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THE LABOUR COURT OF SOUTH AFRICA, DURBAN

 

Not Reportable

Case No. D128/2021

 

In the matter between:

 

NUMSA obo BONGINKOSI THABEDE	Applicant
and
NOZIPHO KHUMALO N.O.	First Respondent
METAL ENGINEERING INDUSTRIES BARGAINING COUNCIL (MEIBC)	Second Respondent
DEFY APPLIANCES (PTY) LTD	Third Respondent

 

Heard:         22 November 2023

Delivered:    16 October 2024

 

JUDGMENT

GOVENDER, AJ

 

Introduction

 

[1]  The matter before the Court is a review application concerning the dismissal of the applicant’s application for condonation concerning its rescission application, the latter of which was not entertained in view of condonation not being granted.

 

[2]  The review application is accordingly one which falls within the ambit of section 145 of the Labour Relations Act[1] (LRA) read with section 158 thereof.

 

[3]  While the ruling is dated 21 December 2020, it was received by the applicant on 14 January 2021. The third respondent does not dispute this. The application was brought on 26 February 2021 which is within the requisite six-week period as contemplated by section 145(1)(a) of the LRA.

 

[4]  The review application is opposed by the third respondent.

 

[5]  Prior to addressing the pertinent legal principles, I address the material background of the matter.

 

Material background

 

[6]  The applicant is a trade union acting on behalf of its member Mr Bonginkosi Thabede (Mr Thabede) who was previously employed as a supervisor by the third respondent.

 

[7]  The circumstances giving rise to Mr Thabede’s dismissal occurred on 24 June 2019 where Mr Thabede was seized with recording the names of the employees who had properly reported for duty.

 

[8]  On Mr Thabede’s version he had written down the names of the employees that had arrived for work and unbeknown to him, one of the employees whose names he had written down as being present at work, Mr Nathi Mbuyisa (Mr Mbuyisa) had failed a breathalyser test and had been refused access to the premises and sent home. Not realising this, Mr Thabede claims that he had not corrected this error on the register and later that day he had fallen ill and left work. Upon his return on 27 June 2019 and upon realising that Mr Mbuyisa had been refused entry to the premises, he immediately took steps to rectify his error and to correct the register.

 

[9]  On the third respondent’s version, Mr Thabede was present when Mr Mbuyisa failed the breathalyser test and as such there was no basis to have marked him present on the day in question. Moreover, Mr Thabede only sought to correct the register once “his error” had been brought to his attention. The matter is compounded by Mr Mbuyisa being Mr Thabede’s brother-in-law.

 

[10]  Mr Thabede was subsequently charged with fraud and dismissed on 1 September 2019 following a disciplinary hearing.

 

[11]  On Mr Thabede’s version he had been refused the opportunity to call Mr Mbuyisa as a witness, but on the third respondent’s version, Mr Thabede had pleaded guilty to the charges and as such no witnesses were led at the disciplinary proceedings.

 

[12]  Following Mr Thabede’s dismissal an unfair dismissal dispute was referred to the second respondent (the Bargaining Council), and after an unsuccessful conciliation on 23 October 2019, the matter was referred to arbitration.

 

[13]  The arbitration was scheduled to proceed on 26 February 2020 and it is common cause that both Mr Khuzwayo, who was Mr Thabede’s union representative, as well as Mr Thabede failed to arrive for the arbitration.

 

[14]  There is no explanation concerning Mr Thabede's failure to attend the Bargaining Council in the rescission application.

 

[15]  On Mr Khuzwayo’s version, he did not attend because of the protest action in Ladysmith which resulted in a number of roads being blocked and serious traffic congestion. As a result of him having been late for the proceedings, he states that he telephonically contacted the Bargaining Council, ascertained the details of the Commissioner appointed to hear the arbitration proceedings and made a telephone call to him to advise him of the predicament.

 

[16]  On the third respondent’s version this is disputed and the third respondent claims that its representative at the arbitration provided Mr Khuzwayo’s cell phone number to the Commissioner who contacted Mr Khuzwayo to ascertain his whereabouts. The third respondent also disputes Mr Khuzwayo’s version regarding the inability to attend at the Bargaining Council. The third respondent contends that while there was traffic congestion, it was not so that reaching the Bargaining Council was impossible, because a number of Commissioners had arrived, aside from the third respondent’s representative whom had also arrived early at the Bargaining Council.

