South Africa: Johannesburg Labour Court, Johannesburg

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case no: JR 774/15

Heard: 1 September 2016

Judgment: 8 September 2016

JUDGMENT

VAN NIEKERK J

[1] This is an application to review and set aside a condonation ruling made by the first respondent (the commissioner) on 28 October 2014. The notice of motion is dated 9 May 2015; the papers were filed in this court on 11 May 2015. The applicants acknowledge that the review application was filed some five months late and apply for condonation for their failure to comply with s 145.

[2] The explanation proffered for the delay is scant. The applicants aver that it ‘took them time’ to get advice but provided no details whatsoever of whom they consulted, when they consulted with any adviser or prospective adviser, or when they finally secured the assistance that they sought. Insofar as the prospects of success are concerned, the applicants say not much more than that they have good prospects in relation to the merits of their unfair dismissal claim. They do not address the relevant issue, i.e. the prospects of success in the review application.

[3] The legal principles to be applied are clear. Condonation is not there merely for the asking, nor are applications for condonation a mere formality (see NUMSA v Hillside Aluminium [2005] ZALC 25; [2005] 6 BLLR 601 (LC)). The applicant bears the onus to satisfy the court that condonation should be granted. In Novo Norsdisk (Pty) Ltd v CCMA & others [2011] 10 BLLR 957 (LAC), the Labour Appeal Court recently observed, at paragraph 28 of the judgment:

It seems to me that the aforesaid requirements are equally applicable when a party seeks condonation. The party seeking condonation must satisfy the court that it has a reasonable explanation for its delay in failing to comply with the time limits applicable to that party. Its failure to put before the court a reasonable and acceptable explanation entitles a court to refuse condonation. Further, if a court takes the view, that there are little prospects of success then, in my view, a court can justifiably refuse the indulgence being sought.

[4] This principle is subject to that established by the Labour Appeal Court in National Union of Mineworkers v Council for Mineral Technology [1999] 3 BLLR 209 (LAC) in which the LAC said the following:

… 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.

[5] This court has made clear that applications for condonation in review applications are subject to strict scrutiny and that the principles of condonation ought to be applied on a strict basis (see Queenstown Fuel Distributors CC v Labuschagne NO & others [2000] 1 BLLR 45 (LAC), Lentsane & others v Human Sciences Research Council (2002) 23 ILJ 1433 (LC)).  Consistent with this approach, and in an effort to address the systemic delays in the determination of matters serving before this court (for which this court has been reproached by both the Constitutional Court and the Supreme Court of Appeal on a number of occasions), the practice manual makes clear that an application to review and set aside an arbitration award must be treated as one would treat an urgent application.

[6] A delay of five months is excessive. The explanation for the delay, as I have indicated above, is poor. There is no coherent explanation for the delay. The applicants have failed to address properly the prospects of success in the review application in these circumstances, no proper case for condonation has been made out and the late filing of the review application ought not to be condoned. I would add that the present case has a long history. The applicants were dismissed in 2008, more than six years ago. The case was initially referred to the second respondent in August 2008 and a statement of case filed in this court on 10 September 2008. The applicants clearly failed to prosecute those proceedings with anything approaching the required degree of diligence. When the matter was finally placed on the trial roll, an objection was raised to the effect that this court had no jurisdiction since the applicants had been dismissed for misconduct. The jurisdictional point was appealed on 5 September 2014. The matter was thereafter once more referred to the second respondent, in circumstances where it was six years and one month late. This background is comprehensively canvassed in the award under review. The commissioner applied the correct test and exercised a discretion as required by the applicable authorities, having regard to the degree of lateness, the reason for lateness the applicants’ prospects of success and the respective prejudice to the parties. The statutory purpose of expeditious and efficient dispute resolution would be severely undermined if condonation were to be granted.

[7] The third respondent initially alerted the applicants that it intended seeking an order for costs. Although the third respondent has been obliged to incur costs in opposing these proceedings, it would appear from the papers that the applicants are unemployed and have been for some time. An order for costs would serve little purpose.

For the above reasons, I make the following order:

1.    Condonation for the late filing of the review application is refused.

2.    The review application is dismissed.

ANDRÉ VAN NIEKERK

JUDGE OF THE LABOUR COURT