Mathebula v South African Police Service and Others - Ex Tempore Judgment (JR1208/19) [2022] ZALCJHB 368 (13 April 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

NOT REPORTABLE

CASE NO: JR1208/19

In the matter between: BENEDICT MATHEBULA Applicant and SOUTH AFRICAN POLICE SERVICE First Respondent SAFETY AND SECURITY SECTORAL BARGAINING COUNCIL Second Respondent HASSINA BANU DOCRAT N.O. Third Respondent

Heard: 13 April 2022

Delivered: 13 April 2022

EX TEMPORE JUDGMENT

PHEHANE, J

Introduction

[1] The applicant brings this application in terms of section 145 of the Labour Relations Act[1] (LRA), to review and set aside the arbitration award by the third respondent insofar as his finding on substantive fairness is concerned.[2] The arbitration award is dated 2 May 2019, under case number PSSS736-16/17.

[2] The review application is accompanied by an application for condonation for its late filing. The first respondent opposes the review application on the basis that the applicant’s allegations against the third respondent are unfounded.[3] The first respondent appears not to take issue with the late institution of the review application. This Court is enjoined to consider the condonation application as the delay in launching the review application raises a jurisdictional issue.

Background

[3] The applicant was employed by the first respondent in the position of a warrant officer as at the date of his dismissal, that is, 1 December 2016.[4]

[4] The applicant was essentially assigned to investigate the alleged assault of a minor female child (who subsequently died). The alleged assault occurred on 9 August 2013. Following the instructions of the prosecutor for further investigation and/or information relating to this incident of assault, which the applicant failed to follow and instead, obtained a withdrawal statement from the mother of the child and subsequently went on leave, the applicant was charged for misconduct and was subsequently dismissed. The applicant’s failure to follow the instruction resulted in the case against the perpetrator not proceeding. According to the first respondent, the ultimate death of the child which was caused by further abuse by the perpetrator (the mother’s boyfriend).

[5] Following his dismissal, the applicant referred an unfair dismissal dispute to the second respondent, which was arbitrated by the third respondent. The third respondent issued an arbitration award in which he found the applicant’s dismissal to be substantively fair, but procedurally unfair. The third respondent accordingly ordered that the first respondent compensate the in the amount of R50 010.50.[5]

Condonation

Extent of delay and explanation

[6] The arbitration award was received on 29 May 2019. The applicant avers that upon receipt of the arbitration award, he consulted with his union, who advised him that he had six weeks within which to launch a review application.[6]

[7] The applicant, on his own admission, a shop steward,[7] failed to launch the review proceedings within the statutorily prescribed period of six weeks. Instead, he delivered a form as

contemplated in rule 3(1)[8] (Form 1: Application for a Case Number) to the respondents, had the audiotapes of the arbitration proceedings transcribed, read through the transcribed record and discovered that there was a missing portion. On approaching the second respondent for the missing

portion, he was advised to seek the assistance of an attorney, whereafter, some two weeks later, he instructed his current attorney

of record. Thereafter, the review application was launched on 19 August 2019. The degree of lateness is approximately 29 days.

Prospects of success

[8] The applicant’s grounds of review, in essence, are that the third respondent ignored relevant and material evidence and exceeded his powers. The applicant states that the cause of death of the minor child was unrelated to the incident of 9 August 2013 in which he was involved as a warrant officer. He states that the child’s death occurred as a result of a subsequent incident on 30 August 2013, which was investigated by somebody else.[9]

Prejudice

[9] The applicant avers that he will be prejudiced if condonation is not granted and that the first respondent will suffer no prejudice should condonation be granted.

Legal Framework

[10] Section 145(1)(a) of the LRA provides for the time –frame within which to launch a review application and states as follows:

‘(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…’

[11] Section 145 (1A) of the LRA provides that this Court may condone the late filing of a review application on good cause shown.

[12] The test to succeed in an application for condonation is now settled in our law, and need not be restated. In National Union of Mineworkers v Council for Mineral Technology[10] the Labour Appeal Court stated as follows:

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

[13] This principle was further elaborated on in Grootboom v National Prosecuting Authority and Another.[11] In Grootboom, the Constitutional Court considered what amounts to ‘the interests of justice’[12] when the grant of an application for condonation is adjudicated. The Court stated as follows:

‘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 the 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. As a general proposition the various factors are not individually decisive but should all be taken into account to arrive at a conclusion as to what is in the interests of justice.’

Analysis

[14] The applicant states as follows at paragraphs 72 and 73 of his founding affidavit:

‘72. The essence of the reason for the delay is that I was under a wrong impression that, by completing the “Form 1” and being given a case number, I had complied with the requirement to refer the award to this Honourable Court for review within six (6 weeks).

73. This wrong impression was fortified by the court staff member who told me that the next step I had to take was take the form to the SAPS and the SSSBC, which I did.’

[15] On his own version, the applicant, a shop steward, stated that he was advised of the six-week time period within which to launch his review application, but did not. He does not explain why his union, after consulting with it on the arbitration award and review, did not institute the review on his behalf. He only mentions that his union told him to “open the review case [himself]” and to do so within six weeks.[13] It is ludicrous that a shop steward, a former warrant officer and police officer with 30+ years of experience (9 years as a detective / investigating officer), would take Form 1, to be an application to review the arbitration award.

[16] In the circumstances, the reason for the delay is untenable and unacceptable.

