Italsafrica CC t/a Viva Safaris v FAWU obo Mdlovu and Others (JR2835/10) [2014] ZALCJHB 444 (2 September 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: JR2835/10

ITALSAFARIS CC t/a VIVA SAFARIS

Applicant

and

FAWU obo NELLY MDLOVU

First Respondent

COMMISSIONER DONALD KGALAKE NKADIMENG N.O. Second Respondent

COMMISSION FOR CONCILIATION, MEDIATION &

ARBITRATION

Third Respondent

Heard: 6 September 2013

Delivered: 2 September 2014

TLHOTLHALEMAJE, AJ

Introduction:

[1] This is an application in terms of section 158 (1) (g) read with section 145 of the Labour Relations Act 66 of 1995 (The LRA). The Applicant seeks an order that a rescission ruling issued by the Second Respondent (Commissioner) under case number LP3789-09 be reviewed and set aside. There is a further application in terms of which the Applicant seeks condonation for the late filing of the main application. This application was not opposed as the parties agreed that the delay was occasioned by attempts to amicably resolve the dispute. There is however a further application for condonation brought by the First Respondent (the employee) in respect of the late filing of the Answering Affidavit to the review application.

Background to the application:

[2] The employee was employed by the Applicant in the position of tour guide in September 2006. He was subjected to a disciplinary enquiry in May 2009 following upon allegations of misconduct on his part relating to the use of a company vehicle without authorisation. He was then dismissed on 17 May 2009. The employee had then, with the assistance of FAWU, referred an alleged unfair dismissal dispute to the Third Respondent (CCMA). Following an unsuccessful conciliation on 3 September 2009, the dispute was then referred for arbitration resulting in the matter being set down for 19 October 2009. The Applicant did not attend the arbitration hearing and a default award was issued on 1 November 2009. That award was subsequently rescinded on 13 January 2010 by Commissioner Ramotshela following an application for rescission.

[3] The matter was re-scheduled for a hearing on 12 March 2010 by way of a notice of set-down issued on 2 February 2010. On 8 February 2010 the Applicant’s Manager and deponent to its founding affidavit Piero Colia submitted a letter to the CCMA requesting the arbitration to be postponed on account of its representative (Lombard) being unable to attend the proceedings due to alleged medical problems. The application for a postponement was refused on 11 February 2010 in terms of a ruling issued by Commissioner Muhluri Mahlawule. Further requests for the matter to be postponed did not yield results, and the matter was heard in the absence of the Applicant on the hearing date. In the award, the Applicant was ordered to reinstate the employee, and to pay him back-pay in the amount equal to R40 000.00.

[4] On 14 April 2010, Colia filed an application for rescission with the CCMA. The application was unopposed and was nevertheless dismissed in terms of a ruling issued by Commissioner Donald Nkadimeng on 7 July 2010.

[5] The review application was filed some 52 days outside of the six weeks contemplated in section145 (1) (a) of the LRA. It is common cause that the delay in launching the review application was occasioned by settlement discussions between the parties, and to that end, the application for condonation was not opposed. I have no reason to decline an indulgence in this regard, in the light of the averments made pertaining to attempts between the parties to resolve the matter.

The employee’s application for condonation in respect of the late filing of the Answering Affidavit:

[6] The general principles applicable to applications for condonation have long been established in Melane v Santam Insurance Co Ltd[1] where the then Appellate Division held that:

“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, save of course that if there are no prospects of success there would be no point in granting condonation.”

The degree of the delay:

[7] The application for review was served on FAWU, representing the employee, on 29 October 2010. The application was again served on FAWU on 17 May 2011. The employee’s Answering Affidavit was filed on 20 July 2012, some 350 Court days late after the initial service of the review application. His contention however was that the delay is only about 27 court days on the basis that the Notice of Motion was only received by his then attorney of record through the SASLAW Pro Bono Centre, the late Mr Mills, on 17 November 2011. He had further contended that he had seen the Founding Affidavit for the first time on 25 November 2011.

[8] In explaining the delay, the employee had submitted that he had terminated his mandate with FAWU on 12 September 2010 and thus had no knowledge of the review application. He had further contended that as at 15 September 2010, the Applicant knew that FAWU no longer represented him. This was due to the reason that Lombard, acting on behalf of the Applicant, had sent a letter to FAWU in regards to inter alia the settlement of the dispute, and was informed by a Union official, Makhanya, that the employee no longer ‘wished to settle the matter and had decided to follow his own route without FAWU’.

