Mokeona and Others v City of Johannesburg Metropolitan Municipality and Others (JR537/21) [2024] ZALCJHB 539 (3 April 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR537/21

In the matter between:

TELLO JAN MOKOENA & 24 OTHERS

Applicants

and

CITY OF JOHANNESBURG METROPOLITAN

MUNICIPALITY

First Respondent

SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL

Second Respondent

COMMISSIONER PALESA MAWASHA N.O.

Third Respondent

Heard: 1 February 2024

Delivered: 03 April 2024 (This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing-down is deemed to be 10h00 on 03 April 2024.)

JUDGMENT

PHEHANE, J

Introduction

[1] The applicants bring a review application in terms of section 145 of the Labour Relations Act[1] (LRA) to review and set aside a condonation ruling by the third respondent dated 5 February 2021.[2]

[2] The review application is opposed by the first respondent.

[3] The applicants were employed as security guards by the first respondent. During the course of their employment, they were

subjected to a security vetting process. The vetting process revealed that the applicants had criminal records that had not been expunged. Subsequently, they were called to make representations as to why the first respondent should not dismiss them. After considering their written representations, the applicants were dismissed with effect from 1 December 2019.

[4] The applicants approached their trade union for assistance in challenging their dismissals. They initially approached the Commission for Conciliation, Mediation and Arbitration (CCMA), after which they were directed to approach the second respondent. Finding no joy with their trade union, they employed the services of another trade union which also could not assist them. The applicants were ultimately referred to an attorney, who, unfortunately for the applicants, omitted their names in the referral documents pertaining to the unfair dismissal dispute. The result is when the applicants ultimately launched a referral before the second respondent, they were out of time – exacerbated by the stringent COVID-19 lockdown restrictions. They consequently brought an application for condonation.

[5] The third respondent considered the condonation application and found that the delay was excessive, as the referral was launched approximately 385 days late. The third respondent also found that the applicants did not proffer a reasonable and acceptable explanation for the delay. Further that the prospects of success in the main dispute were slim. In this regard, the third respondent took cognizance of similar disputes regarding the same employer and concerning the same facts, one of which, she presided over, and concluded that the applicants, being aware of these previous matters, had no prospects of success in their dispute before the bargaining council. In the premises, the application for condonation was dismissed. This condonation ruling is the subject matter of the current review application.

Grounds of review

[6] The grounds of review in essence, are that the third respondent misconducted herself and committed an irregularity in the procedural approach she undertook when determining the applicant’s condonation application which approach was unfairly prejudicial to the applicants in the following respects: the third respondent decided the condonation application on paper and failed to comply with the provisions of Rule 31(9) and (10) of the Rules of the bargaining council, in that neither the second or third respondent notified the parties in what manner the condonation application would be determined. Therefore, the applicants were denied a fair hearing. Further, when the third respondent considered the prospects of success, she offended against the principle of audi alteram partem in that she considered a previous similar dispute over which she presided and denied the applicants the opportunity of making representations on the merits of their dispute before her. The applicants further allege that the third respondent had before her, documentation which had not been served on the applicants and in this regard, they were also denied the opportunity of a fair hearing.

[7] The first respondent denies that the applicants were not afforded a fair hearing when the condonation application was determined by the third respondent. The first respondent accordingly contends that the ruling on condonation is reasonable.

Evaluation

[8] Rule 17 of the Rules of the second respondent provides that the conduct of conciliation and arbitration proceedings before the Council shall be conducted in accordance with the Rules of the CCMA as determined from time to time and annexed as Annexure 8 to the Council’s Rules.

[9] Rule 9 of the first respondent’s Rules makes provision for the procedure of seeking condonation for the late delivery of documents and reads thus:

‘9. How to seek condonation for documents delivered late

1) This Rule applies to any referral document or application delivered outside of the applicable time period prescribed in the Act or in these Rules.

2) A party must apply for condonation, in terms of Rule 31, when delivering the document to the Council.