 

[17]  According to Mr Khuzwayo in his telephonic discussion with the Commissioner, the Commissioner acknowledged the challenges and indicated that by virtue of Mr Khuzwayo’s inability to attend at the Bargaining Council, the proceedings would be adjourned to another date.

 

[18]  In the opposing affidavit to the condonation application in the Bargaining Council, the third respondent records the position following the telephone calls between the Commissioner and Mr Khuzwayo as follows:

 

‘19   After the telephone discussions between the Commissioner and Cyril, I was advised by the Commissioner that Cyril is stuck in traffic caused by a protest action that was taking place in Ladysmith. After a period of more than 2 hours waiting for Cyril and/or Bonginkosi to arrive, I was advised by the Commissioner that she advised Cyril that should he fail to furnish written reasons by the end of the day for Applicant’s failure to attend the arbitration, the Commissioner shall issue a ruling to the effect that the matter is dismissed.’

 

[19]  The third respondent’s version was denied by Mr Khuzwayo in the replying affidavit to the condonation application. One of the bases in support of the denial was that the ruling was issued at 15h00, when, on the third respondent’s version, the Commissioner requested written reasons by the end of the day, while the dismissal ruling was made before the end of the day.

 

[20]  The applicant refers to the Commissioner who dismissed the matter as ‘he’, while the third respondent refers to the Commissioner as ‘she’. The dismissal ruling was handed down by Sizwe Gcayi and I accordingly do not question Mr Khuzwayo’s version that he spoke to ‘him’.

 

[21]  The applicant claims that it made no efforts to follow up on the set down for what it understood to be the further date for the arbitration because of the impact of the COVID-19 pandemic in South Africa, which ensued from about 26 February 2020, and because it did not expect a date for the arbitration to be allocated before the country went into a national lockdown on 27 March 2020.

 

[22]  The COVID-19 restrictions eased, and the applicant was able to open its Ladysmith offices on 30 June 2020. After working through a backlog and a massive influx of additional work as a result of the national lockdown, Mr Khuzwayo made enquiries at the Bargaining Council in respect of a further date for the hearing of the arbitration in mid-July 2020. It was during these enquiries that Mr Khuzwayo learned that the matter had in fact been dismissed at the hearing of 26 February 2020.

 

[23]  In view of Mr Khuzwayo having been told by the Commissioner that the matter would be adjourned to a future date and then being told that the matter had in fact been dismissed, he requested written confirmation of the actual position. Mr Khuzwayo claims to have made a number of follow ups in this regard, while no proof of this has been attached.

 

[24]  Mr Khuzwayo then states that it was only on 27 August 2020 after the applicant’s attorneys of record had followed up with the Bargaining Council, that written confirmation of the dismissal ruling was received.

 

[25]  The third respondent argues that the period of delay is aggravated by the fact that the applicant became aware of the dismissal ruling in July 2020 and only brought the rescission application in November 2020. The third respondent further argues that even if the later date of 27 August 2020 is used, the applicant has failed to explain every period of the delay.

 

[26]  In the third respondent’s answering affidavit and heads of argument it meticulously addresses every period of the delay which, it avers, has not been adequately explained.

 

[27]  Mr Khuzwayo states that due to difficulties in contacting Mr Thabede, it was ultimately decided that he would depose to the founding affidavit in support of both the condonation and rescission applications. When considering the founding affidavit to the condonation application.

 

[28]  Moreover, the founding affidavit refers to a copy of the email of 27 August 2020 confirming and attaching the dismissal ruling being attached thereto, but there was no attachment to the affidavit to the Court file, nor was this an inadvertent error when one considers the pagination of the supplementary record.

 

[29]  After receiving the dismissal ruling on 27 August 2020, a consultation with the applicant’s attorneys was scheduled for 4 September 2020.

 

[30]  The condonation application and rescission application were duly drafted and finalised on 8 September 2020.

 

[31]  Mr Khuzwayo states that following receipt of the papers, he attempted to secure Mr Thabede’s attendance in order to sign and commission the affidavits, but Mr Thabede was unavailable as set out above and Mr Khuzwayo had certain work constraints.

 

[32]  A further consultation was arranged with the applicant and its attorneys on 14 October 2020 to account for the further delay in the issuance of the applications. These amendments were effected and the applications were sent to Mr Khuzwayo for signing and commissioning.

 

[33]  Mr Khuzwayo attributes the delay in bringing the respective applications to the COVID-19 pandemic and the subsequent lockdown. Mr Khuzwayo claims that, had it not been for the lockdown, he would have found out that the matter was dismissed sooner and acted immediately to pursue the matter.

