South Africa: Durban Labour Court, Durban

IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN

Case No: D 214/20

Not Reportable

In the matter between:

Heard: 24 February 2023

Delivered:  12 May 2023 (Electronically)

JUDGMENT

WHITCHER J

Introduction

[1]  The applicant seeks an order condoning the late filing of his review application and the record and a further order reinstating the review application which has been deemed to have been withdrawn by virtue of the applicant failing to file the record within 60 days of being notified by the Registrar that the record has been made available.  The first respondent (the respondent) opposed the applications.

[2]  The review application was filed 11 months late, the record more than two years late and the application for reinstatement was filed more than a month after the record was filed.

[3]  In a reinstatement application the non-compliance must be condoned first before reinstatement of the review can be granted.

[4]  I am not persuaded that it is in the interests of justice to condone the late filing of the review application and the record. In my view the delay in both matters and the explanations advanced for same are grossly unacceptable given when the misconduct and dismissal took place (2017), the stipulated time periods for filing the processes and the importance placed by the LRA and the Practice Manual on the speedy and expeditious resolution of dismissal disputes and reviews. Moreover, the review papers disclose no, alternatively very poor prospects of success.

[5]  The nub of the explanation for the late filing of the review application is an unsubstantiated claim that for nine months Pro Bono essentially strung along the applicant with the excuse that they were trying to find an attorney to assist him. The explanation also suffers from the absence of an explanation for why, when the applicant eventually secured the services of other attorneys, it took a further two months to file the review application.

[6]  The nub of the explanation for filing the record two years late is that the first transcript received did not contain the evidence of three of the respondent’s witnesses and the subsequent months were taken up with trying to secure written notes from the erstwhile representatives of the applicant and the first respondent and a reconstruction from same. Remarkably, and with no explanation, the bargaining council was only approached in June 2022 with a proper query about the missing audio recordings, following which they were promptly furnished. An even then, despite receipt of the complete transcript at the end of June 2022, the record was only filed in August 2022. 

[7]  In any case, there is virtually no merit in the review application. On its face, the award is eminently reasonable. It discloses no obvious error that represents a departure from the conduct of a reasonable decision-maker. It sets out in detail the evidence given by all the witnesses, which included the eye witness account of three members of the public, followed by a logical and reasonable analysis of that evidence. If the arbitrator’s reasons provide a reasonable “route” leading towards the conclusions, it must follow that the decision is one that could have been reached by a reasonable decision-maker.  

[8]  According to the award the applicant, then a Senior Traffic Officer and two of his colleagues conducted an unauthorised roadblock on 26 February 2017. The roadblock was not only unauthorised, it was outside the jurisdiction of the respondent and conducted after the applicant’s shift had ended. And, tragically, one of the officers was killed by an oncoming bus he was trying to stop. Remarkably, the third officer searched the deceased and took something that appeared to be money and then left the scene; he literally ran away according to the eye witnesses. The identity of the third officer was not established because the applicant denied there was a third officer present at the time of the incident. The version of the applicant, the pertinent parts of which were not put to the applicable respondent witnesses and made no sense at all, was that he and the deceased officer happened to be parked on the side of the road under the bridge (the common identified location) because the deceased had arranged to meet his building contractor by the bridge to pay him and the deceased was hit by a bus when he left the vehicle to relieve himself.

[9]  As to the issue of procedural fairness, according to the award it was common cause that the disciplinary hearing proceeded in the absence of the applicant when he walked out after his second request for a postponement was denied.  

[10] The grounds of review amount to nothing more than bald allegations that the arbitrator misconceived the evidence and failed to take into account material evidence. There is no reference to the record and the award which is demonstrative of such irregularities.

[11] As to the complaint that the arbitrator refused to grant a postponement of the proceedings to permit the applicant to secure witnesses, there is no evidence put forward by the applicant which demonstrates that in the consideration of the postponement application the arbitrator exercised her discretion capriciously or improperly.

[12] Finally, insofar as costs are concerned, the purpose and requirements of the law and fairness are best met by each party bearing its own costs.

The Order

1. The application for an order condoning the late filing of the review application and the late filing of the record is dismissed.

2. The application for an order reinstating the review application is accordingly dismissed.

Benita Whitcher  

Judge of the Labour Court of South Africa

APPEARANCES: