Harmony Gold Mining Company Limited v Commission for Conciliation Mediation and Arbitration and Others (JR1919/19) [2023] ZALCJHB 282 (15 September 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case No: JR1919/19

In the matter between:

HARMONY GOLD MINING COMPANY LIMITED

Applicant

and

COMMISSION FOR CONCILIATION MEDIATION

AND ARBITRATION

First Respondent

JONNY MATHEBULA N.O.

Second Respondent

ASSOCIATION OF MINEWORKERS AND

CONSTRUCTION OBO MENETIANE GULELE

Third Respondent

Heard: 26 JUNE 2023

Delivered: 15 September 2023 (This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing-down is deemed to be 10h00 on 15 September 2023.)

Summary: Peremption enforced. Applicant not making out a proper case for condonation either – materially contradictory reasons proffered for the delay. No need to consider the merits of the review application. The applicant ordered to pay the third respondent’s costs.

JUDGMENT

ZWANE, AJ

Introduction

[1] On 30 August 2019, the applicant filed an application for review in terms of Section 145 of the Labour Relations Act[1] (LRA).[2]

[2] The applicant seeks an order reviewing and setting aside a portion of the second respondent’s arbitration award (award) which was in favour of the third respondent (AMCU) acting on behalf of Mr

Menetiane Gulele (employee). At the time of his dismissal, the employee was employed as a Met Specialist Relining.

[3] After the conclusion of the arbitration, the second respondent retrospectively reinstated the employee.

[4] The third respondent, trade union AMCU opposes this application on behalf of the employee.

The relevant background

[5] Following a disciplinary hearing, the employee together with his colleague Mr Sakhile Mdlalose (Mdlalose) were dismissed for misconduct on 2 May 2018.[3] The charge was “unauthorised possession of gold bearing material and/or possessing of gold bearing material”.[4] Aggrieved, AMCU referred a dispute of an alleged unfair dismissal on behalf of Mdlalose and the employee.

[6] After conciliation failed, the dispute was referred to arbitration. At the end of the arbitration, the second respondent upheld the dismissal of Mdlalose. In respect of the employee, the second respondent found that his dismissal was substantively unfair and retrospectively reinstated the employee.[5] It is the latter finding that the applicant seeks to upset on review.

Condonation application

[7] The applicant’s review application is 9 days late.[6] The applicant received the award on 10 July 2019 and the review application was to be filed within six weeks thereof in terms of the LRA, namely on or before 21 August 2019.[7]

[8] In explaining the delay, the applicant stated that although it was not happy with the outcome of the arbitration in relation to the employee, it nevertheless “elected”[8] not to take the award on review.

[9] However, on 21 August 2019, AMCU filed an application to review and set aside the second respondent’s findings in relation to Mdlalose. This, the applicant submitted, necessitated that it also file the current review application.[9] This is so because the applicant “simply cannot afford the possible reinstatement of two employees who had been dismissed for their involvement in gold theft”.[10]

[10] The applicant does not believe that the employee will suffer any prejudice on account of the delay in filing the review application

and also because the degree of the delay is not excessive.[11]

[11] AMCU on behalf of the employee opposes the condonation application. In essence, AMCU submits that the applicant has no reasonable

explanation for the delay. The fact that the applicant filed the review as soon as possible after receipt of AMCU’s review in relation to the Mdlalose matter is not a reasonable explanation.[12]

[12] According to AMCU, the applicant does not have any reasonable prospects of success on review in any event.[13]

Peremption

[13] Corollary to its opposition to the review application, AMCU raised a point of peremption.[14]

[14] AMCU argues that the applicant waived its right to pursue this matter any further. This is so because the applicant stated in its founding affidavit that it had initially elected to abide by the award albeit it was unhappy with same.

[15] But for the launching by AMCU of a review application with respect to the second respondent’s findings concerning Mdlalose, the applicant would not have filed the current review application.

[16] The applicant opposes the peremption argument. Its opposition is premised, mind-bogglingly, on the fact that this point was not

pleaded by AMCU on the papers, despite peremption being a point of law which could be raised at any stage before the conclusion of the matter.[15]

Evaluation

[17] The applicant indicated in its founding affidavit that it elected to live with the outcome of the arbitration in relation to the employee.

[18] The question is whether, by so indicating its decision to comply with the adverse award, the applicant unequivocally resigned itself to the outcome of the award and thus waived its right to review the same award.

[19] In South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and Others (Kruger), the Constitutional Court stated the following:[16]

‘[26] Peremption is a waiver of one’s constitutional right to appeal in a way that leaves no shred of reasonable doubt about the losing party’s self-resignation to the unfavourable order that could otherwise be appealed against. Dabner articulates principles that govern peremption very well in these terms:

“The rule with regard to peremption is well settled, and has been enunciated on several occasions by this Court. If the conduct of an unsuccessful litigant is such as to point indubitably and necessarily to the conclusion that he does not intend to attack the judgment, then he is held to have acquiesced in it. But the conduct relied upon must be unequivocal and must be inconsistent with any intention to appeal. And the onus of establishing that position is upon the party alleging it.”

[20] It is easily deducible from the applicant’s founding affidavit that it had taken an unequivocal decision not to review the award in respect of the employee. The applicant thus waived its right to attack the award on review.

[21] The employment of the term “elected” by the applicant in its founding affidavit conveys an unmistakable communication of its abandonment of the right to review and that it had resigned itself to the unfavourable award.

[22] The remaining consideration is whether there are any overriding constitutional imperatives which would justify non-enforcement of peremption and thus allow the applicant to review the award. In Kruger, the Court stated that:

‘[28] The broader policy considerations that would establish peremption are that those litigants who have unreservedly jettisoned their right of appeal must for the sake of finality be held to their choice in the interests of the parties and of justice. But, where the enforcement of that choice would not advance the interests of justice, then that overriding constitutional standard for appealability would have to be accorded its force by purposefully departing from the abundantly clear decision not to appeal.[17] This principle was laid down by Nugent JA in SANDU:

“Bearing in mind the policy underlying [peremption,] it must necessarily be open to a court to overlook the acquiescence where the broader interests of justice would otherwise not be served.”[18]

[23] In my view, there are no constitutional considerations present in this case for this Court to overlook the acquiescence nor are there any broader interests of justice which would otherwise not be served by the enforcement of peremption.

[24] Even if there was no peremption point raised, the applicant has not made out a proper case for the granting of the application for condonation for the below reasons.

[25] It is trite law that condonation is not for the taking. A party seeking condonation should satisfy the Court that a good cause exists for the granting of the condonation. In Melane v Santam Insurance Co Ltd,[19] the Court had the following to say –

‘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 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...’

[26] In explaining the delay, the applicant has under oath tendered two contradictory versions. In its founding affidavit, the applicant stated that it was because of AMCU launching a review application in relation to Mdlalose that it also decided to challenge the portion of the award which was in favour of the employee. However, in their replying affidavit they submitted a new version:

‘The Applicant was not satisfied with the Award in relation to the Second Respondent’s findings with regard to Mr Gulele. The Applicant was considering its options in relation to the aforementioned finding as it was faced with two (2) contrary findings made on the same set of facts.’[20]

[27] In my view, the applicant’s materially contradictory explanation is fatal to its application for condonation. The applicant is flip-flopping through versions – approbating and reprobating which is impermissible.

[28] It is settled law that an explanation for the delay must be compelling. In National Union of Mineworkers v Council for Mineral Technology,[21] the Labour Appeal Court held that –

‘…without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused...’

[29] It follows that the applicant has not proffered a reasonable and acceptable explanation for the delay. There being no compelling explanation, the prospects of success are immaterial.

[30] In light of the above, the granting of the condonation militates against the interests of justice. There is therefore no need to consider the merits of the review application.

[31] In the premises, this Court exercises its discretion against granting of the application for condonation.

The conduct of the applicant’s legal representative

[32] Mr Olivier appeared on behalf of the applicant. At the commencement of the hearing, he handed up an “additional affidavit” which he claimed was important in the determination of the matter.

[33] Mr Cook opposed the admission of the additional affidavit, and rightfully so. Mr Olivier’s conduct shows little regard for the Rules of the Court[22]. As there was no leave from this Court permitting the applicant to file an additional affidavit. This was a classical case of litigation by ambush.

