Motloung v Malubane and Others (JR1149/2022) [2024] ZALCJHB 230; (2024) 45 ILJ 2334 (LC); [2024] 11 BLLR 1166 (LC) (6 June 2024)

FAMILY – LABOUR – Costs – Hopeless case – Argued that condonation application constituted hopeless case and that costs order against applicants appropriate – University of South Africa v Socikwa discussed – Applicants failed because they did not satisfactorily explain reasoning and timing of change in legal strategy – Argument for condonation was weak, but made in bona fide attempt to realise their constitutional right to fair labour practices – Application to condone late filing of review application is dismissed – No order as to costs.

THE LABOUR COURT OF SOUTH AFRICA, RANDBURG

Reportable

Case No: JR1149/2022

In the matter between:

THULANI MOTLOUNG & 33 OTHERS

First to Further Applicants

and

BUTI MALUBANE N.O. First Respondent

THE COMMISSION FOR CONCILIATION,

Second Respondent

MEDIATION AND ARBITRATION

HESMONA PLASTERS (PTY) LTD Third

Respondent

Heard:21 February 2024

Delivered:6 June 2024

This judgment was handed down electronically by emailing a copy to the parties. The 6th of June 2024 is deemed to be the date of delivery of this judgment.

Summary: Review Application – application for condonation for late filing – court has wide discretion to grant condonation in the interests of justice after primarily considering degree of lateness, explanation for lateness, applicant’s prospects of success in the main dispute – further ancillary considerations include relative prejudice to the parties, importance of the case, respondent’s interest in finality, convenience of the court, avoidance of unnecessary delay

Review Application – application for condonation for late filing – change in legal strategy not complete bar to obtaining condonation – vital for applicant to explain thinking behind change and timing thereof

Costs – hopeless case – precedent in Mashishi v Mdladla clarified – dividing line between weak case and hopeless case not always clear – creative legal argument in the interests of justice permissible and important for Rule of Law, development of jurisprudence and realisation of section 34 the Constitution – case only hopeless when inarguable – improper for legal practitioner to present inarguable case to court

Costs – hopeless case – sanction against legal practitioners for presenting hopeless case includes forfeiting fees – test for misconduct of this nature is subjective not objective – legal practitioners must be provided opportunity to defend their conduct

JUDGMENT

MEYEROWITZ AJ

Introduction

[1] Mr Thulani Motloung and 33 other individuals (the Applicants) referred a dispute to the CCMA alleging that they had all been unfairly dismissed by the third respondent, Hesmona Plasters (Pty) Ltd (Hesmona), on 31 January 2020.

[2] There is a material dispute about what took place on 31 January 2020. Hesmona claims that the Applicants embarked on an unprotected strike and, when the strike became violent, Hesmona closed the worksite for the day because of safety concerns. The Applicants claim that they were not on strike and, when they arrived at work on 31 January 2020, they were simply dismissed for no reason.

[3] On 21 February 2020 the first respondent (the Commissioner) ruled that the Applicants had embarked on an unprotected strike and, as a result, the CCMA lacked jurisdiction to hear their dispute (the Jurisdictional Ruling). In his ruling the Commissioner specifically advised the Applicants to refer their dispute to the Labour Court. After referring the matter to the Labour Court Hesmona excepted to the Applicants’ statement of claim, and the Applicants duly amended. On 2 July 2021, Matyolo AJ granted the Applicants’ condonation for the late filing of their statement of claim, whereafter Hesmona filed its statement of defence. In its statement of defence Hesmona raised a point in limine claiming that the Labour Court lacked jurisdiction because the Applicants had not been dismissed.

[4] Curiously, the matter was then set down on the interlocutory roll of 11 February 2022 for determination of the point in limine (a point in limine which seems on the face of it to have required viva voce evidence). Curiouser still, on the date of the interlocutory hearing the Applicants summarily withdrew their claim in the Labour Court.

[5] Approximately two months later, on 31 March 2022, the Applicants launched an application to review the Jurisdictional Ruling and have it replaced with a finding that the CCMA actually has jurisdiction to determine their unfair dismissal dispute. The review

application was therefore launched more than two years after the Jurisdictional Ruling was handed down on 21 February 2020, meaning

that the Applicants had to apply for condonation of their late filing in terms of section 145(1A) of the LRA.

[6] It is the Applicants’ condonation application, and if granted their review application, that I am now required to decide.

