Cashbuild (Pty) Ltd v Merwe NO and Others (JR516/11; J2735/13) [2016] ZALCJHB 108 (22 March 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Case no: JR516-11

J2735/13

DATE: 22 MARCH 2016

Reportable

In the matter between

CASHBUILD (PTY) LTD........................................................................................................Applicant

And

P J VAN DER MERWE NO.........................................................................................First Respondent

THE COMMISSION FOR CONCILIATION MEDIATION..............................Second Respondent

NACBAWU OBO T H MOTHOGOANE.................................................................Third Respondent

Heard: 07 July 2015

Delivered: 22 March 2016

Summary: principles relating to condonation restated. Whether to dismiss a review application in the absence of complete record of the arbitration proceedings. Matter remitted to the CCMA for arbitration de novo.

PHALA, AJ

Introduction

[1] There are a number of applications to be determined in this matter.The application to review and set aside the arbitration award

handed down on the 26 January 2011, an application to dismiss the review application filed under a different case number (J2735/13)as

well as a section 158(1) (c) application to make the award an order of the Court, and finally the application for condonation for the late filing of the answering affidavit to the application to dismiss the review application. For convenience, I shall refer to the parties as they appear in the review application.

[2] The Applicant’s Practice Note in particular paragraph 8.2 stated;

‘The parties propose commencing with the Respondent’s Rule 11 and section 158(1) (c) applications and then proceeding with the Applicant’s Review Application on the merits.’

[3] On the day the matter was argued, I adopted a different approach. I chose to deal with the application for condonation for the later filing of the answering affidavit because if it is in favour of the Applicant, it will mean that the Rule 11 application become opposed and thus giving the Applicant the opportunity to pursue the review application.

Background Facts

[4] The Applicant received the arbitration award giving rise to the review application on the 1 February 2011. The Applicant brought the application for review on the 11 March 2011 which was within the prescribed time limit .in terms of section 145(1) of the Labour

Relation Act 66 of 1995 as amended.

[5] The Second Respondent filed its Rule 7A (3) on the 04 May 2011. The content showed that the Second Respondent only discovered the Bundle of Documents and the recordings were still to follow. It was readily apparent that the Second Respondent made incomplete discovery at that stage.

[6] On the 05 May 2011, the Second Respondent addressed a letter to the attorneys of the Applicant stating that a search was conducted on the system for downloading recordings and nothing could be found on the First Respondent. However, the Second Respondent could make available reconstruction of the records (sic) upon request. It is unclear how the Second Respondent intended to proceed with the reconstruction of the records in the absence of the parties.

[7] The Second Respondent filed another Rule 7A(3) on the 4 July 2011 whose content stated itwere the “reconstructed” notes of the First Respondent.

[8] The Attorneys for the Applicant only responded to the letter dated the 05 May 2011 on the 19 September 2011 and requested the official of the Second Respondent to proceed with the reconstruction of the record.

[8] There was no correspondence confirming what the attorneys of the Applicant did beyond September 2011 till September 2012.

[9] The Second Respondent filed yet another Rule 7A(3) on the 27 September 2012 which stated that it was the Commissioner’s

handwritten notes.

[10] On the 16 October 2012, the attorneys for the Applicant sent a letter to the Second Respondent and confirmed that the Commissioner’s

hand written notes were received and requested that the matter be set down for a reconstruction hearing.

[11] On the 26 October 2012, the Second Respondent replied to the letter above and stated that the request for reconstruction could not be processed as the Commissioner who dealt with the matter passed away.

[12] Following the correspondence above, the Applicant filed a Rule 7A (8) and a supplementary affidavit on the 8 November 2012.

[13] The Third Respondent only filed the opposing affidavit on the 17 May 2013 and there was no record of an application for condonation.

[14] On the 17 October 2013, the Attorneys for the Third Respondent addressed a letter to the attorneys of the Applicant and enquired

whether the matter would be set down because the opposing affidavit has been filed. It appears that there was no response to the letter.

