Motseto v Minister of Police and Others (JR 134/2019) [2021] ZALCJHB 193 (23 July 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: JR 134/2019

In the matter between:

S K MOTSETO

Applicant

and

MINISTER OF POLICE

First Respondent

NATIONAL COMMISSIONER: SOUTH AFRICAN

POLICE SERVICE

Second Respondent

SAFETY AND SECURITY SECTORAL

BARGAINING COUNCIL Third Respondent

L NAIDOO N.O

Fourth Respondent

Enrolled: 22 July 2021

Delivered: 23 July 2021

(In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be on 23 July 2021.

JUDGMENT

PRINSLOO, J

Introduction

[1] The Applicant filed an application to review and set aside an arbitration award issued on 9 November 2018 under case number PSSS 559-17/18. The review application was filed outside the prescribed period of six weeks and for this the Applicant seeks condonation.

[2] The First and the Second Respondents (Respondents) opposed both the applications for review and condonation. Subsequent to the enrolment of the matter, the parties filed a notice to indicate that the Respondents were no longer opposing the application for condonation.

[3] This matter was enrolled for hearing on 22 July 2021. In accordance with the provisions of Directive LC01/21 in respect of access to and conduct of proceedings in the Labour Court in light of the Covid-19 pandemic, effective from 18 January 2021, this matter was by agreement between the parties, disposed of without oral argument. I have considered the papers filed as well as the written heads of argument submitted by the parties.

[4] The fact that the condonation application is no longer opposed, is of no moment as the granting or refusing of condonation in the event of non-compliance with a statutory time period, is a decision to be taken by this Court and it is not an agreement inter partes. The first issue to be decided is whether the Applicant should be granted condonation for the late filing of his review application.

The principles applicable to the grant of condonation

[5] The relevant legal principles to be applied in an application for condonation are well established. This Court is required to exercise a discretion, having regard to the extent of the delay, the explanation for that delay, the prospects of success and the relative prejudice to the parties that would be occasioned by the application being granted or refused. The interest of justice will ordinarily reflect regard to all these factors.

[6] In Melane v Sanlam Insurance Co Ltd[1] 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.”

[7] In A Hardrodt (SA) (Pty) Ltd v Behardien and others[2] (Behardien) the Labour Appeal Court (LAC) restated the guidelines laid down in Queenstown Fuel Distributors CC v Labuschagne NO and others[3] inter alia that there must be good cause for condonation in the sense that the reasons tendered for the delay have to be convincing. In other words, the excuse for non-compliance with the six-week time period must be compelling. The onus is on the applicant to satisfy the Court that condonation should be granted.

[8] 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.

[9] The general principles applicable to deciding applications for condonation apply even more stringently where it comes to review applications. In National Union of Metalworkers of SA on behalf of Thilivali v Fry’s Metals (A Division of Zimco Group) and others[4] the Court said:

‘What is clear from the judgment in Hardrodt is that general principles applicable to condonation applications are even more stringently applied where it comes to a condonation application for the late filing of a review application. In review condonation applications, the explanation that needs to be submitted must be compelling and the prospects of success need to be strong. Where it comes to the issue of prejudice, the applicant in fact has to show that a miscarriage of justice will occur if the applicant’s case is not heard. The reason for these more stringent requirements is that review applications occur after the parties have already been heard, presented their respective cases and a finding has been made. Under such circumstances, considerations of justice, fairness and expedition require that challenges of such findings must not be delayed and must be completed as soon as possible.’

[10] The court in Thilivali added the following consideration when evaluating condonation applications in reviews:

‘It must also always be considered that the applicant for condonation actually bears the onus to prove good cause for condonation to be granted in terms of the principles set out above. 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.’

[11] The courts have held and emphasised that in applications to review and set aside arbitration awards, an applicant must necessarily act with the degree of diligence required by the Rules of this Court and the Practice Manual, thus giving effect to the statutory imperative of expeditious dispute resolution.

[12] In Toyota SA Motors (Pty) Ltd v CCMA and others[5] the Constitutional Court emphasised that one of the fundamental purposes of the Labour Relations Act[6] (LRA) was to establish a system for the simple, quick, cheap and informal adjudication of labour disputes. When it assesses the reasonableness of a delay, the court must not lose sight of this purpose.

[13] 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 and bears the onus to show good cause and a proper case should be made out before the indulgence could be granted.

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

The degree of lateness and the explanation tendered

[15] The first issue to be considered is the degree of lateness.

[16] In casu the arbitration award was issued and received by the Applicant on 9 November 2018. The review application had to be filed within six weeks, thus by 21 December 2018.

[17] In the application for condonation, the Applicant indicated that the degree of lateness was 21 days as the review application was delivered on 24 January 2019.

[18] The Applicant has not filed a service affidavit, as required by the Rules and the Practice Manual of the Labour Court, confirming when the review application was served on the First to Fourth Respondents. However, on the Applicant’s notice of motion there appear stamps from the respective Respondents, which indicate that the application was served on them on 25 January 2019.