 

[34]  He claimed in the founding affidavit to the condonation application that the delay is minimal and that the applicant was not in wilful default, but rather that circumstances were beyond their control.

 

[35]  He concludes by recording that the delay does not prejudice the respondent in any material matter and that it would be in the interests of justice for condonation to be granted. Conversely the prejudice to the applicant would be severe and would result in irreparable harm and severe pecuniary loss.

 

[36]  Concerning the prospects of success, Mr Khuzwayo contended that the applicant has excellent prospects of success in the rescission application, because his dismissal was both procedurally and substantively unfair and he had a period of 30 years of service with the third respondent. It seems in this regard that Mr Khuzwayo went into the merits of the dismissal to bear out the applicant having good prospects of success in the rescission application.

 

[37]  As stated above, the third respondent disputes these averments and not only challenges the plausibility of the reason for the delay but goes further to state that every period of the delay has not been properly accounted for or explained, particularly from a seasoned union representative. Further issues concerning the proper commissioning of the founding affidavits were also challenged in the opposing affidavits to the condonation and rescission applications, but these issues do not seem to be persisted with in the present review application.

 

[38]  In opposing the condonation application, the third respondent averred that the applicant had failed to demonstrate good cause because the explanation proffered was inadequate and it being trite that in the absence of a reasonable explanation, it is not necessary to have regard to the prospects of success.  The third respondent also states that in any event, in addressing the prospects of success, the applicant had failed to demonstrate prospects of success in the rescission application, but disputed any prospects of success in the rescission application. Moreover, it claimed that the explanation was lacking concerning why Mr Thabede failed to appear at the arbitration. Concerning prejudice, the third respondent contended that the applicant is the maker of any prejudice claimed and the third respondent would be prejudiced by having to defend a dispute that was resolved eight months before the condonation application was brought.

 

[39]  The condonation application was argued at the Bargaining Council’s offices in Newcastle on 9 December 2020 and as stated above, the ruling was delivered to the parties on 14 January 2021.

 

Grounds of review

 

[40]  The applicant raises the following grounds of review:

 

40.1 The Commissioner’s analysis of the evidence and the argument is limited to five short paragraphs of the ruling, being paragraphs 17 to 21. The applicant views the Commissioner’s analysis to be a textbook example of approbating and reprobating for the following reasons:

40.1.1   In paragraph 17 of the ruling, the Commissioner refers to the judgment in Melane v Santam Insurance Co Ltd[2] where it was stated that the factors to be considered in an application for condonation are interrelated and are not individually decisive in granting condonation;

40.1.2    In paragraph 20 of the ruling, the Commissioner refers to the judgment in Grootboom v National Prosecuting Authority and Another[3] where the Constitutional Court found that interests of justice must be determined based on all relevant factors. Reference was also made to the minority judgment in Grootboom where the interest of justice is discussed;

40.1.3  The applicant is of the view that premised on the judgments in Melane and Grootboom, in an application for condonation, all relevant factors must be considered holistically and that no one factor can be considered in isolation of the others, or can be finally determinative to the exclusion of all other factors of whether condonation should or should not be granted;

40.2  The applicant states that notwithstanding this and having cited the above authorities herself, the Commissioner in paragraph 20 inexplicably found that some factors may be justifiably left out of consideration in certain circumstances. For example, where the delay is unacceptably excessive and there is no explanation for the delay, there may be no need to consider the prospects of success. The applicant states that such a position is clearly contradictory to the legal principles established in the Melane and Grootboom decisions;

40.3  The applicant further states that contradictory to the Commissioner’s statement above, the Commissioner in paragraph 21 of the ruling states that ‘the ultimate determination of what is in the interests of justice must reflect due regard to all relevant factors, but it is not necessarily limited to those mentioned above. The particular circumstances of each case will determine which of these factors are relevant’;

40.4  The applicant states that by the Commissioner stating that the particular circumstances of each case will determine which of the factors are relevant means that the Commissioner found that she was entitled to choose which factors to consider and which to ignore, meaning that she incorrectly applied the principles distilled in the Grootboom decision and that the Commissioner was obliged to consider all relevant factors;

40.4.1 The applicant further finds that in paragraph 18 of the ruling, where the Commissioner found that ‘there is no plausible explanation for the failure to attend the arbitration’ amounts to a grossly unreasonable finding despite the reasons provided in the founding affidavits to both the condonation and rescission applications;