The application for condonation

[7] This court has a wide judicial discretion to grant condonation if it would be in the interests of justice to do so after primarily considering the following interrelated factors: the degree of lateness, the explanation for the lateness, and the applicant’s prospects of success in the main dispute.[1] The Labour Courts have also, at various times, given additional consideration to the following ancillary factors: the relative prejudice to the respective parties should the application be granted or refused, the importance of the case, the respondent’s interest in the finality of the dispute, the convenience of the court, and the avoidance of unnecessary delay in the administration of justice.[2]

[8] In light of the Constitutional imperative for the expeditious resolution of labour disputes, condonation is not merely there for the asking.[3] An applicant bears a heavy onus to convince a court that an indulgence should be granted.[4]

[9] In SA Post Office Ltd v Commission for Conciliation, Mediation & Arbitration & others[5] the Labour Appeal Court (LAC) held that it is “generally accepted that if an applicant does not provide an acceptable explanation for its delay, the court need not consider the other factors and refuse condonation. This again is not an inflexible rule. It applies where the other factors do not in themselves raise issues that could necessitate the court’s interference to grant the indulgence sought”[6].

[10] In the present matter the Applicants have provided a very poor explanation for a delay of some two years. In their founding affidavit the Applicants simply say, somewhat obliquely, that on the advice of their attorney they needed to change their legal strategy by withdrawing the Labour Court action and instituting the present review application. Crucially, the Applicants do not take this court into their confidence and explain the thinking behind this change of legal strategy.

[11] At the hearing of this matter I asked the Applicants’ representative, Advocate Matlhoane, to explain the thinking behind the change in strategy. Unable to do so, he asked if his instructing attorney, Mr Madonsela, could address the court on this issue (which I allowed). Mr Madonsela said that the decision to refer the matter to the Labour Court was “overzealous from the advocate that we instructed initially” and that there had been “a couple of counsels in this matter with different interpretations of the law”. Mr Madonsela explained that “at the end of the day” the decision to refer the dispute to the Labour Court was “incorrect” because the Commissioner’s ruling was “defective”. He insisted that the change in legal strategy was nonetheless made bona fide.

[12] The above explanation is very poor. Neither the Applicants nor their representatives could explain the thinking behind the change, which in my view is crucial in a condonation application such as this.

[13] A change of legal strategy was considered in the string of cases beginning with Edcon v Steenkamp, and Related Matters[7] (Steenkamp I LAC). In this case the employee parties had been dismissed prior to the expiry of the time periods set out in section 189A(8) of the LRA. Relying on two decisions of the LAC which found that such dismissals were invalid rather than unfair (known as “the De Beers principle”),[8] the employees referred a dispute to the Labour Court claiming that their dismissals were invalid, alternatively procedurally unfair. The employer excepted to the statement of claim arguing that the De Beers principle was clearly wrong. The matter was then set down before the LAC sitting as a court of first instance. Prior to the hearing the employees abandoned their alternative claim that the dismissals were procedurally unfair and, instead, focussed on their main claim that the dismissals were invalid.[9]

[14] When the matter was eventually heard the LAC found that the De Beers principle was indeed clearly wrong. The court held that the correct remedy for such dismissals was a claim for unfairness rather than invalidity. This decision was confirmed on appeal by the Constitutional Court (ConCourt) in Steenkamp and Others v Edcon Ltd[10] (Steenkamp I CC) by a majority of nine judges to two. In response to this judgment the employees referred a fresh procedural unfairness

dispute to the Labour Court and applied for condonation for the late filing thereof on the basis that they had reasonably been pursuing the invalidity claim which was good law until overturned by the LAC and subsequently the ConCourt. The Labour Court granted condonation. However, on appeal in Edcon Ltd v Steenkamp & Others[11] (Steenkamp II LAC) the LAC refused condonation and held as follows:

‘[29] The abandonment of the alternative unfairness causa in the face of a direct and open challenge to the correctness of the invalidity causa is not explained. It was a huge risk, with no apparent forensic advantages to weigh up.

[30] When this court in March 2015 upheld the [employer’s] challenge, instead of a [procedural fairness] application being made then, together with an application for condonation, the respondents threw their only egg [the invalidity claim] into the Constitutional Court’s basket, despite its by now cracked condition. Then only after the Constitutional Court tossed it out of the basket did the respondents change tack.

