Mbeka v Minister of Justice and Correctional Services and Another (JS105/2019) [2021] ZALCJHB 357 (14 October 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JS 105/2019

In the matter between:

LUNGELO MBEKA Applicant

And

MINISTER OF JUSTICE AND CORRECTIONAL SERVICES First Respondent

DEPARTMENT OF CORRECTIONAL SERVICES Second Respondent

Heard: 01 JULY 2021

Date Delivered: 14 October 2021 (This judgment was handed down electronically by emailing a copy to the parties).

JUDGMENT

NINDI AJ

[1] This is an application for condonation by the Applicant for the late referral of its dismissal dispute to this court. Both parties addressed me and made submissions during the hearing which was conducted virtually in line with the Covid-19 Regulations and this court’s directive.

The facts

[2] The Applicant was employed by the Respondent as a Prisoner Ward in 2010 prior to his dismissal.

[3] On 2 December 2017, the applicant was arrested. On 4 December 2017, the Applicant was released on bail. On 5 December 2017, the Applicant failed to report for duty.

[4] On 7 December 2017, the Respondent alleges that it sent two of its employees, one being the Applicant’s supervisor, to enquire on the Applicant’s whereabout. They found the Applicant had served him with a letter of contemplation to suspend. The Applicant did acknowledge receipt of this letter. Subsequent to this, there were other visits by the Respondent’s employees to check up on the Applicant with the aim of establishing when he would return to work but with no success.

[5] On 25 December 2017, the Applicant was called by another of the Respondent’s employees enquiring on his [Applicant’s] whereabout only to be told that he had travelled to the Eastern Cape and would only report for duty on 8 January 2018. The Applicant admits to not have reported for duty due to his drinking problem. The Applicant was absent from work for approximately a month.

[6] On 8 January 2018, the Applicant was summarily dismissed as a result of the absenteeism / abscondment. On 12 January 2018, the Applicant submitted a written representation to the delegated authority for his reinstatement. On 14 February 2018, Commissioner SM Skweyiya of the General Public Service Sectorial Bargaining Council issued a ruling that the Bargaining Council had no jurisdiction to adjudicate over the matter and that the Labour Court was the correct forum as the dismissal was due to the operation of law.

[7] The Applicant claims to have referred his matter to Legal Wise. However, as he was severely distressed, he was treated by a Psychiatrist as well as a Traditional Healer.

[8] On 12 January 2019, the Applicant launched a statement of claim with this court.

[9] The Applicant submitted to this court and filed two Psychiatric reports from Dr T.E Rangaka. The first report is dated 12 December 2018 (“the first report”) even through it records a consultation with the Applicant to have taken place on 9 January 2019, a month after the date of the report. This discrepancy was not addressed by the Applicant’s legal representative. The second report is an annexure to the Applicant’s Supplementary Affidavit dated 4 December 2020.

[10] The second report was served on the Respondent on 21 June 2021, 9 days before the hearing date for the condonation application. The Respondent objected to the late filing of the Supplementary Affidavit as it was also filed out of time in terms of Rule 6(10) of the Labour Court Rules.

The test for condonation

[11] The relevant legal principles to be applied in an application for condonation are well established. Each case must be determined on its own merits. This court has a discretion to consider the facts of each case. In essence, it is a matter of fairness to both sides.[1] In Melane v Sanlam Insurance Co Ltd[2] it was held that:

‘…. Among the facts usually relevant, are the degree of lateness, the explanation therefore, 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 will be no point in granting

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

[12] In NUM v Council for Mineral Technology[3] the LAC added the following codicil to the Melane test:

“There is a further principle which is applied and that is 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.”

[13] It has been held that the importance of the issue and strong prospects of success may tend to compensate for a long delay. In the same breath, 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 ordinarily irrelevant.[4]

[14] In Collett v Commission for Conciliation, Mediation and Arbitration[5] the LAC 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.

[15] The onus is on the party applying to court for 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, which is the requirement of expedition. The Constitutional Court in Toyota SA Motors (Pty) Ltd v CCMA and Others[6] emphasised that one of the fundamental purposes of the Labour Relations Act[7] (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.

[16] In summary, the courts have endorsed the principle that where there is a delay with no reasonable, satisfactory and acceptable explanation, condonation may be refused without considering the prospects of success and to grant condonation where the delay is not explained, may not serve the interests of justice.[8]

[17] 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 seeks an indulgence from the court and bears the onus to show good cause.

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

Degree of Lateness

[19] Failure to comply with the prescribed time periods has to be explained and the reasonableness of the delay should be considered by having regard to the explanation for the delay.

[20] The Applicant alleges that its referral of its dispute to the Labour Court is ten (10) months late. However, the Respondent stipulates that it is in actual fact twelve (12) months late. In terms of section 191(11)(a) of the LRA, a referral of a matter to the Labour Court must be made within 90 days after the Commissioner has certified that the dispute remains unresolved. The Commissioner issued a ruling on 14 February 2018 that the matter be referred to the Labour Court. In terms of the LRA, the Applicant had approximately up until May 2018 to refer the matter to the Labour Court. The Applicant however, only filed its statement of claim on 12 January 2019. Therefore, in terms of my calculation, the referral is in actual fact approximately eight (8) months late.

