the labour court of South Africa, 
held at GQeberha
   case No: PS 46/2021
Of interest to other judges

In the matter between:								 
ASSOCIATION OF MINEWORKERS AND CONSTRUCTION UNION		First Applicant	
kHANYISO sKAAP & 26 OTHERS AS PER ANNEXURE “a”		Second to Twenty-Eighth Applicants	
and			
coega steels SA (PTY) LTD		Respondent	
Date of Set Down:  4 May 2023
Date of Judgment:  This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing down judgment is deemed to be 14h00 on 26May 2023.

Summary:  (Condonation application – late referral –explanation for significant delay unacceptable – Individual applicants poorly served by representatives – no evidence of fault on their part – condonation granted – Appropriate cost order to express court’s displeasure with representatives’ dilatory handling of referral – apportionment between union and attorneys)
JUDGMENT
LAGRANGE J 
Introduction
[1]	This is an opposed application for the late referral of a statement of case. 
[2]	On or about 10 December 2020, the individual applicants were dismissed for their alleged participation in an unprotected strike.
[3]	It is common cause that in May 2020, when the respondent (‘Coega Steels’ or ‘the employer’) resumed production under Level 4 of the Covid-19 Disaster Management Act regulations, it changed the previous shift system from three shifts to two shifts, to meet the requirement of operating at 50% capacity dictated by the regulations. From 24 May, the two shift system was modified so that it operated on a four-days-on four-days-off basis. It was envisaged that this would be a temporary arrangement. 
[4]	On 17 June 2020 AMCU referred a dispute to the CCMA over the alleged change to terms and conditions of employment resulting from the new shift structure. On 8 July Coega Steels advised the union that it wanted to reach consensus on making the new shift system a permanent one. AMCU’s members were unhappy about aspects of the new system, relating to overtime and shift allowances. There also appears to have been a complaint that some staff were not subject to the new shift system.  The dispute AMCU had referred was unsuccessfully conciliated on 26 August 2020.
[5]	Despite the unsuccessful conciliation of the dispute, the parties exchanged proposals and counter proposals relating to the shift system at a meeting in early September 2020. No agreement could be reached and on 21 September the employer gave notice under s 23(4) of the LRA that it was terminating the shift pattern agreement that had been reached with NUMSA in 2014, with effect from 1 October 2020. The notice coincided with the implementation of level 1 lockdown regulations. In view of the change in lockdown regulations, the individual applicants then decided that since work could return to normal, they would revert to working the shift system which was in place prior to the commencement of the initial 2020 lockdown.  
[6]	The employees who attempted to work in accordance with the old system, were prevented from doing so and the employer issued a notice that their conduct would result in serious disciplinary action as it amounted to an unprotected strike.  AMCU’s view was that the 2014 shift pattern was still in place until 1 October 2021, so workers should have been permitted to work their original hours until then. There is a dispute whether a meeting took place on 30 September, but it is common cause that various ultimatums were issued to the employees in question on 28 September and a final one on 29 September calling on them to continue working the 4 day shift pattern by 1 October. There is a dispute whether the employees complied with the ultimatums or not.
[7]	On 6 and 12 October notices of a disciplinary enquiry were issued calling on the employees to answer to charges of participating in an unprotected strike or alternatively being grossly insubordinate during the period 28 September to 2 October.
[8]	After various delays a disciplinary enquiry was convened on 20 November 2020. The chairperson refused to postpone the hearing on account of the regional organiser of AMCU, Mr R Ngunze (‘Ngunze’), saying he had insufficient time to consult with members. There is a dispute whether he was prevented from calling each individual employee to testify.
[9]	On 10 December 2020 the chairperson issued detailed reasons and findings. He found the employees guilty of participating in unprotected strike action and recommended their summary dismissal, which the employer gave effect to. AMCU referred an unfair dismissal dispute to the CCMA.
[10]	On 22 January 2021 a certificate of outcome was issued. The employer had raised a jurisdictional objection to the bargaining council hearing the dispute and a timetable was agreed between the parties for the filing of papers on the point. On 8 April 2021 the bargaining council panellist issued a ruling that the bargaining council lacked jurisdiction in terms of section 191 (5) (b) (iii) of the Labour Relations Act, 66 of 1995 (‘the LRA’) to hear the dispute.
