Chabalala v Commission for Conciliation, Mediation and Arbitration and Others (JR553/20) [2021] ZALCJHB 298 (23 September 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 553/20

In the matter between:

MUHLURI TSUNDZUKA CHABALALA Applicant

and

COMMISSION

FOR CONCILIATION

MEDIATION AND ARBITRATION First

Respondent

COMMISSIONER DUMUSANI NGWENYA N.O Second Respondent

EAGLE EYE SECURITY SPECIALISTS (PTY) LTD Third

Respondent

Enrolled: 24 August 2021 (dealt with on papers)

Delivered: In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be 23 September 2021.

Summary: Condonation application – no reasonable explanation for excessive delay and deficient prospects of success – indulgence is refused.

JUDGMENT

NKUTHA-NKONTWANA, J

Introduction

[1] This is a review application wherein the applicant impugns the arbitration award issued by the second respondent (Commissioner) under case number GAJB13659-19 dated 10 November 2019. The applicant seeks condonation for the late filing of the review application as well. The third respondent is opposing both applications.

[2] I deal first with the condonation application as it is dispositive of the matter.

Condonation

[3] The applicant filed the review application outside the six-week period in terms of the section 145(1)(a) of the Labour Relations Act[1] (LRA). The impugned award was issued on 10 November 2019. It follows that the review application ought to have been filed by 24 December 2019, but was filed on 24 July 2020. The degree of lateness is thus 6 months.

[4] The applicant partly blames the 5 weeks that the country was in a Level 5 Lockdown in terms of the National Disaster Management Act[2] consequent to the COVID-19 pandemic. Yet, this only accounts for 35 days of the delay. The rest of the explanation proffered is sketchy.

[5] The applicants assert that he left Johnsonburg in December 2019 and went to the rural area in Limpopo whilst awaiting the approval from his insurance, Legalwise, to cover his legal costs. He came back in February 2020 and consulted with his attorneys of record on 6 March 2020 who then agreed to attend to the review application despite the fact that Legalwise had not covered their costs. There is no explanation as what transpired between the time the country moved to Level 4 Lockdown and the filing of the review on 24 July 2020.

[6] It is well accepted that condonation cannot be had for the mere asking. This notion was emphasised in Grootboom v National Prosecuting Authority,[3] where the Constitutional Court, per the majority judgement, stated that:

‘[22] ...[T]he standard for considering an application for condonation is the interests of justice. However, the concept “interests of justice” is so elastic that it is not capable of precise definition. As the two cases demonstrate, it includes: the nature of the relief sought; the extent and cause of the delay; the effect of the delay on the administration of justice and other litigants; the reasonableness of the explanation for the delay; the importance of the issue to be raised in the intended appeal; and the prospects of success. It is crucial to reiterate that both Brummer and Van Wyk emphasise that the ultimate determination of what is in the interests of justice must reflect due regard to all the relevant factors but it is not necessarily limited to those mentioned above. The particular circumstances of each case will determine which of these factors are relevant.

[23] It is now trite that condonation cannot be had for the mere asking. A party seeking condonation must make out a case entitling it to the court’s indulgence. It must show sufficient cause.

This requires a party to give a full explanation for the non-compliance with the rules or court’s directions. Of great significance, the explanation must be reasonable enough to excuse the default.’ (Emphasis added)

[7] It is incontestable that the delay in the present case is extremely excessive; moreover, given the fact that employment disputes,

particularly review applications, are inherently urgent.[4] The explanation proffered is woefully unreasonable. That being the case, as correctly submitted by the third respondent, I don’t

have to consider the prospects of success.[5] Yet, for completeness sake, I deem it apposite that I should also consider the prospects of success.

[8] The crux of the applicant’s impugn in the review application is that the Commissioner committed a reviewable irregularity in the manner that he engaged the evidence that was before him. However, it is apparent from the award that the Commissioner preferred the evidence of the third respondent’s two witnesses (Messrs Motaung and Mbobane) in respect of what transpired on the day of the incident that led to the applicant’s dismissal. Both witnesses testified that the applicant was the instigator of the brawl between him and Mr Mbobane. They were adamant that applicant tried to use a traffic cone to assault Mr Mbobane; but was stopped by Mr Motaung with the help of other colleagues.

[9] The manner in which the grounds of review are crafted clearly shows that the applicant has crossed the review line and is, in effect,

appealing the outcome contrary to the well-established review test.[6] That approach is untenable.

[10] In the same way, the review application has no prospect of success.

Conclusion

[11] In all the circumstances, it is my view that the applicant failed to show good cause to excuse his failure to file the review application

timeously.

Costs

[12] This court has a discretion in terms of section 162 of the LRA to order costs in accordance with the requirements of the law and fairness. In the present instance, I am disinclined to award costs against the applicant, an individual litigant.

[13] In the premises, I make the following order:

Order

1. The applicant’s condonation application is dismissed.

2. There is no order as to costs.

P Nkutha-Nkontwana

Judge of the Labour Court of South Africa

[1] Act 66 of 1995, as amended.

[2] Act 57 of 2002, as amended.

[3] 2014 (2) SA 68 (CC); 2014 (1) BCLR 65 (CC) (Grootboom). See also Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532- E.

[4] Myathaza v Johannesburg Metropolitan Bus Services (SOC) Ltd t/a Metrobus [2016] ZACC 49; 2018 (1) SA 38 (CC); 2017 (4) BCLR 473 (CC) at para 33.

[5] See: Grootboom supra n 5 at para 51 where it was stated that: ‘The interests of justice must be determined with reference to all relevant factors. However, some of the factors may justifiably be left out of consideration in certain circumstances. For example, where the delay is unacceptably excessive and there is no explanation for the delay, there may be no need to consider the prospects of success.’

[5] See: Grootboom supra n 5 at para 51 where it was stated that:

‘The interests of justice must be determined with reference to all relevant factors. However, some of the factors may justifiably be left out of consideration in certain circumstances. For example, where the delay is unacceptably excessive and there is no explanation for the delay, there may be no need to consider the prospects of success.’

[6] See: Head of the Department of Education v Mofokeng [2015] 1 BLLR 50 (LAC) at paras 30 to 33; see also Herholdt v Nedbank Ltd (Congress of South African Trade Unions as amicus curia) [2013] 11 BLLR 1074 (SCA); Sidumo v Platinum Mines Limited and Others [2007] 12 BLLR 1097 (CC).