National Union of Metalworkers of South Africa and Others v Kroon Gietery & Staal (JS 485/10) [2015] ZALCJHB 158 (13 May 2015)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Case no: JS 485/10

DATE: 13 MAY 2015

Not Reportable

NATIONAL UNION OF METALWORKERS OF SOUTH AFRICA........................First Applicant

THABO LEMPE & 8 OTHERS.............................................................Second to Further Applicants

And

KROON GIETERY & STAAL.............................................................................................Respondent

Heard: 27 February 2015

Delivered: 13 May 2015

TLHOTLHALEMAJE, AJ

Introduction:

[1] The applicants approached the court to seek an order condoning the late filing of the statement of case. The application is opposed by the respondent who in turn seeks the dismissal of the application with costs, payable jointly and severally by the applicants.

Background:

[2] A short chronological exposition of the matter is as follows;

2.1 The second to further applicants’ services were terminated on the basis of the respondent’s operational requirements on 10 July 2009.

2.2 The applicants initially referred the dispute to the Motor Industry Bargaining council (MIBCO). In September 2009, MIBCO referred the matter to the Metal and Engineering Bargaining Industry (MEIBC), which had in turn considered and granted the applicants’ application for condonation for the late referral of the dispute. The dispute was then conciliated and a certificate of outcome was issued on 13 January 2010.

2.3 The applicants filed their statement of claim on 18 June 2010. On 1 July 2010, the respondent filed a Notice of Exception in terms of Rule 30 (2) (b) of the Rules of the Court, requesting the applicants to file an application for condonation as the statement of case was filed out of time.

2.4 The applicants failed to respond to the Notice of Exception, and on 20 July 2010, the respondents filed a Notice in terms of Rule 30 (3). An application for condonation was only filed on 3 August 2010.

The legal framework:

[3] It is trite that in order for the application for condonation to succeed, the applicants must satisfy the test as set out in Melane v Santam Insurance Co Ltd[1]as follows:

“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 are 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, save of course that if there are no prospects of success there would 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 a 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 prospects 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 interests in finality must not be overlooked.”[2]

Evaluation:

(a) The degree of lateness:

[4] In terms of section 191(11) (a) of the Labour Relations Act 66 of 1995 (The ‘LRA’) the applicants were obliged to refer the dispute to this Court within 90 days of the MEIBC having issued a certificate of outcome. The certificate of outcome was issued on 13 January 2010 and the matter was only referred to this Court on 18 June 2010. The degree of the delay is about 68 days, which is not only considerable as the applicants have conceded, but also excessive.

(b) The reasons for the delay for lateness:

[5] The respondent attacked the applicants’ failure to timeously bring a condonation application for the late filing of the statement of case on becoming aware of the need to do, and their failure to address the reasons for the late filing of the application. It is trite that there is a duty upon a party to apply for condonation without delay as soon as the need to do so comes to its attention[3].

[6] In this case, the applicants, despite being made aware as early as 1 July 2010 that there was a need to file an application for condonation, only did so on 3 August 2010. In the light of the explanation for the delay as shall be dealt with below, there is no doubt that the applicants were indeed aware at the time that the statement of case was filed, that there was indeed a need to

file an application for condonation.

[7] In explaining the reasons for the delay, the deponent to the founding affidavit, Elias Mashiloane, who is a NUMSA’s official, attributed the blame for the delay on NUMSA and not the individual respondents. He averred that the Welkom Local Organiser of NUMSA, (Courtman Ntshangase) had on 26 January 2010, sent documents, including the certificate of outcome to the Regional Officer (Mating Mosia) who was at that stage handling matters in the Bloemfontein Regional Office. Mosia was however on leave at the time and upon his return, was transferred to the education section of the Union. Mosia’s position was taken over by Mashiloane who, like

his predecessor, was not made aware of the matter. The individual applicants were advised on a number of occasions during this period that the matter was referred to the regional office for handling from there.

[8] The individual applicants eventually contacted the regional office during May 2010 to follow up on their matter. It was at this stage that Mashiloane became aware of the matter and thereafter took steps to attend to it. The statement of case was finalised on 11 May 2010 and referred to the first applicant’s head office for approval, which was granted, and thereafter the statement of case was delivered on 18 June 2010. It was further submitted that delays were occasioned by construction or renovation work undertaken at the Union’s Regional Office, which commenced at the end of February 2010 and was completed in July 2010.

