Mogatwe v Commission for Conciliation, Mediation and Arbitration and Others (JR1786/20) [2023] ZALCJHB 334 (6 November 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

case no: JR1786/20

In the matter between:

MARY MOGATWE Applicant And COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION First Respondent MICHAEL BOYCE N.O. Second Respondent THE FOSCHINI GROUP (PTY) LTD Third Respondent

Heard: 6 July 2023

Delivered: 06 November 2023

JUDGMENT

MOTSHEGARE AJ

Introduction

[1] The Applicant seeks to review and set aside the arbitration award issued by the Second Respondent on 23 September 2020 (Award), in terms of which the Second Respondent found that the Applicant’s dismissal was substantively fair.

[2] The review application was filed outside of the six week time period stipulated by section 145(1)(a) of the Labour Relations Act[1] (LRA) and the Applicant seeks condonation for its late filing.

[3] The Third Respondent has opposed both applications.

[4] If condonation is not granted, then this Court will be barred from considering the merits of the review application as it will not, under those circumstances, be properly before the Court. Accordingly, I shall proceed to first deal with the condonation application.

Background facts

[5] The Applicant referred an unfair dismissal dispute to the First Respondent, which sat for arbitration on 3 September 2020. The Award was received by the Applicant on 23 September 2020. The Applicant’s review application was delivered on 26 November 2020. The application for condonation for the late filing of the review application was delivered on 30 April 2021.

Applicable legal principles relating to condonation applications

[6] In terms of section 145(1A) of the LRA, this Court may, on good cause shown, condone the late filing of a review application, as contemplated by the LRA.

[7] An application for condonation should be granted if that is in the interests of justice and refused if it is not. The interests of justice must be determined by reference to all relevant factors including the nature of the relief sought, the extent and cause of the delay, the nature and cause of any other defect in respect of which condonation is sought, the effect on the administration of justice, prejudice and the reasonableness of the applicant’s explanation for the delay or defect.[2]

[8] The principles of condonation were established in Melane v Santam Insurance Co Ltd,[3] where the Court 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 therefore, 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 of success may tend to compensate for a long delay. And the respondent's interests in finality must not be overlooked.”

[9] In this Court, the above requirements are qualified by the principle that a bona fide defence and good prospects of success are not sufficient to grant condonation in the absence of a reasonable explanation for the default.[4] The Labour Appeal Court (LAC) in National Union of Mineworkers v Council for Mineral Technology[5] endorsed this principle by stating that “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.”

[10] In Collett v Commission for Conciliation, Mediation and Arbitration and others,[6] 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.”

[11] Also of importance, is the respondent's interests in finality, which ought not to be overlooked.[7]

[12] Applications for condonation ought to be delivered without delay or as soon as possible when an applicant becomes aware of the need to deliver such an application.[8] Thus, where an applicant delays filing the application for condonation despite being aware of the need to do so, or despite being put on terms, the Court may take a dim view, absent a proper and satisfactory explanation for the further delays.[9]

[13] Condonation is not there merely for the asking, nor are applications for condonation a mere formality.[10] Parties seeking condonation seek an indulgence from the Court for their non compliance and must, therefore, make out a case for the indulgence sought and bear the onus to satisfy the court that condonation should be granted.

[14] Furthermore, two principal requirements for the favourable exercise of the court’s discretion have crystalized out: [11]

14.1 firstly, the applicant should file an affidavit satisfactorily explaining the delay. In this regard it has been held that an applicant for condonation must at least furnish an explanation of his default sufficiently full to enable the Court to understand how it really came about, and to assess his conduct and motives. A full and reasonable explanation, which covers the entire period of delay, must be given; and

14.2 secondly, the applicant should satisfy the court, on oath, that he has a bona fide defence or that his action is clearly not ill founded, as the case may be. Regarding this requirement, it has been held that the minimum that the applicant must show is that his defence is not patently unfounded and that it is based upon facts (which must be set out in outline), which, if proved would constitute a defence.

[15] It is in this context that the Applicant’s application is to be considered.

