Chemical, Energy, Printing, Wood and Allied Workers Union obo 185 Members v Normandien Farms (Pty) Ltd ta Tekwani (JS91/22) [2024] ZALCJHB 416 (24 October 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JS 91/22

In the matter between:

CHEMICAL, ENERGY, PRINTING, WOOD & ALLIED WORKERS UNION obo 185 MEMBERS Applicant and NORMANDIEN FARMS (PTY) LTD t/a TEKWANI Respondent

Heard: 17 July 2024

Delivered: 24 October 2024

JUDGMENT

MOLL, AJ

Introduction

[1] This is an opposed application concerning 185 employees. The Applicant seeks condonation for the late filing of its statement of case and for the late filing of the replying affidavit in the condonation application.

[2] The replying affidavit is significant in this instance as attached to it are two confirmatory affidavits; and a resolution from the administrator of the Applicant. Without these confirmatory affidavits, the founding affidavit in the condonation application amounts to hearsay evidence. Further, without the resolution from the administrator, there is an issue with the deponent’s authority. This gives rise to discrete considerations. Accordingly, I will first consider the condonation application with respect to the replying affidavit. Depending on the decision arrived at, the way forward will become clear.

Analysis

[3] The legal position relating to condonation applications is settled. Condonation is not there for the asking and it is not a mere

formality.[1] The party seeking condonation must make out a case for the indulgence sought and bears the onus to satisfy the court that condonation should be granted.

[4] In deciding to grant condonation or not; this Court is exercising a discretion having regard to various factors to determine whether

granting condonation is ultimately in the interests of justice or not. In Melane v Santam Insurance Co Ltd[2], it was held that the factors to be considered are the degree of lateness, the explanation for the delay, the prospects of success and the prejudice to both parties.

[5] In Grootboom v National Prosecuting Authority and Another[3], the Constitutional Court held that the standard for considering whether to grant condonation is the interests of justice. It found

that the concept of “the interests of justice” is so elastic that it is not capable of precise definition but 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”.

[6] The Constitutional Court held that the ultimate determination of what is in the interests of justice must reflect due regard to all the relevant factors, with the circumstances of each case determining which of them are relevant.[4]

The replying affidavit

Explanation for the delay

[7] It is not in dispute that the delay in delivering the replying affidavit is 177 days. This is a delay just short of 6 months. In my view, bearing in mind that parties have 5 days to deliver their replying affidavits, I agree with the Respondent that the delay is substantial and thus it must be explained adequately.

[8] There is some history that informs the status of the Applicant as a trade union.

[9] The Applicant was placed under administration on 4 June 2020. This resulted in a spate of litigation in this Court, the Labour Appeal Court and the Constitutional Court relating to the appointment, and mandate, of the administrator. On 5 July 2023, the Constitutional Court refused a petition for leave to appeal relating to the challenge to the administrator’s appointment and mandate and this created certainty for the first time since 2020.

[10] The Applicant’s focus was primarily directed to this litigation as certainty had to be obtained in this regard. As a result of this, the Applicant did not attend to all of its day-to-day demands. This state of affairs was further exacerbated by the lack of funding that the Applicant experienced from the CEPPWAWU Development Trust. Considered holistically, the Applicant intended to pursue this case, but due to these developments, it was unable to do so.

[11] The Respondent submitted that the Applicant could not determine which matters are more important than others. Furthermore, to the extent that the Applicant could not attend to disputes, including this one, it ought to have advised its members as such.

[12] Whilst there is much to be said about the way in which the Applicant approached this matter, I am not persuaded that the Applicant’s conduct in focusing on the litigation pertaining to the administrator is so unreasonable that it ought to be rejected. Plainly, the status of the administrator’s appointment and his mandate had to be ascertained as it impacted the affairs of the Applicant and, perhaps more importantly, its members. This was subject to lengthy litigation which culminated in the Constitutional Court’s order on 5 July 2023. Coupled with this are the funding challenges that the Applicant experienced, which no doubt negatively impacted its ability to prosecute matters.