Explanation for the delay

[21] The Applicant alleges that he failed to refer the matter before the Labour Court due to experiencing psychiatric problems. The first report confirms that he consulted a Psychiatrist, approximately 12 months following his dismissal and 11 months following the Commissioner’s ruling that the matter be referred to the Labour Court. No proof in the form of a sicknote or report has been provided by any Traditional Healer.

[22] The first report provides that, inter alia, the Applicant suffers from Alcohol dependency and a personality impairment possibly worsened by the Traumatic Brain injury he suffered in July 2010. The founding affidavit notes the reasons for lateness to be, inter alia, that the Applicant suffers from: anxiety; distress; discomfort, fear, intimation, emotional shock; and drinks heavily. As a result, the Applicant became a non-functioning alcoholic.

[23] The Applicant filed its second Psychiatric report from Dr T.E Rangaka out of time as prescribed by Rule 6(10) of the Labour Court Rules. The Applicant offered no explanation for the late filing of the second report. Furthermore, there is already a report from the same Psychiatrist filed with the condonation application – the first report. In the absence of an explanation from the Applicant for the late filing of the second report, I will not consider it for purposes of this application.

[24] The Applicant’s legal representative also alluded to the fact that at some point, the issue of lack of funds posed a problem.

[25] On the Applicants’ own version, as submitted before me, from as early as March 2018, they were aware of the Commissioner’s ruling to refer the matter to the Labour Court. However, they only consulted with the Applicant on 8 January 2019 and filed papers on 11 February 2019.

[26] It is not evident from the Applicants’ explanation what transpired after the consultation of March 2018 up until January 2019 as there is no explanation tendered for the entire period. My attempts to obtain a proper recount of events during oral submissions were unsuccessful.

[27] 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 comprehensive the explanation should be.

[28] The explanation tendered for the period of delay is bereft of any detail and lacks particularity. Material periods of the delay remained completely unexplained, and the Applicant has tendered no version as to what happened during those periods.

[29] The Applicant has to provide an explanation for every period of delay in order to enable this court to assess the reasonableness of the delay and the explanation for it. The Applicant failed to do so, and the explanation tendered is inadequate and far from comprehensive, compelling and convincing.

[30] In light of the above, I find that the delay is inordinate, and the explanation tendered not compelling or adequate.

Prospect of Success

[31] Having found that the delay is inordinate, and the explanation tendered not compelling or adequate, I now turn to deal with the issue of prospects of success.

[32] In the authorities referred to supra, the Courts have endorsed the position that the failure to provide a reasonable and acceptable explanation for the delay renders prospects of success immaterial.

[33] In casu, and in light of the aforesaid authorities and given that the Applicant has not provided a comprehensive, compelling or convincing explanation for the delay, the prospects of success are immaterial, and thus need not be considered.

[34] The Applicant alleges that the Respondent had a duty, as his employer, to support him through its various wellness programs. I am not convinced that this would in any way, have expedited the Applicant’s referral of the matter to the Labour Court, bearing in mind that the Applicant was already dismissed during this period.

Prejudice

[35] In respect of prejudice, the Applicant alleges that he would suffer irreparable harm if the application was not granted. The Applicant’s case is that the Respondent is not unreasonably prejudiced as it is the sole cause of the dispute, there was no undue delay and that the Respondent remains at liberty to defend the claim.

[36] On the other hand, the Respondent submitted in opposition that should the application be granted, this may set a negative precedent in the workplace and they may battle to manage discipline in the workplace. Furthermore, the Respondent alleges that it had accommodated the Applicant in all respects in trying to get him back to work. This was a costly exercise in sending out personnel on numerous occasions to locate the Applicant. This amounted to leaving the workplace unattended by the personnel tasked to locate the Applicant, which resulted in loss of productivity for the Employer for time spent by these personnel out of the office.

[37] The aim of the LRA is to resolve labour disputes speedily and without delay. Granting condonation in a case like this would not be in the interests of justice as it would undermine the statutory purpose of expeditious dispute resolution, another factor that weighs heavily in the Respondent’s favour.

[38] The Applicant did not discharge the onus to show good cause and to provide an acceptable and plausible explanation for the delay. For the above reasons, it will not be in the interests of justice that the application for condonation be granted.

[39] The explanation for the delay has to be compelling, convincing, comprehensive, and should cover every period of the delay. The Applicant’s explanation falls hopelessly short off the mark.

In the premises, I make the following order:

1. The application for condonation for the late filing of the Applicant’s statement of claim is dismissed.

2. There is no order as to costs.

NINDI AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant: Mr Simphiwe Gaju

Instructed by: SN

Attorneys

For the Respondent: Adv Khumalo

Instructed by: State

Attorney

[1] Civil Procedure in the Superior Court, Harms at B27.6.

[2] 1962 (4) SA 531 (A) at 532 C - F.

[3] [1999] 3 BLLR 209 LAC at 211 G – I.

[4] NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC).

[5] (2014) 6 BLLR 523 (LAC).

[6] (2016) 37 ILJ 313 (CC).

[7] Act 66 of 1995 as amended.

[8] Unreported: T Lempe & 70 others v Distell Ltd Case No – J 235/2014 (delivered 30 April 2019), at paragraph 11.