[9] I agree with the Applicant’s submission that the delay was indeed 350 days. The review application was served on FAWU on 29 October 2010. Notwithstanding the employee’s contention that he had terminated FAWU’s mandate in September 2010, and in the absence of any contention that the employee had informed the Applicant formally of the termination of his mandate, it could not have been expected of the Applicant to know where to serve him with the court documents.

[10] In my view, the fact that FAWU had failed to advise him of the review application, or that the Rule 7A (6) and 7A (8) Notices were served on his attorneys of record only on 6 June 2010, or that he only became aware of it in November 2011, does not imply that the degree of lateness should be counted from the date that he became aware of it. The dies operated from 29 October 2010 and to this end, to the extent that the Answering Affidavit was filed on 20 July the delay in this regard is excessive in the extreme.

The explanation for the delay:

[11] An explanation for the delay requires a full account of that delay. In this regard, it is expected of an applicant to give a full explanation for the period of the delay and to account for each period of that delay[2]. In this case, the employee’s account of the delay was as follows:

11.1 Having terminated his mandate with FAWU, he had then filed an application to enforce the award in terms of section 143 (3) of the LRA on 13 September 2010 and was informed by the CCMA that an interdict had been obtained barring him from certifying the award.

11.2 After he had received a copy of an order (issued on 24 February 2011), he had then approached the SASLAW Pro Bono Centre on 15 November 2011 and was assisted by the late Mr Tim Mills of Cliffe Dekker Hofmeyr Inc.

11.3 There were further attempts to re-kindle the settlement negotiations between the parties, and it was only on or about 26 January 2012 that the Applicant had indicated that it was not willing to settle the matter.

11.3 Due to a variety of difficulties involving lack of income and the fact that he was in Mozambique, he was only able to consult with his attorneys of record on 3 May 2012. Mr. Mills was unable to prepare an answering affidavit in the absence of other documents, and Mr Meyerowitz of his attorneys of record had requested these from the Applicant’s attorneys on 23 May 2012.

11.4 Subsequent to the request being made, Mr Mills had untimely passed away on 24 May 2012. The employee’s matter was then handed over to Mr Michael Yeates on or about 19 June 2012, and the employee as a result of staying in Mpumalanga, could only consult with Mr Yeates on 18 July 2012, resulting in the Answering Affidavit being filed on 20 July 2012.

[12] Having had regard to the explanation proffered by the employee, it is my view that such an explanation does not give a full account for the delay in many material respects. In view of the conclusions that the review application was properly served on FAWU on 29 October 2010, the employee failed to give an account from that period until when he visited the Registrar of this court in October 2011 and when he was handed a court order dated 1 March 2011. As at 13 September 2010, and immediately after terminating FAWU’s mandate, he was made aware that he could not certify his award as a result of the interdict that was granted. He had not acted or made means to establish further particulars in respect of the circumstances leading to the court order until October 2011 when he visited the offices of the Registrar of this Court. At the time that he got assistance from the SASLAW Pro Bono Centre, a year had passed without him having taken any action to ascertain either from FAWU or the Applicant as to the reasons he could still not enforce the award.

[13] I have further had regard to the explanation proffered from the time that the employee got assistance from the Pro Bono Office. I accept that between 15 October 2011 and when the Answering Affidavit was filed, there were attempts made by Mr. Mills to amicably resolve the matter. The unfortunate and untimely passing of Mr. Mills and attempts at compiling an audit in respect of his practice are indeed compelling reasons that had contributed to the delay. Be that as it may, the period between when the review was filed in October 2010, and when the employee ultimately got assistance from the SASLAW Pro Bono Centre remains unexplained, and cannot in any manner be attributed to the SASLAW Pro Bono office or the late Mr. Mills. To this end, it is found that the employee has not proffered a satisfactory or acceptable explanation for the entire period of the delay.

Prospects of success:

[14] In NUM v Council for Mineral Technology[3], the Labour Appeal Court had held that:

“….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.”

[15] In the light of the excessive delay in filing the Answering Affidavit, and further in the light of the inadequate explanation

regarding the various periods of that delay, it follows that no purpose would be served in dealing with the prospects of success on the merits in respect of the main application. However, it needs to be stated that as shall be illustrated below, the employee’s

prospects of success in respect of the main application are minimal.

The review application:

[16] An application for rescission of a default award under the auspices of the CCMA is considered in terms of the of section 144 of the LRA which provide that:

“144. Variation and rescission of arbitration awards and rulings:

Any commissioner who has issued an arbitration award or ruling or any other commissioner appointed by the director for that purpose, may on that commissioner's own accord or, on the application of any affected party, vary or rescind an arbitration award or ruling -

(a) erroneously sought or erroneously made in the absence of any party affected by that award;

(b) (b) in which there is an ambiguity, or an obvious error or omission, but only to the extent of that ambiguity, error or omission; or

(c) (c) granted as a result of a mistake common to the parties to the proceedings.”

