrenchment.
[3] After signing the agreement the first respondent handed the copy of the agreement to the applicant to take home with, to consider and to sign if satisfied with the terms and conditions thereof. The applicant took the agreement home and returned it signed to the first respondent. However, the applicant inserted at the end of the agreement a sentence which read as follows: “However I do not agree that the retrenchment or process followed is fair.” The applicant accepted the payment in the amount of R150 989.37, notwithstanding the handwritten insertion in the agreement that the retrenchment was unfair.
[4] The agreement is dated the 31 March 2005. The applicant referred a dispute concerning an unfair dismissal to the CCMA on the 28 April 2005. On receipt of the notice of set down during May 2005, the first respondent’s attorneys of record addressed a letter to the CCMA and forwarded the same to the applicant under cover of a fax dated the same day and indicated that the CCMA did not have jurisdiction because applicant had accepted an amount of R150 989.37 as payment. It was further indicated in this letter that a member of the attorneys of record would attend the conciliation proceedings which were set down for the 2 June 2005.
[5] At the conciliation hearing and as anticipated the first respondent raised a point in limine concerning the jurisdiction of the CCMA. After confirming receipt of the letter of the first respondent’s attorneys, indicating the intention to raise the point in limine, the applicant applied to have the matter postponed to afford him an opportunity to obtain legal advice. The commissioner declined the application and reasoned that the matter turned on the facts and not on a complicated legal principle.
[6] The commissioner invited both parties to address him on the point in limine immediately after dismissing the application for the postponement. After hearing and considering the submissions made by both parties the commissioner issued his ruling in terms, of which, she upheld the point limine. In upholding the point in limine the commissioner, reasoned that she had “no hesitation in accepting that the applicant had voluntarily and knowingly signed the agreement after satisfying himself that its terms were acceptable to him.”
Grounds for review
[7] The grounds of review are set-out in the applicant’s supporting affidavit as follows:
“20 The Second Respondent failed to allow me to obtain legal representation. I submit that it was unfair to allow the Third Respondent legal representation without allowing me an opportunity to be represented.
The Second Respondent relied on a labour court, matter, Makiwane supra that does not have the same facts as my case to conclude that the CCMA did not have jurisdiction to entertain the dispute.”
Condonation applications
[8] The third respondent has raised a point in limine concerning the late referral of the review application. The lateness of the application which was not disputed is explained in the applicant’s replying affidavit as follows:
“4.1 I admit that my application was filed late on the First Respondents (sic). I am advised by my attorney on the record that the application on the First and Second Respondents could not be served as difficulties were experienced at the CCMA as they were not certain who deals with review applications. The CCMA thereafter moved to new premises at 26 Loveday Street.”
[9] The applicant also conceded that its Rule 7A (8) notice was filed outside the period provided for in the law. The reason for the lateness according to the applicant was due to the delay by Sneller Verbatim in transcribing the record of the hearing. The applicant applied for condonation for the late filling of his rule 7A (8) in his replying affidavit. The applicant contended that the delay of 20 (twenty) days in filing the notice was not excessive and that the third respondent did not suffer prejudice as a result of this delay.
[10] The principles governing the requirement for granting or refusal of condonation are well established in our law. In terms of these principles the court or an arbitrator has a discretion which is to be exercised judicially after taking into account all the facts before it. The factors which the court takes into consideration in assessing whether or not to grant condonation are: (a) the degree of lateness or non compliance with the prescribed time frame, (b) the explanation for the lateness or the failure to comply with time frames, (c) prospects of success or bona fide defense in the main case; (d) the importance of the case, (e) the respondent’s interest in the finality of the judgement, (f) the convenience of the court; and (g) avoidance of unnecessary delay in the administration of justice. See Foster v Stewart Scott Inc (1997) 18 ILJ 367 (LAC).
[11] These factors are not individually decisive but are interrelated and must be weighed against each other. 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.
[12] In an application for condonation, good cause is shown by the applicant giving 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. 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.
[13] It is important to point out 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. See Melane v Santam Insurance Co Ltd, 1962 (4) SA 531 (A) at 532C-F. It has also been held by the courts that the applicant should bring the application for condonation as soon as it becomes aware of the lateness of its case.
[14] Proper explanation entails an explanation for each period of the delay and the disclosure of all the details relevant to the delay. In explaining why the delay, the applicant need to include the stage at which he or she became aware of the lateness in the referral. If the application was not made immediately or soon after becoming aware of the lateness the applicant need to provide an explanation for that. And more importantly the applicant needs to take the court or the arbitrator or a commissioner into their confidence.
[15] Turning to the facts of this case it is apparent that in both instances of the late filing of the review and the filing of the notice in terms of rule 7A no substantive application for condonation was made by the applicant. It would appear that the attitude and the manner in which the applicant approach this matter is that condonation is a mere formality, it is there to be readily granted even where it has either not applied for or where it has not been properly made. I have already indicated that the factors that a court taking into account in considering whether or not to grant condonation are all taken into account and weighed against each other, it is therefore incumbent on the party seeking condonation to ensure that each of these factors are dealt with in his or her application.
[16] The applicant’s explanation for the late application of reviews is unreasonable and unacceptable. In the first instance it is not clear why the applicant had to wait for the transcription of the record when this being a ruling and as practice has it in the CCMA the proceedings are not recorded. There is also, in this regard, no explanation of what happened to the record that the applicant had called upon Sneller Verbatim to produce.
[17] The explanation about the problem encountered by the applicant in serving on the CCMA is clearly unacceptable. There is no explanation why was it necessary for this review application to be served on a specific person at the CCMA. There is also no reference to a rule that the CCMA required parties to serve reviews on a specific person. If this was the case and was to be accepted, then the question why did the applicant not take steps to bring this alleged unacceptable state of affairs to those in authority at the CCMA.
[18] The story about the CCMA moving offices is also not reasonable and has to be rejected. If assuming, the applicant could not serve at the physical address of the CCMA because the process of relocation, no explanation has been given for not effecting service through the other methods of service provided for in the rules.
[19] It is evidently clear that the applicant has failed to discharge his onus of showing good cause for the granting condonation. And it is on this ground alone that the applicant’s application should be dismissed.
[20] It was indicated earlier that the applicant did not file a substantive condonation application. It was also indicated that one of the factors that a court takes into account in considering an application for condonation is prospects of success. The applicant has not made out any case in as far as prospects of success are concerned. The applicant’s case stands to be dismissed even if the prospects of success were to be assessed on the basis of the facts as set out in the papers together with the ruling of the commissioner.
[21] The other issue raised by the applicant relates to the refusal to postpone the hearing on the point in limine by the commissioner. The commissioner cannot be criticized for refusing the grant the applicant the postponement. On his own version the applicant was aware that the third respondent would be represented by its attorneys of record. He was not denied the right to legal representation but chose not to bring any on the day in question.
[22] Having regard to the manner in which this matter was handled I see no reason in fairness why the costs should not follow the result.
[23] The application is in the circumstances dismissed with costs.
_______________
Molahlehi J
Date of Hearing: 31 May 2007
Date of the Order: 09 November 2007
Appearances
For the Applicant: Adv Louise Charoux
Instructed by: Yusuf Nagdee Attorney
For the Respondent: Adv L Malan
Instructed by: Bowman Gilfillan Inc.
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