REPUBLIC OF SOUTH AFRICA THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG JUDGMENT Not Reportable Case no: JS 15/2013 KONDILE BANKANE JOHN Applicant and M TECH INDUSTRIAL Respondent Heard: 14 October 201 Delivered: 19 December 2014 JUDGMENT TLHOTLHALEMAJE, AJ Introduction and background: [1] This is an opposed application for condonation for the late filing of the applicant s statement of case. In his statement of claim, the applicant alleged that he was dismissed due to his religious beliefs, which dismissal was automatically unfair as contemplated in section 187 (1) (f) of the Labour Relations Act (the LRA) [2] The applicant was employed by the respondent in terms of a three months fixed term contract commencing from 20 September 2011 to 31 December 2011. The contract was extended for a further three months and was due to expire at the end of March 2012. The applicant was advised that his contract
2 would not be extended or renewed in terms of a letter handed to him on 1 March 2012, which inter alia stated the following: The non-renewal is due to a discrepancy between the company s culture and values and your own, which has been found to be detrimental to the professional relations between yourself and other colleagues [3] In the light of the above, the applicant concluded that the reason for the nonrenewal of the contract was due to his religious beliefs as he was a member of the Zion Christian Church, and was thus being unfairly discriminated against. On 19 April 2012, his then attorneys of record referred an alleged unfair discrimination claim and a dispute pertaining to non-renewal of a contract to the Metal and Engineering Industries Bargaining Council (The MEIBC). On 28 April 2012, he was advised by the MEIBC that he needed to specify the nature of his claim since only the CCMA had jurisdiction in respect of unfair discrimination claims. He nevertheless on 20 August 2012 filed a request for arbitration at the MEIBC, and the dispute was set down for arbitration on 28 November 2012. That arbitration however did not proceed. [4] Despite the above referrals to the MEIBC, he referred another dispute in respect of an alleged unfair dismissal to the CCMA on 2 May 2012. A certificate of outcome was issued in this regard on 4 June 2012. The applicant had then referred the matter for arbitration together with an application for condonation. The application for condonation was heard on 17 January 2013, resulting in it being dismissed on 22 January 2012. On 27 February 2013, the applicant had referred another unfair discrimination claim to the CCMA, and a certificate of outcome was issued on 3 April 2013. The applicant s statement of claim was filed with this court on 17 April 2013, which was followed by an application for condonation. The legal framework in respect of applications for condonation and discussion: [5] The court s discretion when considering applications for condonation derive from the provisions of section 191 (11) (b) of the LRA and also Rule 12 of the Rules of the Conduct of Proceedings. Thus on good cause shown, the Court
3 may condone the non-observance of the time frames stipulated in section 191 of the LRA or in its rules. [6] The principles surrounding the granting of condonation are well known as were articulated in Melane v Santam Insurance Co. Ltd 1 in the following terms: 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 it is a matter of fairness to both sides. 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, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate prospects which are not strong. Or the importance of the issue and strong prospects may tend to compensate for a long delay. And the Respondent s interests in finality must not be overlooked The degree of lateness: [7] The applicant contends that the delay in filing the statement of case is about 116 days, whilst the respondent holds the view that the delay is in fact 325 days calculated from when the dispute first arose on 1 March 2012. Section 10 (2) provides that any party to a dispute concerning matters under Chapter II may refer a dispute to the CCMA within six months after the act or omission that allegedly constitutes unfair discrimination. In terms of section 10 (5), a party may refer a dispute after conciliation by the CCMA to this Court for adjudication. The provisions in the Employment Equity Act do not specify the time frames within which the dispute may be referred to the court with any particularity other than by reference to section 10(7) which provides that: 1 1962 (4) SA 531 (A) at 532B-E
4 The relevant provisions of Parts C and D of Chapter VII of the Labour Relations Act, with the changes required by context, apply in respect of a dispute in terms of this Chapter. [8] The Labour Appeal Court in SATAWU obo Members v South African Airways (Pty) Ltd and others 2 recently confirmed the legal position as set out in its earlier decision in NEHAWU obo Mofokeng and Others v Charlotte Theron Childrens Home 3 regarding the time periods applicable in respect of disputes under section 10 (6) of the Employment Equity Act. In this regard, the LAC in SATAWU obo Members made reference to NEHAWU 4 where it was held as follows: Reading section 10(6) and 10(7) of the Equity Act together, it would appear that the Equity Act must be read together with the applicable provisions of the Act. By reference to the words with the changes required by the context in section 10(7) the 90-day time period