[19] There is also no service affidavit setting out when or how the application was served and filed at the Labour Court and the only proof of service is a Court stamp indicating that the application was filed on 30 January 2019.

[20] The question is whether the review application was made on 25 January 2019 when it was served on the Respondents or on 30 January 2019 when it was filed with the Registrar of the Labour Court.

[21] A similar question was considered in Mbatha v Lyster and others[7] (Mbatha) where the issue was whether the application was made on 17 March 1999 when the notice of motion and the annexure thereto were delivered to the registrar of the court or whether it was made when the third respondent received its copy of the papers.

[22] The LAC held in Mbatha that the provisions of sub-rule (1) of rule 7A put the matter beyond question. In terms of rule 7A(1) the applicant in a review application is obliged to 'deliver a notice of motion to the person or body and to all other affected parties'. It follows, reading rule 7A together with the effect of the definition of 'deliver' in Rule 1, that an application is made within six weeks of the publication of the award only if it is delivered to all the respondents and filed with the registrar of the Labour Court within such period.

[23] This application was not filed with the Registrar before 30 January 2019. The review application should have been filed by 21 December 2018. Effectively the review application was filed almost six weeks late.

[24] A delay of almost six weeks is not insignificant, but it is rather material, given the fact that a review application has to be filed within six weeks and considering the context within which labour litigation takes place and the system that is designed to ensure the effective and expeditious resolution of labour disputes. The Practice Manual for the Labour Court expressly states that a review application is by its nature an urgent application. Section 145(5) of the LRA provides that an applicant for review must apply for a date for the matter to be heard within six months of the delivery of the application.

[25] The application for condonation for the late filing of the review application was not filed with the review application, but was only filed on 28 February 2019, almost a month later, with no explanation for the late filing of the condonation application.

[26] I have to consider the reasonableness of the delay by having regard to the explanation for the delay. As the LAC has held, the explanation has to be compelling and convincing.

[27] As the Applicant seeks an indulgence from the Court and bears the onus to satisfy the Court that condonation should be granted, it is incumbent 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].

[28] It is evident from the arbitration award that the Applicant was represented by one Mr Clouw, a trade union official of POPCRU, during the arbitration proceedings. In this application POPCRU is not cited as an applicant or a party acting on behalf of Mr Moseto. The founding affidavit in the review application was deposed to by Mr Clouw, as the Applicant’s representative at the arbitration proceedings. It is however stated that the Applicant has appointed his attorneys of record, M S Molebaloa Attorneys, to represent him in these proceedings. The founding affidavit is deposed to by one Mr Tooka, an attorney and associate at the Applicant’s attorneys of record.

[29] The explanation tendered for the delay, as it appears from the founding affidavit, is as follows:

[30] On 12 December 2018 one Mr Magwaza attended the office of the Applicant’s attorneys of record, specifically Mr Tooka, with an instruction to consult and consider the prospects of success of this matter on review.

[31] Mr Tooka was earlier instructed, by a different client, to launch an urgent rescission application by end of business on 13 December 2018. Mr Tooka consulted on 13 December 2018 and drafted the rescission application, which was filed with the National Bargaining Council for the Road, Freight and Logistics Industry.

[32] On 14 December 2018 Mr Tooka flew to East London for a disciplinary hearing, which was pre-booked.

[33] The Applicant’s attorneys closed office for the December holidays and Mr Tooka was on annual leave from 17 December 2018 and he returned to work on 7 January 2019. The Applicant’s case is that annual leave is a justified reason as to why the review application was not brought. No one could have attended to the consultation, consideration and drafting of the review application during that period as all the attorneys in the office were on a break.

[34] Mr Tooka returned to work and he attended to the preparation for a review application on this Court’s roll of 8 January 2019. On 9 January 2019 Mr Tooka attended Court to accompany counsel in a review application that was enrolled for hearing. On 10 January 2019 he attended to a meeting arranged regarding a review application filed under case number JR 1189/18 and at the end of the meeting it was decided to close the office file. On 14 January 2019 Mr Tooka attended to the preparation for a matter enrolled for hearing on 16 January 2019, he had a meeting in respect of the same matter on 15 January 2019 and attended Court on 16 January 2019. On 17 January 2019 Mr Tooka prepared for a review application that was enrolled on 18 January 2019. On 21 January 2019 he had a meeting with Mr Mudzusi regarding the review application filed under case number JR51/18. On the same date he had contacted Mr Clouw regarding a meeting on the merits and prospects of success of this review application. Mr Clouw was only available on 23 January 2019 to meet and due to missing information, the meeting was not finalised. They then met again on 24 January 2019, on which date the review application was drafted.

[35] The Applicant submitted that the delay was not caused by him or his attorneys. This is not explained – if the delay was not caused by the Applicant or his attorneys, who else caused it?

[36] I already alluded to the fact that the Applicant should provide a full explanation for every period of the delay and that it is not sufficient to simply list significant events that occurred during the period of the delay. Instead of providing an explanation that would assist this Court to understand the reasons for the delay, the Applicant’s attorney, Mr Tooka, provided a blow-by blow account of his diary and his movements. This does not constitute an explanation at all, but merely informs this Court what Mr Tooka kept himself busy with.