Degree of lateness and the explanation for the delay

[16] The degree of the delay is an important factor to consider, and it is prudent that the length of the delay is properly calculated.

[17] Section 145(1)(a) of the LRA provides that any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the Commission for Conciliation, Mediation and Arbitration may apply to this Court for an order setting aside the arbitration award within six weeks of the date that the award was served on the applicant.

[18] The Applicant submits she received the Award on 23 September 2020. On 29 October 2020, the Applicant was advised by her erstwhile attorneys that she had six weeks from the date on which she received the Award, to review the Award. Accordingly, the review application ought to have been filed by no later than 4 November 2020.

[19] The review application was filed on 26 November 2020 and is thus three weeks late. A delay which the Applicant submits is not excessive.

[20] The application for condonation was only brought on 30 April 2021. The degree of lateness cannot be calculated without taking into account the further delay of five months between 26 November 2020 and 30 April 2021.[12]

Explanation for the delays

Delay in filing the review application

[21] The Applicant submits that she was only able to consult with her erstwhile attorney of record in the last week of October 2020,

after her “endless visits to their offices to beg and plead with them to afford [her] their attention without payment of their consultation fee”.[13] The exact date of the consultation is 29 October 2020. This date is provided in the replying affidavit, after the Third

Respondent takes issue with the Applicant’s failure to provide the exact date of the consultation, in her founding papers.

[22] I pause to note that as of 29 October 2020, the Applicant still had a period of four court days to file her review application within the prescribed time limits.

[23] On or about 11 November 2020, the review application was ready, and the Applicant attended to commissioning same. Despite this, it was only on 13 November 2020 that a defective review application was served on the First and Second Respondents only. In this regard:

23.1 the Third Respondent correctly points out to the Applicant that she has failed to tender an explanation as to why there was a delay from 29 October 2020 to 11 November 2020, before the review application was ready for signature. The explanation tendered by the Applicant in her replying affidavit, is that “my attorneys did all they could to bring the review application before this court as soon as possible after I deposed to the founding affidavit.”[14] This purported explanation only covers the period after 11 November 2020 and up to 26 November 2020, when the review was filed. There is no explanation before this Court as to the reasons for the delay between 29 October 2020 and 11 November 2020; (emphasis added)

23.2 as to why the review application was faxed only on 13 November 2020 despite having been ready on 11 November 2020, the explanation tendered by the Applicant in her replying affidavit is that “…my attorney only managed to attend to the prepared application on 13 November 2020 as he was not available on the 11 and 12 November 2020”.[15]

[24] In my view, the Applicant’s responses are bald in the absence of a substantive confirmatory affidavit by the Applicant’s attorneys explaining why the review was not filed on or before 4 November 2020 and enunciating the steps/actions taken by the Applicant and/or her erstwhile elected attorney, in ensuring that the review was brought timeously. I must agree with the Third Respondent’s submissions that there is no explanation as to the reasons for the delay. Put simply, the Court does not know why the Applicant failed to file her review application timeously.

[25] It is only on 26 November 2020, that the review application is filed. As already indicated, the Applicant’s submission in this regard is that her elected attorney of record had done everything he could to bring the review application before the Court, once she had commissioned same, on 11 November 2020. This too falls short of a reasonable and acceptable explanation as to the period of delay between the review application being ready and it ultimately being filed.

[26] Although a period of three weeks might not be excessive, the Applicant, in seeking an indulgence from this Court, was still required to provide a reasonable and acceptable explanation for the delay.

Delay in filing the condonation application

[27] The Applicant and her elected erstwhile attorney of record were aware, as at 29 October 2020 that the review application needed to be filed within a period of six weeks from the date of receipt of the arbitration award. In this case, on 4 November 2020.

[28] There is no attempt to address the further five month period of delay between the late filing of the review application and the condonation application, despite an invitation to do so by the Third Respondent. In its answering affidavit in the condonation application, the Third Respondent avers that the Applicant’s attorneys ought to have known that a condonation was due yet ignored this requirement of the Rules for the Conduct of Proceedings in the Labour Court[16] (Rules). The condonation application was only delivered at the behest of the Third Respondent. In replication, the Applicant does not address these averments.

