Chulu-Mantsho v Business Connexion (PTY) Ltd and Others (JS 1238/21) [2022] ZALCJHB 165 (3 June 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JS 1238/21

In the matter between:

MASHEGO CHULU-MANTSHO

Applicant

and

BUSINESS CONNEXION (PTY) LTD

First Respondent

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION

Second Respondent

K P CHAVALALA N.O.

Third Respondent

Heard: 3 June 2022

Delivered: 10 June 2022

(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 on 10 June 2022.)

JUDGMENT

PRINSLOO J

Background facts

[1] The Applicant was dismissed on 31 March 2021 due to the First Respondent’s (Respondent) operational requirements. Subsequently on 7 April 2021, she referred an unfair dismissal

dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). The dispute was conciliated, but remained unresolved and a certificate of outcome was issued on 12 May 2021, indicating that the matter should be referred to the Labour Court.

[2] The Applicant filed her statement of case on 22 November 2021 and an application for condonation for the late filing of the statement of case was filed on the same date.

The test for the grant of condonation

[3] The relevant legal principles to be applied in an application for condonation are well established.

[4] This Court has a discretion, which must be exercised judicially on a consideration of the facts of each case and in essence, it is a matter of fairness to both sides[1].

[5] In Melane v Santam Insurance Co Ltd[2] it was held that:

‘…Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success, and the importance of the case. Ordinarily these facts are interrelated: they are not individually decisive, for that would be a piecemeal approach

incompatible with a true discretion, save of course that if there are no prospects of success there would be no point in granting

condonation… What is needed is an objective conspectus of all the facts.’

[6] In this Court however, the principles have 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. This Court has conventionally applied the approach that in the absence of a satisfactory explanation for a delay, the applicant’s prospects of success are ordinarily irrelevant.[3] This principle was confirmed in National Education Health and Allied Workers Union on behalf of Mofokeng and others v Charlotte Theron Children’s Home,[4] where the Labour Appeal Court (LAC) held that without a reasonable and acceptable explanation for a delay the prospects of success are immaterial.

[7] In Colett v Commission for Conciliation, Mediation and Arbitration and others,[5] the LAC also confirmed that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial and without good prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused.

[8] The onus is on the applicant seeking condonation to satisfy the Court that condonation should be granted. In employment disputes, there is an additional consideration which applies in determining whether the onus has been discharged, as was held in National Union of Metalworkers of SA on behalf of Thilivali v Fry’s Metals (A Division of Zimco Group) and others[6]:

‘There is, however, an additional consideration which applies in employment disputes in determining whether an applicant for condonation has discharged this onus. This is the fundamental requirement of expedition. The Constitutional Court has, as a matter of fundamental

principle, confirmed that all employment law disputes must be expeditiously dealt with and any determination of the issue of good

cause must always be conducted against the back drop of this fundamental principle in employment law.’

[9] The fundamental requirement of expedition is not to be ignored. In Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others,[7] the Constitutional Court emphasised that one of the fundamental purposes of the Labour Relations Act[8] (LRA) was to establish a system for the quick adjudication of labour disputes. When it assesses the reasonableness of a delay, the Court must not lose sight of this purpose.

[10] In summary: the Courts have endorsed the principle that where there is a delay with no reasonable, satisfactory and acceptable explanation for the delay, condonation may be refused without considering prospects of success and to grant condonation where the delay is not explained, may not serve the interests of justice. The expeditious resolution of labour disputes is a fundamental consideration.

[11] Condonation for delays in all labour law litigation is not simply there for the taking. The starting point is that an applicant in an application such as the present seeks an indulgence and bears the onus to show good cause.

[12] It is in this context that the application for condonation stands to be determined.

The degree of lateness

[13] The first aspect to be considered is the degree of lateness.

[14] Section 191(11)(a) of the LRA prescribes a 90 day period for referral of a dispute to the Labour Court for adjudication. The 90 day period is calculated from the date a commissioner has certified that the

dispute remained unresolved.

[15] On 12 May 2021, the CCMA issued a ruling to the effect that the matter should be referred to the Labour Court. The Applicant’s dispute relating to unfair dismissal for operational requirements had to be referred within 90 days from 12 May 2021.

