Moss and Another v General Public Service Sectoral Bargaining Council (PHSDSBC) and Others (JR2268/16) [2021] ZALCJHB 190 (27 July 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case no: JR2268/16

In the matter between:

JOHANNES BOTHA

MOSS

First Applicant

LERATO

CONCO Second Applicant

and

GENERAL PUBLIC

SERVICE SECTORAL

First Respondent

BARGAINING COUNCIL (PHSDSBC)

COMMISSIONER J.N. MATSHEKGA

Second Respondent

DEPARTMENT OF HEALTH – LIMPOPO PROVINCE Third Respondent

Heard: 09 JULY 2021

Delivered: 27 JULY 2021

Summary: review application, condonation not granted

JUDGMENT

DEANE AJ

Introduction

[1] This is an application in terms of Section 145 of the Labour Relations Act[1] (the LRA) calling for the review and setting aside of an arbitration award dated 19 December 2013 issued by the Second Respondent under case number PSHS795-13/14; alternatively, that the matter be remitted to the First Respondent for a hearing anew.

[2] The review application was filed outside of the applicable statutory time limit, and the applicant seeks condonation for the late filing thereof.

[3] The application for review was filed on 21 October 2016. In terms of s 145 of the LRA, the application was to have been filed within six weeks of the date of receipt of the award. The Applicant states that he received the award on or around 15 January 2014. The application ought therefore to have been filed by 26 February 2014. The period of delay is over two years late.

[4] It should be noted that the Third Respondent’s representatives, the State Attorney failed to appear at the hearing. They also failed to file any opposing papers despite filing a notice of opposition. The notice of opposition was filed on 16 November 2016.

[5] It is inconceivable and unacceptable that the State Attorney would simply fail to appear on the day of the hearing and fail to grant this Court the courtesy of a reason as to its failure to appear.

[6] Their office owes a duty to the Court to ensure the proper administration of justice and, in particular, in the context of employment law disputes, an expeditious resolution of the dispute which includes appearing before this court when the matter is set down for hearing especially in the face of a notice of intention to oppose being filed as well as proof of set down being successfully provided. This kind of behaviour is unacceptable.

[7] Notwithstanding the absence of the Third Respondent’s attorneys, I see no reason why this matter should not be proceeded with and I therefore proceed to deal with the condonation application.

Condonation

The test for the grant of condonation

[8] The relevant legal principles to be applied in an application for condonation are well established. This Court has a discretion, which must be exercised judicially on a consideration of the facts of each case and, in essence, it is a matter of fairness to both sides. 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.’’

[9] In this Court however, the principles have long been qualified by the rule that where there is an inordinate delay that is not satisfactorily explained, the applicant’s prospects of success are immaterial.

[10] 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.[3]

[11] This principle was confirmed in National Education Health & Allied Workers Union on behalf of Mofokeng & others v Charlotte Theron Children’s Home[4] where the Labour Appeal Court (LAC) held that without a reasonable and acceptable explanation for a delay the prospects of success are immaterial.

[12] In Colett v Commission for Conciliation, Mediation & Arbitration & others,[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.

[13] The onus is on the applicant 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, as was held in National Union of Metalworkers of SA on behalf of Thilivali v Fry’s Metals (A Division of Zimco Group) & others[6]:

‘There is, however, an additional consideration which applies in employment disputes in determining whether an applicant for condonation has discharged this onus. This is the fundamental requirement of expedition. The Constitutional Court has, as a matter of fundamental principle, confirmed that all employment law disputes must be expeditiously dealt with and any determination of the issue of good cause must always be conducted against the back drop of this fundamental principle in employment law.’

[14] The fundamental requirement of expedition is not to be ignored. In Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation &Arbitration & others,[7] the Constitutional Court emphasised that one of the fundamental purposes of the 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.

[15] 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. The expeditious resolution of labour disputes is a fundamental consideration.

[16] 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.

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

The degree of lateness

[18] In the application for condonation, the Applicants conceded that the delay is excessive. Indeed, the delay is inordinate and excessive.

[19] The degree of lateness should however not be considered in isolation.

Explanation for the delay

[20] 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.

[21] As the Applicants seek an indulgence from the Court, they bear the onus to satisfy the Court that condonation should be granted. The Applicants have to provide the Court with a full explanation for every period of the delay. It is not sufficient simply to list significant events that occurred during the period in question as that does not assist the Court to properly assess the reasonableness of the explanation.[8]

[22] The explanation for the delay has to be compelling, convincing, comprehensive, and should cover every period of the delay.

[23] In the founding affidavit before me in support of the application for condonation, the Applicants provided the following explanation for the delay:

Our reason for lateness is attributable to the lawyers we consulted, namely; Makula Attorneys, Kleynhans & Swanepoel Attorneys, Adv Klopper and Adv. Coetzee, all of whom failed to advise us of our right to review the jurisdictional ruling dated 19th December 2013, hereto annexed marked “JBM-11”. I accordingly submit that it could not have been expected of us to know the law in this regard while the lawyers, including two counsel did not know it in this regard.’’

[24] This reason was the sole reason given for the entire period for which the condonation was sought, namely that the reasons for the lateness is the failure by the Applicants’ various legal representatives to advise them of their right to review the jurisdictional ruling.

[25] I have already alluded to the fact that the Applicants should provide a full explanation for every period of the delay. The longer the delay, the more comprehensive the explanation should be.