[13] Overall considered, although the explanation is not perfect especially because the Applicant is legally represented, the explanation tendered is sufficient in my view. It appears to me that the Applicant has always attempted to prosecute the claim despite the challenges it may have faced.

[14] On this basis, I am persuaded that the interests of justice demand that the Applicant’s prospects of success ought to be considered.

Prospects of success

[15] It is trite that an applicant for condonation need not persuade the court (at this stage) that it will succeed at trial. Instead, all that is required is an assessment of whether the applicant would succeed in the main action if the facts pleaded by it in the

condonation application were established at trial.[5]

[16] The Applicant claims that its members’ dismissals were at least procedurally unfair, in summary, for the following reasons:

16.1 On the Respondent’s own version, the employees represented by the Applicant did not receive the notice and/or adequate notice of the disciplinary hearing;

16.2. The Respondent gave notice by affixing the notice to the entrance gate of the sawmill and argues that because some of the employees had obtained knowledge of the hearing, these employees must have informed the other employees and thus the Respondent contends that notice was given properly – this demonstrates that there is uncertainty regarding the notices coming to the attention of all employees;

16.3. The employees were notified of their dismissals via SMS, but the Respondent did not use SMS communication to inform the employees of their hearings; and

16.4. The employees were only afforded 24 hours’ notice of the disciplinary hearing whereas at least 48 hours was required.

[17] The Respondent disputes the Applicant’s claims pertaining to prospects of success. In particular, the Respondent contends that the strike was unprotected owing to a strike certificate that lapsed; the employees intentionally boycotted the disciplinary hearing despite having received notice to attend it as it always communicates with its employees via notices on the notice boards at the entrance gate and the employees were gathered at the entrance gate during the strike and thus had full access to the notice boards and the notice was sent to the Applicant who was mandated to receive it on behalf of its members. Notice of the disciplinary hearing was also sent via SMS where they were prompted to download the notice from a website. Lastly, sufficient notice had been given to attend the hearing in circumstances where there is no dispute pertaining to receipt of the ultimata.

[18] What the foregoing demonstrates is that there are several live disputes between the parties. This Court does not have the benefit of evidence, including cross-examination and is thus constrained in its assessment of prospects of success hence the lower threshold that is required to demonstrate prospects of success in condonation applications.

[19] I am satisfied that if the Applicant can prove the allegations that have been made in the statement of claim, at a trial in due course, and that the Applicant has prospects of success.

[20] Accordingly, I am satisfied that the Applicant has reasonable prospects of success.

Prejudice

[21] Neither party canvassed prejudice in their respective affidavits. Accordingly, I find that prejudice is a neutral consideration in this application, with neither party being prejudiced either way.

[22] Having taken all these factors into consideration, I find that it would be in the interests of justice to grant condonation for the late delivery of the replying affidavit.

The statement of claim

[23] The Respondent raised two preliminary points in its answering affidavit. The first point relates to the founding affidavit in this condonation application being hearsay evidence. The second preliminary point relates to the authority of the deponent to depose to the founding affidavit.

[24] Attached to the replying affidavit, which I have now condoned, are two confirmatory affidavits that address the hearsay issue as well as a resolution from the administrator that addresses the authority issue. Accordingly, I dismiss both preliminary points raised by the Respondent.

[25] It is not in dispute that the delay in delivering the statement of claim is just over 2 years. In my view, bearing in mind that parties have 90 days to deliver their disputes to this Court, I agree with the Respondent that the referral is exceedingly late and thus it must be explained adequately.

[26] The explanation for the delay overlaps, to a large extent, with the explanation provided in relation to the replying affidavit. It is contended that the administration of the Applicant occurred, resulting in internal issues. In addition, owing to the Applicant’s dwindling membership, there are financial issues with the Applicant struggling to meet its monthly operating costs.