[9] Mashiloane further attributed the delay to the disarray caused as a result of renovations works undertaken at the regional office and the continuous disconnection and reconnection of the Union’s telephone and fax lines, power disconnections, and movement of staff members from one office to the other. As a consequence of these disruptions, it was alleged that Mosia could not get hold of the dispute documents that were sent on 26 January 2010.

[10] The respondent in opposing the application submitted that that the explanation proffered was not a reasonable and acceptable and that accordingly, no consideration needs to be given to the prospects of success in the matter.

[11] To enable this court to properly exercise its discretion, a party seeking condonation must set out all the facts and circumstances

relating to the delay, and most importantly, must provide a satisfactory explanation and account for each period of the delay.

Any period of delay that is unaccounted for, will result in an indulgence being refused[4].

[12] In this case, it is my view that the applicants have not proffered a satisfactory or acceptable explanation for the delay for the following reasons;

12.1 Even if the blame is attributed to the Union, it is trite that its negligence in attending to the matter timeously cannot on its own be an excuse. In my view, a Union acting on behalf of its members in litigation is in no different position than an attorney representing its client, and it is trite that the individual applicants cannot be absolved from the tardiness of their representative Union. The principles in this regard have long been set out by Steyn CJ in Saloojee & another v Minister of Community Development[5], who had held that;

"In Regal v African Superslate (Pty) Ltd 1962 (3) SA 18 (AD) ... this court came to the conclusion that the delay was due entirely to neglect of the applicant’s attorney, and held that the attorney’s neglect should not, in the circumstances of the case, debar the applicant, who was himself in no way to blame, from relief. I should point out, however, that it has not at any time been held that condonation will not in any circumstances be withheld if the blame lies with the attorney. There is a limit beyond which a litigant cannot escape the results of his attorney’s lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the rules of this court. Considerations ad misericordiam should not be allowed to become an invitation to laxity. In fact this court has lately been burdened with an undue and increasing number of applications for condonation in which the failure to comply with the rules of this court was due to neglect on the part of the attorney. The attorney, after all, is the representative the litigant has chosen for himself, and there is little reason why, in regard to condonation of a failure to comply with a rule of court, the litigant should be absolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are.… A litigant, moreover, who knows, as the applicants did, that the prescribed period has elapsed and that an application for condonation is necessary, is not entitled to hand over the matter to his attorney and then wash his hands of it. If, as here, the stage is reached where it must become obvious also to a layman that there is a protracted delay, he cannot sit passively by, without so much as directing any reminder or enquiry to his attorney… and expect to be exonerated of all blame; and if, as here, the explanation offered to this court is patently insufficient, he cannot be heard to claim that the insufficiency should be overlooked merely because he has left the matter entirely in the hands of his attorney. If he relies upon the ineptitude or remissness of his attorney, he should at least explain that none of it is to be imputed to himself. That has not been done in this case. In these circumstances I would find it difficult to justify condonation unless there are strong prospects of success."

21.2 Mashiloane had attempted to absolve the individual applicants from the Union’s tardiness by pointing out that they had after the conciliation meeting telephonically contacted the local organiser regularly to determine the status of their matter, and had also done so in May 2010. This however cannot come to their assistance in that it is not sufficient for an allegation that follow ups with a matter were made without confirmatory affidavits to indicate exactly when these were made and what the outcome was.

12.3 The explanation in regards to either the unavailability of officials for whatever reason, the restructuring of office staff, problems with telecommunication lines and renovations undertaken in the Union’s building is further not satisfactory. If Mosia was on annual leave, it is surely expected that another Union official would have taken over his tasks and attend to litigation matters. The mere fact that a Union Official is not available for whatever reason is not an excuse for failing to comply with statutory time limits.

12.4 Secondly, an allegation that there were telecommunication interruptions and renovations to the building cannot be accepted on face value without an attempt being made to explain when these problems were experienced and what could have prevented the timeous filing of the statement of case. In my view, it is not sufficient for a party to attribute blame to a third force without any effort being made to at least obtain a confirmatory affidavit from the telecommunication service provider to confirm that in deed such problems were experience, or even from the construction company undertaking the renovations to confirm that indeed such renovations were undertaken at a particular time. Even if such an explanation might be plausible, it remains an allegation without confirmatory affidavits.

