Mafedi v Department of Correctional Services and Others (JR 1754/20) [2022] ZALCJHB 217 (11 August 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 1754/20

In the matter between:

TENE ELIAS MAFEDI

Applicant

And

DEPARTMENT OF CORRECTIONAL SERVICES

First Respondent

GENERAL PUBLIC SERVICE SECTOR

BARGAINING COUNCIL

Second Respondent

PANELLIST ELSABE MAREE N.O

Third Respondent

Heard: 5 July 2022

Delivered: 11 August 2022

(This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website and released to SAFLII. The date and time for hand-down is deemed to be 10h00 on 11 August 2022.)

JUDGMENT

SCHENSEMA, AJ

Introduction

[1] This is an application in which the Applicant seeks condonation for the late filing of his review application in respect of a condonation ruling made by Panelist Elsabe Maree under the auspices of the General Public Service Sector Bargaining Council (GPSSBC).

[2] The First Respondent, the Department of Correctional Services, opposes the Applicant's application for condonation.

Background

[3] The Applicant was dismissed from the First Respondent's employ on 7 November 2018 following an internal disciplinary hearing. The Applicant thereafter lodged an internal appeal on 13 November 2018 which was dismissed on 31 January 2019.

[4] Aggrieved with the outcome of the internal appeal, the Applicant referred an unfair dismissal dispute to the GPSSBC on 22 July 2019, together with a condonation application for his late referral.

[5] On 22 September 2019, the Third Respondent dismissed the Applicant's condonation application. Consequently, the Applicant instituted review proceedings before this Court on 20 November 2020.

[6] The Applicant's application for review had to be filed by 7 January 2020. The application for review was filed on 20 November 2020, approximately 44 weeks / 308 days late.

Condonation

[7] 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. In terms of rule12(3) of the Labour Court Rules[1], the Court may, on good cause shown, condone the non-compliance with any period prescribed by these Rules.

[8] Where it comes to deciding condonation applications, the law in this regard is now well settled on the basis of the following principles as set out in the case of Melane v Santam Insurance Co Ltd[2]:

‘…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, save of course that if there are no prospects of success there would be no point in granting

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

[9] 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 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.

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

[11] 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.’

[12] The fundamental requirement of expedition is therefore 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.

[13] In summary: the prevailing principle is 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.

[14] It is therefore trite, that 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 one seeks an indulgence and bears the onus to show good cause.

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

The degree of lateness

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

[17] Section 145 of the LRA prescribes the procedure for the review of arbitration awards. It states as follows –

'Review of arbitration awards

(1) Any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply to the Labour Court for an order setting aside the arbitration award –

(a) within six weeks of the date that the award was served on the applicant, unless the alleged defect involves corruption;' (Own emphasis)

[18] On 20 November 2020, the Applicant lodged his application for review.

[19] The nature of the Applicant's claim is in relation to his dismissal by the First Respondent, which dismissal is claimed to be unfair. Further, the Applicant disputes the reasonableness of the Third Respondent's decision to refuse his condonation application for the late referral to the GPSSBC, which referral was made approximately four (4) months outside of the prescribed time limits.

[20] The Applicant's case is that his application for review was to be filed by 7 January 2020, notwithstanding this, however, the Applicant's application for review was only filed on 20 November 2020. The application for review, is 44 weeks / 308 days late, which delay, according to the Applicant, is not excessive on the basis of compelling reasons, namely: that his attorneys failed to inform him of the six (6) week time period in which to file the application for review; his attorneys were unreachable in that they assured the Applicant that his papers would be filed; they were closed for the duration of the 2019 festive season; and the national lockdown.

[21] The First Respondent opposed the application and stated that the delay is self-created, excessive, and unjustified, and further that the Applicant does not have any prospects in the main application.

[22] The delay is undoubtedly 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 six (6) weeks to file an application for review, which period is in itself lengthy.

[23] Notwithstanding that the degree of lateness is material, the degree of lateness should however not be considered in isolation.

Explanation for the lateness

[24] A failure to comply with the period of six (6) weeks must be explained and the reasonableness of the delay should be considered by having regard to the explanation for the delay.

[25] As the Applicant seeks an indulgence from the Court and as he bears the onus to satisfy the Court that condonation should be granted, it is incumbent upon the Applicant 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]

[26] The explanation for the delay has to be sufficiently full to enable the Court to assess the conduct and motives of the party seeking condonation.

