Mokoka and Others v Education Labour Relations Council (ELRC) and Others (JR745/10) [2013] ZALCJHB 350 (24 October 2013)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 745/10

In the matter between:-

MOKOKA AML, MAMOGOBO SR and 46 OTHERS

Applicants

and

EDUCATION LABOUR RELATIONS COUNCIL (the ELRC)

First Respondent

HAWYES N.O

Second Respondent

GAUTENG DEPARTMENT OF EDUCATION

Third Respondent

Heard: 30 August 2012

Delivered: 24 October 2013

Summary: An application for condonation of the late filing of a review application cannot be granted in the absence of valid and reasonable explanation for the lateness.

Review application in terms of Section 145 of LRA non-renewal of a fixed-term contract.

JUDGMENT

LALLIE, J

Introduction

[1] This is an application to review and set aside an arbitration award of the second respondent in which he dismissed the applicants’ unfair dismissal dispute on the grounds that they were not dismissed.

Factual background

[2] The applicants worked for the second respondent as part time educators on different fixed term contracts. The duration of each contract was a year and most of them were renewed a number of times. The applicants rendered their services as educators of Adult Basic Education (ABET) at the Reneilwe and Mamelodi Adult Centers. When their 2008 contracts expired in December 2008 they were renewed by one month to the end of January 2009. The Applicants submitted that they were dismissed verbally on 30 January 2009 with immediate effect without any procedure having been followed and/or hearing or for unknown and unwritten reasons. The applicants filed their review application late and applied for condonation.

[3] The third respondent opposed both the condonation and the review applications. It further raised the point in limine that the names of the applicants referred to in the heading of the notice of motion were not attached to the founding papers. Further,

Mokoka, the deponent to the founding affidavit was not authorized by the 46 applicants to depose to the application on their behalf. It sought the dismissal of the 46 applicants’ claim with costs, on that ground alone. In an attempt to cure the defect the applicants filed a notice in which 35 of them confirmed their representation by their co-employee. In the notice they intimate that they reiterate their appointment of their colleague, Anna Mmameriri Lucia Mokoka (‘Mrs. Mokoka’) to depose to all documents relevant to the resolution of their dispute referred to the first respondent and the Labour Court on their behalf. They further appointed Sydney Dingaan Mokoka (‘Mr. Mokoka’) to represent them or act on their behalf in the arbitration proceedings and further recourse, to depose to affidavits, deliver documents on their behalf and seek any legal assistance. They identified themselves as applicants involved in this matter by recording their names and appending their signatures. Most of them have provided their Persal numbers. Only Mr. Mokoka filed a confirmatory affidavit to the founding affidavit. Attached to the replying affidavit are confirmatory affidavits of Fredah Nomkhosi Hlatswayo (Hlatswayo), Mr Mokoka and Lucy Geminah Segone (Segone) confirming the contents of all the affidavits attested to by Mrs. Mokoka.

[4] The document in which the 35 applicants identified themselves is not an affidavit and therefore does not constitute evidence. Applicants are not required to identify themselves by means of an affidavit, however, the same does not hold for purposes of placing facts before Court. The 35 applicants and Mr and Mrs Mokoka are properly before Court. Factual averments made in the affidavits filed on behalf o

[5] +f the applicants, including authorizing the deponent to the affidavits to attest to them on their behalf should have been contained in an affidavit. The effect of the failure by some applicants to file confirmatory affidavits is that there are no factual averments regarding their case before Court. They have neither authorized Mrs Mokoka to depose to the affidavits nor does her evidence cover their claim. Although properly before Court, they have not presented their case. The evidence in the affidavits filed on behalf of the applicants covers the deponent and those applicants who attested to confirmatory affidavits. The applicants’ submission that Selowa was not duly authorized to depose to the answering affidavit as no resolution or authorizing document was attached has no merit. It was not necessary for the documents to be attached.

Condonation

[6] It is common cause that the applicants’ founding affidavit was filed late. The late filing of the review application may be condoned on good cause shown.

[7] In F v Ministser of Safety and Security and Another (Institute for Security Studies, Institute for Accountability in Southern Africa

Trust and Trustees of the Women’s Legal Centre as Amici Curiae)[1] the following was stated:

‘[28] It is now trite that condonation will be granted if it is in the interests of justice to do so, and if there appear to be reasonable

prospects of success on appeal. Factors to be considered with regard to the interests of justice include the reason for the delay, and the extent of the prejudice, if any, that was suffered by the other party.’

[8] The aforesaid approach is consistent with the decision in Melane v Santam Insurance Co Ltd,[2] a decision which has formed the basis of all leading Labour Court jurisprudence on condonation. The following is stated at page 534 of Melane (supra)

‘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 is the degree of lateness, the explanation therefor, 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 could 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 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 for prospects of success 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 interest in finality must not be overlooked.’

[9] The applicants submitted that their application is 65 days late, but the third respondent submitted, correctly so, that a proper calculation of the delay reveals that it is 80 days. Even on the applicants’ version the degree of lateness is serious.

[10] In explaining the reasons for the delay the applicants submitted that owing to financial constraints they authorized Mr. Mokoka to find free legal assistance for them. On 26 November 2009, he consulted the Legal Aid Board in Pretoria. It confirmed an appointment for 18 January 2010 and further informed him that its offices would be closed during the December period. Assembling all 47 applicants posed a problem and consumed time as during the December holidays many were at their homes in Limpopo and Mpumalanga. He could not get assistance from the University of Pretoria Law Clinic, which he approached in December 2009. His efforts to get help from the African Legal Network Attorneys in February and March 2010 did not bear fruit. Having the dispute conciliated for the second time in March 2010 was also not successful. Having experienced all the above difficulties the applicants filed their application on 29 April 2010. The applicants submitted that their prospects of success are reasonably strong and bona fide and that the delay posed no prejudice to the third respondent.

[11] A consideration of the reasons for the delay forces one to wonder why Mr. Mokoka did not return to the Pretoria Legal Aid Board office on 18 January 2010, having secured an appointment for the said date. As the applicants received the award on 11 December 2009, 18 January 2010 fell within the six (6) weeks’ period in which they should have filed their review application. Had the applicants honoured their appointment, their application would have been filed on time and the delay avoided. The applicants proffered no reason for not honouring the appointment with an institution which was willing and able to help them. They therefore have themselves to blame for the lateness.

[12] Although the applicants argued that the third respondent will not suffer any prejudice as a result of the delay, there is merit in the latter’s argument that their right to have the dispute determined expeditiously was violated by the delay. The test to determine whether it is in the interests of justice that condonation be granted also requires the reason for the delay to be considered. The combination of the excessive delay and the absence of a reason thereof is fatal to the applicants’ condonation application.

Conclusion

[13] In the premises the following order is made:

[13.1] Only Anna Lucia Mameriri Mokoka, Dingaan Sidney Mokoka and all the applicants whose names appear in the list attached to the supplementary affidavit are properly before Court;

[13.2] The application for condonation of the late filing of the review application is dismissed;

[13.3] The application for review is dimissed.

____________________________

Lallie, J

Judge of the Labour Court of South Africa.

Appearances:

For the Applicants : Mr. Goldberg of Goldberg Attorneys

For the Respondents: Advocate Nobanda

Instructed by : The State Attorney

[1] (2012) 33 ILJ 93 (CC)

[2] 1962 (4) SA 531 (A) at 532B.