[15] Following this event, the Third Respondent filed the application to dismiss the Review application in terms of Rule 11 and Section 158(1) (c) of the LRA on the 29 November 2013.

[16] The Rule 11 application was set down for a hearing on the 28 January 2014. Judge Rabkin-Naicker confirmed a draft order handed up by the parties which read as follows:

‘Having heard the submissions from both parties the following order is made

(1) The application in terms of Rule 11 of the rules of this Court is postponed sine die.

(2) The Respondent is to pay the wasted costs of 28 January 2014.

(3) The Respondent is to index and paginate the Court file in the review application and request that the review application under case number JR516/11 be enrolled for a hearing within 10 days of this order.’

[17] It should be common cause that the review hearing was not set down within 10 days of the order handed down on the 28 January 2014. However, all the applications referred to in paragraphs 1and 2 above were set down on the 07 July 2015.

Application for condonation

[18[ The Applicant applied for condonation for late filling of the answering affidavit.

[19] According to the Applicant, it appears that the Third Respondent served the Rule 11 application on the 29 November 2013. The answering affidavit was only filed on the 24 January 2014, making it just less than two months late.

[20] The reason for late filing of the answering was purely due to oversight by the administrative personnel in the office of the

attorneys of record.

[21] The attorney responsible Arend Posthuma became aware of the application when the Registrar of the Honourable Court sent a notice

of set down on or about the 7 January 2014.

[22] The previous attorney, Flip Marais, who handled the matter had resigned. A candidate attorney was instructed to locate the court file and he established that the Third Respondent’s affidavit was in the file but there was no service affidavit.

[23] Posthuma addressed a letter to the attorneys of the Third Respondent to request the service affidavit which was provided. Upon perusal of the affidavit, he confirmed that there was confirmation of receipt by a BongiThwala, one of the assistants.

[24] Posthuma requested Thwala to check her inbox and the affidavit was indeed located. However, she did not recall whether she sent the affidavit to the relevant attorney. She probably neglected to print it out and bring it to anyone’s attention.

[25] The Applicant submitted that the submissions constituted proper reasons for the late filing of the answering affidavit which warrants the condonation to be granted.

[26] On the prospects of success Posthuma submitted that the delay in finalising the review application appears to be due to the missing record of the arbitration, the fact that the Commissioner has since passed on, the fact that Spicer informs him that he could not locate the file in the review application and the administrative error of the court personnel in failing to locate a hearing date as requested.

[27] The Applicant submitted that it will suffer prejudice if condonation was not granted because it will not continue with the review application.

[28] The application for condonation was not opposed.

Applicable law

[29] The Applicant sought condonation for the late filing of the opposing affidavit to the Rule 11 application.

[30] The general principles applicable to condonation applications were set out in the case of Melane v Santam Insurance Company Ltd[1] where it was held:

‘In deciding whether sufficient cause was shown, the basic principle is that the Court has 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 thereof, 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.’

[31] In 3G Mobile (Pty) Ltd v Raphela NO and Others[2] Snyman AJ stated the following when it comes to review applications the condonation has been somewhat tightened The Honourable Judge also referred to the Labour Appeal Court decision of Hardrodt (SA) Ltd v Behardien and Others[3] also quoted with approval in the judgement of in Queenstown Fuel Distributors CC v Labuschagne NO and Others[4] where the court stated

‘The principles laid down in that case included, firstly that there must be good cause tendered for the delay had to be convincing. In other words the excuse for the period had to be compelling. Secondly, the court held that the prospects of success would need to be strong. The court qualified this by stipulating that the exclusion of the appellant’s case had to be very serious, i.e. of the kind that resulted in a miscarriage of justice.’

