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[2022] ZALCD 20
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Nomnga v Enviroserv Waste Management (Pty) Ltd and Others (D1229/2019) [2022] ZALCD 20 (20 May 2022)
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IN THE LABOUR COURT OF SOUTH AFRICA
D1229/2019
Not Reportable
In the matter between:
SIMPHIWE MTHOKOZISI NOMNGA APPLICANT
and
ENVIROSERV WASTE MANAGEMENT (PTY) LTD FIRST RESPONDENT
L. WILLIAMS DE BEER N.O. SECOND RESPONDENT
NATIONAL BARGAINING COUNCIL FOR THE
ROAD FREIGHT INDUSTRY THIRD RESPONDENT
HEARD: 18 May 2022
DELIVERED: 20 May 2022
JUDGMENT
Purdon B, AJ
Introduction:
[1] This is an application inter alia for the condonation of the late filing of an application for review in terms of Section 145 of the Labour Relations Act (Act No.66 of 1995) (“the LRA”).
Background:
[2] The review proceedings seek to set aside an arbitration award issued by the Second Respondent dated the 31st May of 2018 in terms of which the Applicant’s unfair dismissal dispute was dismissed.
[3] The Applicant in his founding papers avers that the award was received on the 31st of May 2018, and he accordingly ought to have filed the review application on or before the 12th of July 2018.
[4] Although he stated that the review application was “approximately one year out of the time”, in the event, a rolled-up application for condonation and review was only filed on the 04th of October 2019, in excess of fourteen months later.
[5] Aside from the late filing of the review application, when the matter came before the Court the review had not been timeously prosecuted in terms of the prescripts of the Practice Manual in that the record had not been filed within the 60 day period prescribed by clause 11.2.2 of the Practice Manual.
[6] In this respect, it appears that an application had been made to reinstate the review hearing (which is inferred from the presence of an answering affidavit in the Court file). Ms.Jaipal, who appeared for the Applicant, was not in a position to offer an explanation as to why the Applicant had not been filed.
[7] Further, in terms of 11.2.7. of the Practice Manual, the requisite papers in the review application were not filed by the 03rd of October 2020, being 12 months from the filing of the review application.
[8] No application had been made for condonation of the failure to comply with clause 11.2.7. of the Practice Manual.
[9] In the Court’s view, refusal of condonation of the late filing of the review application would be dispositive of the further difficulties faced by the Applicant.
[10] The Applicant’s explanation for the late filing is set out at paragraph 15 of his founding affidavit as follows:
“15.1. The award was received by me on 31 May 2018.
15.2. The review Application was due to be filed on or before 12 July 2018, it is approximately 1 year out of time.
15.3. My legal cost insurer, Legal Wise, referred my matter to my current attorneys of record, Henwood Britter & Caney, 20 July 2018.
15.4. My attorney immediately contacted me the next day, 21 July 2018, to arrange a consultation for 25 July 2018.
15.5. After consultation on 25 July 2018 my attorney applied for cover from Legal Wise to bring this application for review.
15.6. Legal Wise only granted cover on 21 August 2018, however same was only received by my attorneys on 31 October 2018.
15.7. My attorney was unable to brief Counsel to draft the application until he received a confirmation of cover from Legal Wise, which he only received on 31 October 2018.
15.8. My attorney briefed Counsel on 12 December 2018 and consultation with Counsel was arranged on 17 December 2018.
15.9. Consultation with Counsel took place 17 December 2018 however the application papers could not be drafted as more information was required from the union representative as well as the documents used at the arbitration.
15.10. My attorney arranged consultation with Counsel and the union representative in January 2019 however same had to be cancelled due to Counsel being ill and admitted into hospital during that period.
15.11. Consultation was rescheduled for 18 April 2019.
At the aforesaid consultation the relevant documents were not available and the union representative undertook to furnish same to my attorney as soon as possible.
15.13. My attorney obtained instructions from the union representative on 12 June 2019 and immediately forwarded same to Counsel.
15.14 Thereafter the application papers was drafted as soon as was reasonably possible”.
[11] The explanation is weak, as properly conceded by Ms.Jaipal.
[12] The requirements of condonation are trite and require good cause to be shown.
[13] The standard set by the Constitutional Court in Grootboom v National Prosecuting Authority is strict:
“It is now trite that condonation cannot be had for the mere asking. A party seeking condonation must make out a cause entitling it to the Court’s indulgence. It must show sufficient cause, this requires a party to give a full explanation for the non-compliance with the rules or Court’s directions. Of great significance, the explanation must be reasonable enough to excuse the default”.
· Grootboom v National Prosecuting Authority [2014] 35ILJ 121 (CC) at para 23
[14] The Constitutional Court has also emphasised in the case of labour disputes, excessive delays are to be deprecated.
· Toyota SA Motors (PTY) Ltd v CCMA & Others [2016] 37 ILJ 313 (CC) at para 45
[15] In the case of individual dismissal disputes, the Labour Appeal Court has emphasised that a stricter standard should be applied in granting condonation for non-compliance in the case of individual dismissals.
· Queenstown Fuel Distributors CC v Labuschagne N.O. & Others [2000] 21 ILJ 166 (LAC) at para 24;
· S.A. Post Office Ltd v Commission for Conciliation, Mediation and Arbitration & Others [2011] 32 ILJ 2442 (LAC) at para 20
[16] It is event from a reading of the Applicant’s explanation that the Applicant and his representatives were at best insouciant and at worst culpably dilatory in the institution of the review proceedings.
[17] There are glaring hiatuses in the explanation proffered by the Application, for eg. The period between the scheduled consultation in January 2019 which has to be cancelled due to the counsel’s illness, and the 18th April at which time it was rescheduled. No detail was given as to the illness of counsel, when counsel recovered, nor indeed why the Applicant’s attorneys nor alternative counsel could not have drafted the papers.
[18] At paragraph 15.3, on the Applicant’s version, instructions were received from the Applicant’s union representative on the 12th June 2019 and “immediately forwarded” to counsel.
[19] The delay between 12th of June and the filing of the founding affidavit (on the 02nd of September 2019) is not at all explained other than the laconic “thereafter the application papers were drafted as soon as reasonably possible”
[20] Unexplained too is the delay between the signature of the affidavit on the 02nd of September 2019 and the filing of the application of the 04th of October 2019.
[21] Given the weak and insufficient explanation for the delay, there is nothing to indicate that there are compelling prospects of success on the merits of the review application.
[22] The Applicant’s criticism of the Second Respondent’s award are to be found at paragraph 7 of the founding affidavit:
“The basis of the application is that the second respondent, in conflict with the behests of the LRA, failed to hand down a reasonable and objective award, misconducted himself (sic), committed a gross irregularity, handed down a finding which is not a finding of an objective maker, alternatively exceeded his powers by acting unreasonably and unjustifiably, the grounds of which will be set our hereunder”.
[23] These are pro format omnibus grounds of review with nothing specifically identified as constituting any form of defect in the reasoning of the Commissioner.
[24] There is nothing that indicates that the arbitration is not one that a reasonable decision maker would have made given the material before the Second Respondent.
[25] The Applicant has accordingly not shown good cause why the egregiously late referral of the review application should be condoned.
Order:
[26] The Court therefore makes the following order:
The Application for condonation of the late filing of the review application is dismissed.
Purdon B. AJ
Acting Judge of the Labour Court of South Africa
Appearances
For the Applicant: Jaipal C instructed by Henwood Britter & Caney
For the First Respondent: Grundlingh R. instructed by Bester & Rhoodie Attorneys