Choene v Johannesburg Metropolitan Bus Services (SOC) Ltd and Others (JR796/2017) [2021] ZALCJHB 400 (2 November 2021)

THE LABOUR COURT OF SOUTH AFRICA

(HELD AT JOHANNESBURG)

Not reportable

CASE NO: JR 796/2017

In the matter between:

KOLONYANE LUCKY CHOENE Applicant

and

JOHANNESBURG METROPOLITAN BUS

SERVICES (SOC) LTD First Respondent

COMMISSIONER B KHUMALO N.O Second Respondent

COMMISSION FOR CONCLIATION, MEDIATION AND

ARBITRATION Third Respondent

Date of hearing: 02 November 2021

Date of judgment: 02 November 2021

JUDGMENT

VAN NIEKERK J

[1] The applicant seeks to review and set aside an arbitration award issued by the second respondent (the arbitrator) on 16 November 2016. In his award, the arbitrator upheld the applicant’s dismissal by the first respondent. The applicant was dismissed after a tragic accident in which a passenger on the bus that he was driving fell from the moving bus and was crushed to death. The disciplinary hearing convened by the first respondent found that the applicant was responsible, primarily on the basis that the applicant drove off in circumstances where the doors of the bus had not closed.

[2] The review application ought to have been filed no later than 29 December 2016. The application was filed on 3 May 2017, more than four months late. The applicant seeks condonation for the late filing of the application.

[3] The general principles to be applied are well-established. Condonation is not there merely for the asking, nor are applications for condonation a mere formality (see NUMSA v Hillside Aluminium [2005] ZALC 25; [2005] 6 BLLR 601 (LC); Derrick Grootboom v National Prosecuting Authority & another [2014] 1 BLLR (CC)). A 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] This court is required to exercise a discretion, having regard to the extent of the delay, the explanation proffered for that delay, the applicant’s prospects of success, and the relative prejudice to the parties that would be occasioned by the application being granted or refused.

[5] In this court, that formulation, which has its roots in Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A), has long been qualified by the rule that where there is an inordinate delay that is not satisfactorily explained, the applicant’s prospects of success are immaterial. In National Union of Mineworkers v Council for Mineral Technology [1999] 3 BLLR 209 (LAC) the LAC said the following:

… without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused.

[6] The delay is significant. The explanation for the delay is that the applicant struggled to find lawyers who would assist him first, because the award was issued during the December holiday, and secondly, because those (unnamed) lawyers with whom the applicant met were of the view that the applicant had no prospects of success. The applicant nonetheless persisted and got hold of his current attorneys of record on 30 March 2017. The attorney agreed to represent the applicant on a contingency basis. Insofar as the prospects of success are concerned, the applicant states no more than that his prospects of success are good, and points to a paragraph in the founding affidavit that does not exist.

[7] The explanation for the delay is scant, to say the least. The award under review was issued in mid-November 2016, prior to the commencement of the year-end holiday season. The applicant provides no detail on the legal representatives that he approached, and provides no dates as to when these representatives were consulted. It is not insignificant that an unspecified number of the legal representatives approached by the applicant expressed the view that the applicant had no prospects of success. The applicant further fails to explain why after having instructed an attorney, in circumstances where the application was already significantly out of time, it took more than a month to file the application. To the extent that the applicant’s attorney

submitted that it was reasonable in the circumstances to regard the statutory six-week period as reasonable to execute an instruction to file a review, there is no merit in this submission. The applicant’s attorney ought properly to have realised that the time limit had expired in December of the previous year, and acted with due expedition in filing the application. As this court has pointed out on many occasions, the initial filing in a review application need do little more than attach the award and assert the primary grounds for review – the supplementary affidavit is the point at which full instructions are taken and a more considered pleading filed, having regard to the record. In short, the explanation for the delay in filing the review application lacks sufficient particularity and is wholly unsatisfactory. On that basis, the application for condonation stands to be refused without any reference to the applicant’s prospects of success.

[8] Even if I were to have regard to the applicant’s prospects of success and view these from the perspective of the founding affidavit read as a whole together with the arbitration award under review, the present application smacks of an appeal in disguise. The grounds for review are limited to the arbitrator’s assessment of the evidence, and in particular, his rejection of the applicant’s evidence. The applicant asserts that the arbitrator relied on the circumstantial evidence proffered by the first respondent’s witnesses rather than the direct evidence proffered by the applicant, and that the third respondent’s failure to call an expert witness was fatal. The test to be applied in reviews is one that permits this court to intervene if and only if the arbitrator commits a material irregularity which has the consequence that the outcome of the proceedings under review falls outside of a band of decisions to which reasonable decision-makers could come on the available material. This is what separates the remedies of review and appeal. The founding affidavit in the review application makes no reference to the applicable test, and is drafted in the form of a notice of appeal. In his award, the arbitrator assessed the evidence and found,

on a balance of probabilities, that the applicant drove the bus with an open door, with the consequence that the passenger fell to her death. It is not for this court to decide whether the arbitrator’s decision was correct – the test is whether the arbitrator committed any reviewable irregularity in his assessment of the evidence and whether that rendered the outcome unreasonable. The arbitrator made a finding on the applicant’s own version, and relied in particular on the applicant’s evidence that he did not notice the deceased passenger running down the stairs of the double decker to get off. The arbitrator found that the applicant ought to have been more alert, particularly in circumstances where he had been experiencing problems with the door of the bus. There is nothing in the record of the proceedings under review to suggest that the arbitrator committed any reviewable irregularity in his assessment of the evidence, or that the conclusion to which he came was unreasonable. I should emphasise though that in the present circumstances, it is not strictly necessary for the court to have regard to the applicant’s prospects of success – I have done so simply to make the point that the application was in any event still-born, and that this is not one of those cases where the delay and explanation for it aside, a fundamental injustice would be done should condonation be refused.

[9] In the absence of a satisfactory explanation for a significant delay, and having regard to the applicants limited prospects of success, his application for condonation stands to be refused. Insofar as the respect of prejudice to the parties is concerned, while it is correct that the refusal of condonation will preclude the applicant from prosecuting the review application, the first respondent has a substantial interest in finality. The arbitration award under review was issued almost five years ago. The applicant has litigated at leisure. In these circumstances, the statutory purpose of expeditious dispute resolution and the first respondent’s interest in certainty must trump.

I make the following order:

1. Condonation for the late filing of the review application is refused.

2. The review application is dismissed.

André van Niekerk

Judge of the Labour Court of South Africa

APPEARANCES

For the applicant: Mr PF Ndou, Gogome Attorneys

For the first respondent: Mr T Rapuleng of Cliffe Dekker Hofmeyer Inc.