40.5 Mr Khuzwayo states that even if he was mistaken in his understanding of what the Commissioner had said to him during the telephonic discussion, he submitted that his genuine and bona fide belief was that the proceedings was to be adjourned as a result of the difficulties experienced and that he had provided a reasonable and acceptable explanation for his and Mr Thabede’s failure to appear at the proceedings, meaning that the Commissioner’s finding in this regard was grossly unreasonable;

40.6 Concerning paragraph 18 of the ruling, the applicant contends that the Commissioner in finding that the application was 136 days late had incorrectly computed the delay which was at most 112 days late when considering the date of 30 June 2020, alternatively was 53 days late when considering the date of 27 August 2020;

40.7 Concerning the Commissioner’s finding at paragraph 18 of the ruling that ‘a period from 26/02/2020 [to] 26/03/2020 is still not accounted for’, this was irrelevant because the dates to be considered were either mid-July 2020 onwards or 27 August 2020 onwards;

40.8 The applicant claimed that in view of all of the grounds of review above, the finding of the Commissioner was grossly unreasonable when satisfactory explanations for the applicant’s default and period of delay had been provided;

40.9 Moreover, the applicant contends that the Commissioner in failing to give any consideration to other factors such as the applicant’s prospects of success in the main application and the relative prejudice to the parties should condonation and rescission be granted or refused constitutes grossly unreasonable conduct on the part of the Commissioner and a gross error of law because these factors are highly relevant factors which the Commissioner was obliged to consider;

40.10 Moreover, the applicant claims that Mr Thabede has excellent prospects of success because his dismissal by the third respondent was both procedurally and substantively unfair. In addition, Mr Thabede had been employed by the third respondent for 30 years at the time of his dismissal, he had a clean disciplinary record and even if there was a genuine error committed by him which was deserving of some form of sanction, the sanction of dismissal was inappropriate;

40.11 The applicant further contends that the Commissioner failed to give any consideration to the prejudice which the applicant might suffer if condonation and rescission were not granted, as against the prejudice that the third respondent was to suffer if condonation and rescission were granted. Ultimately, the applicant argued that Mr Thabede would effectively be precluded from exercising his constitutional and statutory rights to challenge the fairness of his dismissal, but the only prejudice claimed by the respondents was that it would have to defend a dispute which was resolved more than eight months prior to the rescission and condonation applications having been brought. The applicant contends that this was not real prejudice for purposes of the inquiry.

 

[41]  Ultimately, the applicant averred that the exercise of the Commissioner’s discretion in this regard was grossly unreasonable and stands to be reviewed and set aside and that the Court was in a good position to substitute the findings of the Commissioner in respect of the condonation and rescission applications.

 

[42]  In the answering affidavit, the third respondent sets out the periods of delay, which it contends are inexplicable as follows:

42.1  Since the applicant became aware of the dismissal ruling in July 2020, it should have brought the rescission application within the first week of August 2020, alternatively on or before 10 September 2020;

42.2  By bringing the rescission application only on 3 November 2020, the applicant was more than three months outside of the prescribed 14 day period, alternatively more than 50 days late if it is accepted that the applicant only became aware of the ruling on 27 August 2020;

42.3  The applicant failed to tender an explanation concerning the steps it took to pursue the matter over the period 26 February to March 2020;

42.4  No explanation is provided for the steps taken by the applicant over the period July to 27 August 2020, which is the period when the applicant became aware of the ruling and the date that it received the written ruling;

42.5  The third respondent takes issue with the five day period between when the applicant says it received the written ruling and when it consulted with its attorneys i.e. the period of 27 August to 4 September 2020;

42.6  Although the applicant states that the condonation application was drafted and finalised by 8 September 2020, no explanation was tendered concerning why Mr Thabede was not available to depose to the affidavit and why a further consultation was only arranged for 14 October 2020 where it was agreed that Mr Khuzwayo would be the deponent to the affidavit;

42.7  No explanation is provided concerning why the consultation was scheduled to take place more than 25 business days since having discovered that Mr Thabede was not available;

42.8  The period from 14 October 2020 to 3 November 2020 which is some three weeks is alleged to have been inexplicable in the context that all that needed to happen was a change in deponent;

42.9  The third respondent contends that the applicant should have done more to follow up on the matter over the period 26 February to 26 March 2020;

42.10  The only explanation provided was that Mr Khuzwayo could not attend and no explanation was ever provided concerning Mr Thabede and his non-attendance at the arbitration.

