Mohale and Another v Allied Publishing Limited (JS281-18) [2021] ZALCJHB 108 (27 May 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JS281-18

In the matter between:

TEENAGE

PILUSA MOHALE

First Applicant

THE

INDIVIDUALS LISTED IN ANNEXURE "A" Second to Further Applicants

and

ALLIED PUBLISHING LIMITED

Respondent

Heard: 27 May 2021

Delivered: This judgment was handed down electronically by circulation to the parties’ representatives by email and release to SAFLII. The date and time for hand-down is deemed to be 10h00 on 27 May 2021.

Summary: Condonation and point in limine

JUDGMENT

COETZEE, AJ

[1] The applicant seeks condonation for the late filing of the statement of case.

[2] The certificate of outcome was issued on 22 January 2018. The statement of case was due on or about 22 April 2018.

[3] The first applicant first filed the statement of case with the Registrar of the above Honourable Court on 20 June 2018. He did so without having served the statement of case on the respondent. That, the first applicant did on 22 June 2018. Accepting that service and filing occurred, albeit in the wrong sequence, the statement of case was served and filed two months late.

[4] The first applicant in its heads of argument submits that the statement of case was filed 13 days out of time. This flies in the face of the founding affidavit in paragraph 2.1 where the first applicant states that the statement of case was referred 62 days late. In a supplementary affidavit filed by the applicant, it contends that the statement of case should have been served by 5 June 2018.

[5] The applicant does not in the supplementary affidavit or in its heads explain the calculation of the time period. In argument the first applicant relied upon the definition of "day" in the Rules of the Labour Court. This clearly is incorrect as the definition in the Rules does not apply to the time periods of the Labour Relations Act, 1995. The delay is 62 days and is excessive.

The explanation for the delay

[6] The first applicant explains that the applicants went to their union and the CCMA on 14 December 2017 when the alleged dispute was referred to the CCMA. The union, on behalf of the applicants, signed the referral form on 22 January 2018. The applicants formulate their reasons as follows:

"The reasons that applicant referred the matter like this because the Union was dealing with the matter but failed to give adequate representation and the matter was dealt with by Gatsheni Labour Justice. The applicants then sort (sic) to change the presentation for reasons already mentioned."

[7] The Court granted the applicant leave to file a supplementary affidavit, which he did approximately two months later.

[8] The applicants provided a more detailed explanation for the delay in the supplementary affidavit.

[9] After the issuing of the certificate of outcome the applicants agreed to meet the union organiser of AMCU, Koenaite, in the first week of February 2018.

[10] When they visited him on 9 February 2018, he indicated to them that the dispute would be referred to the above Honourable Court within 90 days from the date of the certificate of outcome. Koenaite also informed them that AMCU's attorneys would handle the matter.

[11] The applicants then visited the Economic Freedom fighters, a political party, to seek its intervention and they organised a march on or about 27 March 2018 to the respondent's premises where they demanded the reinstatement of the applicants.

[12] In the first week of May 2018, the first applicant for the first time again contacted Koenaite who advised him that the matter was with AMCU's attorneys who knew what they were doing. There is no explanation as to why they waited until May 2018 as the new, or should have known, that the 90-day period probably expired in April 2018.

[13] The event waited almost a month before they followed up. They next contacted him on 7 June 2018 when he informed them to contact the AMCU offices to obtain an update because the matter was handled by AMCU's attorneys and it was out of his hands.

[14] They telephoned AMCU's offices but could not get hold of someone to take the call. They followed this up with several calls on 7 June 2018 and 8 June 2018 without any success.

[15] They visited AMCU's offices on 11 June 2018 and were directed to Koenaite. The latter had referred them to the AMCU offices. They became disillusioned and then enquired from the Registrar on 11 June 2018 as whether a statement of case had been referred. They were informed there was no record of a dispute referred by AMCU.

[16] They again visited the offices of the Economic Freedom Fighters for advice on 12 June 2018 who referred them to Gatsheni Labour Justice.

[17] They consulted with this consultancy on 14 June 2018 and 16 June 2018 and they signed the statement of case on 20 June 2018.

[18] The respondent opposes the condonation application pointing out that the explanation in the supplementary has not been confirmed by anyone on the part of the union and that visiting the Economic Freedom Fighters does not amount to an explanation. The respondent also refers to the somewhat lengthy periods where the applicants did nothing to pursue their case. In particular the applicants failed to explain the delay from 9 February 2018 to the first week of May 2018. This period of approximately three months remains unexplained.

The prospects of success

[19] The applicants believe that they have good prospects of success because their dismissal was allegedly unfair as it was due to provocation from the respondent.

[20] In the supplementary affidavit the applicants take issue with the fairness of the sanction too. They were informed that they would not get the cheque which they believed was guaranteed in their contracts of employment.

[21] In addition, they were not subjected to disciplinary hearings before their dismissals. This the respondent denies. The respondent contends that they were given an opportunity to state their case before an independent person and some were indeed excused having regard to their explanations.

[22] The respondent submits that the applicants do not have prospects of success as the respondent on 10 December 2017 obtained an urgent interim interdict declaring the strike unprotected. The applicants nevertheless embarked upon a strike on 13 December 2017. They claimed that they were entitled to a 13th check that the respondent decided not to pay. The respondent points out that according to their contracts of employment the applicants were not entitled to such a cheque but that it was a discretionary payment that the respondent decided in its discretion not to pay. The applicants embarked upon an unprotected strike without lodging grievances or attempted to exhaust any other internal procedures. The applicants concede the strike was unprocedural.