[29] During the hearing of this matter, the Applicant’s representative elected to stand by the Applicant’s heads of argument, which, I must note, did not take these matters any further. Given another opportunity to address the further delay in filing the condonation application, the Applicant’s representative indicated that the priority, at the time, was the filing of the review application and that the condonation application could have been brought at any time thereafter. This explanation is wholly unacceptable.

[30] The conduct of the Applicant and her erstwhile elected attorney of record cannot be interpreted as anything other than a blatant disregard of the Rules.

Prospects of success

[31] In the authorities referred to, the principle is clear that the failure to provide a reasonable and acceptable explanation for the delay renders prospects of success immaterial.

[32] Having found that there is no explanation tendered for the delay in filing the review application and for the further delay of five months in filing the condonation application, it is accordingly not necessary for this Court to consider the prospects of success.

[33] Even if this Court were to be lenient towards the Applicant and consider her prospects of success in the review, what the Applicant has done in her condonation application is to set out some of the facts which were before the Second Respondent and some of the Second Respondent’s findings as set out in the Award. Having set out this list, the Applicant then concludes “[i]n the circumstances described above, I submit that I have good prospects of success and it is for this reason that condonation ought to be granted”.

[34] In the circumstances, the Applicant has failed to meet the minimum requirement in this regard in that she has not made any averments which, if proved, would result in the success of her review application.

[35] The Court went a step further, in an attempt to assess the Applicant’s prospects of success, and considered the Applicant’s grounds for review as contained in the review application itself. The Applicant’s grounds for review are captured thus:

“8. The application is founded on the following grounds: that

8.1. The Second Respondent failed to apply his mind properly to the matter;

8.2. The Second Respondent’s ruling is irrational and/or unreasonable in relation to the evidence/facts placed before him; and/or

8.3. The Second Respondent’s ruling is not the one that could reasonably be reached on the basis of the evidence properly before the commissioner”.

[36] In the paragraphs that follow, the Applicant, as with the application for condonation, sets out the evidence of the arbitration proceedings and the Second Respondent’s findings. No attempt is made to further elaborate as to how or the basis upon which she alleges that the Second Respondent failed to apply his mind properly to the matter and/or in which manner/s the Second Respondent’s ruling was irrational and/or unreasonable or one that could not be reasonably reached on the basis of the evidence before him. Said differently, the Applicant does not demonstrate a connection in the founding affidavit between the alleged error, the facts and what should have been the approach of a reasonable decision maker. It is only in her heads of argument that the Applicant provides meat to her grounds of review. It is not sufficient for the Applicant to simply record legal conclusions, as she has done.

[37] Rule 7A(2)(c) of the Rules, relating to review applications, provides that the notice of motion in such applications must be supported by an affidavit setting out the factual and legal grounds upon which the applicant relies to have the decision or proceedings corrected or set aside.

[38] In the matter of Comtech (Pty) Ltd v Molony N.O. and Others,[17] to which the Third Respondent’s legal representative referred, Zondo JP said the following, as regards grounds for review which do not meet the requirements of Rule 7A(2)(c), for lack of factual grounds:[18]

“[15] The difficulty with the appellant’s case in this regard relates to whether the founding affidavit contains the factual

grounds required by Rule 7A(2)(c) of the Rules of the Labour Court. …

[16] In my view, the contents of par 15 of the founding affidavit relate to conclusions of law. There is nothing either in par 15 or anywhere else in the founding affidavit which sets out the factual grounds upon which the appellant sought to base its legal grounds of review. In par 15 of the founding affidavit the deponent said that the commissioner erred in his award in that he “failed and or neglected and/or refused to apply his mind to the evidence led at the arbitration proceedings” but did not motivate this bald allegation by reference either to the evidence or the award.

[17] The deponent to the founding affidavit also said in par 15 thereof that the commissioner “furthermore did not apply his mind to the relevant case law, applicable to the facts of the matter which was presented to him, and therefore exceeding his powers as commissioner in not applying the relevant statutory authorities to the applicable facts of the case.” He did not say what case law he was referring to that the commissioner failed to apply nor did he specify the so called “relevant statutory authorities” applicable to the case that he complained that the commissioner failed to apply. There is absolutely no factual basis advanced for these complaints.

