GIWUSA obo Dlamini v Sekhabisa NO and Others (JR2631/16) [2021] ZALCJHB 411 (2 November 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 2631/16

In the matter between:

GIWUSA OBO DLAMINI M Applicant

AND

COMMISSIONER THABO SEKHABISA N.O First

Respondent

BARGAINING COUNCIL FOR THE CHEMICAL

INDUSTRY Second

Respondent

NAMPAK GLASS Third

Respondent

Delivered: 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 02 November 2021

JUDGMENT

MAHOSI J

Introduction

[1] GIWUSA brought an application, on behalf of Mr Michael Dlamini (Dlamini), in terms of section 145 of the Labour Relations Act[1] (LRA) for an order to review and set aside the arbitration award dated 10 October 2016, issued by the first respondent (the arbitrator) under the auspices of the second respondent, National Bargaining Council for the Chemical Industry (the bargaining council), under case number GPCHEM307-15/16.

[2] The third respondent (Nampak Glass), opposes the review application, whilst the arbitrator and the bargaining council filed a notice to abide by the decision of this Court.

[3] The key question is whether the arbitrator’s decision is one that a reasonable decision-maker could not reach.

Background

[4] Dlamini commenced working for Nampak Glass from 01 February 2015 as an IS Operator. On 16 February 2016, the applicant was issued with a letter of suspension as well as a notice to attend the disciplinary hearing. The charge the applicant was faced with related to misconduct in the following terms:

‘You are being charged for being under the influence of alcohol on entering the company premises on 15 February 2016.’

[5] Following the disciplinary hearing Dlamini’s employment was terminated on 24 February 2016. Aggrieved by the decision of Nampak Glass to dismiss Dlamini, GIWUSA, on his behalf, referred an unfair dismissal dispute to the bargaining council. The conciliation was unsuccessful and as a result, a certificate of non-resolution was issued. GIWUSA then referred the dispute to arbitration, which was held on 28 June 2016, 22 August 2106 and 29 September 2016.

[6] On 10 October 2016, the arbitrator issued an arbitration award in terms of which he found that Dlamini’s dismissal was procedurally and substantively fair. It is this arbitration award that is the subject of this application.

GIWUSA’s grounds of review

[7] GIWUSA challenged the award on the basis that the arbitrator committed a gross irregularity in the conduct of the arbitration proceedings in that he undertook the enquiry in the wrong manner and/or misconceived the nature of the enquiry he was required to decide and thereby, reached a decision that a reasonable decision–maker could not reach.

[8] It was GIWUSA’s further submission that the arbitrator irrationally and arbitrarily assumed, without applying his mind thereto and despite evidence to the contrary, that the basis upon which Nampak Glass dismissed Dlamini was fair, without making an independent determination as to whether it was fair to dismiss Dlamini for misconduct in the face of uncontested evidence showing that Nampak Glass ought to have followed the processes for an incapacity enquiry.

Nampak Glass’ submissions

[9] In opposing, Nampak Glass submitted that to an extent that Dlamini failed to attach his confirmatory affidavit to the founding affidavit, the allegations that do not fall within the personal knowledge of the deponent of the founding affidavit remain uncorroborated.

[10] Nampak Glass further submitted that this Court lacks jurisdiction to adjudicate the review application as it was filed three (3) days late without a condonation application. In this regard, GIWUSA’s attorneys of record submitted, in the replying affidavit and heads of arguments, that they came into record, accepted and believed the contents of the founding affidavit where the deponent stated that the application was instituted timeously. GIWUSA’s attorneys further submitted that they were not in a position to institute a condonation application since they do not know what was the cause of the 3-day delay by GIWUSA’s erstwhile attorneys. They then submitted that the court has discretion to condone the late filing of the review application.

Analysis

[11] It is correct that this Court has discretion to condone late filing of the review application. However, for that to happen there must be a condonation application before this Court. GIWUSA must take caution that condonation is not merely there for the taking. In the absence of the condonation application, this Court lacks jurisdiction to entertain the matter.

[12] The conduct of GIWUSA’s attorneys to refuse or neglect to file a condonation application just because they do not know the reason for the delay in launching this application exhibits a lack of regard for the Court, the Rules as well as the LRA. In fact, it is unprofessional and remiss.

[13] The fact of the matter is that attorneys are creatures of instructions. As such, they ought to have taken the instructions from GIWUSA in this regard. That way, they would have been in a position to file a condonation application instead of risking to have GIWUSA’s review application struck off the roll for want of jurisdiction.

[14] This cavalier attitude is unwelcome in this Court and would ordinarily have the consequence of having GIWUSA’s attorneys reported to the Legal Practice Council. The Court’s displeasures aside. To an extent that GIWUSA failed to file the condonation application, this Court lacks jurisdiction to consider the matter.

[15] Even if I were to proceed with the determination on the remaining issues, GIWUSA has a further hurdle. Nampak Glass submitted, in its answering affidavit, that the record of the arbitration was filed more than two (2) years after the review was launched without a condonation application or explanation for the late filing of the record.

[16] GIWUSA has not filed a condonation application. Instead, it provided an explanation for its failure to file condonation application in its replying affidavit as follows:

‘8.4 In so far as the question of submitting the record of arbitration proceedings, the following is submitted that the current attorneys addressed a correspondence to the third respondent dated the 7th of September 2018 indicating that “the record of proceedings at the NBCCI… is incomplete as it only covers the evidence of the applicant”.

8.5 The correspondence further noted that “We note that the record has not been filed within the prescribed time limit and request your consent to the late filing of the record…” and further that “we undertake to have the record filed within reasonable time upon receipt from the transcribers”.