12.5 In Moila v Shai N.O. and Others[6], Zondo JP (as he then was) had the following to say in respect of an explanation for the delays;

“I do not have the slightest hesitation in concluding that this is a case where the period of delay is excessive and the appellant's

purported explanation for the delay is no explanation at all. I accept that the case is very important to the appellant. However, the weight to be attached to this factor is too limited to count for anything where the period of delay is as excessive as is the case in this matter and the explanation advanced is no explanation at all. If ever there was a case in which one can conclude that good cause has not been shown for condonation without even considering the prospects of success, then this is it. Where, in an application for condonation, the delay is excessive and no explanation has been given for that delay or an “explanation” has been given but such “explanation” amounts to no explanation at all, I do not think that it is necessary to consider the prospects of success.”

12.6 In this case, despite the respondent having filed an answering affidavit to the application, no attempt was made to file a replying affidavit. Furthermore, despite being aware of the need to file an application for condonation at the time that the statement of case was filed, no satisfactory explanation was given as this was only done some two months later. An explanation that the statement of case had to be vetted by the Union’s legal department amounts to no explanation at all, in view of the fact that at the time that Mashiloane had finalised its drafting, the time periods had already lapsed. The internal workings of a Union cannot be a bar to a filing of statement of case on time.

12.7 To conclude on this issue, I am satisfied that the explanation proffered by the applicants is neither satisfactory nor acceptable. In essence, it amounts to no explanation at all, bearing in mind particularly the fact that the periods of the delay were not explained in full, other than proffering a chronological exposition of events.

(c) Prospects of success:

[13] It is trite that where no satisfactory explanation for the delay was given, the prospects of success are deemed immaterial. I will however for the sake of completeness, and in line with the principle that the factors in such application should not be individually determined, deal with the issue of prospects of success.

[14] The applicants submit that they have excellent prospects of success whereas the respondent is of the view that the applicants have no prospects of success at trial.

[15] The applicants submit that the retrenchment exercise conducted by the respondent was procedurally and substantively unfair. The applicants allege that the provisions of section 189 of the Labour Relations Act[7] were not followed by the respondent in that despite NUMSA being invited for consultations and having made proposals (i.e. disclosure of information, lay offs, LIFO etc.), the respondent had failed to take these into account.

[16] It was further submitted on behalf of the applicants that the meetings which were held on 14 May 2009, 2 May 2009 and 23 May 2009 essentially entailed a demand by the respondent that the workers must give an undertaking not to participate in strike action and must resign as members of the first applicant in which case they would not be retrenched. This demand was not acceded to and a request was made for the respondent to provide its financial statements for the previous year, to consider layoffs and in the event of the decision being taken to retrench that LIFO should be used as a selection criteria. These requests were similarly not acceded to.

[17] The respondent denies these allegations and submits that the dismissals were effected fairly and were bona fide in nature. The respondent further disputed NUMSA’s allegations and contended that the proposals made by the Union were considered, and that alternatives to retrenchment were considered, including the implementation of short time and the reduction of the managing member’s salary. It was further averred that the financial information, which was requested by the applicants, was provided to them by the respondent.

[18] It was common cause that the individual applicants received retrenchment notices on 10 July 2009, were released from employment with immediate effect, and were paid notice pay even though they were not required to render their services during this notice period. The difficulty with the applicant’s contentions is that they did not deem it necessary to file a replying affidavit. In explaining the approach to the issue of prospects of success, this court in Gaoshubelwe and Others v Pieman's Pantry (Pty) Ltd[8] stated that:

‘The prospects of success or bona fide defence on the other hand mean that all what needs to be determined is the likelihood or chance of success when the main case is heard. See Saraiva Construction (Pty) Ltd v Zululand Electrical and Engineering Wholesalers (Pty) Ltd 1975 (1) SA 612 (D) and Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) at 765 (A-C).’