3) An application for condonation must set out the grounds for seeking condonation and must include details of the following:

a) The degree of lateness;

b) The reasons for the lateness;

c) The referring party’s prospects of succeeding with the referral and obtaining the relief sought against the other party;

d) Any prejudice to the other party; and

e) Any other relevant factors.

4) The Council may assist a referring party to comply with this Rule.’

[10] Rule 31 of the second respondent’s Rules makes provision on how to bring an application, including a condonation application. It makes provision for the filing of affidavits. Rule 31(9) and 31(10) of the second respondent’s Rules mirror that of the CCMA and provide as follows:

‘(9)

a) The Council must allocate a date for the hearing of the application once a replying affidavit is delivered, or once the time limit for delivering a replying affidavit has lapsed, whichever occurs first.

b) The Council must notify the parties at the date, time and place of the hearing of the application.

c) Applications may be heard on a motion roll.

10) Despite this Rule, the Council or a commissioner may determine an application in any manner it deems fit, provided that the Council or the commissioner informs the parties of how the process will be conducted and gives the parties an opportunity to be heard.’ [Emphasis added]

[11] The provisions of the aforesaid Rule are couched in mandatory terms. In the present case, there is no indication that any notice of set down was served on either party by the second respondent, notifying them of the date, time and venue of the hearing of the condonation application.

[12] It is not disputed that the condonation application was decided on the papers. Nothing deterred the third respondent from deciding on the condonation application on the papers. However, the third respondent was enjoined in terms of the provisions of Rule 31(10), in the event that she elected not to schedule the condonation application for hearing and to decide the dispute on paper, to notify the parties of this and to ensure that the manner in which she sought to determine the condonation application was fair to both parties and that both parties would be afforded an opportunity to be heard. In this regard, there is no notice by the second respondent to the parties indicating that the condonation hearing would be decided on the papers.

[13] The import of the provisions of Rules (9) and (10) is that where the commissioner or Council determines to hear oral evidence or determines to decide the dispute on the papers, the parties must be kept informed of the election made and must be given an opportunity to be heard.

[14] In Kungwini Residential Estate & Adventure Sport Centre Ltd v Mhlongo NO and others[3] (Kungwini), the Labour Appeal Court (LAC) considered the content of Rule 31 (10) of the CCMA Rules and held that the subrule could not be used to dispense with the requirement of notifying the parties of the commissioner’s intention to hear a matter. The LAC further held as follows:

‘For a commissioner to hear and determine an application for condonation without notice to the parties would be to ignore the audi alteram partem rule. There is no indication in the papers that any such notice was given to either the third respondent, who had applied for condonation, or the appellant.’

[15] The LAC went on to state as follows:

‘Even if I am wrong, however, and rule 31(10) empowered the commissioner to hear and determine the application which had not been set down, I am of the view that the commissioner, in deciding the rescission application against the appellant, misdirected himself in certain material respects and that his reasons did not justify his decision.’[4]

[16] In SRK Consulting (South Africa) (Pty) Ltd v Suliman and others[5], the LAC described the purpose and import of Rule 31(10) of the CCMA Rules and stated as follows:

‘Rule 31(10) effectively allows for expedition without the strictures of formality, provided that there is fairness. This is consistent with the objectives of the LRA and decisions of this Court and the Constitutional Court that the CCMA and its commissioners ought to resolve disputes fairly and expeditiously and not allow proceedings to be bogged down or retarded for want of formality where there is substance. Undue formalism in the application of the CCMA Rules could be destructive of the CCMA’s mandate with regard to the resolution of disputes.’ [Emphasis added]

[17] With the afore-going decisions in mind, it follows therefore, that in failing to notify the parties as to how the condonation application would be conducted, the parties were not given a fair hearing. In particular, the applicants were not granted the opportunity to be heard on the merits and the prospects of success in the main referral. They would in all probability, would have required the third respondent to recuse herself, as she determined the Morris Makamu v City of Johannesburg[6] dispute with similar facts and regarding the same employer. The merits and demerits of such an application are unknown and the

appropriate forum to have determined such a dispute would have been before the second respondent in order that all parties be given a fair opportunity to be heard.