[17] The Labour Appeal Court in Shoprite Checkers (Pty) Ltd v Commission for Conciliation Mediation and Arbitration & Others[4] held that the concept of ‘good cause’ should be read into section 144 of the LRA. In explaining the requirements of ‘good cause’, the LAC stated further that:

“The test for good cause in an application for rescission normally involves the consideration of at least two factors. Firstly, the explanation for the default and secondly whether the applicant has a prima facie defence. In Northern Province Local Government Association v CCMA & others [2001] 5 BLLR 539 (LC) at 545, paragraph [16], it was stated:

‘An applicant for the rescission of a default judgment must show good cause and prove that he at no time denounced his defence, and that he has a serious intention of proceeding with the case. In order to show good cause an applicant must give a reasonable explanation for his default, his explanation must be made bona fide and he must show that he has a bona fide defence to the plaintiff’s claims.”[5]

And,

‘In MM Steel Construction CC v Steel Engineering & Allied Workers Union of SA & others (1994) 15 ILJ 1310 (LAC) at 1311J–1312A, Nugent J had this to say:

“Those two essential elements ought nevertheless not to be assessed mechanistically and in isolation. While the absence of one of them would usually be fatal, where they are present they are to be weighed together with relevant factors in determining whether it should be fair and just to grant the indulgence.”[6]

[18] Flowing from the above principles, and bearing in mind that ordinarily the rescission application would have been dealt with in terms of Rule 31 (10) of the CCMA Rules, in exercising his or her discretion, a Commissioner is obliged to consider all the relevant factors pertinent to the provisions of section 144 of the LRA, and where the basis of the rescission application is not founded strictly on these provisions, to further determine whether in fact good cause has been shown by the party seeking a rescission. A failure to do so may result in an unreasonable outcome or a defect as contemplated in section 145 of the LRA[7].

The ‘Rescission Ruling’:

[19] The application for rescission was completed by Colia on the standard affidavit issued by the CCMA. It is common cause that the application was not opposed. In refusing the application for rescission, Commissioner Nkadimeng considered the matter by looking at the chronological events. He had taken into account the fact that after the application for a postponement was refused, and was not challenged despite the fact that it was given more than a month before the date of the hearing. Furthermore, in its two applications for rescission (before the CCMA), the Applicant had failed to deal with its prospects of success on the merits, and that it was not known what its case was on the merits. The Commissioner had concluded by stating the following[8]:

“Guided by the case of Melane v/s Santam, which was followed in Northern Province Local Government Association v/s CCMA & Others {2001} 5 BLLR 539 (LC) and in the unreported Labour Appeal Court case of Shoprite Checkers (Pty) Ltd v/s CCMA & Others (Case No PA5/05), I am of the view that by failing to disclose a bona fide defence to the applicant’s claim, the respondent should not be entitled to rescission of the award herein” (Sic)

The grounds of review and evaluation:

[20] The grounds of review relied on by the Applicant are that the Commissioner:

a) Committed gross misconduct in relation to his duties as an arbitrator by excluding or disregarding relevant evidence and arguments and/or failing to apply his mind thereto;

b) Reached conclusions that a reasonable decision maker would not have reached and/or conclusions that are not rationally justifiable based on the evidence.

[21] It was not in dispute that the Applicant was fully aware of the set-down date, having been so notified on 2 February 2010. Its request for a postponement had been declined by Commissioner Mahlawule who had noted that the application (for a postponement)

complied with the Rules (presumably Rule 23 of the CCMA Rules), and that the Applicant’s representative would be unavailable due to medical reasons. He had however expressed an opinion that the matter should be handed to another person to represent the Applicant at the scheduled hearing.

[22] Immediately after receipt of the ruling in terms of which a postponement was declined, Colia had on 11 February 2010 underwent an emergency quadruple bypass operation. He was advised to take three months leave in order to recover. He had then contacted the CCMA and advised its officials that as a result of his and Lombard’s medical conditions, they would be unable to attend the proceedings on 12 March 2010. On 23 February 2010, he had also instructed one of the Applicant’s employees to hand a copy of the doctor’s certificate to the CCMA and was informed that a postponement would be granted. It is on those grounds that the Applicant had not attended the proceedings. These averments were obviously not placed before the Commissioner considering the rescission application.

[23] It is not clear from the ruling whether Commissioner Nkadimeng had taken account of the subsequent medical certificate issued in respect of Colia in arriving at his decision to refuse the application for rescission. Nevertheless, having had regard to the ruling and the reasoning of the Commissioner, I am of the view that the decision arrived at was one that a reasonable decision maker would not have arrived at in the light of the material before him and the circumstances of this case.

