Famous Brands Management Company (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (PR270/22) [2024] ZALCPE 24 (1 July 2024)

THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

Not Reportable

Case No: PR270/22

In the matter between:

FAMOUS BRANDS MANAGEMENT

COMPANY (PTY) LTD Applicant

and

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION First

Respondent

COMMISSIONER NOLITHA MDLEDLE, N.O. Second

Respondent

NUPSAW OBO SEBENZILE MABENGU Third

Respondent

Heard: 19 June 2024

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date and time for hand-down is deemed to be on 1 July 2024.

JUDGMENT - CONDONATION

THYS, AJ

Introduction

[1] Famous Brands Management Company (Pty) Ltd[1] (Famous Brands) disputes an arbitration award that favoured its former employee, Mr Mabengu, and has accordingly (and timeously)

delivered a review application.[2]

[2] Mr Mabengu, in turn, submitted an answering affidavit to confront the review application.

[3] The answering affidavit was, however, delivered outside the stipulated time frame.

[4] Rule 7 of this Court’s Rules[3] specifies that an answering affidavit must be delivered within 10 days from the date the application is served on the opposing party.

[5] Famous Brands expressed dissatisfaction with this delay and accordingly objected to the late delivery of Mr Mabengu’s answering affidavit in the review application.

[6] Mr Mabengu, in an attempt to overcome this deficit, submitted an application seeking condonation for the delayed delivery, citing reasons in support.

[7] Mr Mabengu’s action is not disorderly because our legal system allows this Court to grant condonation for the late delivery of affidavits. In essence, the Court possesses authority and discretionary power to permit such lateness.

Evaluation

[8] It is trite that condonation is not for the mere asking. Earning condonation is crucial, and it involves demonstrating, among others, consistent effort, responsibility, and accountability.

[9] It is generally accepted that condonation should not be granted unless:

9.1 There is an acceptable explanation for the delay;

9.2 The degree of the lateness is reasonable and/or tolerable;

9.3 There is no prejudice to the respondent or other litigants; and

9.4 The merits of the substantive application warrant condonation.

[10] This is encapsulated in the oft-cited decision, enunciated by Holmes JA, in Melane v Santam Insurance Co. Ltd:[4]

‘In deciding whether sufficient cause has been shown, the basic principle is that the court has a discretion, to be exercised judicially upon a consideration of all the facts and, and in essence it is a matter of fairness to both sides. 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 ...’

Degree of lateness

[11] Concerning the degree of delay, in this matter, a dispute arises regarding the timing of Mr Mabengu’s application. He asserts that it was filed 43 court days late, while Famous Brands contends that the delay amounts to 61 court days.

[12] I am not required to analytically resolve or address this disputed fact in the traditional legal manner[5] because, regardless of the specific count, the delay is substantial and, at any rate, necessitates a reasonable explanation.

Reasonableness of delay

[13] In assessing the reasonableness of an explanation, our legal norms require that an applicant seeking condonation has to provide, among others, a reasonable explanation which covers the entire period of the delay.

[14] This requirement is supported by high legal authorities because in Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae)[6], the Constitutional Court, in this regard, held that:

‘an applicant for condonation must give a full explanation for the delay. In addition, the explanation must cover the entire period of delay. And, what is more, the explanation must be reasonable.’[7] [Own emphasis]

[15] The paramount reasons for the delay lie in the allegations that Mr Mabengu’s attorneys encountered difficulties in reaching him, resulting in communication delays. Furthermore, financial constraints hindered his prompt visits to the attorneys. The situation was exacerbated by the difficulty in establishing proper contact between Mr Mabengu and his union. A material disconnect existed due to the departure of the previous union official handling his case. Furthermore, the new official assigned to his matter needed time to familiarise himself with the details, which also contributed to delays in delivering the answering affidavit.

[16] In legal proceedings, the impact of financial constraints on a party’s ability to litigate effectively and/or meet deadlines is an undeniable reality. Therefore in this Court of equity, financial constraints, such as lack of funds, may constitute a valid reason for a delay. However, the mere lack of funds does not automatically justify the delay or non-compliance. The circumstances surrounding the delay must be examined and in doing this, the Court must assess and be satisfied that the litigant’s financial constraints indeed affected his ability to comply with legal requirements. Factors include the severity of financial hardship, efforts to secure funds, lack of creatively and diligence.

[17] The circumstances surrounding Mr Mabengu’s case reveal that he does not explain why a telephonic or virtual consultation was not feasible or why he could not submit his affidavit via email or WhatsApp. Surely these avenues or creative means could have mitigated or negated Mr Mabengu’s alleged lack of funds.

[18] Mr Mabengu also neglected to explain, in exact detail, the delay between the time when his trade union informed him of Famous Brands’ intention to challenge the award and when he eventually consulted the union-appointed attorney.

[19] The condonation application leaves several time periods unexplained, namely:

19.1 The interval between the date on which Mr Mabengu consulted with the union-appointed attorney and the delivery of his answering affidavit;

19.2 The interval between the drafting of the answering affidavit and its delivery to the applicant and filing in this Court; and

19.3 The interval between the delivery of the answering affidavit and the condonation application.

[20] These are important considerations because in condonation applications, applicants’ actions during the delay period are crucial and transparency is paramount. Without a comprehensive account of the entire delay period, the Court cannot make an informed judgment.