[34] Had this Court accepted the additional affidavit, the matter would have had to be removed from the roll to allow AMCU to file an answering/opposing affidavit and the applicant to reply. This would not have served the interests of justice as it would have meant a delay in the finalisation of this matter. Accordingly, I refused to admit the additional affidavit.

[35] During the hearing of the matter, Mr Olivier demonstrated contemptuous conduct towards this Court. He addressed the bench as “Sir”. This conduct demonstrates utter disrespect and contempt for this Court. I deemed it necessary to address Mr Olivier’s abhorrent behaviour in this judgment.

Costs

[36] In terms of Section 162 of the LRA, this Court has a broad discretion to make an order for costs in accordance with the requirements of law and fairness.

[37] In the exercise of its discretion, this Court is required to consider, inter alia, the conduct of the parties “in proceeding with or defending the matter before the Court” and “during the proceedings before the Court”.

[38] In my view, the applicant did not file the review application because it genuinely sought to review the award but rather as a retaliation to AMCU for launching a review application in relation to Mdlalose. Therefore, it cannot be said that the applicant bona fide wanted to vindicate its review rights.

[39] As a result, AMCU incurred costs in opposing this review application. The question is whether these costs were fairly and justly incurred by AMCU in defending this litigation. I do not think so.

[40] In Public Servants Association of SA obo Khan v Tsabadi NO and Others,[23] the Court held that:

‘…An appropriate award of costs is one method of ensuring that much earnest thought and consideration goes into decisions to litigate in this Court, whether as applicant, in launching proceedings or as respondent opposing proceedings.’

[41] In my view, the applicant’s conduct is worthy of censure in the form of an order of costs as I do not believe that earnest thought and due consideration was given to the decision to institute this review application. Therefore, fairness dictates that the applicant pays AMCU’s costs in this matter.

[42] In the result, I make the following order:

Order

1. The applicant has waived its right to review, in terms of the LRA, the arbitration award under case number GAJB11861-18.

2. The application for condonation for the late filing of the application for review is refused.

3. The application for review is dismissed.

4. The applicant is to pay the third respondent’s taxed costs.

N.I ZWANE

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant: Mr J Olivier of Webber Wentzel Attorneys. For the Third Respondent: Adv A Cook SC (heads of argument prepared by Adv P Moll). Instructed by: LDA Incorporated Attorneys.

[1] Act 66 of 1995, as amended.

[2] Pleadings: notice of motion, pages 1- 4.

[3] Pleadings: founding affidavit, page 9, at para 21.

[4] Record: page 139.

[5] Pleadings: founding affidavit, page 7, at paras 9.1 to 9.2

[6] Pleadings: page 7, at para 15.1 – founding affidavit.

[7] Pleadings: page 7, at para 13 – founding affidavit.

[8] Pleadings: page 7, at para 16.1 – founding affidavit.

[9] Pleadings: page 8, at para 16.2 – founding affidavit.

[10] Pleadings: page 8, at para 16.4 – founding affidavit.

[11] Pleadings: page 8, at para 18.1 – founding affidavit.

[12]

[13] Pleadings: page 42, at para 23.3, and page 43, at para 25.1 – answering affidavit.

[14] AMCU’s heads of argument, page 5, sub-heading 2.

[15] CUSA v Tao Ying Metal Industries and Others [2008] ZACC 15; (2008) 29 ILJ 2461 (CC).

[16] [2016] ZACC 38; (2017) 38 ILJ 97 (CC).

[17] Government of the Republic of South Africa v Von Abo [2011] ZASCA 65; [2011] 3 All SA 261 (SCA) at para 19.

[18] Minister of Defence and Others v South African National Defence Force Union [2012] ZASCA 110; [2014] JOL 32232 (SCA) at para 23.

[19] [1962] (4) SA 531 (A); [1962] 4 All SA 442 (A) at 443.

[20] Pleadings: page 50, at para 2.5.1.

[21] [1998] ZALAC 22; [1999] 3 BLLR 209 (LAC) at para 10.

[22] GN 1665 of 14 October 1996: Rules for the conduct of proceedings in the Labour Court.

[23] [2012] ZALCJHB 17; (2012) 33 ILJ 2117 (LC) at para 176.