[31] Plainly, a litigation strategy had been adopted that rested on a single premise, and notwithstanding challenges to it, no fall-back position was adopted. Indeed, the procedural unfairness causa had been expressly abandoned.

[32] The fate of a failed legal strategy is doom. That risk is intrinsic to our system of litigation. Moreover, a fair litigation system demands that the adversaries know what cases they have to meet. It is not unknown to commence litigation, whether as a claimant or a defendant, having designed and formulated a claim or a defence on a given premise, only to be upended by developments in the law by the end of the case. This phenomenon is an occupational hazard in litigation. It is unthinkable that a party can claim a right to bite at the cherry, if the raspberry, initially chosen, is sour.

[15] On appeal in Steenkamp & Others v Edcon Ltd[12] (Steenkamp II CC) the ConCourt agreed with the LAC and refused condonation. Interestingly, Basson AJ held as follows: “Although I do accept that a subsequently overturned legal strategy may constitute a reasonable explanation for the delay, this explanation must be viewed in its proper context. The s 189A(13) procedure [to challenge procedural unfairness] has always been available to the applicants at that time. Yet they made an informed and deliberate choice to follow the De Beers avenue as opposed to the s 189A(13) procedure, because they regarded it a ‘slam dunk’ with no fall-back position. Only once this avenue had been closed off, did they turn to the s 189A(13) procedure”. (my emphasis)

[16] I do not read the above judgments as authority for the proposition that a change in legal strategy will aways be a complete bar to condonation. In my view, if there exists a good reason for the change, then condonation may be appropriate. However, in the Steenkamp matter the courts held, in effect, that there was no good reason for the employees to have abandoned, when they did, their alternative prayer that the dismissals were procedurally unfair, and that they should be held to that election.[13]

[17] In the present matter neither the Applicants nor their representatives were able to explain why they changed their legal strategy when they did. In fact, I still do not know why they changed their legal strategy. I might suppose that on the eve of the interlocutory application one of the representatives realised that a claim for unfair dismissal based on involvement in an unprotected strike (in terms of s191(5)(b)(iii) of the LRA) was incompatible with the Applicants’ version that they were not on strike. Even if I am entitled to make this supposition (and I am not), this would still not explain why the change in strategy took place some two years after the Jurisdictional Ruling was handed down. Were Hesmona’s heads of argument for the interlocutory hearing

particularly persuasive? Was some new case law handed down that affected counsel’s thinking? Was new counsel appointed at that particular time? In explaining why they deserve to be granted condonation the Applicants do not even attempt to address these

issues.

[18] In light of the very poor explanation for the delay, on the authority of Chetty v Baker McKenzie[14] I must attach very little, if any, weight to the Applicants’ prospects of success. In that case the LAC held that “It is important that the explanation for the delay, considered objectively, must be ‘sufficiently cogent to warrant a consideration of the prospects of success’. There are those explanations that do not meet the objective standard. In such cases the court would be justified in not considering the prospects of success, because they are immaterial, unless issues are raised that would justify the court’s interference.”[15] The explanation provided in this matter (that there was a change in legal strategy) barely reaches the threshold where a consideration

of the prospects is even warranted (because the Applicants have failed to explain the reasons for, and timing of, the change in legal strategy). However, I cannot ignore the fact that the prospects of success are actually quite good.

[19] The Applicants were unrepresented during arbitration and clearly had no idea of how to present their case. The Commissioner explained to them that they needed to prove that they had been dismissed, but he gave them no further assistance on how to go about doing so. After the Applicants had finished with their first and only witness (who curiously was not even employed by Hesmona), it was as clear as daylight that they had not come close to proving, even on a prima facie basis, that they had been dismissed.

[20] In their review application the Applicants argue that the Commissioner should have warned them that they had failed to lead evidence in support of their version (as required by section 21 of the CCMA Guidelines on Misconduct Arbitrations). They argue further that the Commissioner failed to advise them on the perils of not testifying on material issues[16] and of not putting their version to witnesses under cross-examination.[17] The Commissioner also failed to call for closing argument.[18] As the footnotes appended to each of the aforementioned arguments demonstrate, these are all competent grounds of review.

[21] In circumstances where the explanation for the delay and the prospects of success pull in opposite directions, I must have regard to the ancillary considerations mentioned in paragraph [7] above and, ultimately, decide whether it would be in the interests of justice to grant condonation.