[21] A full explanation was required because the application is late in excess of 40 days (if one considers Mr Mabengu’s count) and over 60 days (if one has regard to Famous Brand’s version). These delays are substantial, to say the least.

[22] Regarding the union’s delay in this matter, I do not consider it a valid reason. The absence of confirmatory affidavits indeed complicates matters. Specifically, the affidavit lacks crucial information regarding the dates of the union official’s appointment. This detail is significant because it could shed light on whether the official’s appointment preceded or followed that of the attorney. If the lawyer’s appointment occurred before the union official’s departure, waiting for the union official would have been unnecessary. The applicant could have directly consulted with the lawyer, bypassing any delays associated with the union official’s involvement. No alternative evidence has been presented to suggest that the applicant could not have

independently consulted with the attorney. To address this issue, a confirmatory affidavit could have been used to provide clarity and support the applicant’s position.

[23] I pause to mention that judges rely on evidence to make informed decisions, and confirmatory affidavits play a crucial role in litigation. These affidavits corroborate or confirm specific facts mentioned in the main affidavit. Without confirmatory affidavits, the court may question the accuracy or credibility of statements. By demonstrating that multiple individuals agree on certain facts, confirmatory affidavits strengthen the case and provide a more complete picture of the facts.

[24] In Mr Mabengu’s case, if he had attached confirmatory affidavits from other relevant parties (such as the union official), it could have bolstered his claim.

[25] Mr Mabengu has therefore, or in all the above circumstances, failed to provide a reasonable explanation and account for the entire period of the delay, as required.

Prospects of success

[26] Regarding prospects of success, the law established by the Labour Appeal Court in NUM v Council for Mineral Technology[8] is that the issue of prospects becomes irrelevant and does not need to be canvassed if the reasons for late filing are not acceptable. In other words, it is not necessary to embark on a detailed consideration of the prospects where the applicant has provided an

unacceptable explanation for the delay.

[27] Prospects are indeed important, but the exercise of the discretion to grant condonation should have primary regard to the circumstances that led to the late delivery.

[28] Considering the inadequate explanation provided for the delay, any examination into Mr Mabengu’s prospects of success in the main matter would be futile.

[29] Even if I were to consider Mr Mabengu’s chances, his failure to establish strong prospects compromises his condonation application. The main issue lies in the fact that, apart from presenting arguments, the applicant failed to provide evidence supporting his favourable prospects. Instead, he invited the Court to search for this evidence within his ‘opposing affidavit’ in the review application – a significant challenge. Essentially, Mr Mabengu did not explicitly state the reasons for his prospects in his founding affidavit for the condonation application. Instead, he directed the Court to infer from his answering affidavit

in the main that he ultimately had strong prospects of success. To build a compelling argument, an applicant should clearly present his evidence within the context of the specific application before the Court. Expecting the Court to deduce an applicant’s chances of success from another application is not only unreasonable but also contrary to best practices. This practice cannot be allowed. The court requires a coherent and individualized presentation of an applicant’s case.

Prejudice

[30] On the topic of prejudice, I find that there will inevitably be some prejudice to Famous Brands should the Court exercises its discretion to grant condonation.

[31] This is particularly evident by Famous Brands having successfully demonstrated that it would suffer prejudice if its main application fails. Specifically, it would be liable to pay Mr Mabengu an additional salary in a potential contractual claim. This is in fact the basis for Famous Brands’ objection. To avoid this potential prejudice, Mr Mabengu should have delivered his condonation answering affidavit on time.

[32] While not a central consideration, it’s worth noting that Mr Mabengu explicitly stated that he does not require this condonation application to succeed or an answering affidavit in the review application. His belief is that he can demonstrate the lack of merit in Famous Brands’ case based solely on their papers.

[33] Consequently, I am convinced that even if this application is rejected, Mr Mabengu will not suffer any prejudice. It is important to recognize that the test for prejudice in deciding a condonation application focuses on the “opposing party”.

Conclusion

[34] Based on all the circumstances, as well as the authorities considered, I am accordingly unable to conclude that Mr Mabengu has established good cause, as required, for the granting of condonation for the late filing of his answering affidavit.

[35] Consequently, the following order is made:

Order

1. This application is dismissed, with no order as to costs.

Mark Thys

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr Lennox

Instructed by:

Harrington Johnson Wands Attorneys

For the Respondent: Mr Dwayi

Instructed by:

YBI Attorneys Inc.

[1]A conglomerate predominately dealing in quick service and casual dining restaurants, functioning as restaurant franchisor.

[2]The award was rendered and issued by the first and second respondents.

[3] GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court.

[4] 1962 (4) SA 531 (A).

[5] See: Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; [1984] (3) SA 623 (A).

[6] [2007] ZACC 24; 2008 (2) SA 472 (CC) at para 22.

[7] See: eThekwini Municipality v Ingonyama Trust [2013] ZACC 7 (CC); 2013 (5) BCLR 497 (CC); Malindisa v Bidvest Protea Coin (Pty) Ltd (JS764/2019) ZALCJHB 13 (7 February 2023).

[8] [1998] ZALAC 22; [1999] 3 BLLR 209 (LAC) at para 10.