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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN

 

Not Reportable

Case No: D 1588/17

 

In the matter between:

 

LINDINKOSI CYRIL NTOMBELA                                      APPLICANT

 

and

 

ELRC                                                                                  1^st RESPONDENT

 

T.M. BAKER N.O.                                                              2^nd RESPONDENT

 

DEPARTMENT OF EDUCATION                                      3^rd RESPONDENT

 

Heard:          29 February 2024

Delivered:    This judgment was delivered electronically to the parties by email. The date and time for hand-down is deemed to be 20 May 2024.

Summary:    Application to reinstate a review application deemed to have been withdrawn in terms of the Practice Manual of the Labour Court.

 

JUDGMENT

 

WHITCHER J

 

[1]  This is an application to reinstate a review application brought in terms of section 145 of the Labour Relations Act, 1995 and deemed to have been withdrawn in terms of the Practice Manual of the Labour Court because the record was not timeously filed.

 

[2]  The applicant, a school principal at the time, was dismissed for serious misconduct. Th charge alleged that he had a relationship of a sexual nature with a learner, who I shall refer to as “D[…]” in this matter. The matter went to arbitration whereupon an award was issued upholding the fairness of the dismissal. Grieved by the award, the applicant filed to have the award reviewed and set aside. I accept that the review application was timeously filed.

 

[3]  The record, however, was filed about four (4) years late, which on any consideration is an excessive delay even with a reasonable explanation.

 

[4]  I do not propose to set out the detail of the reasons offered for the delay because at the end, the matter resolved itself on the prospects of success of the review application. The explanation largely centres on the applicant’s efforts to secure legal assistance from various legal practitioners, problems which arose when his trade union refused to pay his legal fees and he had to retrieve his file from erstwhile attorneys, failures by his erstwhile attorneys (the Justice Centre), problems with securing a complete record and the interruption caused by the Covid 19 lockdown.

 

[5]  The LAC[1] has held that it is always important to consider the merits of an application where condonation is sought because excellent prospects of success may lead to the granting of condonation even when the delay is substantial and the explanation inadequate.[2]

 

[6]  In my view, the applicant does not enjoy reasonable prospects of success in his review application and accordingly, there are no grounds to overlook the substantial delay in the filing of the record and no good reason to force on the Department further time-consuming and expensive litigation.

 

[7]  It is correct, as submitted by the applicant, that:

7.1   The alleged sexual misconduct was reported to the Department by Dladla, a pupil at the school who had an axe to grind with the applicant. Dladla in fact openly indicated that he reported the matter in revenge because the applicant had caused him and his friends to be arrested at school for criminal misconduct at school.

7.2   D[…] denied the relationship.

7.3   The mobile phone was not presented at the arbitration.

7.4   The authenticity of the messages as originating from the applicant’s mobile phone was not established through phone records from the service provider.

7.5   The mobile phone was in Dladla’s possession for some time.

 

[8]  However, the case against the applicant was based on reliable evidence. I say this because:

8.1   Nkosi, the circuit manager against whom a motive to lie was not suggested, confirmed that he physically examined the mobile phone, recorded the contents and took the photographs of the text messages which formed the basis of the charge against the applicant.

8.2   He further confirmed that his examination of the mobile phone indicated that the messages were sent from a cell phone number (which turned out to be that of the applicant) and from a sender identified in the phone as one “Mahlobo” which turned out to be the clan name of the applicant.

8.3   No questions were put to Dladla to the effect that he has the know-how of manipulating the content of another person’s text messages or that (as the applicant now claims) he could have done this by “swopping” sim cards.

8.4   It was Dladla’s undisputed testimony that D[…] had told him about the relationship and had shown him the text messages before he stole her mobile phone. Essentially, that is why he stole her phone. She denied the relationship, not her conversations with Dladla.

8.5   Curiously, D[…] did not report at school or to her parents the fact that her mobile phone had been lost or stolen during a school event.

8.6   The applicant denied D[…]’s mobile phone was stolen but now concedes in his review that her phone was in fact stolen.

 

Order

 

The application (D 1588-17) to reinstate the lapsed review application is dismissed.

 

Benita Whitcher  

Judge of the Labour Court of South Africa

 

APPEARANCES:

For the Applicant:

Mr D Mpanza, from Mpanza and Associates Inc

For the Third Respondent:

N Govender, instructed by State Attorney, KwaZulu-Natal  

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