[27] In the founding affidavit before me in support of the application for condonation, the Applicant provided the following explanation for the delay:

27.1 When the Applicant received the award on 4 February 2019, his erstwhile representatives, namely the Police and Prisons Civil Rights Union (POPCRU), informed him that it would refer the matter on his behalf to the relevant bargaining council. Upon following up in May 2019, the Applicant was informed that POPCRU had failed to make such a referral;

27.2 the Applicant subsequently appointed legal representatives who lodged his referral with the incorrect bargaining council on 4 May 2019. This was rectified by the referral to the GPSSBC on 19 July 2019, in which the Applicant applied for condonation. The Third Respondent's refusal thereof was issued in a ruling on 22 September 2019. However, the Applicant only became aware of the ruling in the first week of November 2019. At no time was the Applicant informed of the six (6) week period to launch the application for review;

27.3 His erstwhile legal representatives advised him, that his application for review would be launched in approximately one (1) month. However, this period was not complied with, and despite frequent attempts to ascertain the date upon which his papers would be filed, no substantive response was forthcoming;

27.4 Further, his legal representatives were closed for the festive season from 15 December 2019 until a date unknown to the Applicant. Upon his contact with them in February 2020, the Applicant was advised that his legal representative was on study leave and thereafter catching up on backlogged work;

27.5 The matter was then further delayed due to the national lockdown on 26 March 2020. Upon the easing of lockdown, and contact with his legal representatives in mid-July 2020, his legal representative was no longer employed by them. The delay was further exacerbated by his legal representatives' request for financial instructions to launch the review. This contradicted his alleged reasonable belief that his legal insurers would pay for same, and as they had not informed him thereof before. He therefore terminated their mandate; and

27.6 It was only on 14 October 2020, that the Applicant consulted his current attorneys, JV Skosana Attorneys, to handle the matter on a contingency basis. His application for review was thereafter lodged on 20 November 2020.

[28] In its answering affidavit, the First Respondent stated that the Applicant is misleading this Court in omitting explanations for the delay over several periods.

[29] The First Respondent averred that no explanation for delay was tendered in respect of the Applicant only becoming aware of the Third Respondent's ruling, issued on 22 September 2019, in November 2019. This is contrary to section 138(7) of the LRA which provides that -

'Within 14 days of the conclusion of the arbitration proceedings –

(a) The commissioner must issue an arbitration award with brief reasons…

(b) The Commission must serve a copy of that award on each party to the dispute or the person who represented a party in the arbitration proceedings.'

[30] The Applicant's delayed awareness of the ruling is said to be of his own lack of diligence in pursuing the matter. Further, whilst the Applicant enquired with his legal representatives regarding the review application, he failed to enquire regarding the time periods.

[31] The First Respondent further stated that the Applicant failed to adduce tangible reasons why his former legal representative did not launch his application for review and omitted any specific dates and substantive evidence in relation to the period over which he allegedly contacted his legal representative.

[32] The First Respondent further identified that no explanation is provided for the period between 15 December 2019 to February 2020, which the Applicant substantiates his delay on the basis that the offices of his legal representatives were closed for the festive season.

[33] Additionally, the explanation for the delay as a result of the national lockdown is fruitless as a period of fourteen (14) weeks had elapsed since the Applicant became aware of the ruling, which delay is eighteen (18) weeks including the festive season.

[34] The Applicant's substantiation on the basis of lack of income, and resultant inability to provide financial instructions, was stated to be baseless by the First Respondent as he did not state when he terminated his mandate, nor did he proffer reasons why he instructed a law firm to represent him when he did not have the financial means to do so.

[35] Finally, the First Respondent averred a preliminary point in its answering affidavit that the Applicant failed to serve his referral to the GPSSBC together with his application for condonation on the First Respondent.

[36] I have already alluded to the fact that the Applicant should provide a full explanation for every period of the delay. The longer the delay, the more full and compelling an explanation is required.

[37] There are a number of difficulties with the explanation tendered by the Applicant. Firstly, no evidence has been forthcoming in respect of the Applicant's allegations that he only became aware of the Third Respondent's ruling some two (2) months after its issue and that the Applicant made repeated unsuccessful attempts to secure his review application's launch by his former legal representative.

[38] Secondly, the Applicant has omitted explanations in relation to numerous periods, including May to July 2019; the period from when he became aware of the award in November 2019 until the start of the festive season closure on 15 December 2019 until 15 February 2019; and July until October 2020.

