Department of Sports, Arts & Culture v Public Service Co-Ordinating Bargaining Council and Others (D976/13) [2015] ZALCD 61 (15 October 2015)

THE LABOUR COURT OF SOUTH AFRICA, DURBAN

Not Reportable

Case no: D976/13

DEPARTMENT OF SPORTS, ARTS & CULTURE Applicant And PUBLIC SERVICE CO-ORDINATING BARGAINING COUNCIL First Respondent CINDY LEE DICKENS N.O. Second Respondent HOSPERSA OBO I K NEL Third Respondent

Heard: 15 October 2015

Delivered: 15 October 2015

Summary: Condonation for 8 month delay in filing section 145 review application – stringent test to be applied – prospects of success immaterial where delay egregious and no compelling explanation tendered – condonation refused – rationale for stringent test examined

JUDGMENT

WHITCHER J

Introduction

[1] In an arbitration award, the second respondent found that, in terms of Resolution 1 of 2007 (a collective agreement), Mrs Nel was entitled to remuneration comprised of a basic salary plus 37% of that amount in lieu of benefits, that the Department had throughout the period in issue, that is, 1 April 2008 to 1 April 2011, failed to pay the additional 37% and that Mrs Nel was entitled to an award ordering the Department to make good the shortfall.

[2] Dissatisfied with the award, the applicant launched a review in terms of section 145 of the LRA, but did so some eight months outside of the six-week period prescribed in section 145(1)(a). The award was served on the applicant on 12 December 2012 and the review application was filed on 30 September 2013. The applicant unsuccessfully attempted to argue that the application was only 6 months and 16 days late on the basis that the number of days should exclude the days on which the court was in recess.

[3] Before evaluating the application for condonation, it is useful to consider first what the test for the grant of condonation is in the present circumstances. In a recent judgment, Makuse v CCMA & others,[1] Myburgh AJ provided a useful and comprehensive survey of the case law which is set out verbatim below in paragraphs 4 to 13. This judgment is especially relevant because it deals with a situation similar to the one in this case and it is important for this Court to maintain a consistent approach to condonation applications in the context of review applications.

The test for the grant of condonation

[4] Labour law litigation is unique in that it takes place within a system designed to ensure the effective (and thus expeditious) resolution of labour disputes – this being one of the primary objects of the LRA.[2] The need for this, and the implications of delays, were explained as follows by Ngcobo J in CUSA v Tao Ying Metal Industries & others [2009] 1 BLLR 1 (CC):

“The LRA introduces a simple, quick, cheap and informal approach to the adjudication of labour disputes. This alternative process is intended to bring about the expeditious resolution of labour disputes. These disputes, by their very nature, require speedy resolution. Any delay in resolving a labour dispute could be detrimental not only to the workers who may be without a source of income pending the resolution of the dispute, but it may, in the long run, have a detrimental effect on an employer who may have to reinstate workers after a number of years.”[3] (Emphasis added.)

[5] It follows from this that condonation for delays in all labour law litigation is not simply there for the taking. But this is particularly so when it comes to delays in the launching of section 145 review applications, especially in the context of individual dismissals. Here the courts have made it clear that applications for condonation will be subject to “strict scrutiny”, and that the principles of condonation should be applied on a “much stricter” basis. This can be traced back to this important

dictum of the LAC (per Conradie JA) in Queenstown Fuel Distributors CC v Labuschagne N.O & others [2000] 1 BLLR 45 (LAC), which was decided in 1999:

“In principle, therefore, it is possible to condone non-compliance with the time-limit. It follows, however, from what I have said above, that condonation in the case of disputes over individual dismissals will not readily be granted. The excuse for non-compliance would have to be compelling, the case for attacking a defect in the proceedings would have to be cogent and the defect would have to be of a kind which would result in a miscarriage of justice if it were allowed to stand.

By adopting a policy of strict scrutiny of condonation applications in individual dismissal cases I think that the Labour Court would give effect to the intention of the

legislature to swiftly resolve individual dismissal disputes by means of a restricted procedure, and to the desirable goal of making a successful contender, after the lapse of six weeks, feel secure in his award.”[4] (Emphasis added.)

[6] This dictum, which has been followed by the LAC in other judgments,[5] was explained as follows by Sutherland AJ (as he then was) in Lentsane & others v Human Sciences Research Council (2002) 23 ILJ 1433 (LC):

“In that decision Conradie JA pointed out that the principles of condonation should be much stricter than those which were applied ‘in normal circumstances'. This remark I understand to be an endeavour to distinguish the considerations pertinent to challenging an award granted by a commissioner of the CCMA, in relation to other litigious issues, such

as for example an application for condonation of the late referral of a statement of case or of defence. The policy reasons for that distinction are clear. Once a party has an award in his or her favour, the failure to respond within the six-week period to

challenge that award gives rise to considerations which are absent at the outset of litigation, where the table is being set for

debate.”[6] (Emphasis added.)