[32] Snyman, AJ went on further to say in 3G Mobile (Pty) Ltd v Raphela NO and Others (supra):

‘In my view, the same considerations should apply when considering a condonation application for the failure to timeously and properly

prosecute a review application even if the review application was initially timeously brought. In all review related condonation

applications, the explanation that needs to be submitted must be compelling and the prospects of success need be strong. When it comes to the issue of prejudice, the applicant has to show that a miscarriage of justice will occur if the applicant’s case is not heard. The reason for these more stringent requirements is that review applications occur after the parties have already been heard, presented their respective cases and a finding has been made. Under such circumstances considerations of justice, fairness and expedition require that challenges of such findings must not be delayed and must be completed as soon as possible.’[5]

[33] As to how the explanation must be presented by an applicant in an application for condonation where it comes to reviews, the Court in Independent Municipal and Allied Trade Union on behalf of Zungu v SA Local Government Bargaining Council and Others[6] said the following:

‘In explaining the reason for the delay it is necessary for the party seeking condonation to fully explain the reason for the delay in order for the court to be in a proper position to assess whether or not the explanation is a good one. This was in my view requires an explanation which covers the full length of the delay. The mere listing of significant events which took place during the period in question without an explanation for the time that lapsed between these events does not place a court in a position to assess the explanation for the delay. This amounts to nothing more than a recordal of dates relevant to the processing of a dispute or

application, as the case may be.’

[34] The question now is whether the applicant, in its application for condonation has satisfied these requirements and made out a proper case for good cause, as a whole to convince the Court to grant it an indulgence and thus allow it to proceed with its review application.

[35] The explanation tendered by the applicant for the delay was that an attorney dealing with the matter resigned. Although it was established that an assistant received the Rule 11 application as well as the service affidavit, it appears that she neglected to pass it on to the relevant attorney hence the delay in serving and filing the answering affidavit.

[36] On the prospects of success, the Applicant submitted that the absence of the record, as well as the inability to reconstruct the record because the Commissioner has passed away and that the notes furnished were illegible as a result the review application could not be finalised as soon as possible.

[37] I am satisfied that the Applicant gave adequate explanation for failing to serve and file the answering affidavit within the

prescribed time period. The degree of lateness is also not substantial and the applicant appears to have good prospects of success. I now turn my attention to the Rule 11 application.

Rule 11 and section 158(1) (c) applications

[38] On the 29 November 2013, the Third Respondent brought an application to dismiss the review application and make the arbitration award an order of the Court (as already stated I shall refer to the parties as they appear in the review application).

[32] The Third Respondent submitted that the Applicant filed an application in terms of section 145 of the LRA on the11 March 2011

and then filed a notice in terms of Rule 7A(8) only on 6 November 2012. Due to problems with the record, the Applicant could only file its answering affidavit on the 9 May 2013, protesting that the hand written notes of the Commissioner were illegible and cryptic and, therefore, no proper case can be made out due to the lack of evidence.

[33] The Applicant did not take the matter forward. The Third Respondent’s attorney wrote a letter to the Applicant’s attorneys enquiring whether it is going to set down the matter for hearing or whether the Applicant has indeed abandoned the case and there was no response. It seemed that the Applicant did not pay proper attention to promote its own application, thereby denying the Third Respondent the remedy of re-instatement awarded at the CCMA.

[34] The Third Respondent further submitted that the matter dragged on now for more than 18 months. The Applicant was wilfully delaying the conclusion of the matter not to honour the relief granted to the Third Respondent. The Practice Manual of the Labour Court of South Africa[7]stipulates that once the registrar has notified an applicant, he must collect the record within seven days. In terms of the same Manual,[8] further emphasises the nature of a review application as an urgent matter and that it should be treated as such. A time period of 12 (twelve) months is set within which all papers should be filed and the registrar be informed that the matter is ripe for hearing. It is on these grounds that the applicant prays for a dismissal of the Applicant’s application for review with costs. At the same time, an order in terms of section 158(1) (c) of the Labour Relations.[9]

[35] The Third Respondent submitted that the Applicant wilfully delayed to forward the application to a hearing in order to frustrate both the Third Respondent and the Honourable Court so as to avoid honouring the arbitration award. The Applicant did not react to the Third Respondent’s latest pleadings or correspondence. The conduct of the Applicant was mala fide and inexcusable. The Third Respondent had to pay unnecessary costs by seeking relief from the Labour Court.