[39] Thirdly, the Applicant was represented at all times, which representation included representation by legal representatives.

[40] I am not persuaded by the Applicant's averment that his legal representatives negated to inform him of the time period by which to make an application for review. The very fact that he considered the launching of such application, coupled with the fact that he applied for condonation at the bargaining council, illustrates that he should have been made aware of the fact that the institution of review proceedings must be within a specific time period. Thereafter, upon receipt of the ruling, the Applicant's attorneys would have been able to act swiftly. This is more so in view of the First Respondent's undisputed averment that the Applicant was legally represented at that stage, and that such legal representatives would have been aware of the time limitation.

[41] It is not understood why the Applicant failed to produce any substantive evidence to verify his claimed delays and incorrect referral. The Applicant is the custodian thereof and ought to have adduced same. In the absence of such evidence, I cannot accept the version of the Applicant.

[42] I further tend to agree with the First Respondent that the Applicant's omission to raise, before the Third Respondent, his allegation that POPCRU informed him that it would refer his unfair dismissal to the appropriate bargaining council yet raised it for the first time before this Court, raises doubts as to its veracity. I can only accept that the delay is due to the Applicant's own fault.

[43] The Applicant has 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 Applicant failed to do that, and the explanation tendered is inadequate and far from compelling, convincing or comprehensive. The significant omissions of explanations fail to allow this Court to understand the reasons for the delay.

Prospects of success

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

[45] In the authorities referred to above, the Courts have endorsed the position that the failure to provide a reasonable and acceptable

explanation for the delay renders prospects of success immaterial. From the authorities it is also evident that an applicant is obliged to make out a case for condonation in his founding papers. The founding papers need to contain sufficient particularity to allow a court to rule in his favour should the allegations contained in his founding affidavit not be contested. [10]

[46] Notwithstanding the aforementioned, the Applicant has based his prospects of success on the First Respondent's incorrect finding that three days of absence was equivalent to 30 days of absence, which warranted his dismissal on the basis of unauthorised absence. This finding was because the Applicant failed to inform his superiors. To the contrary, the Applicant said that he informed his superiors that he was returning to work and that his absence was due to unforeseen personal reasons. However, it is undisputed that the Applicant did not inform his superiors directly.

[47] At paragraph 38 of the Applicant's Heads of Argument, the Applicant confirms that his line manager was unavailable and that the absence was conveyed via a third party. He later applied for this absence to be considered as vocational leave. It is further averred by the Applicant, that the First Respondent incorrectly applied its Disciplinary Code and Procedure for the Department of Correctional

Services[11] by failing to impose a lesser sanction, namely counselling, a final written warning, suspension without pay and demotion by level post.

[48] The Determination and Directive on Leave of Absence in the Public Service[12] (Directive) provides as follows:

'5.7. An employee must submit his/her application for annual leave in advance, unless unforeseen circumstances prevent him/her from doing so.

5.8. If confronted with unforeseen circumstances which necessitate the utilisation of annual leave, the employee must personally notify his/her supervisor/manager immediately. A verbal message to the supervisor/manager by a relative, fellow employee or friend is only acceptable if the nature and/or extent of the unforeseen circumstances prevents the employee from informing the supervisor/manager personally.

5.9 An employee must submit an application for annual leave personally or through a relative, fellow employee within 5 days after the first day of absence. If the employee fails to submit the application on time or do not have compelling reasons why an application could not be submitted, the supervisor/manager must immediately:

5.9.1 notify the employee that if the leave application is not received within 2 working days, the leave period will be converted to unpaid leave.

5.9.2 inform the Human Resource division, should the employee default on the notification referred to in par 5.9.1 above.'[13]

[49] On a plain reading of the Directive, where unforeseen circumstances arise which prevent an employee's presence at the workplace, an employee may provide a verbal notification via a third party only where the nature and/or extent of the circumstances prevent the employee from informing the supervisor/manager personally.

[50] No reasons as to why the nature and/or extent of the unforeseen circumstances prevented the Applicant from informing his supervisor/ manager personally were forthcoming. In the absence thereof, I cannot accept that the circumstances warranted his informing a third party. The result is a clear breach of the Directive.

[51] The Applicant also submitted that the Third Respondent's refusal to grant his condonation application was unreasonable as it failed to attach appropriate weight to the delay caused by the error of the Applicant's attorneys who referred his dispute to the incorrect bargaining council. Unfortunately, the Applicant only adduced evidence to this point, in the form of his referral to the incorrect bargaining council. No other evidence proving that it was in fact referred to the incorrect bargaining council was forthcoming. As a result, this submission cannot stand.