 

[43]  The third respondent avers that the Commissioner had due regard to the applicable legal principles and came to a well-considered finding in view of the insufficient explanation provided, coupled with the excessive delay.

 

[44]  The third respondent also referred to the judgment in National Education Health And Allied Workers Union obo Mofokeng and Others v Charlotte Theron Children’s Home[4] in support of the Commissioner’s reasoning that without a reasonable and acceptable explanation for a delay, the prospects of success are immaterial.

 

[45]  The third respondent’s answering affidavit is deposed to by one Maheshnee Govender (Ms Govender). In the replying affidavit Mr Khuzwayo takes issue with whether the averments in Ms Govender's answering affidavit fall within her personal knowledge and belief. Ms Govender’s affidavit is further disputed on the basis that Mr Mohapi is the representative of the third respondent who was involved in the matter and Ms Govender was not in fact present at the arbitration proceedings. This does accord with the attendance register of 26 February 2020.

 

[46]  For present purposes, I must consider whether the ruling by the Commissioner was reasonable or not when considering the papers that were before her concerning both the rescission and condonation application and on that basis I do not need to determine this point because the opposing affidavits in both applications were deposed to by Mr Mohapi.

 

[47]  The applicant also brought an application for condonation for the late filing of the record in terms of the old Practice Manual. Condonation for the non-compliance in this regard was granted per Honourable Acting Justice Lawrence on 3 June 2020.

 

[48]  I now turn to address the applicable legal principles.

 

The test on review

 

[49]  The test to be applied in review applications is that as enunciated in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[5], which was reaffirmd by the Labour Appeal Court (LAC) in Goldfields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others[6] as follows:

 

“In short: A review court must ascertain whether the arbitrator considered the principal issue before him/her; evaluated the facts presented at the hearing and came to a conclusion which was reasonable to justify the decisions he or she arrived at.”

 

[50]  The review court is not required to consider every factor individually, to consider how the arbitrator treated and dealt with each of those factors and then determined whether a failure by the arbitrator to deal with it is sufficient to set the award aside. A piecemeal approach in considering the award is inappropriate because the reviewing court must consider the totality of the evidence and then decide whether the decision made by the arbitrator is one that a reasonable decision-maker could reach[7].

 

[51]  In Melane v Santam Insurance Co. Ltd[8] the Court found that in determining whether good cause has been demonstrated for condonation to be granted, the following must be considered:

 

‘In deciding whether sufficient cause has been shown, the basic principle is that the court has a discretion to be exercised judicially upon a consideration of all the facts and, in essence, is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefore, the prospects of success, and the importance of the case. Ordinarily these facts are inter-related; they are not individually decisive, for that would be a piecemeal approach incompatible with a true discretion ...  

(Underlining added.)

 

[52]  In National Union of Mine Workers v Council for Mineral Technology[9] the Court stated as follows concerning the interplay between the various factors when considering condonation:

 

“The approach is that the court has a discretion, to be exercised judicially upon a consideration of all facts, and in essence, it is a matter of fairness to both parties. Among the facts usually relevant are the degrees of lateness, the explanation therefore, the prospects of success and the importance of the case. These facts are interrelated; they are not individually decisive. What is needed is an objective conspectus of all the facts. A slight delay and a good explanation may help to compensate for prospects of success which are not strong. The importance of the issue and strong prospects of success may tend to compensate for a long delay. There is a further principle which is applied and that is 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”.                          

 (Underlining added.)

 

[53]  The applicable principles concerning the test on review where a Commissioner did not grant condonation were recently confirmed once more by Prinsloo J in Olivier v Bloemfontein Metal Merchants CC t/a Southern Cross Industries and Others[10]. Some of the jurisprudence has been dealt with above, but bears emphasis in certain respects as follows:

 

‘The test on review

[19]                 I have to deal with the merits of the review application within the context of the test this Court must apply in deciding whether the arbitrator's decision is reviewable. The test has been set out in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others as whether the decision reached by the commissioner is one that a reasonable decision maker could not reach. The Constitutional Court very clearly held that the arbitrator's conclusion must fall within a range of decisions that a reasonable decision maker could make. 

[20]       The review test is a stringent and conservative test of reasonableness. The Applicant must show that the arbitrator arrived at an unreasonable result. 

