Chirwa v Commission for Conciliation, Mediation and Arbitration and Others (JR2165/19) [2021] ZALCJHB 262 (1 September 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 2165/19

In the matter between:

AMOS

MSIWA CHIRWA Applicant

and

COMMISSION

FOR CONCILIATION

MEDIATION AND ARBITRATION First Respondent

COMMISSIONER

NTHABISENG NGWANE N.O Second Respondent

RESOLUTION CIRCLE (PTY) LTD Third Respondent

Heard: 26 August 2021 (via zoom)

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 01 September 2021.

Summary: Irregular proceeding in terms of Rule 11 of the Labour Court Rules read with Rule 30A of the High Court Uniform Rules – where the irregular process is not prejudicial, it must be condoned. Condonation application – no reasonable explanation for excessive delay and deficient prospects of success – indulgence is refused.

JUDGMENT

NKUTHA-NKONTWANA, J

Introduction

1. What served before me are two applications. The first application pertains to the third respondent’s interlocutory application in terms of Rule 11 of the Labour Court Rules read with section 30 or alternatively section 30A of the High Court Uniform Rules (Uniform Rules). It seeks an order declaring the applicant’s review application an irregular step and be set aside. The second

application pertains to the applicant’s condonation application for the late filing of the review application.

Rule 11 application

2. The third respondent takes issue with the fact that the applicant’s founding affidavit in support of the review application was initially served on it was not commissioned. It also impugns the subsequently filed commissioned founding affidavit on the basis that it is not initialled and signed by the applicant. The applicant had been served with the notice to remedy the irregularity but to no avail.

3. The applicant seems to take a view that the irregularity is of no consequence since the first respondent (CCMA) did not raise any

objection and as such condoned it. Thus, he expect this Court to, likewise, condone this irregularity. He also contends that Rule 11 application is not a correct process to challenge the irregular step, nor the Rule 30 or 30A of the Uniform Rules.

4. Rule 11 reads as follows:

‘Interlocutory applications and procedures not specifically provided for in other rules

(1) The following applications must be brought on notice, supported by affidavit:

(a) Interlocutory applications;

(b) other applications incidental to, or pending, proceedings referred to in these rules that are not specifically provided for in the rules; and

(c) any other applications for directions that may be sought from the court.

(2) The requirement in subrule (1) that affidavits must be filed does not apply to applications that deal only with procedural aspects.

(3) If a situation for which these rules do not provide arises in proceedings or contemplated proceedings, the court may adopt any procedure that it deems appropriate in the circumstances.

(4) In the exercise of its powers and in the performance of its functions, or in any incidental matter, the court may act in a manner that it considers expedient in the circumstances to achieve the objects of the Act.’

5. While Rules 30 and 30A read as follows:

‘30 Irregular Proceedings

(1) A party to a cause in which an irregular step has been taken by any other party may apply to court to set it aside.

(2) An application in terms of subrule (1) shall be on notice to all parties specifying particulars of the irregularity or impropriety alleged, and may be made only if- (a) the applicant has not himself taken a further step in the cause with knowledge of the irregularity; (b) the applicant has, within ten days of becoming aware of the step, by written notice afforded his opponent an opportunity of removing the cause of complaint within ten days; (c) the application is delivered within 15 days after the expiry of the second period mentioned in paragraph (b) of subrule (2).

(3) If at the hearing of such application the court is of opinion that the proceeding or step is irregular or improper, it may set it aside in whole or in part, either as against all the parties or as against some of them, and grant leave to amend or make any such order as to it seems meet.

(4) Until a party has complied with any order of court made against him in terms of this rule, he shall not take any further step in the cause, save to apply for an extension of time within which to comply with such order

30A Non-compliance with rules

(1) Where a party fails to comply with these Rules or with a request made or notice given pursuant thereto, any other party may notify the defaulting party that he or she intends, after the lapse of 10 days, to apply for an order that such rule, notice or request be complied with or that the claim or defence be struck out.

(2) Failing compliance within 10 days, application may on notice be made to the court and the court may make such order thereon as to it seems meet.’

6. It is clear, ex facie Rule 11, that it provides a procedure for non-compliance or irregularity absent a specific rule that deals with the cause of complaint. Rule 11(3) permits this Court to adopt any procedure that it deems appropriate in the circumstances. While Rule 11(4) enjoins this Court to act in a manner that it considers expedient in the circumstances to achieve the objects of the LRA. In the present instance, the third respondent relied on the procedures provided in Rules 30 and 30A of the Uniform Rules as a guideline in dealing with its impugn.