[22] Hesmona clearly has an interest in the dispute being finalised so that it can arrange its affairs accordingly, and its ability to run an arbitration will no doubt be compromised by the passage of four years. Yes, this matter is important to the Applicants, but no more important than to the thousands of other people who allege unfair dismissal in the CCMA and the Labour Courts on an annual basis. I should also point out that, while the Applicants have good prospects of setting aside the Commissioner’s ruling, their prospects of ultimately obtaining an unfair dismissal award in the CCMA appear to be rather poor.

[23] Hesmona’s version is that the Applicants were engaged in violent unprotected strike action outside the worksite (it being common cause that the Applicants had made demands to improve their working conditions). As a result of security concerns that necessitated security guards and police officers with dogs, Hesmona closed the worksite for the day. Hesmona’s Mr Benjamin De Buys then told the Applicants that the worksite was closed for the day and told them to go home. This version has been consistently made in the CCMA, in the Labour Court action, and in these review proceedings. The Applicants’ only witness in the CCMA was actually someone looking for a job at Hesmona on the day in question, and he claimed that Mr De Buys said, “all people must leave because there is no more job, the job is finished”. In their statement of claim the Applicants make reference to security officers with a dog, and allege that Mr De Buys told them that “the Company has been closed, and you can go home”. In their founding affidavit in the review proceedings the Applicants embroider this allegation claiming that Mr De Buys said

“the Company Hesmona has been closed, you are all shit and you can go home. That there is no work anymore”. In my view the Applicants’ version is hardly even at odds with Hesmona’s version, and may actually be consistent with Hesmona’s allegation that there was no dismissal. In my view, even under the most favourable conditions, the Applicants would still struggle to discharge the onus that they had been dismissed (whether or not they were actually on strike).

[24] The Constitutional imperative for the expeditious resolution of labour disputes is a factor that weighs heavily against the Applicants: they (or their representatives) are entirely to blame for the violation of this imperative and no satisfactory explanation has been provided.

[25] Regarding the interests of justice consideration in condonation applications, Sutherland JA in Steenkamp II LAC made the following important observations:

[34] As regards the very concept of the ‘interests of justice’ some clarification is warranted. It has been said of the fairness jurisprudence of the Labour Courts that the prescribed measure of fairness is not a warm fuzzy feeling you experience in your tummy. The same caution needs to be expressed about the ‘interests of justice’. In real life, losses are experienced and they have to fall somewhere. Much of our law is devoted to the development of norms, principles and rules to decide where such losses must fall; this is evidenced most starkly in the law of delict. This, sometimes, daunting exercise of weighing the interests of justice aims at even-handedness among adversaries too… The notion that the [employees] have been denied access to a court to ventilate a grievance cannot be examined within a paradigm that ignores the interests of the adversary, nor of the ordinary dynamics of litigation, more especially, because the reality is that litigation is a process in which adversaries make choices. If the consequences of choices that are made are that opportunities to pursue other options are forfeited, it does not follow that there is a failure of justice. The litigation system affords litigants a process within which they must navigate their own routes; it is no failure of justice if their journey culminates in a dead end. (own emphasis)

[26] In light of the above quotation I am satisfied that denying the Applicants condonation will not result in a failure of justice. They chose to pursue their claim in the Labour Court over a period of two years. During this time the parties were involved in pleadings, an exception, further pleadings, a condonation hearing, and finally an interlocutory hearing. Then, simply because

they decided to change their legal strategy, the Applicants abandoned their claim in the Labour Court and pursued their claim in the CCMA by way of the present review proceedings. They have not provided a satisfactory explanation for the delay occasioned by their change in legal strategy, and none of the other factors relevant to condonation applications have persuaded me to nonetheless grant condonation. The condonation application must, accordingly, refused.

Costs

[27] On the issue of costs Mr Groenewald, for Hesmona, argued that the application for condonation constituted a “hopeless case”

as contemplated by this court in University of SA v Socikwa & Others; Department of Justice & Constitutional Development, Limpopo v General Public Service Sectoral Bargaining Council & Others[19] (the UNISA case). He submitted that, as a result, a costs order against the Applicants would be appropriate. Mr Groenewald stopped short of suggesting that Messrs Matlhoane and Madonsela should forfeit their fees (as happened in the UNISA case), but I cannot ignore the implication given that Mr Groenewald said that “there should be consequences for pursuing hopeless cases”.

