General Industries Workers Union of South Africa and Others v Mawer and Delport (PTY) Ltd obo Golden Grove Body Corporate (JS 667/21) [2022] ZALCJHB 139 (9 June 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JS 667/21

In the matter between:

GENERAL INDUSTRIES WORKERS

UNION OF SOUTH AFRICA

First

Applicant

JOHN TSOKA AND 7 OTHERS

Second Applicant

and

MAWER AND DELPORT (PTY) LTD obo

GOLDEN GROVE BODY CORPORATE

Respondent

Heard: 31 May 2022

Delivered: 9 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 9 June 2022.)

JUDGMENT

PRINSLOO J

Background facts

[1] The Second Applicants (Applicants) were employed by the Golden Grove Body Corporate (Body Corporate) from January 2015 as security guards. On 30 November 2020, the Body Corporate issued a letter to the

Applicants, informing them that their services would be terminated on three months’ notice. The effective date of the notice was 1 December 2020 and their last working day was 28 February 2021.

[2] Subsequently, the Applicants on 9 March 2021 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 6 April 2021, indicating that the matter should be referred to the Labour Court.

[3] The Applicants filed a statement of case on 21 September 2021 and an application for condonation for the late filing of the statement of case was filed on 8 February 2022.

The test for the grant of condonation

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

[5] 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].

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

‘…Among the facts usually relevant, are the degree of lateness, the explanation therefore, 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 will be no point in granting

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

[7] 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.

[8] In Colett v Commission for Conciliation, Mediation and Arbitration,[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.

[9] 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.’

[10] 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.

[11] 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.

[12] 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.

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

The degree of lateness

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

[15] 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.

[16] On 6 April 2021, the CCMA issued a ruling to the effect that the matter should be referred to the Labour Court. The Applicants’ dispute relating to unfair dismissal for operational requirements had to be referred within 90 days from 6 April 2021, thus it had to be filed by 5 July 2021. The statement of case was filed with this Court on 21 September 2021, clearly outside the prescribed 90 day period.

[17] The Applicants’ dispute was referred 78 days late.

[18] 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.

[19] There is another difficulty in the Applicants’ case and that is that an application for condonation was only filed on 8 February 2022, seven months after the date on which the statement of case had to be filed and almost five months after the actual filing of the statement of case, with no attempt to explain why it was filed so late.

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

Explanation for the lateness

[21] 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.

[22] As the Applicants seek an indulgence from the Court and as they bear the onus to satisfy the Court that condonation should be granted, it is incumbent upon them 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[9].

[23] 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 Applicants provided the following explanation for the delay:

23.1 Bayi Attorneys, the Applicants’ attorneys of record, received instructions on 11 August 2021 and only managed to secure a consultation with the Applicants on 3 September 2021. After the consultation, Bayi Attorneys pursued the trustees of the Body Corporate to inform them about the matter.

23.2 The trustees of the Body Corporate did not provide their email addresses for service and did not answer their cellular phones and as a result, the Applicants were unable to effect service of the statement of case on the trustees of the Body Corporate. The managing agent for the Body Corporate, Mawer and Delport (Pty) Ltd, accepted service of the statement of claim.

23.3 Bayi Attorneys awaited a notice of appointment of attorneys of record for the Respondent, but such notice was not filed. A notice of bar was hand delivered on 22 November 2021, whereafter the Respondent sent a letter addressed to the CCMA, dated 6 April 2021. In the letter, the Body Corporate’s position in respect of the dispute was set out.

[24] This is the sum total of the explanation tendered in respect of the late filing of the statement of case.

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

[26] There is a number of difficulties with the explanation tendered by the Applicants. Firstly, the statement of case had to be filed by 5 July 2021. Bayi Attorneys were instructed on 11 August 2021. The period between 5 July 2021, when the statement of case had to be filed, and 11 August 2021, when Bayi Attorneys were instructed, is a period of almost six weeks for which absolutely no explanation has been tendered.

[27] Bayi Attorneys were instructed on 11 August 2021, but only consulted with the Applicants on 3 September 2021, another period of three weeks for which no explanation whatsoever is tendered. The period between 5 July and 3 September 2021 remained unexplained.

[28] After the consultation on 3 September 2021, Bayi Attorneys pursued the trustees of the Body Corporate to inform them about the matter, but as the trustees of the Body Corporate did not provide their email addresses for service and did not answer their cellular phones, the Applicants were unable to effect service of the statement of case on the trustees of the Body Corporate. It is not explained why it was necessary for Bayi Attorneys to ‘pursue’ the trustees to inform them about the matter. There is no requirement in the Rules of this Court[10] (Rules) or the LRA that stipulates that before a statement of case can be served and filed, that the respondent party has to be informed about it. Furthermore, in September 2021 there was no provision in the Rules or the Practice Manual[11] that provided for service by way of email and the explanation that the trustees did not provide their email addresses, can hardly be accepted as an explanation for the delay. It is not explained at all why it took from 3 September 2021, when the Applicants were consulted and the trustees pursued, until 21 September 2021 to file the statement of case, a further three weeks that remained unexplained.

[29] 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 Applicants tendered no version as to what happened during those periods.

[30] The Applicants have 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 Applicants 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

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

[32] 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.

[33] 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.

Prejudice

[34] The Applicants submitted that this matter involves the guidelines laid down by the LRA and how the Respondent should have handled the process to terminate the Applicants’ services. Reference is made to a letter from the Body Corporate to the CCMA, wherein the Body Corporate claims that the Applicants’ contracts could have been terminated by both parties.

[35] The Applicants submitted that the Respondent will not be prejudiced as it would only be required to do what it should have done lawfully.

[36] There is an important factor which must be highlighted in respect of the issue of prejudice. The Applicants cited Mawer and Delport (Pty) Ltd obo Golden Grove Body Corporate as the Respondent. Mawer and Delport (Pty) Ltd is a registered company that operates as property administrators and estate agents. Golden Grove Body Corporate is a separate legal entity established in terms of the Sectional Titles Act[12], capable of being sued in its own name.

[37] The Applicants were employed by the Body Corporate. This fact is evident from the correspondence exchanged between the parties and attached to the papers before Court. Mawer and Delport is merely the managing agent for the Body Corporate and never employed the Applicants. Even if condonation were to be granted, the Applicants’ employer is not a party to the proceedings and no competent relief can be granted against a managing agent that never employed them.

[38] The Respondent will be severely prejudiced to defend a matter in which it has no interest and in circumstances where it never employed the Applicants.

[39] The refusal to condone the late filing of the statement of case will have the result that the Applicants will be denied the opportunity to pursue this case before Court. However, it is evident that the Applicants have not pursued this matter diligently, and tendered no explanation at all as to why they waited until February 2022 to approach this Court for condonation, when that should have been done much earlier.

[40] Most importantly, 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 no competent relief can be granted against the Respondent.

[41] In Grootboom v National Prosecuting Authority and another[13], 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.’

[42] On an objective conspectus of all the facts, the Applicants’ application for condonation falls hopelessly short of the mark. The Applicants 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.

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

Order

1. The application for condonation for the late filing of the Applicants’ 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 Applicants: Mr M Bayi from Bayi 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] See: Independent Municipal and Allied Trade Union obo Zungu v SA Local Government Bargaining Council and others (2010) 31 ILJ 1413 (LC).

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

[11] Effective 2 April 2013.

[12] Act 95 of 1986.

[13] (2014) 35 ILJ 121 (CC) at para 50.