[26] The review application is more than two years’ late and in the founding affidavit there is only a single averment as to the reason for the delay, that they were not advised of their right to review the ruling.

[27] They aver that even though they were assisted when they made the referral to the First Respondent, their then legal representatives Makula Attorneys did not advise them to bring a review application and there was no progress on the matter.

[28] The Applicants in February 2014 then appointed Kleynhans & Swanepoel as their attorneys but from February 2014 to August 2015 there was no further progress in their case. The case was simply not pursued.

[29] In August 2015, a legal opinion was sought and given. The legal opinion drafted by one Adv M Coetzee regarding the unfair dismissal dated 27 October 2015 was procured on behalf of the Applicants and whilst it is true that it makes no reference to a condonation application it states that “in order to make a legal opinion in this regard, writer needs more information as to what has transpired for the last two years. It is assumed that, in light of the email received, that Dr Conco does not have the desire to be reinstated, Therefore, it is unclear as to what is to be determined.”[9]

[30] The Applicants do not furnish reasons as to why this recourse was not pursued or why the relevant information was not given.

[31] The opinion goes further and calls for another consultation “in order to clear up all the issues……before writer would be in a position to do a thorough legal opinion….”[10] However, no explanation is forthcoming from the Applicants as to why the consultation was not pursued as well.

[32] For over a year thereafter the matter was not pursued any further.

[33] In a communication dated 4th October 2016, the then attorneys of record stated that “several documents had to be furnished in order for Adv Klopper to draft the necessary documents. Drs Moss and Conco failed to furnish the relevant documents”.[11] The Applicants then cancelled their mandate with Kleynhans and Swanepoel and their current attorneys of record were appointed on 6 October 2016. The review application was made two weeks later on 21 October 2016.

[34] Firstly, it is clear that the Applicants themselves had a hand in the delay due to their failure to submit the necessary documentation and or information. For long periods of time they simply did not pursue their case. It therefore does not help the Applicants’ case to place the blame solely at the door of their legal representatives.

[35] Secondly, and very importantly, the explanation for the inordinate delay in filing the review application is wholly unsatisfactory.

[36] The reasons and the facts do not disclose a sufficient degree of active pursuit of the matter and the explanation is clearly lacking or is inadequate in covering the entire period of the delay. Material periods of the delay remained completely unexplained. It is the opinion of this court that the explanation for the delay is sorely lacking in detail, incomplete and unsatisfactory.

[37] The Applicants have 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 Applicants failed to do so, and the explanation tendered is inadequate, far from compelling, convincing or comprehensive. The application stands to be dismissed on this ground alone.

Prospects of success

[38] 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.

[39] 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.

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

Prejudice

[41] This Court has a discretion, which must be exercised judicially on a consideration of the facts of each case and in essence it is a matter of fairness to both sides.

[41] In respect of prejudice, the Applicants submitted that they would be severely prejudiced if the application is not granted as they would be prevented from rendering services as dentists to the state as a major consumer of their services and adversely affect their income generating capacity.

[42] From the papers before me, it is clear that the Applicants are still capable of generating an income as dentists, just not from the State. They are therefore not disbarred from practicing as dentists or earning an income.

[43] I am also obliged to weigh the issue of prejudice against the prejudice that the Third Respondent would suffer even in the absence of any reasons given. The delay in filing the review application is of significant prejudice to the Third Respondent. The Applicants were dismissed as far back as December 2013 and this application serves before this Court in 2021, almost a period of eight years has lapsed. Therefore, to prolong the litigation while there is no justifiable reason to do so, flies in the face of the object of expeditious resolution of labour disputes.

[44] While the refusal to condone the late filing of the application for condonation will have the result that the Applicants will be denied the opportunity to pursue the review, the Constitutional Court pointed out in Toyota SA Motors (Pty) Ltd[12] that excessive delays in litigation may induce a reasonable belief on the part of a successful litigant that the order or award had become unassailable. As the Constitutional Court observed, this principle applies with even greater force in labour disputes.

[45] In casu, all parties are entitled to finality in this matter.

[46] I further have to endorse the aim of the LRA namely; 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.

[47] On an objective conspectus of all the facts, the Applicants’ application for condonation falls hopelessly short off the mark. The Applicants 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.

Order

Condonation for the late filing of the review application is refused.

T Deane AJ

Acting Judge of the Labour Court

Appearances:

For the Applicant:

Moloko Phooko Attorneys

For the Third Respondent:

No Appearance

[1] 66 of 1995 (as amended).

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

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

[4] [2004] 25 ILJ 2195 (LAC) at para 23.

[5] [2014] 6 BLLR 523 (LAC), (2014) 35 ILJ 1948 (LAC).

[6] [2015] 36 ILJ 232 (LC).

[7] [2016] 37 ILJ 313 (CC).

[8] See: Independent Municipal & Allied Trade Union obo Zungu v SA Local Government Bargaining Council & others [2010] 31 ILJ 1413 (LC).

[9] Pg. 19 para. 2.2 to the Notice of Motion

[10] Pg. 19 para. 3 to the Notice of Motion.

[11] Pg. 21 to the Notice of Motion.

[12] [2016] 37 ILJ 313 (CC); [2016] 3 BLLR 217 (CC); [2016] 3 BCLR 374 (CC).