South Africa: Johannesburg Labour Court, Johannesburg

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case no: JR 994/13

In the matter between:

MZOPHILAYO JAFTA SHANGE & 1 OTHER                                                            Applicant

and 

L CELLIER N.O                                                                                             First Respondent

THE COMMISSION FOR CONCILIATION,                                              Second Respondent

MEDIATION AND ARBITRATION

CLOVER CITY DEEP (PTY) LTD                                                                 Third Respondent

Heard: 1 November 2016

Judgment: 4 November 2016

JUDGMENT

VAN NIEKERK J

[1] This is an application to review and set aside a ruling made by the first respondent on 25 March 2013. In her ruling, the first respondent refused to condone the late filing of an application for the rescission of a dismissal ruling issued under the auspices of the second respondent on 15 November 2011.

[2] The award summarises the submissions made on behalf of the respective parties. The first respondent’s analysis, contained in paragraph 10 of the award, records that the application for rescission was filed 393 days late. In so far as the explanation for the delay is concerned, the first respondent found that the explanation was not well substantiated. She records that the documents attached to the application contained dates there are conflicting, and that the documents did not confirm the submissions made by the applicants concerning the delays in the matter. Insofar as the merits of the application are concerned, from the available information, the first respondent records that it did not appear that the applicants had demonstrated that they had good prospects of success.

[3] This court is entitled to interfere with the first respondent’s award if and only if the court is satisfied that the ruling is one to which no reasonable decision-maker could come on the available material. The founding affidavit in the present application approaches the matter rather differently, and suggests that the first respondent committed an act of gross misconduct because there was a clear explanation before her as to why the application for rescission had been filed late. This is tantamount to an appeal – the applicants invite the court to find that the first respondent’s decision was wrong on the facts. The founding affidavit does not make out a case for review. Even if it did, I am not persuaded that the first respondent’s ruling is so unreasonable that it falls outside of the band of decisions to which reasonable decision-makers could come on the evidence. The mere fact that the application was filed 393 days late, in itself, required a very good explanation for the delay. That explanation is simply not apparent on the papers that served before the commissioner. The explanation for the delay was vague and unsubstantiated and limited to a single sentence relating to delays occasioned by the applicants returning home and their limited access to funds. It is well established that limited access to funds is not in itself an explanation for delay. As I have indicated, the explanation is cast in the baldest of terms; it makes no reference to the dates on which the applicants went home, any efforts that they may have made to secure funding, and the like. A full explanation of every period of the delay is required, but not apparent on the papers that served before the first respondent. As the courts have emphasised, condonation is not there for the taking; it is incumbent on an applicant to make out a proper case.

[4] Given an excessive delay and a poor explanation for the delay, it was not necessary for the first respondent even to have considered the applicants’ prospects of success. The first respondent applied the correct test, she applied her mind to the material before her and in my view, the decision that she reached is not unreasonable. The application accordingly stands to be dismissed.

[5] Since the application was not opposed, the issue of cost does not arise.

I make the following order:

1.    The application is dismissed.

ANDRÉ VAN NIEKERK

JUDGE OF THE LABOUR COURT