7. In my view, there is nothing contentious in Labour Court’s espousal of procedures provided in terms of the Uniform Rules. The yardstick was, nonetheless, succinctly elucidated in Liquid Telecommunication (Pty) Ltd v Valerie Carmichael-Brown,[1] this Court, per Van Niekerk J, which I fully endorse. The court stated that:

[13] Rule 11 (3) has often been cited as a basis for applying the Uniform Rules into this court’s practice and procedure. This court has recognised that in the absence of any Rule concerned specifically with exceptions, parties may, under Rule 11, have recourse to Rule 23 of the Uniform Rules (see, for example, Volscenck v Pragma Africa (Pty) Ltd (2015) 36 ILJ 494 (LC)). But this court has never gone so far as to suggest that parties are obliged or entitled to conduct litigation in this court on the basis of the Uniform Rules. It is clear from the formulation of Labour Court Rule 11 (3) that the Uniform Rules are not a form of default procedure in this court, nor is it open to litigants and their representatives to rely selectively on the Uniform Rules in the conduct of litigation in this court. Rule 11 (3) is permissive, and provides that the court (not the parties and their representatives) may sanction the use of a procedure not contemplated by the Rules when this is appropriate. In other words, Rule 11 (3) establishes a procedural mechanism for the convenience of the court. It is not an invitation to practitioners to invoke the Uniform Rules and conduct litigation in this court on the basis that the Uniform Rules apply.

[14] This is not to say that there is no procedure applicable in this court when a party contends that a pleading is vague and embarrassing, or discloses no cause of action or defence. Until the Rules of this court are amended so as specifically to regulate the filing of exceptions, Rule 11, as this court has held, is an appropriate basis on which to file an exception, and that Uniform

Rule 23 is an appropriate guide as to when and how an exception should be filed. What I wish to emphasise is that this limited

application of Rule 11 is not the gateway to the wholesale importation and application of the Uniform Rules, and thereby the creation of a parallel system of procedure in this court…’

8. In the represent instance, I am not persuaded that the third respondent acted with judiciousness in launching this application and persisting with it despite the applicant’s attempts to remedy the cause of compliant. I must mention that the applicant is unrepresented and not a lawyer by profession.

9. This Court, unlike the High Court, is enjoined by the Labour Relations Act[2] (LRA) to ensure that labour disputes are resolved expeditiously and since it is a court of equity, not to be caught in the web of technical impugns. Moreover, it is not the third respondent’s case that it will suffer prejudice if the irregular step or cause of complaint is not remedied. As stated in Afrisun Mpumalanga (Pty) Ltd v Kunene NO and Others[3]:

‘The prejudice that is referred to is prejudice which will be experienced in the further conduct of the case if the irregular step is not set aside. There is no prejudice if the further conduct of the case is not affected by the irregular step and the irregular step can be simply ignored.’ (Emphasis added)

10. Similarly, the applicant’s failure to sign the commissioned founding affidavit has no bearing on the further conduct of this matter and must be overlooked.

Condonation

11. The applicant filed the review application outside the six-week period in terms of the section 145(1)(a) of the LRA. The jurisdictional ruling impugned in the review application was issued on 25 September 2019. It follows that the applicant ought to have filed the review application on 6 November 2019, but was filed on 13 December 2013. The degree of lateness is thus 5 weeks and 2 days.

12. In explaining the delay, the applicant asserts that, ‘[a]s this matter has placed the applicant in an extremely precarious position and although there is no valid reasons for the late filing at the Labour Courts, the Applicant avers that this is a technical error’[4]. The applicant further asserts that he was hoping that, by serving the review application process that was not signed and commissioned, the third respondent would invite him to engage in settlement discussions. However, he did not take any initiative on his part to facilitate those discussions up until 10 December 2019, the day when he approached the third respondent’s attorneys of record and sought a meeting with the third respondent’s CEO.

13. During the hearing of the matter, I specifically asked the applicant to explain how could it be that he was expecting the third respondent to discuss with him a settlement when he did not initiate process. He could not to give an explanation.