as provided for in section 136(1) of the Act, which itself appears in Part C of Chapter VII of the Act, becomes applicable to the dispute. In other words, although the present dispute involves adjudication after an unresolved conciliation and section 136(1) refers expressly to arbitration, the savings provision in section 10(7) of the Equity Act then becomes operative; hence the 90-day requirement is of equal application in the new context to the adjudication as envisaged in section 10(6) of the Equity Act 5 [9] The legal position therefore as confirmed in SATAWU obo Members 6 is that the 90 day time limit set by the Labour Relations Act applies to referrals of disputes to the Labour Court under the Employment Equity Act following conciliation by the CCMA. [10] It was correctly pointed out on behalf of the respondent that there are problems with each aspect of the application before the court. The applicant s contention was that his statement of case was supposed to have been filed on 10 October 2012, having calculated the 90 days period from 4 June 2012 2 Case no: JA 54/13 3 [2004] 10 BLLR 979 (LAC). 4 At para 5 5 At para 10 6 Supra
5 when the CCMA issued a certificate of outcome. If indeed reliance is placed on this certificate of outcome, the delay, which the applicant has to account for, is about 221 days, and not 116 days as he had alleged. That period is excessive in the extreme. [11] It is further significant to note that the applicant does not place any reliance on a certificate of outcome issued by the CCMA on 03 April 2013 in respect of the alleged unfair discrimination referral. There is no indication that an application for condonation was filed and considered prior to that certificate of outcome being issued by the CCMA. This is even more concerning when it is taken into account that the CCMA had already declined condonation previously on 22 January 2013. It is therefore unclear how the certificate of outcome was issued by the CCMA on 3 April 2013 in circumstances where the applicant was clearly way out of time. If the applicant had placed reliance on the latter certificate of outcome, the matter would have been easily disposed of, as there would have been no need for him to apply for condonation since the statement of case was filed within the requisite 90 days from the issuing of the certificate by the CCMA. This is even moreso since there is no indication that any steps were taken to set aside that certificate of outcome. The explanation for the delay: [12] As already indicated, a delay of 221 days in approaching the court is excessive in the extreme. It is trite that an application for condonation should be filed without delay as soon as a party to litigation becomes aware of the need to file such an application 7. To enable this court to properly exercise its discretion, a party seeking condonation must set out all the facts and circumstances relating to the delay, and most importantly, must provide a satisfactory explanation for each period of the delay. Any period of delay that is unaccounted for, will result in an indulgence being refused 8. 7 See Meintjies v HD Combrinck (Edms) Bpk 1961 (1) SA 262 (A) at 263 H-264B. 8 See NUMSA and another v Hillside Aluminium [2005] 6 BLLR 601 (LC)
6 [13] In Moila v Shai N.O. and Others 9, the court (per Zondo JP as he then was) had commented on the period of delay in that matter by stating that; I do not have the slightest hesitation in concluding that this is a case where the period of delay is excessive and the appellant's purported explanation for the delay is no explanation at all. I accept that the case is very important to the appellant. However, the weight to be attached to this factor is too limited to count for anything where the period of delay is as excessive as is the case in this matter and the explanation advanced is no explanation at all. If ever there was a case in which one can conclude that good cause has not been shown for condonation without even considering the prospects of success, then this is it. Where, in an application for condonation, the delay is excessive and no explanation has been given for that delay or an explanation has been given but such explanation amounts to no explanation at all, I do not think that it is necessary to consider the prospects of success. [14] The applicant in explaining the delay appears to put the blame squarely on his erstwhile attorneys, who had assisted him in referring the dispute to the MEIBC. In this regard, he averred that his first set of attorneys (Keet Attorneys) had assisted him in referring the dispute to the MEIBC. Notwithstanding the fact that the MEIBC lacked jurisdiction over the dispute, Keet Attorneys persisted in referring the dispute for arbitration after a certificate of outcome was issued on 4 June 2012. A few days before the matter was to be arbitrated, Keet Attorneys effectively left him in the limbo in November 2012. [15] He had then approached his attorneys of record, (Jansens Attorneys) who had advised the MEIBC that it lacked jurisdiction to arbitrate the matter. The statement of claim could not be immediately filed as Jacques Jansen, the attorney assisting him, was medically unfit from 15 November until 18 January 2013, and further since the attorneys offices were closed between 14 December 2012 and 7 January 2013. Further as a result of his attorneys not having consulted with him or alternatively not being able to get hold of him, the first meaningful consultation took place on 26 March 2013. 9 (2007) 28 ILJ 1028 (LAC) at para 34