[28] The UNISA case ostensibly followed the precedent set by this court in Mashishi v Mdladla N.O. & Others[20]. In Mashishi Van Niekerk J referred to an article by Judge Owen Rogers with approval where the latter learned judge argued that it would be improper for legal practitioners to present a case to court that was “hopeless in law or on the facts” and, in such cases, it may be appropriate for the court to order practitioners to forfeit their fees.[21] In Mashishi Van Niekerk J held that the case before him was indeed hopeless, but did not order the practitioner to forfeit his fees because he had not been granted an opportunity to make submissions on the issue.

[29] A cost order against legal practitioners in their personal capacities is nothing new. These include orders directing practitioners to pay the successful party’s costs on a punitive scale (usually referred to as costs de bonis propriis)[22] and forfeiting their own fees.[23] However, such orders are “unusual and far-reaching” and “not easily entertained and will only be considered in exceptional circumstances”.[24]

[30] In Multi-Links Telecommunications Ltd v Africa Prepaid Services Nigeria Ltd[25] the High Court per Fabricius J held as follows:

[34]… Even more exceptional is an order that a legal representative… be ordered to pay the costs out of his own pocket. It is quite correct, as was submitted, that the obvious policy consideration underlying the court's reluctance to order costs against legal representatives personally, is that attorneys and counsel are expected to pursue their client's rights and interests fearlessly and vigorously without undue regard for their personal convenience. In that context they ought not to be intimidated either by their opponent or even, I may add, by the court. Legal practitioners must present their case fearlessly and vigorously, but always within the context of set ethical rules that pertain to them, and which are aimed at preventing practitioners from becoming parties to deception of the court.

[35] It is true that legal representatives sometimes make errors of law, omit to comply fully with the rules of court or err in other ways related to the conduct of the proceedings. This is an everyday occurrence. This does not, however, per se ordinarily result in the court showing its displeasure by ordering the particular legal practitioner to pay the costs from his own pocket. Such an order is reserved for conduct which substantially and materially deviates from the standard expected of the legal practitioners, such that their clients, the actual parties to the litigation, cannot be expected to bear the costs, or because the court feels compelled to mark its profound displeasure at the conduct of an attorney in any particular context. Examples are dishonesty, obstruction of the interests of justice, irresponsible and grossly negligent conduct, litigating in a reckless manner, misleading the court, gross incompetence and a lack of care. See, for instance, Cilliers et al Herbstein & Van Winsen: The Civil Practice of the High Courts of South Africa 5 ed vol 2 at 984. See also D Ward v Sulzer 1973 (3) SA 701 (A) at 706G – 707H.

[31] The Labour Court has granted cost orders on an attorney-and-client scale against attorneys de bonis propriis where the attorney acted in a manner which constituted a “material departure from the responsibilities of his office”[26], and where the attorney did not familiarise himself with the applicable law, rules and practice directions of the Labour Court,

and refused to be so advised by his opponents.[27]

[32] However, the nuance introduced by the Mashishi and UNISA cases is that practitioners who otherwise act honestly and diligently may be required to forfeit their fees if the argument put forward is so weak that it is actually considered hopeless. The difficulty, of course, and as recognised by Judge Rogers in his article is that “the dividing line between the weak but arguable case and the hopeless case may not always be clear”. Megarry J in the English case of John v Rees[28] famously stated that “As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.”[29]

[33] Recognising this difficulty, Judge Rogers went further in his article and stated that “because too ready recourse to discipline may have a chilling effect, discipline [for advancing purportedly hopeless cases] should be reserved for the clearest cases”. The “chilling effect” referred to by the learned judge relates to the fact that practitioners should never be cowed into avoiding creative legal argument for fear of the argument being labelled hopeless. Because ours is an adversarial system, fearless, independent and creative legal practitioners are absolutely vital to the Rule of Law, the development of our jurisprudence, the realisation of section 34 of the Constitution, and the goal of attaining genuine justice between person and person. With this in mind it is important to clarify three distinct features of the precedent set by Van Niekerk J in Mashishi (which I consider myself bound by in terms of the stare decisis principle).

[34] Firstly, no practitioner may ever mislead the court. This means that, while creative legal argument in the interests of justice is to be encouraged, being “creative” with the facts is never permissible and will always attract the harshest sanctions.