[37] It is not explained why, when Mr Tooka was instructed on 12 December 2018 to attend to this matter, he did nothing until 21 January 2019 to attend to it. Mr Tooka was instructed to deal with the matter on 12 December 2018 and as a practitioner that is apparently involved in labour matters and review applications, he should have known that the review application had to be filed within six weeks and thus before 21 December 2018. Mr Tooka was clearly instructed prior to the expiry of the six week period. It is further not explained why Mr Tooka went on leave, knowing very well that the review application was due and that the six week period would expire on 21 December 2018. This Court is not told why Mr Tooka accepted an instruction if he did not have the capacity or the time to attend to it or why no other attorney in the office of Molebaloa Attorneys attended to the matter. No explanation is tendered whatsoever as to why the condonation application took another month to be filed with this Court.

[38] What has been presented to Court, is not an explanation but rather a record of Mr Tooka’s activities between 12 December 2018 and 24 January 2019. The ‘explanation’ tendered in casu is bereft of any substance and is wholly inadequate, in circumstances where the Applicant bears the onus to show that there is good reason for condonation to be granted. The Applicant failed dismally in this regard.

Prospects of success

[39] Having considered the period of the delay in the filing of the review application is material and the explanation tendered therefore, it leaves the issue of prospects of success.

[40] 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.

[41] This was also confirmed in Grootboom v National Prosecuting Authority and another[9] where the Constitutional Court has held that:’

‘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.’

[42] In view of my finding that the delay is material and the explanation tendered not satisfactory and inadequate and in view of the authorities referred to supra, the Applicant’s prospects of success are immaterial and thus need not be considered.

[43] Even if I am wrong on this, a perusal of the application for condonation does not assist this Court to assess the Applicant’s prospects of success. In his application, the Applicant did no more than to refer to the merits of the review application. Effectively he stated that the prospects of success appear from the review application and that the contents of the review application be incorporated and be regarded as part of the condonation application.

[44] This is wholly inadequate and is of no assistance to this Court. The Applicant seeks an indulgence and has to make out a case for the indulgence he seeks. A vague averment to the effect that the prospects of success appear from the review application does not assist this Court at all.

[45] This is so for a number of reasons. Firstly, the review application sets out the facts of the case and the grounds of review. It does not deal with prospects of success and such prospects do not automatically ‘appear’ from the application.

[46] It seems as if the Applicant has an expectation that this Court would embark on a ‘prospects of success finding mission’ to find what his prospects of success are, without being told by the Applicant what those prospects are.

[47] Secondly, the application is opposed and the averments made in respect of the reviewability of the arbitration award, are disputed by the Respondent. It follows that this Court cannot simply have regard to the contents of the review application, as filed by the Applicant, and conclude that there are prospects of success on review. More is needed.

Conclusion

[48] 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. While the refusal to condone the late filing of the review application will have the result that the Applicant will be denied the opportunity to pursue his review application before this Court, the Constitutional Court pointed out in Toyota SA Motors (Pty) Ltd that 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. ‘

[49] I 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 interest of justice as it would undermine not only the statutory purpose of expeditious dispute resolution, but also the principle of finality, factors that weigh heavily in the Respondent’s favour. More so where the Applicant and his attorney took a lackadaisical approach in pursuing the review application and had no regard for the statutory timeframes and tendered no satisfactory explanation for the failure to do so. To submit that annual leave is a justifiable reason for not attending to the filing of the application in circumstances where the instruction was received prior to the commencement of annual leave and prior to the expiry of the prescribed six week period, is shocking and inappropriate. Even after Mr Tooka returned from leave, no haste was made to attend to this matter as a priority.

[50] On an objective conspectus of all the facts, the Applicant’s application for condonation falls hopelessly short of the mark and it will not be in the interest of justice that the application for condonation be granted.

Costs

[51] This Court has a wide discretion in respect of costs. In my view the interest of justice will be best served by making no order as to costs.

[52] In the premises I make the following order:

Order

1. The application for condonation for the late filing of the review application is dismissed;

2. There is no order as to costs.

Connie Prinsloo

Judge of the Labour Court of South Africa

Representatives:

For the Applicant:

M S Molebaloa Attorneys

For the First and Second Respondent: State Attorney, Pretoria

[1] 1962 (4) SA 531 (A) at 532 C - F.

[2] (2002) 23 ILJ 1229 (LAC).

[3] (2000) 21 ILJ 166 (LAC)

[4] (2015) 36 ILJ 232 (LC)

[5] (2016) 37 ILJ 313 (CC).

[6] No. 66 of 1995 as amended.

[7] (2001) 22 ILJ 405 (LAC)

[8] See: IMATU obo Zungu v SALGBC & others (2010) 31 ILJ 1413 (LC).

[9] (2014) 35 ILJ 121 (CC) at par 50.