[21]       In Bestel v Astral Operations Ltd and others, the LAC considered the limited scope possessed by this Court to review an arbitration award and accepted that an arbitrator’s finding will be unreasonable if the finding is unsupported by any evidence, if it is based on speculation by the arbitrator, if it is disconnected from the evidence, if it is supported by evidence that is insufficiently reasonable to justify the decision or if it was made in ignorance of evidence that was not contradicted.  

[22]       The LAC in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCM affirmed the test to be applied in review proceedings and held that:

‘In short: A review court must ascertain whether the arbitrator considered the principal issue before him/her; evaluated the facts presented at the hearing and came to a conclusion which was reasonable...’

[23]       The review Court must consider the totality of the evidence and then decide whether the decision made by the arbitrator is one that a reasonable decision-maker could make based on the facts placed before him/her.

[24]       In Parliament of the Republic of South Africa v CCMA and others, it was held that:

‘[13]      This Court accepts that when considering applications for condonation, Commissioners enjoy a wide discretion and the Courts should be cautious when interfering with decision arrived at by Commissioners in the light of that wide discretion.

[14]       The applicable test before the Court can interfere with a Commissioner’s discretionary decision is whether or not it can be said that the discretion was exercised “capriciously, or upon a wrong principle, or in a biased manner, or for insubstantial reasons. Thus, the test is whether the Commissioner committed a misdirection, an irregularity, or failed to exercise his or her discretion, or exercised it improperly or unfairly.’

[25]       In Cowley v Anglo Platinum and others, it was held that:

‘When a commissioner is endowed with a discretion this Court will be very slow to interfere with the exercise of that discretion. The commissioner's exercise of discretion will be upset on review if the applicant shows, inter alia, that the commissioner committed a misdirection or irregularity; or that he/she acted capriciously, or upon a wrong principle, or in bad faith, or unfairly, or that in exercising the discretion the commissioner reached a decision that a reasonable decision-maker could not reach. If it is clear that the commissioner exercised such discretion judiciously and fairly after taking into consideration all the relevant facts this Court will not interfere with the exercise of such discretion.’

[26]       The ultimate question is whether holistically viewed, the decision taken by the arbitrator was reasonable based on the evidence placed before him. I have to consider this question taking into account the evidence that was placed before the arbitrator, the ruling he had issued and the grounds for review raised by the Applicant.’

 

[54]  The applicable test is that of a reasonable decision-maker, and in particular when considering applications for condonation, commissioners enjoy a wide discretion, and the Court should be cautious when interfering with the decision arrived at by Commissioners in light of that wide discretion.

 

[55]  In considering the discretion exercised, that must be weighed up against whether the discretion was exercised capriciously, or upon a wrong principle, or in a bias manner or for insubstantial reasons. The ultimate question is whether holistically viewed, the decision taken by the Commissioner was reasonable based on the evidence placed before her.

 

[56]  The judgment in Olivier[11] above also distils the relevant principles concerning condonation as follows (Again, some of these principles have been addressed above):

 

‘The test for the grant of condonation

[8]         The relevant legal principles to be applied in an application for condonation, are well established. The court or relevant tribunal has a discretion, which must be exercised judicially on a consideration of the facts of each case and in essence, it is a matter of fairness to both sides.

[9]         Condonation for delays in all labour law litigation is not simply there for the taking. The starting point is that an applicant in an application for condonation seeks an indulgence and bears the onus to show good cause.

[10]       In Melane v Santam Insurance Co Ltd (Melane) it was held that:

‘…. Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success, and the importance of the case. Ordinarily these facts are interrelated: they are not individually decisive, for that would be a piecemeal approach incompatible with a true discretion, save of course that if there are no prospects of success there would be no point in granting condonation… What is needed is an objective conspectus of all the facts.’

[11]       The approach that in the absence of a satisfactory explanation for a delay, the applicant’s prospects of success are ordinarily irrelevant, has been conventionally applied and was confirmed in National Education Health and Allied Workers Union on behalf of Mofokeng and others v Charlotte Theron Children’s Home where the Labour Appeal Court (LAC) held that without a reasonable and acceptable explanation for a delay the prospects of success are immaterial.

[12]       An applicant in an application for condonation bears the onus to satisfy the court or tribunal that condonation should be granted and it is incumbent upon such applicant to provide a full explanation for every period of the delay. The explanation for the delay must be both comprehensive and persuasive and should cover every period of the delay.