[36] The dispute was arbitrated by the First Respondent and he found that the dismissal was procedurally and substantively unfair and ordered the Applicant to re-instate the Third Respondent.

[37] The Third Respondent was aggrieved by the outcome and approached this court for relief.

[38] The Applicant denied that it did not take the matter forward after filing the application for review.

[39] The CCMA addressed a letter to the attorneys of the Applicant advising that the records could not be located after a diligent

search of the system was conducted.

[40] Upon becoming aware that the CCMA did not file the record of the arbitration proceedings, the attorneys of the Applicant addressed a letter to the Commission tore-file the handwritten notes of the Commissioner which was duly done.

[40] Flip Marais the attorney responsible at the time, addressed a letter to the CCMA acknowledging receipt of the notes and requested that the matter be set down for reconstruction.

[41] The CCMA responded and indicated that the Commissioner who handled the matter had passed away and reconstruction was impossible.

[42] On the 08 November 2012, Marais then deposed to a supplementary affidavit to a notice in terms of Rule 7A(8) of the rules of this Honourable Court outlining the above set of facts and outlining this as a ground for review.

[43] Marais then resigned in May 2013 and the next action taken on the file was in June 2013 when an attempt to indexed and paginate the review file by the candidate attorney, Craig Spicer. According to the latter, he struggled to locate the review file.

[44] The delay in finalizing the review application appears to be due to the missing record of the arbitration.The fact that the commissioner has since passed on and the fact that Spicer informs that he could not locate the file in the review application.

[45] It is correct that the attorneys of the Third Respondent and, for some unexplained reason, the Applicant’s representatives did not respond. However, this did not warrant a punitive cost order against the Applicant.

[46] The legal principles governing this court’s treatment of delays in the prosecution of review proceedings were set out by Van Niekerk, Jin the case of BP Southern Africa (Pty) Ltd v National Bargaining Council for the Chemical Industry and Others[10]as follows:

‘From a policy perspective, there are two principal reasons why the court should have the power to dismiss a claim at the instance of an aggrieved party where the other has been guilty of unreasonable delay. In Radebe v Government of the Republic of South Africa10 the court said the following;

“The first is that unreasonable delay may cause prejudice to other parties....The second reason is that it is both desirable and

important that finality should be reached within a reasonable time in respect of judicial administrative decisions....”

In Molala v Minister of Law and Order and Another11 the High Court held that the approach to be followed was the one set out in Bernstein v Bernstein12 where it was held that “it is in the discretion of the Court to allow proceedings to continue where there has been this lapse of time”.The Court referred with approval to Kuiper & others v Benson13 where it was held that the court has “an inherent power to control its own proceedings and that accordingly the Court should assess whether the plaintiff is guilty of an abuse of process.”’

[47] In Moraka v National Bargaining Council for the Chemical Industry and Others14 La grange, J held that in addition to the common law prescripts governing unreasonable delay, the LRA requires that labour disputes be prosecuted expeditiously:

‘...it is important to mention that one of the purposes of the LRA is to promote the effective resolution of disputes. A number of decisions of this court have confirmed that part of what makes dispute resolution effective is that it is expeditious. There is thus a statutory policy imperative in addition to all the common law precepts which effectively enjoins a party pursuing its rights under the LRA not to allow the prosecution to lose momentum.’

[48] In the same judgement, La Grange J held that the considerations applicable to the determination of an application to dismiss, such as the present application, are similar to those which apply in the determination of applications for condonation:

‘A party defending itself against an application to dismiss on account of undue delay is effectively asking the court to condone its dilatoriness and similar considerations which apply to the evaluation of condonation applications ought to be relevant in the evaluation of these applications.15

[49] Lagrange, J held that while it is not always expressly articulated as a consideration in the case law, ‘in considering whether it would be in the interests of justice and fairness to dismiss the application, regard ought to be had to the merits of the review application’. 16

[50] In the present case, the Applicant stated that there was a delay in prosecuting the review application because the Second Respondent made incomplete discovery of the record of the arbitration proceedings. Beyond that, the commissioner who arbitrated the dispute passed, the handwritten notes were cryptic on and the deficiencies of the said record could not be corrected.

