Kubeka v GPSSBC and Others (JR1645/15) [2016] ZALCJHB 306 (16 August 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR1645/15

In the matter between:

LUCAS

S KUBEKA Applicant and

GPSSBC First Respondent

MR MARTIN SAMBO Second Respondent

DEPARTMENT OF

GAUTENG COMMUNITY SAFETY Third Respondent

Heard: 10 August 2016

Delivered: 16 August 2016

JUDGMENT

TLHOTLHALEMAJE, J

Introduction:

[1] This is an opposed application to review and set aside a condonation Ruling dated 12 May 2015 issued by the Second Respondent under case number GPBC2356/2014. In considering an application for condonation for the late referral of an alleged unfair dismissal dispute for arbitration, the Second Respondent found that the Applicant had failed to show good cause and thus refused condonation.

Background to the dispute:

[2] The background material to this application is fairly common cause. The Applicant was employed by the Third Respondent with effect from 1 August 2913 as a Provincial Inspector by the Respondent. His appointment followed upon an interview conducted on 25 June 2013.

[3] On 2 September 2013, the Third Respondent informed the Applicant that following upon a criminal verification check on recent appointments,

it was discovered that he had criminal record which he had not disclosed during his interview despite questions being asked in that regard.

[4] The Applicant’s contention was that he advised the interviewing panel about his past criminal record. The Respondent however disputes this, contending that this was only established after the Applicant was interviewed and after he had commenced his employment.

[5] A disciplinary enquiry was held in February 2014 in order for the Applicant to answer to allegations of dishonesty. He was subsequently

dismissed on 2 April 2014. The Applicant lodged an appeal against his dismissal and continued with his employment whilst awaiting the outcome of the appeal. His dismissal was nevertheless confirmed on 8 October 2014.

[6] The Applicant referred a dispute to the GPSSBC, alleging that his dismissal was unfair. The matter having been unsuccessfully conciliated, a certificate of outcome was issued on 11 November 2014 enabling the Applicant to refer the dispute for arbitration. A referral in that regard was filed some 7 days out of time. In an application for condonation before the GPSSBC, the Applicant’s explanation for the delay was essentially that he had tried to fax the request form to the bargaining council but that the fax transmission had been unsuccessful. He had thereafter tried to e-mail it to one of the officials of the bargaining council.

[7] Having considered the application, which was opposed, the Second Respondent in refusing to grant condonation reasoned as follows;

“Therefore the degree of lateness is 07 days which is not substantial. However, I find the Applicant’s reason for lateness and prospects of success not satisfactory or convincing for this application to succeed. On looking at the matter in totality, I find the Applicant has not shown good cause.[1]”

The review application and evaluation:

[8] It is trite that in considering whether or not to grant applications for condonation, Commissioners ceased with such applications enjoy a discretion, and are further obliged to consider a variety of factors, particularly those set out in Melane v Santam Insurance Co Ltd[2], and other other authorities. The principal factors to be considered include the degree of the delay; the reason or the explanation for the delay; the prospect of success of on the main claim; the prejudice that parties will suffer if condonation is granted or

refused; and the convenience of the Court. In Brummer v Gorfil Brothers Investments (Pty) Ltd[3], it was further stated that the interests of justice should be an overall consideration when determining whether condonation should be granted.

[9] In regards to the extent of the delay, the Second Respondent had correctly accepted that the delay was not substantial. In explaining

the delay, the Applicant had averred that he had placed his trust in his union POPCRU and thereafter in a labour law consultant (“du Plessis”) to timeously refer his dispute, and that both ultimately failed to do what they had undertaken to do, thereby necessitating him to request condonation in the matter on his own. He avers that the delay was not his fault and that he should not be held liable for the failures of others in whom he had placed his trust.

[10] When considering the factors outlined elsewhere in this judgment as to whether condonation should be granted or not, it is required of the Commissioner to at least indicate the reasons for instance, why an explanation for the delay is not satisfactory or acceptable, and where it is found that an applicant has no prospects of success, to indicate the basis upon which that conclusion is reached. It is not sufficient for Commissioner to simply make a finding that ‘the reason for lateness and prospects of success are not satisfactory or convincing’.

[11] In his analysis, the Second Respondent did not with sufficient particularity, deal with the explanation proffered by the Applicant

for the delay other than to make a finding that those reasons were not satisfactory or convincing. To the extent that the Applicant

however blames his chosen representatives for the delay, it is trite that that there is a limit beyond which a litigant cannot escape the results of his representative’s lack of diligence[4].