[35] Secondly, while the phrase “a hopeless case” may be a useful rhetorical device, the test is in fact whether or not the case is “arguable”; specifically, legal practitioners may only advance “a coherent argument comprising a series of logical propositions which have a reasonable foundation in law or on the facts and which, if they are all accepted by the court, will result in a favourable outcome, even if counsel believes that one or more of the essential links are likely to fail. But counsel acts improperly when she is ‘quite satisfied’ that one or more of them will fail.”[30] (my emphasis). As Judge Rogers argued “A case is not hopeless just because counsel thinks it will probably fail. Counsel may properly argue a weak case”.

[36] Thirdly, practitioners should always be afforded an opportunity to make submissions as to why they should not be sanctioned for advancing a hopeless case. In my view, denying them this opportunity denies them their basic right to audi alteram partem.

[37] From the above it is clear that the test regarding the misconduct of advancing a hopeless case is subjective. Specifically: was the practitioner subjectively satisfied that the argument would fail (as opposed to merely recognising the likelihood of failure – which would be permissible). In his article Judge Rogers stated that “the emphasis falls on whether counsel genuinely believes that the case is not hopeless and is thus properly arguable. If the case is objectively hopeless, one could usually infer the advocate’s subjective appreciation of this. To ward off this inference, the advocate might have to plead a failure properly to research the case, which would be misconduct of a different kind”.

[38] Finally, in light of my emphasis on the value of creative legal argument, I should perhaps qualify my exuberance by stating that a court will be more inclined to consider a proposition “arguable” if creative legal argument is employed for the purpose of advancing the interests of justice. A court will be far less sympathetic where the practitioner takes obviously poor legal points merely for the purpose of putting obstacles in an opponent’s path, or for some other dilatory or improper purpose. In such cases a costs order against the practitioner may well be appropriate.

[39] Regarding the UNISA case (supra), there is no indication from this judgment that Sethene AJ afforded the practitioners in question an opportunity to make representations

before denying them their fees. If this was indeed the case, then in my view the learned judge was clearly wrong.

[40] I am also concerned about the basis upon which Sethene AJ denied the practitioners their fees. In both matters that served before the learned judge, the urgent applications to stay execution of the arbitration awards were prompted by the sheriff threatening to attach property in circumstances were the applications to review those awards had been archived in terms of the Practice Manual. The learned judge denied the practitioners their fees because “they reasonably ought to have known that the applications were not urgent [due to self-created urgency] and there were no reviews pending before court”. However, here the learned judge seems to have introduced an objective test, rather than the subjective test set down in Mashishi, without giving reasons for departing from the precedent.

[41] A further difficulty is that in his judgment Sethene AJ never once mentions the test for a hopeless case; namely that the case is

inarguable. In my view the learned judge was primarily expressing his disapproval of the applicants’ failure to timeously prosecute their review applications by disregarding the time periods set out in the LRA, the Labour Court Rules and the Practice Manual. This would appear to belong to the more traditional realm of costs de bonis propriis for reckless disregard for the rules of the court. However, the learned judge does not expressly say that the staying applications themselves were inarguable. In my view, it seems at least arguable that the urgency was not self-created and only arose once the sheriff came knocking – there would probably have been no basis for an urgent order until there was the threat of execution.[31] Furthermore, the LAC in Macsteel Trading Wadeville v Van der Merwe NO & Others[32] made it very clear that it is still necessary to bring a Rule 11 application to finally dismiss an archived review application,

meaning that the review application still exists[33] – although perhaps no longer “pending”.

[42] It is not for me to say whether the two matters before Sethene AJ were objectively hopeless (they may well have been). However, I am concerned that the judgment sets the precedent that a judge may simply declare a bad argument objectively hopeless and, without more, deny legal practitioners their fees. In my view this would be an incorrect (and clearly wrong) application of the law and have a chilling effect on the administration of justice. The correct approach, in my view, is to apply the subjective test set

out by Van Niekerk J in Mashishi described in paragraph [35] above.

[43] Turning to the facts of the present matter, I am not convinced that the condonation application was inarguable. It is not as if the Applicants did nothing for several years (as happened in Mashishi); they pursued a legal strategy on the advice of the CCMA and only later decided that the CCMA was wrong. They failed because they did not satisfactorily explain the reasoning behind, and the timing of, their change in legal strategy. Instead, they focussed on the strong prospects of success and the interests of justice. The argument for condonation was weak, but it was made in the bona fide attempt to realise their Constitutional right to fair labour practices – I am therefore not prepared to label the condonation application objectively hopeless. Accordingly, there is no need for me to direct Messrs Matlhoane and Madonsela to make submissions as to why they should not forfeit their fees.