[51] On the merits of the review application, the Third Respondent was dismissed after being found guilty at a disciplinary enquiry for misconduct relating to misappropriating company stock and alternatively accepting a “tip” from a customer in exchange for free goods.

[52] Following his dismissal, the Third Respondent referred a dispute to the Second Respondent who appointed the First Respondent to arbitrate the dispute. The dismissal of the Third Respondent was found to be procedurally and substantively unfair and the Applicant was ordered to reinstate the Third Respondent retrospective to the date of dismissal.

[53] It was the decision above that the Applicant sought to review and submitted that the award of the First Respondent was wrong in fact and law, irregularly arrived at and cannot be justifiable on an objective basis. The award was simply not an award a reasonable decision-maker could arrive at in the circumstances.

[54] The Applicant submitted that the First Respondent dismissed the application for legal representation during the arbitration and, thereafter, made a finding that the Applicant did not place evidence properly before the forum.

[55] Furthermore, the First Respondent denied the Applicant the opportunity to introduce video footage and ruled that he will not

view such evidence as the Third Respondent already acknowledged that he took money from the customer. The conduct of the First Respondent was untenable.The video was relevant because it showed the nature of the transaction and the demeanour of the Third Respondent.

[56] The First Respondent irregularly accepted the Third Respondent’s explanation for the fact that he received a “tip” from the customer without taking further material evidence into account. He made a finding to the effect that ‘the giving of a tip for service rendered is such a common practice that it would be unreasonable to expect any ordinary employee to refuse a tip without specifically having been made aware that it is not allowed” 17

[57] The First Respondent further failed to take into account that the Third Respondent informed the customer that he will assist and that he had an old invoice. The Third Respondent also took back the old invoice after the finalisation of the transaction.

[58] The First Respondent irregularly decided that the Applicant ‘resorted to ‘trapping‘ (or entrapment) in an effort to stop shrinkage in general and dismissed the applicant solely on the basis of a statement made by one of the two investigators’ 18

[59] There was no evidence presented to support the allegation that there was entrapment. The investigators did not walk into the store of the Applicant and specifically target the Third Respondent.

[60] The First Respondent committed a gross irregularity by mero-motu dissecting the disciplinary enquiry and finding it to be unprocedural although the Third Respondent did not, during his testimony, made any mention of procedural unfairness nor did he challenge procedural fairness of his dismissal at any stage.

[61] It is common cause that the Applicant could not file the record of the arbitration because the Third Respondent confirmed that such record could not be located despite the diligent search in the system. Furthermore, the copious notes of the First Respondent were illegible and as a result there was no transcript of the First Respondent’s handwritten record.

[62] The Third Respondent submitted that the review application should be dismissed because the Applicant took 18 months to take the matter forward and that was highly prejudicial.

[63] In Passenger Rail of South Africa v Commissioner for Conciliation Mediation and Arbitration and Others19 Van Niekerk, J stated that:

‘The provisions of Rule 7A are clear. It is incumbent on an applicant in the review proceedings to file the record of the proceedings under review. The practice manual in this court requires the record to be filed within 60 days of the applicant being notified by the registrar of the availability of the record and goes further to provide that in the absence of any application to extend the 60 day period, the failure to file the record timeously has the consequence of the application being regarded as having been withdrawn. These provisions are, of course, consistent with the statutory purpose of the expeditious resolution of labour disputes.’