[18] The applicants were further denied an opportunity to be heard on additional documentation totalling 190 pages that they aver was not served on them, which according to them, the second respondent considered. The first respondent concedes that the applicants were not served with these documents.[7] In my view, the statement that the applicants had these documents in their possession is no excuse not to serve them on the applicants. It is unclear how these documents were presented to the second respondent as they pertain to the merits of the dispute and are not annexures to the first respondent’s affidavit opposing condonation.

[19] In the circumstances, I find that the grounds of review have merit. The third respondent committed an irregularity by failing to notify the parties as to how the condonation application would be determined. In so doing, she ignored the audi alteram partem rule. Further, the third respondent misconducted herself in her duties as commissioner and committed an irregularity in the conduct

of the proceedings in failing to satisfy herself that the applicants were afforded an opportunity to be heard on all the material before her, such material being documents not served on the applicants, which include the first respondent’s written submissions.[8]

[20] In determining the prospects of success, the third respondent correctly found that each case is determined on its own merits – in not affording the applicants the opportunity to be heard on the merits of their own case and the prospects of success, being one of the requirements in a condonation application[9] which she was to determine, the third respondent offended the audi alteram partem principle. The aforesaid irregularities in my view, distort the outcome of her decision.

[21] In view of the afore-going, I find that the decision of the third respondent is reviewable. [10]

[22] In the premises, the following order is made:

Order

1. The condonation ruling dated 5 February 2021 is reviewed and set aside.

2. The matter is remitted to the second respondent to be determined afresh before a Commissioner other than the third respondent.

3. There is no order as to costs.

M. T. M. Phehane

Judge of the Labour Court of South Africa

Appearances

For the Applicants: N. Morwasehla of Morwasehla Attorneys

For the First Respondent: Adv S. Cooper

Instructed by:

Tshiqi Zebediela Inc.

[1] Act 66 of 1995, as amended. The applicants handed up an email evidencing the receipt of the condonation ruling by them on 12

February 2021 by e-mail. The applicants have filed a service affidavit demonstrating that the review application was served on

the respondents and filed with the Registrar of this Court on time and the physical filing of the application with the Registrar took place subsequently.

[2] See: Notice of motion, p 1 and founding affidavit at para 6.1 on p 5.

[3] [2005] ZALAC 11; [2006] 5 BLLR 423 (LAC) at para [13].

[4] Ibid at para [19].

[5] [2019] JOL 44427 (LAC) at para [16].

[6] SALGBC case no: JMD022005, dated 27 November 2020 at pp 87 to 102.

[7] See: answering affidavit at para 29 on pp 44 to 45.

[8] The respondent’s written submissions do not to form the record of the proceedings before the third respondent, but are filed as part of the record nonetheless. The representative of the third respondent informed the Court that these written submissions reached the second respondent after she had made her decision.

[9] It is trite that in a condonation application, the presiding officer is to consider the following factors: (a) the extent of the delay; (b) the reasons therefore; (c) the prospects of success; and (d) the prejudice to the other party. In Grootboom v National Prosecuting Authority and another [2013] ZACC 37; (2014) 35 ILJ 121 (CC) at para [50], the Constitutional Court stated that the factors that are to be considered, in the interests of justice, in determining a condonation application include the following: ‘(a) the length of the delay; (b) the explanation for, or cause 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 party or parties; and (f) the effect of the delay on the administration of justice.’ The Constitutional Court went on further to state at para [51] 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 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. 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.’

[9] It is trite that in a condonation application, the presiding officer is to consider the following factors: (a) the extent of the delay; (b) the reasons therefore; (c) the prospects of success; and (d) the prejudice to the other party. In Grootboom v National Prosecuting Authority and another [2013] ZACC 37; (2014) 35 ILJ 121 (CC) at para [50], the Constitutional Court stated that the factors that are to be considered, in the interests of justice, in determining a condonation application include the following:

‘(a) the length of the delay;

(b) the explanation for, or cause 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 party or parties; and

(f) the effect of the delay on the administration of justice.’

The Constitutional Court went on further to state at para [51] 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 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. 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.’

[10] Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others [2013] ZALAC 28; (2014) 35 ILJ 943 (LAC).