[16] The Applicant’s case is that her statement of case was to be filed by 17 September 2021, but was filed on 5 October 2021, therefore it was filed only 10 days late, which delay is minimal. The Respondent opposed the application and stated that the statement of case was only received on 14 October 2021.

[17] The degree of the delay is an important aspect to consider and it is prudent that the length of the delay is properly calculated.

[18] The Applicant has not filed a service affidavit, as required by the Labour Court Rules[9] (Rules) and the Practice Manual of the Labour Court[10] (Practice Manual), confirming when the statement of case was served on the First to Third Respondents. It is not clear why the CCMA and the presiding arbitrator, who issued the certificate of outcome, are cited as parties in this matter as they have no interest whatsoever in the outcome of this litigation. Citing them as parties is inappropriate as this is not an application for review. Be that as it may, on the Applicant’s statement of case, there appear stamps from the respective Respondents, which indicate that the statement of case was served on them on 10 and 14 October 2021 respectively.

[19] There is no service affidavit setting out when or how the statement of case was served and filed at the Labour Court and the only proof of service is a Court stamp indicating that the statement of case was

filed on 22 November 2021.

[20] The question is whether the statement of case was filed on 10 or 14 October 2021 when it was served on the Respondents or on 22 November 2021 when it was filed with the registrar of the Labour Court.

[21] A similar question was considered in Mbatha v Lyster and others[11] (Mbatha), where the issue was whether the application was made on 17 March 1999 when the notice of motion and the annexure thereto were delivered to the registrar of the Court or whether it was made when the third respondent received its copy of the papers.

[22] The LAC held in Mbatha that the provisions of sub-rule (1) of Rule 7A put the matter beyond question. In terms of Rule 7A(1) the applicant in a review application is obliged to “deliver a notice of motion to the person or body and to all other affected parties”. It follows, reading Rule 7A together with the effect of the definition of 'deliver' in Rule 1, that an application is made within six weeks of the publication of the award only if it is delivered to all the respondents and filed with the registrar of the Labour Court within such period.

[23] Rule 6(1)(f) of the Rules provides that a statement of claim must delivered. ‘Delivered’ is defined as “serve on other parties and file with the Registrar”. Following the reasoning in Mbatha, a statement of case is made within the prescribed period only if it is delivered to all the respondents and filed with the registrar of the Labour Court within such period.

[24] The statement of case was not filed with the registrar before 22 November 2021. The statement of case was thus only delivered on 22 November 2021, which should be the date on which the degree of lateness is to be calculated.

[25] The Applicant’s case is that the certificate of outcome was issued on 12 May 2021 and that the statement of case had to be filed by 17 September 2021, wherefore it was filed 10 days late. Ms Saunders for the Respondent submitted, and correctly so, during argument, that the delay was in fact 64 days and not 10 days, as alleged by the Applicant.

[26] The definition of ‘day’ in the Practice Manual and the Rules refers to Court days only, excluding Saturdays, Sundays, and Public Holidays. The definition, however, does not apply to the time periods in the LRA but only to matters already before the Labour Court. The absence of a definition of ‘day’ in the LRA means that the ordinary meaning of ‘day’

should prevail, and that is a calendar day.

[27] In Latiff V Donro (Pty) Ltd[12] it was confirmed that the Interpretation Act[13] must be considered when determining the computation of the 90 day period. Section 4 of the Interpretation Act provides that: “[w]hen any particular number of days is prescribed for the doing of any act, or for any other purpose, the same shall be reckoned exclusively of the first and inclusively of the last day, unless the last day happens to fall on a Sunday or on any public holiday, in which case the time shall be reckoned exclusively of the first day and exclusively also of every such Sunday or public holiday”.

[28] Therefore and in accordance with section 4 of the Interpretation Act, the 90 day period as set out in section 191(11)(a) of the LRA shall be calculated as calendar days.

[29] The certificate of outcome was issued on 12 May 2021 and the statement of case had to be filed within 90 days, being calendar days and thus it had to be filed by 10 August 2021. The statement of case was filed with this Court on 22 November 2021, clearly outside the prescribed 90 day period.