[7] Consistent with these judgments, the Constitutional Court has also recognised that there comes a point at which a successful party can feel secure in the decision in question and arrange its affairs accordingly, and that it is difficult to obtain condonation for the late launching of an application for leave to appeal (and the same would apply to a review) after this point in time. As the court put it in Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae) [2007] ZACC 24; 2008 (2) SA 472 (CC):

“There is an important principle involved here. An inordinate delay induces a reasonable belief that the order had become unassailable. This is a belief that the hospital entertained and it was reasonable for it to do so. It waited for some time before it took steps to recover its costs. A litigant is entitled to have closure on litigation. The principle of finality in litigation is intended to allow parties to get on with their lives. After an inordinate delay a litigant is entitled to assume that the losing party has accepted the finality of the order and does not intend to pursue the matter any further. To grant condonation after such an inordinate delay and in the absence of a reasonable explanation, would undermine the principle of finality and cannot be in the interests of justice.”[7] (Emphasis added.)

[8] From about 2007 onwards, this court and the LAC were taken to task by both the SCA and Constitutional Court for “systemic delays”[8] in the resolution of labour law disputes, particularly in the context of the final determination of review applications.[9] In Shoprite Checkers (Pty) Ltd v CCMA & others [2009] 7 BLLR 619 (SCA), the SCA held that such delays are untenable:

“The entire scheme of the LRA and its motivating philosophy are directed at cheap and easy access to dispute resolution procedures and courts. Speed of result was its clear intention. Labour matters invariably have serious implications for both employers and employees. Dismissals affect the very survival of workers. It is untenable that employees, whatever the rights or wrongs of their conduct, be put through the rigours, hardships and uncertainties that accompany

delays of the kind here encountered. It is equally unfair that employers bear the brunt of systemic failure.”[10] (Emphasis added.)

[9] In Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile & others [2010] 5 BLLR 465 (CC), the Constitutional Court held that whatever the cause of the problem is, it had to be addressed:

“It is unfortunately necessary to make some forthright comments about this unsatisfactory state of affairs again. There is nothing

inevitable that causes delays in the dispute resolution process under the provisions of the LRA. If there is an underlying cause it may be because problems in the process are not addressed timeously and are then acknowledged as being the acceptable norm.

… The Labour Court and Labour Appeal Court Rules provide for a court-managed process to ensure that matters are heard in proper form, and expeditiously so. If practitioners cause delays, the rules provide the means for the Labour Courts’ judiciary to exercise

discipline and control over them. As judges we also need to produce our judgments expeditiously. Accountability and responsibility affect and concern us all.”[11] (Emphasis added.)

[10] As an institution, the labour courts took heed of this criticism and responded to it through a range of remedial measures. Amongst them was the introduction of a pro bono judge system in 2011, in terms of which practitioners act as judges on a pro bono basis for a week during recesses, with the specific objective being to address the back-log in review applications. Allied to this, in April 2013, a practice manual was introduced, which contains a number of provisions (in para 11.2) aimed at speeding up the determination of reviews. It records that a review application “is by its very nature an urgent application”, and requires review records to be delivered within 60 days of them being made available by the CCMA (or bargaining council) and for all the necessary papers in the application to be filed within 12 months of the date of the launch of the application.

[11] In addition to this, the legislature found it necessary in the 2014 amendments to the LRA (which took effect on 1 January 2015) to pass three amendments to section 145, which are specifically aimed at expediting the prosecution of review applications. The first is that an applicant on review must apply for a hearing date within six months of launching the review (subsection (5)); the second is that judgments in review applications must be delivered as soon as reasonably possible (subsection (6)); and the third is that the institution of a review does not suspend the operation of the award, unless the applicant furnishes security to the satisfaction of the court (subsection (7)).

[12] For present purposes, the amendment requiring the applicant to apply for a hearing date within six months of launching the review stands to be emphasised. In practical terms, it halves the time for the completion of the filing of all papers set in the practice manual. In effect, the legislature wants reviews determined twice as fast as the target set by the court itself in its practice

manual.

[13] The corrective steps taken by the labour courts as an institution and the legislature to ensure the expeditious prosecution and determination of review applications outlined above underscore the statutory imperative that labour disputes must be effectively (and thus expeditiously) resolved. And the strict scrutiny of condonation applications relating to the late launching of section 145 review applications is very much part of this overall scheme of things.

Evaluation

[14] In light of the above guiding principles, the delay of some eight months is egregious. The question then is whether the applicant (in the words of the LAC in Queenstown Fuel Distributors) has tendered a “compelling” excuse for non-compliance.

[15] The following emerges from the explanation that has been offered by the applicant in this case:

[16] By no later than 28 December 2012, the applicant had been informed by both the State Law Advisor and a private firm of attorneys that there were no grounds for challenging the award. Both experts advised the applicant to comply with the award.

[17] A “submission” was then prepared aimed at “obtaining approval for implementing the award” and sent to six

functionaries, consecutively in time. This process took until early February 2013 and by then the statutory six week period had already expired. . As stated by the third respondent, the question arises as to why this time consuming process had to be engaged since it was clear that there was a binding award and the applicant had been informed by then that there were no grounds to challenge the award.

[18] The functionary indicted that they did not support the recommendations of the legal experts.

[19] The matter was then left to languish until late August 2013 and then the process of compiling the review application began. The application was filed on 30 September 2013. There is no explanation as to why it was left to languish until August 2013.