[12] Even if there was any reason to accept the explanation proffered for the delay, central to the application was whether the Applicant had any reasonable prospects of success on the merits of his main claim. It is further trite that even if a reasonable or acceptable explanation had been proffered for the delay, no purpose would be served in granting the application for condonation if the applicant has no prospects of success on the merits of the main claim[5]. The rationale behind this approach is that to simply go through the motions of having to litigate a claim which has no merit cannot be in the interest of justice or the convenience of the courts or tribunals. Furthermore, to grant condonation under those circumstances would clearly be prejudicial to the respondent party, which will be compelled to defend a case which has no merit.

[13] The Respondent opposed the granting of a review application, and emphasised that the Applicant lacked prospects of success as he was found guilty of dishonesty in disciplinary proceedings wherein he admitted guilt and also as he had a serious criminal record (in the form of 3 months suspended sentence for assault with intent to do grievous bodily harm, and a R2000.00 fine for reckless or negligent driving).

[14] The Respondent contended that it was obliged in terms of the provisions of section 10(b) of the Public Service Act and section 3D(b) of the National Road Traffic Act to employ “fit and proper persons”, and that it was accordingly statutorily prohibited from employing the Applicant due to his criminal records. It was submitted that the Applicant was initially employed on the basis of the understanding that he did not have a criminal record, as he was specifically asked that question during his interview, i.e., whether he had ever been convicted of a criminal offence or dismissed at work or whether he had any pending or existing disciplinary cases against him. The Applicant’s response was to emphatically deny that he had any. To this end, it was argued that the Applicant had poor prospects of success in his dispute before the bargaining council, as found by the Commissioner, who it was argued had made a reasonable and rational decision.

[15] The Applicant’s contentions in regard to the criminal records is that one of them has since been expunged. This however does not assist him in that in the light of the legal constraints and obligations imposed on the Third Respondent in regards to employment

of individuals with criminal records, and further to the extent that the Applicant had failed to give an honest answer to the pertinent

question posed during his interview, it is apparent that his prospects of succeeding with his alleged unfair dismissal claim are

non-existent.

[16] Significant with the review application before the Court however is that the grounds set out therein do not sustain a case to justify an interference with the ruling. Those grounds merely relate to the reasons why the matter was referred out of time and the reasons

proffered in that regard. No case within the meaning of section 158 (1) (g) of the LRA (under which the application was brought) has been set out out in the Applicant’s founding papers.

[17] The Second Respondent’s conclusions that on a totality of facts before him, the Applicant had not shown good cause is unassailable,

even if there could be justification in the criticism that he had scantly dealt with the factors he was required to consider. The Court will not lightly interfere with the discretion of Commissioners when granting or refusing condonation applications, bearing in mind that condonation is not there for the taking. In the light of these conclusions, it follows that the review application as brought by the applicant ought to be dismissed. I have further had regard to the requirements of law and fairness, and it is my view that a cost order is not warranted in this case.

Order:

I. The application to review and set aside the ruling issued by the Second Respondent under case number GPBC2356/2014 is dismissed.

II. There is no order as to costs.

______

Tlhotlhalemaje, J

Judge of the Labour Court of South Africa

APPEARANCES:

On behalf of the Applicant: In person

On behalf of the Respondent: Ms D Norton of Mkhabela Huntley Adekeye Inc

[1] Page two of the condonation Ruling

[2] 1962 (4) SA 531 (A) at 532B-E, where it was 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. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate prospects which are not strong. Or the importance of the issue and strong prospects may tend to compensate for a long delay. And the Respondent’s interests in finality must not be overlooked”

[2] 1962 (4) SA 531 (A) at 532B-E, where it was 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. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate prospects which are not strong. Or the importance of the issue and strong prospects may tend to compensate for a long delay. And the Respondent’s interests in finality must not be overlooked”

[3] [2000] ZACC 3; [2000] (2) SA 837 (CC) at 839 F

[4] Saloojee & another NNO v Minister of community Development 1965 (2) SA 135 (A). See also Buthelezi & others v Eclipse Foundries Ltd (1997) 18 ILJ 633 (A) at 638I–639A)

[5] See NUM v Council for Mineral Technology 1999 3 BLLR 209 (LAC) at p211 paragraph G-H where 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”

[5] See NUM v Council for Mineral Technology 1999 3 BLLR 209 (LAC) at p211 paragraph G-H where 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”