Bovula v Safety And Security Bargaining Council and Others (JR949/06) [2008] ZALCJHB 31 (29 April 2008)
- Citation
- [2008] ZALCJHB 31
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Labour Court Johannesburg
- Panel
- Pillay D
- Case number
- JR949/06
More details
- Court
- Labour Court Johannesburg
- Panel
- Pillay D
- Case number
- JR949/06
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that the applicant's explanation for the delay in referring the dismissal dispute was unacceptable and that the period of delay was substantially longer than claimed. The commissioner was correct in refusing condonation without considering the prospects of success, as the explanation for the delay was insufficient. The prejudice to the employer was significant due to the lengthy delay, which could affect the availability and memory of witnesses. Consequently, the application for review was dismissed.
Court disposition
Application dismissed with costs.
Orders
- The application for review is dismissed with costs.
02
Material facts
Parties
W.W Bovula
Applicant Counsel: Bethuel Netshisumbewa - SAACOWUSafety & Security Bargaining Council
Respondent Counsel: UnopposedSouth African Police Services
Respondent Counsel: UnopposedMrs Z. Mdladla
Respondent Counsel: Unopposed03
Procedural history
Posture
Review Application / Judgment
04
Questions and positions
Legal issues
- 01
Whether the commissioner erred in refusing condonation for the late referral of the dismissal dispute.
- 02
Whether the explanation for the delay in referral was acceptable.
- 03
Whether the prospects of success on the merits should have been considered given the delay.
Party arguments
- Applicant
- The applicant argued that the delay in referring the dismissal dispute was justified due to his criminal trial and subsequent acquittal. He contended that the period of delay was two years, three months, and 24 days, and sought condonation from the bargaining council.
- Respondent
- The respondents opposed the condonation, arguing that the delay exceeded three years and the explanation provided was unacceptable. They maintained that the prejudice to the employer was significant due to the passage of time, potential unavailability of witnesses, and impaired recollection.
05
Court’s reasoning
Legal principles
- 01
Labour Relations Act, 66 of 1995
An applicant seeking condonation for late referral must provide a satisfactory explanation for the delay and demonstrate prospects of success, unless the delay is so excessive that the explanation alone is determinative.
- 02
Commissioner's Award, para 4.3
Where the explanation for delay is unacceptable, the commissioner need not consider the prospects of success on the merits.
06
Ratio, limits and disposition
Ratio decidendi
The court held that the applicant's explanation for the delay in referring the dismissal dispute was unacceptable and that the period of delay was substantially longer than claimed. The commissioner was correct in refusing condonation without considering the prospects of success, as the explanation for the delay was insufficient. The prejudice to the employer was significant due to the lengthy delay, which could affect the availability and memory of witnesses. Consequently, the application for review was dismissed.
Obiter and limits
- The fact that the money was not found on the employee’s person is irrelevant to the condonation application.
- Even if witnesses are available after such a long delay, their recollection may be impaired, further prejudicing the employer.
Court disposition
Application dismissed with costs.
- The application for review is dismissed with costs.
Source and reliance status
Labour Court Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Labour Court Johannesburg
Judgment
LOM Business Solutions t/a Set LK Transcribers
IN THE LABOUR COURT OF
SOUTH AFRICA
BRAAMFONTEIN
CASE NO: JR949/06
DATE: 2008/04/29
In the matter between
W.W BOVULA Applicant
And
THE SAFETY & SECURITY BARGAINING
COUNCIL First
Respondent
SOUTH
AFRICAN POLICE SERVICES Second
Respondent
MRS Z. MDLADLA Third
Respondent
J
U D G M E N T
PILLAY D, J:
This is an application to review and set aside the award of the third respondent commissioner, who had refused to condone the late referral of a dismissal dispute. The applicant employee was dismissed on a charge of corruption on 20 August 2002. He was charged criminally and acquitted on 3 September 2003. The employee referred the dispute to the bargaining council on 22 April 2005 and made his application for condonation of the 4 May 2005. The period of delay of more than three years, is considerably more than the two years, three months and 24 days alleged by the applicant in his application for condonation. The explanation for the delay is also unacceptable, as the commissioner found. The commissioner’s
reasons for rejecting the applicant’s explanation appear in paragraph 4.3 of the award. Given the unacceptable
explanation for the long period of delay, the commissioner did not need to consider the prospects of success on the merits of the
application.
In any event, the evidence of the prospects of success presented to the commissioner is not clear. The fact that the money was not found on the employee’s person is neither here nor there. In the light of the long period of delay, the prejudice to the employer is great. Witnesses may no longer be available and even if they are, their recollection could be impaired. In the circumstances the application for review must fail.
The application is dismissed with costs.
_____
Pillay D, J
Date of Editing: 5 July 2009
Appearances:
For the Applicant: Bethuel Netshisumbewa - SAACOWU
For the Respondent: Unopposed
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