[13]       In Independent Municipal & Allied Trade Union on behalf of Zungu v SA Local Government Bargaining Council and others, the principle was confirmed that it is not sufficient simply to list significant events that occurred during the period in question as that does not assist the court (or a tribunal) properly in assessing the reasonableness of the explanation.’

 

[57]  Over and above these principles, the Commissioner also relied upon the judgment in Grootboom.

 

[58]  The pertinent portions of the Grootboom[12] judgment and the Court’s view is as follows:

 

‘22.          I have read the judgment by my colleague Zondo J. I agree with him that, based on Brummer and Van Wyk, the standard for considering an application for condonation is the interests of justice. However, the concept “interests of justice” is so elastic that it is not capable of precise definition. As the two cases demonstrate, it includes: the nature of the relief sought; the extent and cause of the delay; the effect of the delay on the administration of justice and other litigants; the reasonableness of the explanation for the delay; the importance of the issue to be raised in the intended appeal; and the prospects of success. It is crucial to reiterate that both Brummer and Van Wyk emphasise that the ultimate determination of what is in the interests of justice must reflect due regard to all the relevant factors but it is not necessarily limited to those mentioned above. The particular circumstances of each case will determine which of these factors are relevant.

23.        It is now trite that condonation cannot be had for the mere asking. A party seeking condonation must make out a case 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.’

 

Analysis

 

[59]  When considering the above facts against the law, the reason for the delay is that Mr Khuzwayo could not make it to the CCMA in view of the protest action. There is no dispute concerning the protest action having taken place. What is in dispute is the content of the telephone discussion or discussions which took place between the Commissioner and Mr Khuzwayo, which the third respondent and specifically Mr Mohapi was not party to.

 

[60]  What the telephone discussion does demonstrate is that Mr Thabede through his representative did not simply give up on the matter and not arrive on the day. Put differently, Mr Thabede had not abandoned the matter and had every intention of advancing his case.

 

[61]  While not articulated with the level of clarity that would have been expected concerning both Mr Khuzwayo and Mr Thabede’s attendance at the Bargaining Council on the day in question, section 138 (5) of the LRA provides that:

 

‘If a party to the dispute fails to appear in person or to be represented at the arbitration proceedings, and that party-

(a) Had referred the dispute to the Commission the Commissioner may dismiss the matter.’ (Emphasis added.)

 

[62]  In terms of the above section, it would have been sufficient for Mr Khuzwayo to have appeared at the CCMA in the circumstances and Mr Khuzwayo had provided an explanation concerning why he was not there.

 

[63]  The reason provided and the lack of clarity concerning what had been discussed between Mr Khuzwayo and the Commissioner cannot in these circumstances deprive Mr Thabede of his access to the Court as enshrined in section 34 of the Constitution of the Republic of South Africa, 1996.

 

[64]  Waglay JP, as he then was, in a minority judgment in Mohube v CCMA and Others[13] stated as follows concerning the dismissal of a referral in the circumstances where the applicant had not appeared:

 

‘[49]      A decision to dismiss on pure technical non-compliance is a drastic result because it brings the dispute to finality and must therefore not be made lightly. It is a decision, especially in the absence of a proper ventilation of the merits of the dispute, to be made as a last resort. Hence the use of the words “may dismiss” in section 138(5)(a). One can never set out all the factors which must be considered before a matter can be dismissed because of the failure of an applicant to attend an arbitration hearing but whatever the commissioner considers in arriving at its decision, the dismissal of a dispute due to non-attendance of the applicant must be based on the understanding that it is a decision of last resort, added to it is the consideration that the respondent is deserving of having finality in the matter. A dismissal consequent on the proper exercise of a discretion violates neither the provisions of the LRA nor Constitutional prescripts as the applicant was given the opportunity to have his/her day in court but has refused to make use of it.’

 

[65]  It makes sense that a dismissal of a matter in appropriate circumstances must be considered as a matter of last resort, because it effectively deprives a litigant of their section 34 rights in terms of the Constitution to access the Courts.

 

[66]  When considering the reason provided for the lateness of the rescission application, it appears that the Commissioner conflated the reasons provided for Mr Khuzwayo’s non-attendance at the CCMA with the reasons provided for the lateness of the rescission application. This is evident from paragraph 18 of the arbitration award.

 

[67]  Turning to the reasons for the delay, Mr Khuzwayo operated under the impression that the matter would be reallocated on his understanding of what had been discussed between himself and the Commissioner on 26 February 2020.