[11]	Appeal hearings were conducted and an outcome was issued confirming the dismissals. Between 4 and 15 February 2021 attempts were made to settle the dispute and a draft settlement agreement was under discussion but could not be concluded.
Length of delay
[12]	The statement of claim was only filed around 7 December 2021, nearly a year after the initial dismissals. The claim ought to have been referred by 22 April 2021, so it was over seven months late, which is an excessive delay.
[13]	It was only on 10 May 2022, five months later, that a condonation application for the late referral of the statement of claim was filed.
The explanation for the delay
[14]	 Around 13 March 2021, Ngunze, who had been involved in the shift change developments gave the case file to AMCU’s legal department. This was before the jurisdictional ruling, which was only received on 8 April 2021. On 13 May 2021, AMCU sought a legal opinion on the case which was received on 8 June 2021. Shortly afterwards on 14 June 2021, AMCU referred the dispute to its attorneys after digesting the opinion.
[15]	Owing to the dispersal of the individual applicants a consultation it was only possible to consult with them on 24 June 2021 and a draft of the pleadings was finalised for discussion in July, but Ngunze claimed further information and documentation was required for finalisation. 
[16]	The employer does not dispute that the individual applicants live significant distances from AMCU’s Gqeberha regional office and that travelling to the office is not easy, nor does it dispute that in some instances lack of technology aggravates communication problems. However, it queries what information could have been required from the individual applicants that was necessary for drafting the statement of case.  The employer rightly points out that Ngunze had been personally involved in the relevant events throughout and it is does not make sense that AMCU’s legal representatives were able to make an assessment of the prospects of success if they did not have sufficient information to do so. It also makes a telling point that on 26 February 2021 Ngunze was able to depose to an answering affidavit on the in limine objection to jurisdiction in the CCMA proceedings, in which he provided considerable detail of the chain of events leading to the dismissal and expressed his view on the merits.
[17]	Ngunze and the applicants’ attorneys state they held further consultations on 3 August, 7 September and 1 December 2021. The remaining information required was only provided to the lawyers on 3 December 2021. Nowhere in the founding affidavit nor in the replying affidavit of Ngunze is even a description of the nature of the documents allegedly required.
[18]	The affidavit sets out the various commitments of the senior attorney and the regional organiser during 2021. Ngunze’s iteration of each week basically involves a repetitive statement that most of the time he was involved in various meetings and CCMA or bargaining Council proceedings and the like. However, the explanation is lacking in any tangible detail.  In 38 brief paragraphs Ngunze purports to give an account of the other union responsibilities he was busy with from 1 March to 3 December 2021.  A typical example of a paragraph reads:
“15 March 2021 to 19 March 2021: Various meetings; administrative attendances; requirement process; wage negotiations.”
In not one of the paragraphs does he provide any specificity, though one must presume if he was able to list the activities in general terms for each week, he must have some record or memory of what meetings he attended or what negotiations he was involved in. He could just as well have listed the general type of activity he was involved in one paragraph for the whole period. His account is hardly made more detailed by the weekly breakdown. The account of the senior attorney’s commitments does not claim to account for each and every week from the time the matter was in AMCU’s attorneys’ hands.  There are significant gaps when the senior attorney was not apparently otherwise engaged, for example from 6 August to 6 September 2021.
[19]	The employer contends that Ngunze’s account merely shows that he was ‘too busy’ to give his attention to the matter. Likewise, it argues that if AMCU’s attorneys of record could not finalise the referral over seven months they should not have taken the instruction. 
[20]	The employer also queries the necessity for extensive consultations with the individual applicants given that a legal opinion had already been obtained. Moreover, the respondent claims that the bulk of documents referred to in the annexure to the statement of claim do not assist in drafting it and are not referred to at all. The core documents consisting of about 200 pages were always in the union’s possession. Lastly, the respondent contends that it is evident from the answering affidavit of the applicant to the in limine point at the arbitration that it had all the information contained in the statement of claim.