[24] Firstly, the Commissioner did not at all consider the first leg of the enquiry being whether the explanation for the default was proffered, and if so whether this reason was acceptable, reasonable or even plausible. In fact he had not even made a finding whether there was willful default. In this regard, the Commissioner had merely stated that the Applicant was aware of the set-date, and that the application for a postponement had been refused. This was however was not the end of the enquiry in that the issue was whether the Commissioner was satisfied with the explanation for the default or not.

[25] Colia in his affidavit in respect of the application had mentioned that he was unable to attend due to recovering from a quadruple

bypass operation he underwent on 11 February 2010, and further that Lombard was unable to attend as he had also undergone a medical

procedure on 23 February 2010. Had Commissioner Nkadimeng applied his mind to the explanation proffered by the Applicant for its default, even if he was not satisfied with those reasons, at the very least, an explanation was required from him as to the reason he had rejected them, and the basis for a conclusion that the Applicant’s default was indeed willful.

[26] It has been acknowledged that even in circumstances where there is proof that the defaulting party was properly notified of the proceedings, that fact on its own is not sufficient to conclude that there was willful default[9]. The Commissioner, other than establishing the second leg of the enquiry, is obliged to look at the circumstances of this case and ask the question whether the default denotes an intention on the party not to defend the claim against it. This can be gleaned from a number of factors including whether that party had ignored previous notices from the CCMA pertaining to its proceedings, and whether it had not shown any interest in the matter at all.

[27] The history and circumstances of this case do not at denote the Applicant as having no interest in the matter at all. It is accepted that it had not attended the initial hearing leading to the first default award. However, that award was subsequently rescinded, and it can only be inferred that the Applicant had shown good cause for its default then.

[28] The Commissioner as shall further be demonstrated below, had taken the first rescission application into account but merely for purposes of drawing an adverse inference against the Applicant. Instead of deeming that initial application as indicative of the Applicant’s intention to defend the matter, he had thought otherwise, and was clearly influenced by considerations of expedition rather than fairness. Furthermore, the fact that the Applicant had timeously filed an application to postpone the proceedings, which application was refused did not appear to persuade the Commissioner. The Commissioner was instead persuaded by irrelevant considerations such as the fact that the postponement ruling was not challenged. By so doing, the Commissioner inadvertently entered into the arena and on the side of the employee who had not opposed the application. It is not suggested that simply because the application was unopposed it should have been willy-nilly granted. What is being said is that given the history of the matter as the Commissioner had succinctly laid it out in the ruling, a reasonable decision maker would have taken into account that notwithstanding the default, the Applicant had not at all evinced an intention to abandon its intention to defend the claim against it.

[29] Notwithstanding the fact that the application for condonation for the late filing of the answering affidavit by the employee was dismissed in this application, for the sake of completeness, I have had regard to some of the submissions made on his behalf in respect of this application. The submission that the Applicant blatantly disregarded the authority of the CCMA and the CCMA’s mandate to give effect to the Constitutional right of fair labour practices is clearly misplaced. Further submissions made on behalf of the employee were that the facts of this case were on all fours with those in Seafood King v CCMA & Others[10] in that the Applicant in its initial application for a postponement, had cited the absence of Lombard, a labour consultant as an excuse, when Lombard would ordinarily not have had locus standi to represent it at arbitration. However, this does not appear to be the reasoning of the Commissioner in refusing rescission as the issue of representation was not even a consideration other than within the context of the dismissal ruling issued by another Commissioner. Furthermore, the facts of this case are different in that other than submitting a proper request to postpone, and on the averments made by Colia, further requests for a postponement subsequent to his ill-health were made to the CCMA to postpone the proceedings, followed up with a submission of a medical certificate.

[30] In further arriving at his decision, the Commissioner placed reliance on irrelevant factors. In this regard, he had taken into account the fact that the application before him was the second one. The first rescission application was granted by Commissioner Ramotshela, and to the extent that the only reference made in respect of that application was purely to deal with prospects of success as the Commissioner had done, it had little significance or relevance for the purposes of determining whether there was willful default on the part of the Applicant in respect of the second application. Ordinarily, this issue would have been raised by the employee in arguing prejudice had he opposed the rescission application. Even so, the first application clearly again evinced an intention to defend against the employee’s claim.