[27] The Applicant’s members were dismissed in January 2021 and the unfair dismissal dispute was conciliated in February 2021. Accordingly, the Applicant had to approach this Court in May 2021. The present dispute was only referred in June 2023. Accordingly, I will focus specifically on the explanation for the period between May 2021 and June 2023.

[28] The Applicant contends that it only became aware of the present dispute on 12 December 2021. This is patently incorrect. The Respondent points out that the Applicant referred the initial dispute to the CCMA timeously which culminated in the certificate of outcome issued in February 2021 already. This is not disputed in the replying affidavit and thus I accept the Respondent’s version. The Respondent also submits that by February 2021, the Applicant had been under administration for about seven months already and the Applicant attended the conciliation proceedings, thus being under administration is no excuse in the circumstances.

[29] I am not persuaded that it is as simple as that. It is one thing to complete a template referral document to refer a dispute to the CCMA and to attend conciliation; it is something completely different to prepare a statement of claim to refer a dispute to this Court which requires engaging with the merits of the dispute. It is clear to me that the Applicant experienced significant challenges with funding as well as with the appointment of the administrator (as dealt with above already).

[30] Whilst there appears to be shortcomings in the explanation provided as pointed out by the Respondent, I am not persuaded that this is so. This approach overlooks the overarching explanation: the appointment of the administrator and the funding issues. This explanation may not be perfect, but it is sufficient in my view for the reasons advanced already.

[27] Accordingly, the interests of justice require that the Applicant’s prospects of success be considered.

Prospects of Success

[31] The Applicant claims that its members’ dismissals were unfair, in summary, for the following reasons:

31.1. The Applicant’s members were provoked by the Respondent’s manager having physically assaulted them and the Respondent’s unilateral decision to derecognise the Applicant’s shop steward and not to pay the Applicant’s members their COVID-19 TERS payments.

31.2. The Applicant’s members were not sent notices to attend their disciplinary hearings and did not know that they had to attend disciplinary hearings until after they were dismissed.

31.3. The Respondent did not contact a trade union official to discuss the course of action it intends to adopt in terms of item 6(2) of the Code of Good Practice: Dismissal[6].

31.4. The Applicant’s members were not dismissed in accordance with a fair procedure.

31.5. There was inconsistent, selective and capricious meting out of discipline because others who had the same level of participation in the sit-in were not dismissed.

31.6. The Respondent renounced the recognition of shop stewards, yet charged Thulani Zikalala, Ayanda Mwanda, Ndumiso Mgabhi and Thandi Ngwenya as shop stewards and did not follow the procedure applicable to instituting disciplinary action against shop stewards.

31.7. Dismissal was too harsh as a sanction because there was no violence from the Applicant’s members; attempts were made to comply with the Labour Relations Act (LRA) and there was a section 150 referral; the strike was of limited duration.

31.8. Thulani Zikalala was not part of the sit-in but was charged and dismissed.

[28] In opposing the Applicant’s case pertaining to prospects of success, the Respondent presents prima facie evidence of serious misconduct regarding Ms Nkosi being taken hostage and the tyres of her vehicle being slashed. This dispels the idea that the atmosphere was peaceful at the relevant time.

[29] The Respondent also disputes that it dismissed Mr Dlamini as he was not their employee. To the contrary, Mr Dlamini was one of the Applicant’s officials who was replaced because he was negotiating in bad faith.

[30] The Respondent contends that the Applicant’s members were on strike and that the strike lasted for three weeks on the Applicant’s own version, i.e. from the re-opening of the business in January 2021 until 25 January 2021. There was also no attempt made to comply with the requirements of a strike in that section 150 of the LRA has nothing to do with the requirements of a protected strike.

[31] These submissions cast doubt over the Applicant’s prospects of success in respect of substantive fairness. The Respondent also set out the context to the dismissals which raises several disputes between the parties, but which I am unable to determine one way or the other without the benefit of evidence.

[32] I have already considered the Applicant’s submissions relating to procedural fairness above and the same reasoning applies here.