[18] It is arguable that the award in this case could possibly be reviewable if the founding affidavit had been properly drawn and the correct grounds of review had been relied upon and proper factual basis for such grounds had been set out. But, as the papers stand, it seems to me that I have no choice but to find that the appeal falls to be dismissed for the absence of a factual basis for the appellants complaints on review.” (emphasis added)

[39] It is only in her heads of argument that the Applicant attempts to elaborate on her grounds for review. Heads of argument do not

constitute pleadings. I agree with the Third Respondent that this approach offends the general rule of pleading – that the

Applicant must make out her case in her founding papers.[19]

[40] In the light of the above, I find that the Applicant has no prospects of success in the review, in the absence of proper grounds of review. It is a trite principle of our law that applicants must make out their cases in their founding and supplementary affidavits in a review application.

Prejudice

[41] The Applicant submits that the Third Respondent has not suffered prejudice as a result of the late filing of the review application.

[42] In the absence of prospects of success and an explanation for the delays, there can never be a miscarriage of justice if the Applicant is not allowed an opportunity to ventilate the review application.

[43] On the other hand, the Third Respondent would be prejudiced by having to defend a baseless review application.

Conclusion

[44] In the light of the above and having considered all relevant factors, I find that the interests of justice do not favour the granting of condonation for the late filing of the review application.

[45] The Applicant has failed to make out a case for the indulgence she seeks and has failed to discharge her onus to satisfy the Court

that condonation should be granted.

[46] In the premise, the following order is made:

Order

1. The application for condonation for the late filing of the review is dismissed.

2. There is no order as to costs.

N. Motshegare

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Thendo Khameli

Instructed by: RNK Incorporated

For the Respondent: David Short

Instructed by: Fairbridges Wertheim Becker Attorneys

[1] 66 of 1995, as amended.

[2] Brummer v Gorfil Brothers Investments (Pty) Ltd and Others [2000] ZACC 3; 2000 (5) BCLR 465 at para 3.

[3] 1962 (4) SA 531 (A).

[4] Chetty v Law Society Transvaal 1985 (2) SA 756 (A) at 765.

[5] [1999] 3 BLLR 209 (LAC) at para 10.

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

[7] See S v Di Blasi 1996 (1) SACR 1 (A) at 3g.

[8] All Round Tooling (Pty) Ltd v NUMSA (DA2/97) [1998] ZALAC 8 (15 June 1998) at para 6 and 8.

[9] Nair v Telkom SOC Ltd and Others (JR59/2020) [2021] ZALCJHB 449 (7 December 2021) at para 20.

[10] Van Niekerk J in Zono v Minister of Justice and Correctional Services In re: Minister of Justice and Correctional Services v Zono [2020] 11 BLLR 1160 (LC) at para 17. See also National Union of Mineworkers South Africa and Another v Hillside Aluminium [2005] 6 BLLR 601 (LC) at para 6 and para 20 and Grootboom v National Prosecuting Authority and another [2014] 1 BLLR (CC) at para 23.

[11] Floorworx Africa (Pty) Ltd v Mazars (Gauteng) Inc and Others (87546/2018) [2023] ZAGPPHC 722 (23 June 2023) at para 48. See also Orthotouch (Pty) Ltd v Delta Property Fund Limited (42987/2019) [2021] ZAGPJHC 122 (19 July 2021) at para 11 12.

[12] See para [12] supra

[13] Bundle A pg 52 at para 10.

[14] Bundle A pg 87 at para 9.

[15] Ibid at para 11.

[16] GN 1665 in GG 17495 of 14 October 1996 (with effect from 11 November 1996).

[17] (DA 12/05) [2007] ZALAC 35 (21 December 2007) at para 15 18.

[18] The relevant ground for review in Comtech is worded similarly to the Applicant’s grounds for review in this matter.

[19] Third Respondent’s Heads of Argument at para 50 and 51.