[31] Critical however to the reasoning of the Commissioner was that the Applicant had not in both applications, ‘dealt with the prospects of success on the merits’. The Commissioner held the Applicant had failed to disclose a bona fide defence to the employee’s claim. As already indicated above, a standard CCMA affidavit was utilized in bringing the application. Under its paragraph 2 (c), provision is made for submissions to be made as to why the award should be rescinded because a party has good prospects of succeeding in a claim against the respondent party. In the space provided, Colia had stated that:

“The Labour Consultant, Mr Calle Lombard, conducted the disciplinary hearing and was totally convinced that the decision to terminate Mr Nelly Mdlovu’s services was completely fair and lawful”.

[32] In the light of the above submissions, it can therefore not be reasonable for the Commissioner to have concluded that the Applicant

had failed to disclose a bona fide defence to the employee’s claim, moreso since the application was unopposed. In applications of this nature, especially in the light of the standard affidavits to be completed, it is not required of the applicant party to deal in detail with the merits of the case. In this case, it was clear from a reading of the averments made by Colia that there was a dismissal, which the Applicant had deemed to be fair. In my view, this was sufficient to establish a prima facie defence. In Checkers, the LAC clearly pointed out that the second leg of the enquiry is whether the Applicant has a prima facie defence. Whether a prima facie defence has been established does not require an elaborate exposition of the merits of the case. Had this not been the case, the LAC in Checkers would not have endorsed the principles set out in Northern Training Trust v Maake & Others that the Applicant need not deal with the merits of the case in detail.

[33] It is acknowledged that in MM steel Construction CC v Steel Engineering & Allied Workers Union of SA[11] the then LAC had stated that more than vague, sketchy or bald averments are required in establishing prospects of success. That

decision cannot be at odds with Checkers and Northern Training Trust, where only a prima facie case was required to be established. Furthermore, the decision in MM Steel Construction CC has to be looked at in context. The LAC in that case dealt with an appeal from the then Industrial Court following its refusal to rescind its own order. It cannot be doubted that the manner with which the application for rescission came before the Industrial Court must have been substantially different from that as practiced in the CCMA, moreso in regard to the nature of the pleadings required in that court as opposed to proceedings before the CCMA.

[34] It is reiterated that the limited nature of the type of affidavits filed with the CCMA gives an applicant party not much scope insofar as having to make detailed averments. Furthermore, rescission applications are dealt with by the CCMA in terms of Rule 31 (10) of its Rules, which require a Commissioner to deal with an application in a manner, which he/she deems, fit. In exercising a discretion under this provision, a Commissioner must do so within the bounds of fairness and reasonableness. In my view, where an application such as the one in case is unopposed before the CCMA, nothing prevents a Commissioner from seeking further details from the applicant party prior to making a final determination if the need arises.

[35] To conclude then, by merely relying on the second leg of the enquiry in determining the application before him, the Commissioner failed to weigh together all the relevant factors in determining whether good cause had been shown. Had he done so, instead of placing emphasis on the one leg of the enquiry, he would have under the circumstances rescinded the award.

[36] Given the protracted history of this matter, no purpose would be served in remitting the application for rescission back to the CCMA to be considered afresh. I am satisfied that there is enough material before the Court for it to make its own determination on the application. Accordingly, the following order is made:

Order:

i. The Applicant’s late filing of the review application is condoned.

ii. The First Respondent’s application for condonation in respect of the late filing of the Answering Affidavit to the review application is dismissed.

iii. The “Rescission Ruling” issued by the Second Respondent under case number LP3789-09 is reviewed and set aside. That ruling is substituted with an order that:

“The application for rescission of the award dated 16 March 2010 is granted.”

iv. The Third Respondent is directed to set down the dispute between the Applicant and the First Respondent (Mdlovu) for arbitration.

v. There is no order as to costs.

___________________

Tlhotlhalemaje, AJ

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Mr. F Malan of Edward Nathan Sonnenbergs Inc

For the First Respondent:

Mr. M Meyerowitz of Cliffe Dekker Hofmeyr Inc

[1] 1962 (4) SA 531 (A) at 532C-E.

[2] IMATU on behalf of Zungu v SA Local Government Bargaining Council and Others (2010) 31 ILJ 1413 (LC) at para 13.

[3] (1999) 3 BLLR 209 (LAC) at 211G-H.

[4] (2007) 28 ILJ 2246 (LAC)

[5] At para 35

[6] At para 36

[7] Martin v CCMA (2008) 29 ILJ 2254 (LC) at para 25

[8] At para 5.3 of the Rescission Ruling

[9] Foschini Group (Pty) Ltd v CCMA & Others (2002) 23 ILJ 1048 (LC)

[10] [1999] 1 BLLR 42 (LC)

[11] (1994) 15 ILJ 1319 (LAC)