[30] The Applicant’s dispute was in fact referred 72 days late. The Applicant’s submission that the delay is minimal and that it mitigates in favour of the granting of condonation is incorrect.

[31] The delay is no doubt material. In fact, it is excessive given the context within which labour litigation takes place and the system that is designed to ensure the effective and expeditious resolution of labour disputes. This is even more so where the LRA provides for a period of 90 days to file a statement of case, which period is in itself generous and lengthy.

[32] The degree of lateness is material. The degree of lateness should however not be considered in isolation.

Explanation for the lateness

[33] A failure to comply with the generous period of 90 days, has to be explained and the reasonableness of the delay should be considered by having regard to the explanation for the delay.

[34] As the Applicant seeks an indulgence from the Court and as she bears the onus to satisfy the Court that condonation should be granted, it is incumbent upon her to provide the Court with a full explanation for every period of the delay. It is not sufficient simply to list significant events that occurred during the period in question as that does not assist the Court properly to assess the reasonableness of the explanation[14].

[35] The explanation for the delay has to be compelling, convincing and comprehensive and should cover every period of the delay. In the founding affidavit before me in support of the application for condonation, the Applicant provided the following explanation for the delay:

35.1 The Applicant was unrepresented when she had referred the matter to the CCMA on 7 April 2021 and when the certificate of outcome was issued on 12 May 2021. She consulted with Mr Setati, of Robin Twaddle & Associates Attorneys, the Applicant’s attorneys of record, on 12 August 2021 to seek legal advice. On the said date, Mr Setati requested the Applicant to obtain proof of the referral and

the certificate of outcome in order to proceed with the matter.

35.2 On 24 August 2021 the Applicant advised her attorneys that she could not get the documents from the CCMA and requested the attorneys to assist. The attorneys sent an email to the CCMA on 16 September 2021, requesting the certificate of outcome. On 20 September 2021, the attorneys instructed their messenger to collect the documents from the CCMA and the requested documents were obtained on 22 September

2021. On this date, the Applicant gave an instruction that the attorneys should proceed with the matter.

35.3 Counsel was instructed to draft the statement of case and after final instructions from the Applicant were received, the statement of case was finalised for issuing and service on 4 October 2021. At the same time, the condonation application was prepared.

35.4 The Applicant’s explanation is that the statement of case was not filed timeously due to the capacity difficulties on the part of the unrepresented Applicant coupled with the challenges of obtaining the documents from the CCMA.

[36] In its opposing affidavit, the Respondent stated that the delay is not as short as suggested in the Applicant’s application for condonation. The Respondent further submitted that there is a period of almost a month from 24 August 2021 until 22 September 2021 which is not properly explained and where further expeditious steps could have been taken by the Applicant. The Respondent referred to an email received from the Applicant on 23 February 2021, when the section 189 process was ongoing and prior to the Applicant’s dismissal, wherein she stated that her legal team would respond in due course. The Respondent further submitted that the Applicant had legal assistance throughout, even at the conciliation phase of the proceedings. The Applicant did not file a replying affidavit to dispute these averments.

[37] I already alluded to the fact that the Applicant should provide a full explanation for every period of the delay. The longer the delay, the better the explanation should be.

[38] There is a number of difficulties with the explanation tendered by the Applicant. Firstly, the statement of case had to be filed by 10 August 2021. Robin Twaddle & Associates Attorneys were instructed on 12 August 2021, when they requested the Applicant to obtain a copy of the certificate of outcome. The Applicant should have advised her attorneys that the matter was conciliated on 12 May 2021, but that it remained unresolved and as such her attorneys should have been aware of the fact that the 90 day period had already been triggered and that they needed to act swiftly. This is more so in view of the Respondent’s undisputed averment that the Applicant was legally represented at the stage of conciliation.

[39] By 24 August 2021, the Applicant advised her attorneys that she could not obtain the documents they requested and indicated that her attorneys should assist her. It is not explained what steps the Applicant took between 12 and 24 August 2021 and why she only alerted her attorneys on 24 August 2021 that she could not manage to obtain the certificate of outcome.