[33] As it stands, given the low threshold to determine prospects of success, I am satisfied that if the Applicant can prove the allegations that have been made in the statement of claim, at a trial in due course, that the Applicant has prospects of success.

[34] Accordingly, I am satisfied that the Applicant has reasonable prospects of success.

[35] In the matter of Liberty Life Association of Africa v Kachelhoffer N.O. and Others[7], the Court held as follows insofar as prejudice is concerned:

‘The enquiry into whether prejudice is present or not entails comparing the present position of the other parties involved with what it would have been had proceedings been instituted within a reasonable time. Prejudice will be considered to present if because of the delay the recollections of parties or the person whose decision is being reviewed have paled; persons who have to depose to affidavits or testify are no longer available; and where documentary or other forms of evidence are no longer available… . None of those considerations is present in the instant case. The fact that certain costs might have been duplicated can be remedied by appropriate costs orders and, in our view, does not constitute irremediable prejudice.’

[36] If condonation is refused, this will be the end of the Applicant’s members’ unfair dismissal dispute. The Applicant’s members will not be afforded their day in court. This entails severe prejudice to the Applicant’s members in my view, especially considering that they enjoy prospects of success in the main action.

[37] Whilst the explanation tendered is not perfect, I must recognise that the Applicant’s members are not to blame for the delay. This is because the Applicant’s members timeously approached the Applicant and a referral was made timeously to the CCMA. The Applicant’s members entrusted the Applicant with their dispute.

[38] Whilst the Applicant is to blame for the delay, in my view, the delay has been explained. Whilst the explanation is not perfect, it is reasonable and does not rise to negligence. It is explained that the administrator’s appointment and mandate had to be resolved. This is correct in my view as otherwise everything done by the administrator may have been tainted. In any event, even if the Applicant was negligent, this is not a case where such negligence should be visited upon the Applicant’s members in my view. There is no indication that the Applicant’s members at any stage lost interest in their matter or that they did not diligently prosecute their case. Whilst the lack of financial means on its own is insufficient to satisfy the good cause requirement, in the circumstances of this case it would be unduly harsh to close the doors of court on the Applicant’s members. There are 185 individual employees, who have been dismissed without being heard to date. They live in a small community where the Respondent is the main employer and the majority of the individual applicants are breadwinners. In my view, they deserve the right to be heard before a final decision is made pertaining to their fate.

[39] In comparison, the Respondent would not suffer any material prejudice if condonation were granted. No prejudice was pleaded whatsoever. Ultimately, the Respondent will still be entitled to defend its decision to dismiss the individual applicants at trial and it may even be successful at doing so.

[40] In weighing up the prejudice to the respective parties, I find that the prejudice to the Applicant should condonation be refused would far outweigh that to the Respondent should condonation be granted.

[41] The Applicant does not seek costs. The Respondent seeks costs. In my view, this is not a matter that deserves a cost order either way.

[42] In the premises, the following order is made:

Order

1. The late delivery of the replying affidavit to the condonation application is condoned.

2. Condonation for the late delivery of the statement of claim is granted.

3. There is no order as to costs.

P. Moll

Acting Judge of the Labour Court of South Africa

Appearances:

For the applicant: Instructed by: Adv S Bismilla KMNS Attorneys For the respondent: Instructed by: Adv HA van der Merwe Vinnecombe & Associates

[1] See: NUM v Council for Mineral Technology [1998] ZALAC 22; [1999] 3 BLLR 209 (LAC) at para 10.

[2] 1962 (4) SA 531 (A) at 532 C to F.

[3] [2013] ZACC 37; 2014 (1) BCLR 65 (CC) at para 22.

[4] Ibid at para 22.

[5] See: Seatlholo and others v Entertainment Logistics Service (A Division of Gallo Africa Ltd) [2011] ZALCJHB 88; (2011) 32 ILJ 2206 (LC) at para 24.

[6] Schedule 8 of the Labour Relations Act 66 of 1995, as amended.

[7] (2001) 22 ILJ 2243 (C) at 2260H – 2261A.