[17] The extent of the delay is approximately 29 days. In the context of speedy dispute resolution, it is lengthy, considering that the date of the dismissal from the first respondent is December 2016. Insofar

as the prospects of success are concerned, I have considered the applicant’s grounds of review, the bulk of which is a restatement of his case before the third respondent. I am of the view that the applicant’s prospects of success on review are slim.

[18] The prejudice to the first respondent is greater, should condonation be granted, considering the date of the dismissal and the flimsy reason by the applicant for failing to launch the review application on time. In the circumstances, the applicant has failed to show good cause for the late filing of the review application. Further, in my

view, it is not in the interests of justice to grant condonation.

[19] The applicant has a further hurdle – the transcribed record of the arbitration proceedings is incomplete. The applicant was in possession of the record in July 2019, and was aware at that point in time, that it was incomplete, yet, failed to take any steps in terms of the provisions of the Practice Manual of this Court,[14] even after instructing his current attorney of record, to obtain the complete record and to seek the extension of the date on which to file the record. The record (incomplete) was only delivered in February and March 2020. Further, the registrar was only requested to allocate a date of hearing on 4 May 2021, thus the applicant has failed to comply with the provisions of item 11.2.7[15] of the Practice Manual, while being legally represented. On his own version, he was informed by the second respondent to seek legal assistance to obtain the complete record, but he did not do so. In the circumstances of the failure to comply with the provisions of item 11.2 of the Practice Manual, in my view, the review application has lapsed and is archived.

[20] In view of the afore-going, the following order is made:

Order

1. Condonation for the late filing of the review application is refused.

2. The registrar is directed to archive the review application.

VARIATION OF ORDER IN TERMS OF RULE 16A

In paragraph [19] of this judgment, I expressed my that the review application has lapsed. This issue was not raised by the parties and they did not address the Court in this regard. In the circumstances, I amend the above order by deleting order no. 2.

The varied order is as follows:

M.T.M Phehane

Judge of the Labour Court of South Africa

[1] Act 66 of 1995 (as amended).

[2] Notice of motion, prayer 1.2

[3] Answering affidavit at para 16, page 72.

[4] Founding affidavit at para 24.

[5] Arbitration award, page 57.

[6] Founding affidavit at paragraph 31.

[7] See para 36 of the founding affidavit.

[8] Rule 3(1) of the Rules for the Conduct of Proceedings in the Labour Court, as promulgated by GN 1665 in GG17495 of 14 October 1996 (as amended). Rule 3(1) reads as follows: ‘Any party initiating any proceedings must apply for a case number before serving any documents. The application for a case number must be made to the registrar in the registrar's office or by fax. If the application is made by fax, Form1 must be used.

[8] Rule 3(1) of the Rules for the Conduct of Proceedings in the Labour Court, as promulgated by GN 1665 in GG17495 of 14 October 1996 (as amended). Rule 3(1) reads as follows:

‘Any party initiating any proceedings must apply for a case number before serving any documents. The application for a case number must be made to the registrar in the registrar's office or by fax. If the application is made by fax, Form1 must be used.

[9] Founding affidavit at para 113.

[10] [1999] 3 BLLR 209 (LAC).

[11] 2013 (5) ZACC 37 at para [51].

[12] The Constitutional Court in Grootboom stated that the factors to be taken into account in considering whether it is in the interest of justice, to grant condonation are the following: (a) the length of the delay; (b) the explanation for, of course for the delay; (c) the prospects of success for the party seeking condonation; (d) the importance of the issue(s) that the matter raises; (e) the prejudice to the other, to parties; and (f) the effect of the delay on the administration of justice.’ (At para [50]).

[12] The Constitutional Court in Grootboom stated that the factors to be taken into account in considering whether it is in the interest of justice, to grant condonation are the following:

(a) the length of the delay;

(b) the explanation for, of course for the delay;

(c) the prospects of success for the party seeking condonation;

(d) the importance of the issue(s) that the matter raises;

(e) the prejudice to the other, to parties; and

(f) the effect of the delay on the administration of justice.’ (At para [50]).

[13] fn 6.

[14] Effective 2 April 2013. In this regard, item 11.2.4 of the practice manual reads as follows: ‘If the record of the proceedings and the review has been lost, or if the recording of the proceedings is of such poor quality to the extent that the tapes are in portable, 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 decision, which may include the remission of the matter to the person or body whose award or ruling is under review, or where applicable, I direction to the effect that the relevant parts of the record be reconstructed.’

[14] Effective 2 April 2013. In this regard, item 11.2.4 of the practice manual reads as follows:

‘If the record of the proceedings and the review has been lost, or if the recording of the proceedings is of such poor quality to the extent that the tapes are in portable, 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 decision, which may include the remission of the matter to the person or body whose award or ruling is under review, or where applicable, I direction to the effect that the relevant parts of the record be reconstructed.’

[15] Item 11.2.7 of the Practice Manual read as follows: ‘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 of filed within twelve (12) months of the date of the launch of the review application (excluding Heads of Argument) and the registrar is informed in writing that the application is ready for allocation for hearing. Wait 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 be archived all be removed from the archive.

[15] Item 11.2.7 of the Practice Manual read as follows:

‘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 of filed within twelve (12) months of the date of the launch of the review application (excluding Heads of Argument) and the registrar is informed in writing that the application is ready for allocation for hearing. Wait 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 be archived all be removed from the archive.