[21]	The applicant accepts that the statement of claim was approximately 225 days late but pleads that it was only 152 days late if measured against the date of the jurisdictional ruling. The respondent retorts that there was no basis in the first place why the union would have thought the matter was suitable for arbitration given the union’s experience in such matters.
[22]	The respondent also points out that it took a further 128 days for the applicants to file the condonation application which should have been filed together with the referral or shortly afterwards.
[23]	Considering the above, I am not satisfied that the delay in referring the matter was due to unavoidable obstacles placed in the way of the union and the attorneys.  The explanations provided amount to little more than saying that both these role players were very busy with other matters, which for one or other reason they prioritised even though it was patently obvious that the referral was already overdue by the time it was handed over to the attorneys. I note in passing that there did not appear to be a confirmatory affidavit from the attorney in the filed papers.  Even if I accept that the life of a regional organiser may be a very busy one, his explanation of what he was preoccupied with is vague and generalised and is no proper explanation for a delay of several months.   
[24]	In addition, I am not persuaded that a lack of information necessary to draft a statement of case needed so much time to obtain. Neither of Ngunze’s affidavits identified a single specific document that was required, still less that any of the crucial documents were in the possession of the individual applicants.  Judging from the representations made in AMCU’s answering affidavit in the in limine point before the CCMA, the essential features of the case were well known.
[25]	As such, the explanation is not an acceptable one for such a long delay.  
Prospects of success
[26]	It seems the essence of the applicants’ case is that they were entitled to resume working the normal pre-Covid lockdown hours once the regulations no longer restricted normal working activities and that they did not have enough opportunity to present their case at the disciplinary enquiry. On the first question, they effectively argue that they were asserting their right to work ‘normal’ hours and the employer was unilaterally attempting to impose a permanent change in working hours.  While it cannot be said the applicants prospects of success sparkle, I also cannot confidently say they do not seem to have any, even if it might turn out as a matter of fact that they were engaged in an unprotected strike.
Prejudice
[27]	The lapse of time caused by the delay is not without prejudice to the employer.  It would not have been apparent to it that this dispute would resurface after seven months’ silence from AMCU. It was reasonably entitled to believe the matter had finally been dropped. It claims no special prejudice in addition to this bar the usual one of the prospect of witnesses being possibly harder to obtain a long time down the line.
[28]	For the individual applicants the principle prejudice they will suffer is that of never having their claim adjudicated by a wholly independent third party.  There is no dispute that they did not have easy access to the union and it is evident Ngunze for one or other reason was engaged in other matters.  This is not a case where I can confidently say they should have known that something was wrong.  The respondent argues that they could sue AMCU or the attorneys of record if condonation is refused.  Given their circumstances such a claim is probably theoretical only. In my view it would not be in the interests of justice to bar them from proceeding on account of the neglect of the union and its attorneys.
[29]	However, even though the applicant did not press for costs, it is simply not acceptable for the court to accept such neglect in prosecuting the matter timeously without some meaningful expression of its displeasure.  It has become all too common for the failings of representatives to be blithely indulged where there is no fault on the part of those whom they represent. The only way to discourage a casual approach to egregious ignoring of statutory time limits is by making a suitable cost order. It was argued by the applicants’ counsel, that if the court was minded to consider making an adverse cost order for this reason, such an order should only be made once the case was finalised and should be costs in the cause.  The difficulty with that approach is the reason for making a cost award in respect of the condonation application is not related to the merits of the case and in any case, there might not be a cost award made in the judgment on the merits.
Order
[1]	The late referral of the Applicants’ statement of claim is condoned.
[2]	The First Applicant and the Applicants’ attorneys of record are each separately liable to pay one half of the Respondent’s costs of opposing the application.
[3]	The parties must conclude and file a pre-trial minute by 30 June 2023. 

Lagrange J
Judge of the Labour Court of South Africa

Representatives		
For the Applicant			M G Futcher of Futcher & Poppesqou Attorneys	
				
For the First Respondent			S Snyman of Snyman Attorneys