14. Clearly, by the time he approached the third respondent’s attorneys on 10 December 2019, the six-week period for filing of the review application had already expired. Thus, the proposal to have a settlement discussion could not have been the reason for the delay. Obviously, the applicant’s assertion that he has no valid reason for the delay is accurate.

15. The third respondent is opposing the condonation application. Its counsel submitted, in essence, that the applicant’s failure to explain his noncompliance with the statuary time frame is fatal to his condonation application.

16. It is well accepted that condonation cannot be had for the mere asking. This notion was emphasised in Grootboom v National Prosecuting Authority,[5] 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.’

17. Turning to the present instance, the delay is not negligible, given the fact that employment disputes, particularly review applications, are inherently urgent.[6] It is also instructive that the applicant offered no explanation for the delay. Granted, as contended by the third respondent, the Court does not have to consider the prospects of success where the delay is substantial and there is no reasonable explanation.[7] Yet, since the applicant is an unpresented litigant, I deem it apposite that I should to consider the prospects of success as well.

18. The crux of the applicant’s impugn in the review application is that the second respondent’s (Commissioner) jurisdictional

ruling is reviewable. The dispute that served before the Commissioner relates to unfair discrimination in terms of the Employment Equity Act[8] (EEA). The first claim was that the letter of reference that was issued by the third respondent on 29 January 2019 per the settlement agreement that settled his unfair dismissal case is discriminatory. The reference letter simply states that:

‘Amos was employed with Resolution Circle on a Limited Duration Contract of Employment that commenced on 03 December 2018 and came to an end on 14 December 2018. He was employed in a capacity of WL Instructor: Automation/Instrumentation.’[9]

19. The applicant failed to point out any prejudice in the content of the reference letter. In fact, he was constrained to concede that his impugn is flawed. It is also telling that he referred to this claim as a breach of contract in the LRA.7.11 form.[10]

20. The second claim was that the third respondent attacked his moral character even after his dismissal. This allegation is based on the motivation for the sanction of dismissal given by the chairperson of the disciplinary enquiry which he received on 14 December 2019, the day of his dismissal. He was adamant the analysis of the aggravating circumstances depicted him as a person with mental disorder and, as such, ‘clinically bias’.

21. The Applicant was charged and dismissed for misusing social media by continuously posting nonrelated messages on the work WhatsApp group after hours, a charge he pleaded guilty to; and gross insubordination for ignoring his Senior Manager’s previous reprimands in relation to the said posts. The chairperson found, inter alia, that the applicant failed to own up to his actions; that some of the messages he posted were threatening in nature, and that, as a teacher and mentor of young people, his behaviour was not acceptable. These are the comments that the applicant asserts they are discriminatory and impaired his dignity.

22. The applicant was also constrained to concede that, since he is not a medical expert, he could not give an opinion on the psychiatric

diagnosis provided in the mental health guideline he relied on to conclude that the chairperson’s comments meant that he was mentally unstable. In any event, even if the applicant’s opinion were to be accepted, still it is short of proving a case of unfair discrimination in terms of EEA, moreover post the employment relationship. Of course, that would not be the end of the road for the applicant as he may avail himself to the all-inclusive recourse in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act[11].

23. By the same token, the review application has no prospect of success. Overall, it is my view that the applicant failed to show good cause to excuse his failure to file the review application timeously.

Conclusion

24. In all the circumstances, the third respondent’s Rule 11 application is ill-conceived and stands to be dismissed. As well, the applicant’s condonation application must meet the same fate.

Costs

25. 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 as both parties are unsuccessful in their respective applications.

26. In the premises, I make the following order:

Order

1. The third respondent’s Rule 11 application is dismissed.

2. The applicant’s condonation application is dismissed.

3. There is no order as to costs.

P Nkutha-Nkontwana

Judge of the Labour Court of South Africa

Appearances:

Applicant: Mr Amos Chirwa, in person

Third respondent: Advocate MA Lennox

Instructed by: Eversheds Sutherland Inc.

[1] [2018] 8 BLLR 804 (LC).

[2] Act 66 of 1995, as amended.

[3] 1999 (2) SA 599 (T) at 611D-F.

[4] See: Index to the applicant’s condonation application, page 6 para 9.

[5] 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.

[6] 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.

[7] 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.’

[7] 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.’

[8] Act 55 of 1998, as amended.

[9] See: Index to the applicant’s condonation application, page 128.

[10] Id at page 53.

[11] Act 4 of 2000, as amended.