[40] The Applicant’s attorneys addressed an email to the CCMA only on 16 September 2021, requesting the certificate of outcome. It is not explained at all what happened during the period between 24 August 2021, when the Applicant informed them that she was unable to get the certificate of outcome, and 16 September 2021, when the first and only email was addressed to the CCMA. A period of more than three weeks remained completely unexplained.

[41] On 20 September 2021, the attorneys instructed their messenger to collect the documents from the CCMA and the requested documents were obtained on 22 September 2021. It is improbable that the documents were obtained on 22 September 2021 as it was a Sunday and the CCMA does not operate on a Sunday. It is more probable that the documents

were obtained by the messenger on 20 September 2021, when she was instructed to collect it from the CCMA. Be that as it may, Counsel

was instructed to draft the statement of case. It is not explained why it took a further two weeks to prepare the statement of case.

[42] The statement of case and condonation application were served on the Respondent on 14 October 2021. It is not explained why it took another 10 days to serve the Court papers on the Respondent and it is not at all explained why it was only filed at the Labour Court on 22 November 2021.

[43] It is evident that the explanation tendered for the period of delay is bereft of any detail and lacks particularity. Material periods of the delay remained completely unexplained and the Applicant tendered

no version as to what happened during those periods.

[44] The Applicant has to provide an explanation for every period of the delay to enable this Court to assess the reasonableness of the delay and the explanation for it. The Applicant dismally failed to do that

and the explanation tendered is inadequate and far from compelling, convincing or comprehensive and does not place this Court in any position to understand the reasons for the delay.

Prospects of success

[45] Having found that the delay is inordinate and the explanation tendered not compelling or adequate, it leaves the issue of prospects of success.

[46] In the authorities referred to supra, the Courts have endorsed the position that the failure to provide a reasonable and acceptable explanation for the delay renders prospects of success immaterial.

[47] In casu and in light of the said authorities, and given the fact that the Applicants have not provided a comprehensive, compelling or convincing explanation for a material period of delay, the prospects of success are immaterial, and thus need not be considered.

[48] Even if this Court were to take a lenient approach and consider the Applicant’s prospects of success, she did not more than to state that the prospects of success appear from her statement of case and that it should be incorporated into the condonation application. This does not assist this Court to assess the Applicant’s prospects of success.

[49] The approach taken by the Applicant is wholly inadequate and is of no assistance to this Court. The Applicant seeks an indulgence and she has to make out a case for the indulgence she seeks. A vague averment to the effect that the prospects of success appear from the statement of case does not assist this Court at all.

[50] This is so for a number of reasons. Firstly, the statement of case sets out the facts of the case and the legal grounds for the relief sought. It does not deal with prospects of success and such prospects

do not automatically ‘appear’ from the statement of case.

[51] It seems as if the Applicant has an expectation that this Court would embark on a ‘prospects of success finding mission’ to find what her prospects of success are, without being told by the Applicant what those prospects are.

[52] Secondly, the statement of case is opposed and the averments made therein are disputed by the Respondent. It follows that this Court cannot simply have regard to the contents of the statement of case, as filed by the Applicant, and conclude that there are prospects of success, when that is disputed by the Respondent. More is needed.

[53] There is however one aspect I wish to highlight in respect of the Applicant’s prospects of success. The Applicant’s pleaded case is that she received a notice of retrenchment the terms of the provisions of sections 189 and 189A of the LRA. It is evident from the said notice that the Respondent employed 4 905 employees of which 284 were affected in the said retrenchment process. It was also stated that consultation would be facilitated by the CCMA in terms of section 189A(3)(a) of the LRA. The Respondent’s pleaded case is that the retrenchment process was conducted by way of CCMA facilitation.

[54] It is evident that the retrenchment process was conducted in terms of the provisions of sections 189 and 189A of the LRA. A substantial part of the Applicant’s claim relates to alleged procedural unfairness, which is a claim she cannot pursue at this point.