[64] Van Niekerk, J also referred to the case of Karabo Terrence Kgoadi v CCMA & Others20 where the court reviewed a number of judgements concerning an applicant’s obligation to file a record and the consequences of a failure to do so. The general rule is that the court ought properly to dismiss the application on that ground alone. This approach has received imprimatur of the Labour Appeal Court, in JDG Trading (Pty) Ltd t/a Russels v Whitcher NO andOthers21 said at paragraph [13] of the judgement that “in the absence of a transcribed record of the proceedings, the court is not in a position to properly adjudicate on the application before it and ought in those circumstances to dismiss the application. Later cases (e.g. Solidarity obo Botha v CCMA and Others (2009) 30 ILJ 1363) have suggested that where an applicant is in breach of the duty to provide the review court with a full transcript of the proceedings, the review application must be dismissed or struck from the roll. In any event, it is incumbent on an applicant where there is no record or where the record is inadequate, to explain why the record is not complete and to indicate, in full, the steps taken to ensure that the record was placed before the court.’

[65] The importance of a record cannot be overemphasised. The test for review that has recently been affirmed by the Supreme Court of Appeal and the Labour Appeal Court requires this court to examine the record and to determine ultimately whether notwithstanding any defects in an arbitrator’s reasoning or any other reviewable irregularities on the arbitrator’s part, the result of the proceedings can nonetheless be sustained by reference to the record. Where there is no complete record, this is obviously impossible where, as in a case such as the present, the grounds for review are predicated on what are contended to be conclusions and findings that are not supported by the evidence. The summary of evidence contained in an arbitrator’s award is intended to be precisely that. It is not a substitute for the record and it is by no means a basis from which the reasonableness of any conclusion reached by the arbitrator can be ascertained.

[66] Taking into account the issues that the Applicant raised in the review application and that some of the issues were not even dealt with in the arbitration award, I am not satisfied that it would be in the interest of fairness to grant the application to dismiss in terms of Rule 11.

[67] The review application is serious and meritorious and it is in the interest of justice that it be ventilated properly. However, it is clear that the deficiency of the record makes it extremely difficult to do justice to the application. In my view, the Applicant has good prospects of success in the review application as well.

[68] In Shoprite Checkers Ltd v Commission for Conciliation, Mediation and Arbitration & Others23 where Francis, J accepted that an Applicant has a fundamental right to review before the Labour Court and, further, it is not the

Applicant’s fault that the record and transcript of the proceedings are lost. It will be unfair to dismiss the application as it was not the applicant’s fault that no record was provided’. When deciding to refer the matter back to the CCMA one must consider not only the interests of the third respondent but those of the applicant as well. The choice is either to let the award in the third respondent’s favour stand, or set it aside and to refer the matter for a hearing de novo. If the award is allowed to stand, then the applicant’s right of review will be completely frustrated, thereby prejudicing it.’[11]

[69] The Applicant has already tendered the costs for the first sitting of the 28 January 2014 and It is my considered view that none of the parties should be saddled with a punitive order of costs.

[70] I accordingly make the following order

1. The application for condonation is granted.

2 The application in terms of Rule 11 is dismissed

3. The award handed down by the First Respondent under the auspices of the Second Respondent is hereby reviewed and set aside. The matteris remitted to the Second Respondent to be dealt with de novo by another Commissioner to be appointed by the Second Respondent.

4 There is no order as to costs.

Phala, AJ

Acting Judge of the Labour Court of South Africa.

Appearances:

Applicant: Ms. Anita Bosch (Attorney)

Respondent: Mr. D W De Villiers[NM1]

[1] 1962 (4) SA 531 (A) at 532C-D.

[2](JR1910/2013)[2014] ZALCJHB 417(31 October 2014) at para 20.

[3](2002) 23 ILJ 1229 (LAC).

[4](2000) 21 ILJ 166 (LAC).

[5]Above n 2 at para 21.

[6](2010) 31 ILJ 1413 (LC) at para7.

[7]Practice Manual 2 April 2013 sec 11.2.1.

[8]Practice Manual 2 April 2013 sec 11.2.7.

[9]Act 66 of 1995 as amended.

[10](2010) 31 ILJ 1337 (LC) at para 10.

[11]Ibid at para 16.

[NM1]Please indicate of which law firms are representatives or if any in an advocate which firm of attorneys instructed them.