[52] In respect of the prospects of success, the Applicant also averred that the Third Respondent was incorrect in relying on his prior written warning for absenteeism dated 24 January 2018, as same expired after six months and therefore should not have been a consideration in respect of determining the appropriate sanction.

[53] In this regard, the First Respondent has denied that the Applicant has any prospects of success on the basis that the investigator found that the Applicant had been subject to various consultations and counselling to correct prior similar behaviour.

[54] Significantly, the Applicant has been subject to the following penalties for unauthorised absence: a verbal warning for conduct on 16 and 17 September 2017; a written warning for conduct on 13 to 15 October 2017; and a final written warning for conduct on 19 to 21 January 2018. This record was led in support of the aggravating factors against the Applicant in the internal disciplinary hearing.

[55] It is notable that the Applicant only disputed the reliance on his prior misconduct dated 24 January 2018 in his replying affidavit and negated any reference to such prior conduct in his application for review.

[56] It is trite that employers may take into account an employee's prior disciplinary record involving similar misconduct when considering an appropriate sanction. This was confirmed in Shoprite Checkers (Pty) Ltd v Ramdaw N.O and others,[14] where the Labour Court held that:

'the fact that a person no longer has a final warning hanging over their head no more extinguishes prior misconduct than the lapsing of a suspended prison sentence extinguishes the conviction from a person's criminal record.'

[57] The Applicant is thus incorrect in averring that his prior record ought not to have been considered given the expiry of his warnings. It is trite that a prior record involving similar misconduct may be used in submissions in aggravation. Therefore, even in respect of the Applicant's contention here, his prospects of success are extremely poor, as his prior record involving similar misconduct results in the finding of a similarly harsh sanction, namely dismissal.

Prejudice

[58] The Applicant submitted that if condonation is not granted, he would be forever deprived of the opportunity to oppose the fairness of his dismissal. This prejudice is exacerbated by the fact that the Applicant has been unemployed since his dismissal and is thus financially burdened. The First Respondent, the Applicant contends, will suffer significantly less financial prejudice.

[59] The First Respondent submitted, inter alia, that if the Applicant was diligent, he would have promptly launched his application for review to expeditiously have the fairness of his dismissal adjudicated upon. In amplification thereof, the First Respondent submitted evidence to the effect that the Applicant has displayed a dilatory approach, as he did not launch his application for review within the requisite time period, nor did he refer his dispute to the Second Respondent within the requisite time period.

[60] 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 there is no case to be pursued in respect of procedural unfairness.

[61] In Grootboom v National Prosecuting Authority and another,[15] 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.’

[62] On an objective conspectus of all the facts, there are a number of worrying factors in this case and the Applicant’s application for condonation falls short of the mark. There can be no doubt that the delay by the Applicant is excessive and necessitated an extensive explanation. The Applicant therefore had a greater burden to set out all the facts and circumstances relating to the delay, and most importantly, to provide a satisfactory explanation for each period of

the delay. This the Applicant did not do. The Applicant did not discharge the onus to show good cause and to provide an acceptable

and plausible explanation for the delay and his repeated dilatoriness amplifies this.

[63] It has repeatedly been stated in this Court that condonation cannot be had for the mere asking and that there is an obligation on the defaulting party to proffer a reasonable, adequate and satisfactory explanation for the delay. For the above reasons, it will not be in the interests of justice that the Applicant's application for condonation be granted.

[64] Insofar as costs are concerned, this Court has a broad discretion. In my view this is a case where the interest of justice and fairness will be best served by making no order as to costs.

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

Order

1. The application for condonation for the late filing of the Applicant’s review application is dismissed;

2. There is no order as to costs.

H. Schensema

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

V Skosana of JV Skosana Attorneys

For the First Respondent: Adv. Lupuwana

Instructed by:

The State Attorney

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

[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] See: Roebuck v Aerial Exhange CC and another 92002) 23 ILJ 523 (LC). Plascon Evans Paints Ltd v van Riebeeck Paints (pty) Ltd 1984 (3) SA.

[11] Resolution 1 of 2006.

[12] Page 90 of the bundle.

[13] Page 105 of the bundle.

[14] (2000) 21 ILJ 1232 (LC).

[15] (2014) 35 ILJ 121 (CC) at para 51.