[55] In Steenkamp and Others v Edcon Limited,[15] the Constitutional Court considered the nature, purpose and functioning of section 189A(13) and held that:

‘[45] The LRA provides for a consultative framework within which employees facing possible retrenchment may participate in the consultation process in an attempt to either avoid a possible retrenchment or, where retrenchments are unavoidable, to participate in attempts to ameliorate the adverse effects of such a retrenchment.

[46] Where a retrenchment exercise involves a large number of employees, section 189A of the LRA applies. This section not only strives to enhance the effectiveness of the consultation process by providing for the appointment of a facilitator, but also provides for mechanisms to pre-empt and resolve disputes about substantive and procedural unfairness issues as and when they arise during the consultation process.

[47] A distinctive feature of section 189A(13) of the LRA is the separation of disputes about procedural fairness from disputes about substantive fairness. Disputes about substantive fairness may be dealt with by resorting to strike action or by referring a dispute about the substantive fairness of the dismissals to the Labour Court in terms of section 191(11) of the LRA.

[48] Disputes about procedural fairness have been removed from the adjudicative reach of the Labour Court and may no longer be referred to the Labour Court as a distinctive claim or cause of action that a dismissal on the basis of operational requirements was procedurally unfair.’

Prejudice

[56] The Applicant submitted that if condonation is not granted, she will suffer irremediable prejudice in the form of being deprived of an opportunity to ventilate her case. The Respondent will not suffer any

prejudice.

[57] The Respondent submitted that it had compelling reasons to retrench the Applicant, that the Respondent engaged her and attempted to retain her services by offering an alternative position, which was rejected by the Applicant.

[58] The refusal to condone the late filing of the statement of case will have the result that the Applicant will be denied the opportunity to pursue this case before Court. However, it is evident that the Applicant has not pursued this matter diligently.

[59] I have to endorse the aim of the LRA namely to resolve labour disputes speedily and without delay. Granting condonation in a case like this would not be in the interest of justice as it would undermine the statutory purpose of expeditious dispute resolution and more so, where there is no case to be pursued in respect of procedural unfairness.

[60] In Grootboom v National Prosecuting Authority and another,[16] the Constitutional Court has held 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. If the period of delay is short and there is an unsatisfactory explanation but there are reasonable prospects of success, condonation should be granted. However, despite the presence of reasonable prospects of success, condonation may be refused where the delay is excessive, the explanation is non-existent and granting condonation would prejudice the other party.’

[61] On an objective conspectus of all the facts, the Applicant’s application for condonation falls hopelessly short of the mark. The Applicant did not discharge the onus to show good cause and to provide an acceptable and plausible explanation for the delay. For the above reasons, it will not be in the interests of justice that the application for condonation be granted.

[62] Insofar as costs are concerned, this Court has a broad discretion. In my view this is a case where the interest of justice and fairness will be best served by making no order as to costs.

[63] In the premises I make the following order:

Order

1. The application for condonation for the late filing of the Applicant’s statement of case is dismissed;

2. There is order as to costs.

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Advocate M Makhubedu

Instructed by: Robin Twaddle & Associates Attorneys

For the First Respondent: Advocate S Saunders

Instructed by:

Fluxmans Inc Attorneys

[1] D Harms ‘Civil Procedure in the Superior Court’ LexisNexis South Africa at B27.6.

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

[3] See: NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC).

[4] (2004) 25 ILJ 2195 (LAC) at para 23.

[5] (2014) 6 BLLR 523 (LAC).

[6] (2015) 36 ILJ 232 (LC) at para 25.

[7] (2016) 37 ILJ 313 (CC).

[8] Act 66 of 1995, as amended.

[9] GN 1665 of 1996: Rules for the conduct of proceedings in the Labour Court.

[10] Effective 2 April 2013.

[11] (2001) 22 ILJ 405 (LAC).

[12] (2004) 25 ILJ 2219 (LC).

[13] Act 33 of 1957.

[14] See: Independent Municipal and Allied Trade Union obo Zungu v SA Local Government Bargaining Council and others (2010) 31 ILJ 1413 (LC).

[15] (2019) 40 ILJ 1731 (CC) at para 45 – 48.

[16] (2014) 35 ILJ 121 (CC) at para 50.