7 [16] For the purposes of the hearing of this application, the applicant was now assisted by a third set of attorneys. I have no hesitation in concluding that the explanation proffered by the applicant in respect of the excessive delay amounts to no explanation at all. On his version, Keet Attorneys assisted him at least until November 2012, during which time, he had referred the dispute to both the MEIBC and the CCMA. The Courts have traditionally demonstrated their reluctance to penalise a litigant on account of the conduct of his representative. In equal measure, the Courts have emphasied that there is a limit beyond which a litigant cannot escape the results of his representative s lack of diligence 10. In my view, it is not sufficient for the applicant to simply allege that he had made regular enquiries with Keet Attorneys and was always assured of good progress of his matter when no further details are spelt out in that regard. It is not known when these enquiries were made and how these assurances were given. There is no account given of the prolonged periods between when the matter was initially referred and when Keet Attorneys abandoned the applicant. [17] The respondent had pointed out that Jansens Attorneys were advised as early as December 2012 that there was a need to file an application for condonation as the time periods had elapsed. It was also pointed out that allegations about Jansen being medically unfit were not corroborated by way of a medical certificate. Worst still, since the applicant is dominus litis in this case, it cannot be an excuse that consultations could not be held with him as he could not be contacted. It clearly shows the seriousness with which he dealt with the matter. In the light of the excessive delays which clearly remain unexplained, this application should be dismissed on this basis alone. For the sake of completeness however, I will deal with the other aspects of this application. Prospects of success: [18] In view of the failure to proffer an explanation for the extreme delay in filing a statement of response, the applicant s prospects of success become 10 Saloojee & another NNO v Minister of community Development 1965 (2) SA 135 (A). See also Buthelezi & others v Eclipse Foundries Ltd (1997) 18 ILJ 633 (A) at 638I 639A)
8 insignificant. The Labour Appeal Court in NUM v Council for Mineral Technology 11 made this point when it held 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 [19] The applicant s prospects of success on the merits are abysmal. Based on the letter he got, he concluded that he was being discriminated against on the grounds of his religion when clearly there is no basis for making that conclusion. The applicant in this regard also relies on an encounter with one of his erstwhile colleagues, who had questioned his affiliation with the ZCC, and asked him about his religious practices. He also based his claim on an encounter with one of the site managers after he had confronted the latter about the enquiries made by his erstwhile colleague about his religion. Prima facie, there is no basis for any conclusion to be made that the respondent as the employer had discriminated against him. The unfair discrimination alleged is clearly a figment of the applicant s imagination. [20] The respondent in its answering affidavit had pointed out that reference to discrepancy in its letter of 1 March 2012 was made to the fact that the applicant was not fitting into its corporate culture and values. Furthermore, it was not the applicant s case that he had expected that his contract would be renewed, which issue would have taken this matter in a different direction. It is trite that a case cannot be made out in heads of argument. The applicant had attempted to do by contending in his heads of argument that he had an expectation that his contract would be renewed. His case has always been that he was discriminated against on the grounds of his religion. Other considerations and conclusion: [21] It cannot be doubted that the dilatoriness of the applicant has severely prejudiced the respondent, which is entitled to finality. In Brummer v Gorfil 11 1999 3 BLLR 209 (LAC) at p211 paragraph G-H
9 Brothers Investments (Pty) Ltd 12, Jacoob J had stated that the interests of justice should be an overall consideration when dealing with applications for condonation. In my view, in the light of the extreme nature of the delay in filing a statement of defence, a lack of explanation in that regard, the general dilatoriness on the part of the applicant and his chosen representatives, his lack of prospects of success on the merits, and the severe prejudice suffered by the respondent as a consequence of the unexplained delays, it should be concluded that the applicant has not shown good cause. In this regard, the interests of justice dictate that the application for condonation should not be granted. Having had regard to considerations of law and fairness, I am further of the view that a cost order is not appropriate given the circumstances of this case. Order: i. The application for condonation is dismissed. ii. There is no order as to costs. Tlhotlhalemaje, AJ Acting Judge of the Labour Court of South Africa 12 [2000] (2) SA 837 (CC) at 839 F
10 Appearances: For the Applicant: For the Respondent: Mr. F Moloi of Moloi Attorneys Ms. M Chenia of Cliffe Dekker Hofmeyr Attorneys