 

[68]  The COVID-19 pandemic which ensued certainly hampered operations on every front, including that of the union and the CCMA. The period of some 53 days in the circumstances is therefore not excessive.

 

[69]  While I accept that the third respondent has meticulously considered every period of the delay, the period is not so excessive that would be sufficient to deprive the applicant of condonation, coupled with the reason for the delay.

 

[70]  It is proper for the applicant to have awaited the written ruling from the Bargaining Council which was received on 27 August 2020, so as to properly draft the rescission and condonation applications.

 

[71]  It is also evident that the Commissioner erred in respect of the degree of the delay when she considered the delay to be some 136 days when it was some 53 days premised on the appropriately considered facts.

 

[72]  The Commissioner did not consider the prospects of success, and while it is correct that the legal principles state that where the delay is unacceptable and excessive and there is no explanation for the delay, there may be no need to consider the prospects of success, this does not mean that the prospects of success must be entirely discarded. The same can be said about prejudice which clearly was not considered by the Commissioner.

 

[73]  Having applied my mind to all of the objective facts, including the applicant’s entrenched right to access the Courts in terms of section 34 of the Constitution and that he had an unblemished disciplinary record, employment of some 30 years with the third respondent, which is common cause, I am persuaded that there are some prospects of success in the rescission application which invariably in turn impugns the prospects of success in the ultimate arbitration. As such these factors weigh in favour of condonation being granted in favour of the applicant.

 

[74]  Concerning the respective prejudice to the parties, the third respondent claims that it is entitled to finality in the matter, which is correct. At the same time, the applicant, more specifically Mr Thabede is entitled to have his day in Court, as it were.

 

[75]  The facts concerning the incident which led to his dismissal certainly do constitute a dispute of fact which cannot be resolved on the papers, which is why these facts being ventilated through an arbitration is important.

 

[76]  Having been minded to grant condonation concerning the late filing of the rescission application, and since the Commissioner did not consider the rescission application because she declined to grant condonation in respect thereof and it also being clear that she did not consider the prospects of success, it would serve no purpose to remit the rescission application back to the Bargaining Council for a fresh consideration before a different Commissioner. There are sufficient facts before this Court for the Court to make a determination concerning the rescission application.

 

[77]  Having considered the rescission application in its totality, this Court is satisfied that the applicant was not in wilful default of non-appearance on the day in question and that the applicant more specifically, Mr Thabede does have a bona fide defence in the main dispute which is the arbitration of his unfair dismissal dispute.

 

[78]  Having considered all of the facts, I am minded to grant rescission of the dismissal of Mr Thabede’s unfair dismissal dispute to the Bargaining Council.

 

[79]  In the circumstances, I find that the Commissioner did not appropriately apply her discretion insofar as the denial of condonation is concerned and that this decision is one that a reasonable decision-maker could not reach having considered the totality of facts.

 

Costs

 

[80]  The final consideration is costs. It is trite that in labour matters, costs do not follow the result[14].

 

[81]  In order for costs to be granted the Court’s judicial exercise of its discretion to award costs must be engaged and there must be a justification for the departure from the ordinary rule that costs should not be ordered. The dictates of fairness in terms of section 162 of the LRA and the constitutional and statutory imperatives that underpin it, must be considered[15].

 

[82]  The applicant did not pursue costs against the third respondent, while the third respondent pursued costs against the applicant.

 

[83]  I do not believe that there is any basis for costs to be awarded against the third respondent for opposing the review application and there is no reason to depart from the default position in labour matters which is that the costs do not follow the result.

 

[84]  In the premises the following order is made:

 

Order

 

1.   The ruling by the Commissioner refusing condonation concerning the late filing of the applicant’s rescission application under MEIBC case number MEKN10937 is reviewed and set aside;

2.   The Commissioner’s ruling is substituted with the following:

2.1 Condonation concerning the late filing of the applicant’s rescission application is granted;

2.2    The applicant’s rescission application concerning the dismissal ruling of Commissioner Gcayi of 26 February 2020 is granted;

3.   The matter is to be referred back to the MEIBC for a fresh hearing before a commissioner other than the two Commissioners referred to above;

4.   There is no order as to costs.

 

T. Govender

Acting Judge of the Labour Court of South Africa

 

Appearances:

 

For the applicant:       Adv. DWD Aldworth

Instructed by:             Purdon & Munsamy Attorneys

 

For the respondents’: Mcaciso Stansfield Incorporated

 

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