[44] In Union for Police Security & Corrections Organisation v SA Custodial Management (Pty) Ltd & Others[34] the ConCourt, citing the Zungu case[35], made it clear that costs do not normally follow the result in labour matters unless there is a compelling reason to depart from the norm (such as vexatious conduct by the parties or the bringing of a frivolous case). The ConCourt set out the important

Constitutional considerations that underpin this legal principle, and they need not be repeated here.

[45] In the present matter the condonation application was certainly weak, but it was not frivolously brought nor did the parties act in a vexatious manner. The Applicants instituted the condonation application with the bona fide intention of vindicating their labour rights: rights, which I have stated above, had good prospects of succeeding. Making an order that each party pays its own costs seems to me to be in keeping with the spirit of the Union for Police Security case where the ConCourt held as follows: “That its appeal before the Labour Court bore poor prospects of success and failed is not, on its own, a sufficient reason to ignore the clear message of Zungu: courts adjudicating labour matters must prefer an approach to costs that will not have a chilling effect on bona fide litigation intended to vindicate labour rights”.

[46] I must however point out that my ruling on costs is limited to the review and condonation applications currently before me. I am aware that Hesmona defended the Labour Court action for several years only to have the Applicants withdraw the matter without further ado. This put Hesmona to the cost of defending litigation for, ultimately, no reason. This may possibly constitute a compelling reason to depart from the Zungu principle. However, I am not seized with the Labour Court action and therefore cannot make a costs order in that respect.

[47] In the circumstance I make the following order:

Order

1. The application to condone the late filing of the review application under case number JR1149/22 is dismissed.

2. The application to review the arbitration award issue by the second respondent under case number GATW1758-20 dated 21 February 2020 is dismissed.

3. There is no order as to costs.

Mark Meyerowitz

Acting Judge of the Labour Court of South Africa

Appearances:

For the First to Further Applicants: Advocate T Matlhoane

Instructed by:

BZH Madonsela Attorneys

For the Third Respondent:

Advocate DJ Groenewald

Instructed by:

Serfontein, Viljoen and Swart Attorneys

[1] Steenkamp & Others v Edcon Ltd (2019) 40 ILJ 1731 (CC) (Steenkamp II CC) at [29] and [36]. See also NEHAWU obo Mafokeng and Others v Charlotte Theron Children’s Home [2004] 10 BLLR 979 (LAC); Mndebele & Others v Xstrata SA (Pty) Ltd t/a Xstrata Alloys (Rustenburg Plant) (2016) 37 ILJ 2610 (LAC) at [4]; See also Chetty v Baker McKenzie (2022) 43 ILJ 1599 (LAC); Mashishi v Mdladla NO & Others (2018) 39 ILJ 1607 (LC) at [7]; Matsha & Others v Public Health & Social Development Sectoral Bargaining Council & Others (2019) 40 ILJ 2565 (LC); Makuse v Commission for Conciliation, Mediation & Arbitration & Others (2016) 37 ILJ 163 (LC); Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A).

[2] Ibid and National Education Health & Allied Workers Union on behalf of Leduka v National Research Foundation (2017) 38 ILJ 430 (LC) at [38] citing Academic & Professional Staff Association v Pretorius NO & others (2008) 29 ILJ 318 (LC) at paras 17-18.

[3] In Makuse v Commission for Conciliation, Mediation & Arbitration & Others (2016) 37 ILJ 163 (LC) this court held as follows: [4] Labour law litigation is unique in that it takes place within a system designed to ensure the effective (and thus expeditious)

resolution of labour disputes — this being one of the primary objects of the LRA. The need for this, and the implications of delays, were explained as follows by Ngcobo J in Commercial Workers Union of SA v Tao Ying Metal Industries & others (2008) 29 ILJ 2461 (CC) 'The LRA introduces a simple, quick, cheap and informal approach to the adjudication of labour disputes. This alternative process is intended to bring about the expeditious resolution of labour disputes. These disputes, by their very nature, require speedy resolution. Any delay in resolving a labour dispute could be detrimental not only to the workers who may be without a source of income pending the resolution of the dispute, but it may, in the long run, have a detrimental effect on an employer who may have to reinstate workers after a number of years.' [5] It follows from this that condonation for delays in all labour law litigation is not simply there for the taking. See also NUMSA & another v Hillside Aluminium [2005] ZALC 25; [2005] 6 BLLR 601 (LC); Grootboom v National Prosecuting Authority & another (2014) 35 ILJ 121 (CC)