[23] In addition, the unprotected strike was marred by significant disruption to the respondent's business operations and intimidation of non-striking employees. The respondent provided details of incidents. The applicants have not distanced themselves from the unlawful behaviour.

Prejudice

[24] The applicants submit that they will be prejudiced because they have not had an opportunity to have adequate representation.

[25] The respondent submits that it will suffer prejudice as their dismissals took place during December 2017 and it would be unfair to expect respondent to now have to adduce evidence about the fairness of these dismissals. By this time respondent will also not be able to lead evidence of non-striking employees from the applicants intimidated during the unprotected strike.

[26] The applicant urges the court to consider the importance of the matter when deciding upon granting or refusing condonation.

Analysis

[27] The delay of 62 days is excessive.

[28] The applicants supplemented their explanation in a much more detailed supplementary affidavit. Although the deponent may not have personal knowledge of all the facts surrounding the explanation, he seems to have been involved with driving the matter and having contact with AMCU.

[29] The visits to the Economic Freedom Fighters do not amount to an explanation as there is no explanation as to why a political party should have interfered.

[30] The explanation lacks any detail in respect of the three-month period from 9 February 2018 the first week of May 2018.

[31] The explanation is not reasonable and is lacking in detail. It is trite law that when there is an insufficient explanation, that the prospects of success become irrelevant. Under the circumstances of this case, there is no reasonable and sufficient explanation.

[32] The applicants submit that In the case of a mass dismissal, as is the case in this matter, the matter assumes some more importance above an individual dismissal case.

[33] The delay exacerbated the prejudice to the respondent who has the onus and the duty to begin with a trial in this matter. The matter relates to an unprotected strike and alleged misconduct during such a strike at numerous workplaces. It is already almost 3 years later, and the respondent maintains that it becomes very difficult to find witnesses at these various workplaces and under the circumstances of misconduct during an unprotected strike. The prejudice to the respondent outweighs that of the applicants.

[34] The respondent submitted that in any event to the extent that AMCU was negligent or amiss that there is a limit to the extent to which a litigant may hide behind such negligence. The specific union is a recognised union and in the absence of an explanation from the union as to what went wrong, the applicants cannot hide behind the neglect.

[35] While it is not necessary to consider the prospects of success, the Court nevertheless in passing had regard thereto.

[36] The individual applicants engaged in an unprotected strike. What renders their misconduct serious, is the fact that they did so in flagrant disregard of a Court order. The prospects of success, if any suffers a serious blow when they acted in breach of a Court order without an explanation in a replying affidavit as to the reasons why.

[37] In the absence of a satisfactory explanation the application for condonation stands to fail.

The point in limine

[38] In view of the finding on the application for condonation, it is not necessary to deal with the point in limine.

[39] The respondent in its answering affidavit disputed the right of the first applicant to represent the individuals listed in Annexure "A" in the condonation application.

[40] The applicant does not enjoy the right of representation in the Labour Court and cannot represent other parties. They have to join the proceedings and state so under oath.

[41] The first applicant has provided supporting affidavits in respect of some of the individual applicants. In those supporting affidavits they each claim to be an applicant in respect of the condonation application.

[42] The respondent analysed various of the affidavits.

[43] Thirty supporting affidavits have been deposed to before the same Commissioner and 15 before another Commissioner while two affidavits have not been commissioned.

[44] The two affidavits that have not been commissioned means that those individuals are not parties to the condonation application. They are Samson Mashaba and Joseph Moklabane.

[45] The respondent to dispute the accuracy of the supporting affidavits and that they were signed by the individuals who purported to sign them. The respondent recovered 40 of the personnel files and compared the signatures on the contracts of employment and applications for leave with the signatures on the supporting affidavits.

[46] According to the respondent the signatures on the supporting affidavits differ materially from those on the contracts of employment and applications for leave forms. The respondent concedes that it is not an expert.

[47] In the limited time available respondent instructed an expert instructed to compare and report on the signatures of five of the individual applicants. That expert report was filed on 24 May 2021.

[48] The expert concluded that in his view, on the available signatures, it is probable that the signatures of the five individual applicants on their supporting affidavits are not theirs. He cannot arrive at a conclusive finding for which he would need more signatures for comparison purposes.

[49] The applicants' have not filed any affidavits in response.

[50] It would be unfair to the individual applicants at this point in time on application to exclude them as applicants to the condonation application.

[51] In the event that the ruling on the application for condonation is set aside, it would be fair to allow the respondent to pursue its objection against the locus standi of the individual applicants either by re-enrolling an application in respect of the point in limine or at the trial of the matter. Otherwise only those applicants who in person attend the trial, would thereby prove that they are applicants in the matter.

[52] For purposes of the application for condonation, condonation is refused.

Costs

[53] This is an interlocutory matter where the respondent is successful. Having regard to the relevant factors there is no reason to make a costs order.

[54] The following order is hereby made:

Order

1. The application for condonation is dismissed.

2. There is no order as to costs.

F. Coetzee

Acting Judge of the Labour Court of South Africa

Appearances:

The matter has been determined on paper.

Applicant:

Instructed by: BM Mudzuli Attorneys

Respondent: Adv MJ van As

Instructed by: Brian Bleazard Attorneys