Clink v Kleinot and Others (C1192/2018) [2023] ZALCCT 59 (25 October 2023)

REPUBLIC

OF SOUTH AFRICA

IN THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN

JUDGMENT

Case Number: C1192/2018

Not Reportable

In the matter between

PIETER

SAAIMAN CLINK Applicant And

COMMISSONER

K KLEINOT First Respondent

COMMISSIONER

L TAYLOR Second Respondent

NATIONAL

BARGAINING COUNCIL FOR THE

ROAD

FREIGHT INDUSTRY Third Respondent DHL SUPPLY CHAIN MANAGEMENT (PTY) LTD Fourth Respondent

SATAWU Sixth Respondent

BRITISH AMERICAN TOBACCO SA (PTY) LTD Seventh Respondent

Date Heard: 20 July 2023

Date Delivered: 25 October 2023 by means of email; deemed received on the 26 October at 10.00hr

RABKIN-NAICKER J

[1] This is an opposed application to review a condonation and recission ruling under case number WCRFBC36208. There is also an opposed application for condonation in respect of the late filing of the replying papers. The sixth respondent noted an objection to the late filing of the reply (of some 91 days) in terms of Clause 11.4.2 of the Practice Manual of the Labour Court. The Court was further seized with the review. I deal with whether a replying affidavit should be admitted first.

[2] In a judgment delivered on the 8 April 2021, this Court dismissed an application to consider the review lapsed under the above case number, and gave leave to the sixth and seventh respondent to file answering papers to the review within 10 (court) days of the Judgment. The order stated that replying papers may be delivered in terms of the Labour Court Rules. The respondents filed their answer accordingly. A replying affidavit was filed ninety-one days after my order was delivered.

[3] The applicant did file an affidavit purporting to apply for condonation for the excessive delay. However, the affidavit only begins to address the reason for the delay in paragraph 54 thereof. The applicant traverses various issues that his attorney of record faced during the period concerned including the death of her relatives, covid symptoms, and taxi violence which according to him, prevented the reply being prepared. There is no indication that he took any steps to find other assistance to ensure his pleadings were delivered. His attorney of record was instructed by the Legal Aid Board. The applicant states that he was faced with circumstances beyond his control and:

“50. My Attorney of Record started my case from the scratch. She was patient with me. While other attorneys were withdrawing she availed herself and saw a case and saw prospects of success. Even if I were to appoint another attorney that would not serve and solve case flow management as the new attorney would demand a lot more time to consult and to familarise himself or herself with the matter On the contrary, my Attorney of Record knows my case.

51. Another Attorney would delay the matter even further. Thirdly I cannot afford a private attorney and the Legal Aid Board cannot appoint a third attorney without just cause….”

[4] The above explanation is simply unacceptable. The applicant’s attorney has in effect drawn up another lengthy affidavit which contains reasons for her inaction during an excessive period while on brief. But deposed to by her client. There is no acceptable or reasonable explanation by the applicant for the long delay and I refuse condonation for the late filing of the reply.

[5] The review that seeks to set aside a condonation and rescission ruling under case number WCRFBC36208 is now considered without regard to the replying papers. The history of this matter is one replete with delay as reflected in the papers before me.

[6] I have considered what was before the Commissioner when he made his condonation ruling. In the referral of his dispute the applicant’s union had stated that he was injured on duty. The respondent’s submissions spoke of medical boarding. The analysis of the submissions before him contained in the Ruling are as follows:

“The question is whether Mr Clink can demonstrate good cause in terms of S191(2) of the Labour Relations Act as amended.

The matter is 92 days late. This is a substantial delay. The explanation provided by Mr Clink is not satisfactory in that it is not clear as to what steps he took to pursue his case. On his own version he obtained advise in November 2014 but there is no evidence as to whether he lodged a grievance or even whether he submitted new medical reports to overturn his boarding. Thereafter he obtains

advise about the dispute again in March 2015 and only refers the matter in July 2015 without providing an explanation as to what

transpired in this period or what steps he took to pursue his claim in this period.

In terms of the merits from the documents on file it appears that Mr. Clink was medically boarded and received payouts from the insurer and Respondent[1]. The certificate of service states this as the reason for termination as does the letter of termination. Mr Clink’s own version is that he received an injury on duty. It is his version that he is fit again to resume work. There is no medical report or certificate to support this contention. The merits of the matter are slim in terms of an alleged unfair dismissal claim.

In terms of prejudice I accept that Mr Clink has suffered aa loss of income however this must be balanced with the claim that the

Respondent has medically boarded Mr Clink and on a prima facie view of the documents this appears to be the case. Consequently the prejudice to the Respondent outweighs the prejudice to Mr Clink.

Consequently I find that Mr Clink has not shown good cause in terms of the application for condonation.”

[7] In the Court’s view, the decision to refuse condonation by the Commissioner based on the evidence before him, cannot be faulted. The referral was excessively late and no reasonable explanation for the delay was proffered by the applicant. The applicant then applied for rescission of the Ruling in terms of section 144 of the LRA. He wrote in his affidavit the following:

“I am applying to have the condonation ruling made by Commissioner K. Kleinot on 16 July 2015 rescinded on the basis that there was an obvious error and/or omission of material facts in the application submitted by my union. I was not medically boarded as alleged I was on temporary incapacity whilst on treatment for TB. My doctor certified that I was fit to return to work in December 2014, the employer therefore dismissed me for an unknown reason in November 2014 without following due process.”

[8] The application for the rescission of the Condonation Ruling was made some 6 months after the applicant became aware of the Ruling. He did not apply for condonation for the delay. This as the second respondent noted, made his application defective. The decision of the second respondent to refuse rescission is therefore not susceptible to review.

[9] The applicant has attempted in the various pleadings he has filed before Court to provide explanations about his case that should properly have been placed before the first and second respondents. There has been a discernible sensitivity to the applicant’s predicament from all decision makers up to this point. However, the applicant’s case simply has no merit and stands to be dismissed. I make the following order applying the Zungu principles on costs.

Order

1. The application for condonation for the late filing of the replying papers is dismissed.

2. The application to review and set aside the rescission ruling and the condonation ruling under case number WCRFBC36208 is dismissed.

3. There is no order as to costs.

H.Rabkin-Naicker

Judge of the Labour Court

Appearances:

Applicant:

Nobahle Mkabayi Attorneys

Sixth and Seventh Respondents:

Cliffe Dekker Hofmeyr Inc

[1] 4th respondent