[4] Mashishi v Mdladla NO & Others (2018) 39 ILJ 1607 (LC) at [6]

[5] (2011) 32 ILJ 2442 (LAC)

[6] At [22]. Quoted with approval more recently in Chetty v Baker McKenzie (supra) at [8]

[7] 2015 (4) SA 247 (LAC)

[8] De Beers Group Services (Pty) Ltd v National Union of Mineworkers (2011) 32 ILJ 1293 (LAC) and Revan Civil Engineering Contractors & others v National Union of Mineworkers & others (2012) 33 ILJ 1846 (LAC).

[9] This fact is recorded in Edcon Ltd v Steenkamp & Others (2018) 39 ILJ 531 (LAC) (Steenkamp II LAC) at [10]

[10] 2016 (3) SA 251 (CC)

[11] (2018) 39 ILJ 531 (LAC)

[12] (2019) 40 ILJ 1731 (CC)

[13] It is perhaps worth pointing out that in Ngobe v J P Morgan Chase Bank & others (2015) 36 ILJ 3137 (LC) at [11] to [12] Van Niekerk J criticised an employee’s belated attempt, on review, to claim for the first time that the true nature of her dispute was actually automatically unfair dismissal – despite having referred and concluded an arbitration in the CCMA regarding “dismissal for misconduct”. The learned judge held that the employee had, with the advice of attorneys, “made an election to rely on a course of action that is capable of being determined by the CCMA”, that she did so “in full appreciation of the jurisdictional consequences” thereof and, as such, “remains bound by that election”.

[14] (2022) 43 ILJ 1599 (LAC)

[15] At [10]

[16] Klaasen v CCMA & others [2005] ZALC 11; [2005] 10 BLLR 964 (LC) at [30]

[17] Consolidated Wire Industries (Pty) Ltd v CCMA & others [1999] 10 BLLR 1025 (LC) at [42] to [42]

[18] Mutual & Federal Insurance Co Ltd v Commission for Conciliation, Mediation and Arbitration & others [1997] 12 BLLR 1610 (LC) 1616A­B.

[19] (2023) 44 ILJ 1785 (LC)

[20] (2018) 39 ILJ 1607 (LC)

[21] Rogers O ‘The Ethics of the Hopeless Case’ December 2017 30(3) Advocate 46

[22] South African Liquor Traders' Association and Others v Chairperson, Gauteng Liquor Board, and Others 2009 (1) SA 565 (CC)

[23] Viljoen v CEVA Logistics South Africa (Pty) Ltd (C488/2020) [2023] ZALCCT (5 Oct 2023)

[24] Thunder Cats Investments 49 (Pty) Ltd & others v Fenton & others 2009 (4) SA 138 (C) at [30], cited with approval by the SCA in Adendorffs Boerderye v Shabalala and Others (997/15) [2017] ZASCA 37 (29 March 2017)

[25] 2014 (3) SA 265 (GP), cited with approval by the SCA in Adendorffs Boerderye (ibid)

[26] Indwe Risk Services (Pty) Ltd v Van Zyl (2010) 31 ILJ 956 (LC) at [39]

[27] Modika v Commission for Conciliation, Mediation & Arbitration & Others (2021) 42 ILJ 1982 (LC) at [47]

[28] John v Rees and Others; Martin and Another v Davis and Others; Rees and Another v John [1970] 1 Ch 345; [1969] 2 All ER 274 (Ch).

[29] at 402 (Ch) and 309F (All ER). Cited in the article Whitear N and Kruuse H ‘The ethics of legal practitioners in resource-scarce

institutions - PM Mashishi v Z Mdlala’ August 2019 40(2) Obiter 383

[30] Mashishi (supra) at [14]

[31] See Aspen Pharmacare Ltd v CEPPWAWU obo Tabata (PR184/15) [2024] ZALCPE 16 (14 May 2024) at [23] to [33] where I discuss the principles of urgency that pertain to staying orders of this kind.

[32] (2019) 40 ILJ 798 (LAC)

[33] See Aspen Pharmacare (supra) at [38] to [54] where I discuss the effect of archiving on review applications and the underlying arbitration awards.

[34] (2021) 42 ILJ 2371 (CC)

[35] Zungu v Premier of the Province of KwaZulu-Natal & Others (2018) 39 ILJ 523 (CC)