[20] What is significant is that during this languishing period, the third respondent made a section 158(1) application to have the award made an order of the Labour Court. As submitted by the third respondent, even this did not revive attention to the problem that an award was in existence and no concrete steps were being taken to challenge the award.

[21] As can be seen from the explanation, there are lengthy intervals in the action taken by the applicant and no reasonable explanation for such - let alone a compelling one, as is required where there is an egregious delay of 8 months. I am mindful of the fact that the applicant is a government department and decision-making must follow certain processes. However, even if one makes generous provision for this situation, the delay is excessive and the explanation unreasonable.

[22] This leaves the issue of prospects of success. Here again the judgment of Makuse is instructive. Myburgh AJ, at paragraph 20, noted that:

“While an analysis of judgments of the LAC over the years reveals that it has not always consistently adopted the position that the failure to provide a reasonable and acceptable explanation for the delay renders prospects of success immaterial,[12] it endorsed such a position in its recent judgment in Colett v Commission for Conciliation, Mediation and Arbitration and others [2014] 6 BLLR 523 (LAC). Significantly, this was in the context of an application to dismiss a review application for want of diligent prosecution. In an unanimous judgment, Musi AJA held as follows:

“There are overwhelming precedents in this Court, the Supreme Court of Appeal and the Constitutional Court for the proposition that where there is a flagrant or gross failure to comply with the rules of court condonation may be refused without considering the prospects of success. In NUM v Council for Mineral Technology [[1999] 3 BLLR 209 (LAC) at para 10], it was pointed out that in considering whether good cause has been shown the well-known approach adopted in Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532C–D … should be followed but:

‘(T)here is a further principle which is applied and that is 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.’

The submission that the court a quo had to consider the prospects of success irrespective of the unsatisfactory and unacceptable explanation for the gross and flagrant disregard of the rules is without merit.”[13] (Emphasis added.)”

[23] In the light of this dictum, given that the applicant has not provided a reasonable explanation for the delay and is guilty of a flagrant and gross failure to comply with the prescribed time-period (the application being eight months late), its prospects of success are immaterial, and thus need not be considered.

[24] In the result, the condonation application falls to be dismissed, and in the absence of the applicant having succeeded in obtaining

condonation, the review application also stands to be dismissed.

[25] Turning to the issue of costs, the judgment of Makuse is also instructive in this regard. In Makuse, the court held that in the light of the jurisprudence outlined above, it is unacceptable for a party to bring a review application eight months late, and then put the respondent to the expense of defending a hopeless application for condonation. The judge was of the view that it is high time that applicants on review come to learn that where they bring a review application way out of time and condonation is refused, they cannot reasonably expect to escape paying the costs. I concur with this reasoning.

Order

[26] In the circumstances, the following order is made:

1. application for condonation is dismissed;

2. the review application is accordingly dismissed;

3. the applicant shall pay the costs.

________________________________

Whitcher J

Judge of the Labour Court of South Africa

APPEARANCES:

On behalf of the applicant: Adv N R Rathidili instructed by the state attorney

On behalf of the third respondent: Adv P J Blomkamp instructed by Llewellyn Cain Attorneys

[1] Makuse v CCMA & others (JR2795-11, dated 18 August 2015).

[2] See section 1(d)(iv). The delay in the resolution of labour disputes is “one of the underlying problems that the LRA seeks to remedy”: Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile & others [2010] 5 BLLR 465 (CC) at para 45.

[3] At para 63.

[4] At paras 24-25.

[5] Mbatha v Lyster & others [2001] 4 BLLR 409 (LAC) at para 18; Hardrodt (SA) (Pty) Ltd v Behardien & others (2002) 23 ILJ 1229 (LAC) at paras 3-4.

[6] At para 14.

[7] At para 31.

[8] A phrase coined by the SCA in Shoprite Checkers (Pty) Ltd v CCMA & others [2009] 7 BLLR 619 (SCA) at para 33.

[9] See this string of high-ranking judgments: Republican Press (Pty) Ltd v CEPPWAWU & Gumede & others [2007] 11 BLLR 1001 (SCA) at paras 20-22; Equity Aviation Services (Pty) Ltd v CCMA & others [2008] 12 BLLR 1129 (CC) at para 52; Netherburn Engineering CC t/a Netherburn Ceramics v Mudau NO & others [2009] 6 BLLR 517 (CC) at paras 1 and 12; Shoprite Checkers (Pty) Ltd v CCMA & others [2009] 7 BLLR 619 (SCA) at paras 33-34; Strategic Liquor Services v Mvumbi NO & others [2009] 9 BLLR 847 (CC) at para 12; Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile & others [2010] 5 BLLR 465 (CC) at para 47; Visser v Mopani District Municipality & others [2012] 3 BLLR 266 (SCA) at paras 13-14.

[10] At para 33.

[11] At para 47.

[12] Compare, for example, NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC) at para 10 with NEHAWU obo Mofokeng & others v Charlotte Theron Children’s Home [2004] 10 BLLR 979 (LAC) at para 23.

[13] At paras 38-39.