8.6 In a series of correspondence the Third Respondent deliberated on this issue of the “Incomplete record” without objecting to the lateness or the proposal from the letter from Bayi Attorneys and between the parties’ correspondence.

8.7 Finally when the record was received a request for Rule 7A(8) was requested and submitted whilst Third Respondent submitted its answering affidavit.

8.8 It is humbly submitted that it was an understanding between the parties that the submission of the record would be late as a result of it being incomplete from the applicant’s subscribers or from the NBCCI and the court has a discretion to grant condonation.’

[17] GIWUSA further submitted that it never harboured any intentions to abandon the matter and further that it would be prejudiced if condonation is denied, as the matter has been pursued earnestly from the beginning. In addition, GIWUSA submitted that it had great prospect of success as the matter hinges on whether the question of incapacity or misconduct is at issue.

[18] Rule 7A(6) of the Rules for the Conduct of Proceedings in the Labour Court requires the applicant to furnish the Registrar and each of the other parties with a copy of the record or portion of the record, as the case may be, and a copy of the reasons filed by the person or body. Clause 11.2 of the Practice Manual regulates the period within which an applicant must file the record and the consequences of failure to adhere to the timeframe and it reads:

‘11.2.1 Once the registrar has notified an applicant in terms of Rule 7A(5) that a record has been received and may be uplifted, the applicant must collect the record within seven days.

11.2.2 For the purposes of Rule 7A(6), records must be filed within 60 days of the date on which the applicant is advised by the registrar that the record has been received.

11.2.3 If the applicant fails to file a record within the prescribed period, the applicant will be deemed to have withdrawn the application,

unless the applicant has during that period requested the respondent’s consent for an extension of time and consent has been given. If consent is refused, the applicant may, on notice of motion supported by affidavit, apply to the Judge President in

chambers for an extension of time. The application must be accompanied by proof of service on all other parties, and answering

and replying affidavits may be filed within the time limits prescribed by Rule 7. The Judge President will then allocate the file

to a judge for a ruling, to be made in chambers, on any extension of time that the respondent should be afforded to file the record.

11.2.4 If the record of the proceedings under review has been lost, or if the recording of the proceedings is of such poor quality to the extent that the tapes are inaudible, the applicant may approach the Judge President for a direction on the further conduct of the review application. The Judge President will allocate the file to a judge for a direction, which may include the remission of the matter to the person or body whose award or ruling is under review, or where practicable, a direction to the effect that the relevant parts of the record be reconstructed.

…

11.2.7 A review application is by its nature an urgent application. An applicant in a review application is therefore required to ensure

that all the necessary papers in the application are filed within twelve (12) months of the date of the launch of the application

(excluding Heads of Arguments) and the registrar is informed in writing that the application is ready for allocation for hearing.

Where this time limit is not complied with, the application will be archived and be regarded as lapsed unless good cause is shown why the application should not to be archived or be removed from the archive.’

[19] In the current matter, GIWUSA’s attorneys alleges that there was an understanding between the parties that the submission of the parties would be late. However, this is not supported by Nampak Glass’ submissions. Besides, as a litigant in charge of the suit, GIWUSA’s attorneys do not seem to have a full appreciation of the obligations GIWUSA have, in terms of the LRA and the Rules of this Court. Alternatively, they just disregard the Rules of this Court and the LRA.

[20] As aforesaid, the applicant is required, in terms of the Practice Manual, to file the record within 60 days of the date on which the applicant is advised by the registrar that the record has been received. Should the deadline not be met, the applicant will be deemed to have withdrawn the application, unless he/she or it has, during that period, requested the respondent’s

consent for an extension of time and consent has been given.

[21] It is apparent from the above that the Practice Manual does not make provision for the parties to have an understanding or to labour under the impression that consent has been given. It ought to be sought and given. If consent was refused, the applicant could apply to the Judge President in chambers for an extension of time.

[22] What makes GIWUSA’s matter more difficult is that the transcribed record is incomplete, as the portion of the record that reflects the witness of Nampak Glass is missing. The Practice Manual clearly state that in a cases where the record of the proceedings under review was lost, or if the recording of the proceedings was of such poor quality to the extent that the tapes were inaudible, the applicant could approach the Judge President for a direction on the further conduct of the review application, which could include the remission of the matter to CCMA, or where practicable, a direction to the effect that the relevant parts of the record be reconstructed. However, in this case GIWUSA did not do that.

[23] Had it done so, the Judge President would have allocated the file to a judge for a direction, which would have included the remission of the matter to the CCMA or where practicable, a direction to the effect that the relevant parts of the record be reconstructed. In addition, the applicant has failed to apply to this Court for an extension of time to file the full record.

[24] To an extent that the GIWUSA failed to seek consent from Nampak Glass or to apply to the Judge President in chambers for an extension of time, its application is deemed withdrawn. Further, in the absence of a condonation application, this Court lacks jurisdiction to adjudicate the matter.

Costs

[25] With regard to costs, I am of the opinion that the requirements of law and fairness dictate that there should be no order as to costs.

[26] Accordingly, the following order is made:

Order

1. The matter is struck off the roll for want of jurisdiction.

2. There is no order as to costs.

D. Mahosi

Judge of the Labour Court of South Africa

Legal representatives

For the applicant: Mr

Bayi of Bayi Attorneys

For the third respondent: Advocate A. Snider SC

Instructed by: Cliff

Dekker Hofmeyr Incorporated Attorneys

[1] Act 66 of 1995 as amended.