[19] The respondent had disputed NUMSA’s version in the answering affidavit, and its contention was that indeed alternatives were looked at as proposed by NUMSA. The respondent contended that the applicants had not disputed the need and reason for the retrenchments, and further that offers of re-employment were made to the individual applicants, which they had failed to avail themselves to. In the light of these factors, it is my view that the applicants have not advanced any grounds upon which this Court can conclude that there is a likelihood or chance that they will succeed on the merits. It is not sufficient for the applicants to simply aver that the retrenchments were procedurally and substantively unfair solely on the grounds that their proposals were not considered. In the light of the narrow points upon which the retrenchments are challenged, and further in the light of the respondent’s responses which the applicants did not deem fit to respond to, it is concluded that prima facie, no basis have been laid that the applicants will succeed on the merits.

(d) Prejudice:

[20] The applicants aver that the prejudice suffered by the respondent in granting condonation is outweighed by the prejudice, which they would suffer should condonation not be granted. The respondent is of the view that the applicants will not be prejudiced by a refusal of condonation because they are to blame for the delay occasioned, alternatively that the individual applicants have a clear claim against the first applicant for damages which they are able to pursue. Furthermore, it was submitted on behalf of the respondent that a cost order against the applicants could not compensate for the prejudice it would suffer if condonation was to be granted. The respondent further highlights its right to have the matter dealt with expeditiously with the dismissal being

effected nearly 6 years ago, which on its own poses problems for it should the matter proceed to trial.

[21] In Brummer v Gorfil Brothers Investments (Pty) Ltd[9], Jacoob J stated that the interests of justice should be an overall consideration when dealing with applications for condonation. Thus where the court cannot on the papers make a prima facie finding on the issue of prospects of success, and further having had regard to other considerations pertaining to whether good cause has been shown, the interests of justice will demand that the parties be afforded an opportunity to ventilate these issues in Court.

[22] In this case, a prima facie finding has been made that the applicants’ prospects of success on the merits are remote and that the applicants have not proffered a reasonable and satisfactory explanation for the delay in filing the statement of claim. It is further my view that the approach of the Union in dealing with this matter from the beginning was characterised by ineptness and nonchalance. This started with the incorrect referral of the dispute to the MIBCO, when NUMSA should have known that the respondent fell within the jurisdiction of the MEIBC. Furthermore, despite being aware that the statement was out of time, and being warned of the need to file an application for condonation, the Union in particular continued with its indifferent approach. Even if the individual applicants had enquired about their matter as it was alleged, this did not seem to jolt anyone into action.

[23] A further consideration pertaining to the interests of justice is a right to have a matter timeously heard and disposed of. In the light of the tardiness that has characterised this application, it is my view that the respondent has been deprived of a right to have the matter expeditiously disposed of. Further in the light of the nature of what the applicants are disputing, and the fact that post the retrenchment, attempts were made to re-employ the individual applicants, which attempts they had rebuffed, the

interests of justice dictate that this application should be dismissed. Any inclination otherwise, coupled with a cost order in

the respondent’s favour would not ameliorate the prejudice it stands to suffer it if were to be compelled to defend a claim arising in July 2009, which NUMSA has not shown no interest in finalising.

[24] It is accepted that any dismissal case is of importance to the parties, especially the dismissed employees. However, having had regard to the history and background of this matter, it is apparent that the prejudice to be suffered by the applicants in being denied an opportunity to ventilate their claim is as a consequence of dilatoriness on the part of NUMSA, and it would be iniquitous to burden the respondent with the consequences of such conduct. I have further had regard to the issue of costs and even though I am inclined to make such an order, considerations of law and fairness dictate otherwise.

Order:

i. The application to condone the late filing of the statement of claim is dismissed.

ii. There is no order as to costs.

Tlhotlhalemaje, AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES:

On behalf of the Applicant: Mr. X Ngako of Ruth Edmonds Attorneys

On behalf of the Respondent: Adv. E Loyson

Instructed by: Jaco Mathee Attorneys

[1] 1962 (4) SA 531 (A)

[2] At 532B-E. See also Motloi v SA Local Government Association [2006] 3 BLLR 264 (LAC) par [16].

[3] See also Khosa v Absa Bank Limited (JA55/2013) [2015] ZALCJHB 1 (15 January 2015), where the Labour Appeal Court held that; “[5] One of the factors to determine whether or not the condonation application ought to have been granted is whether it was in the interests of justice to do so. See: NEHAWU obo Mafokeng and Others v Charlotte Theron Children’s Home. Also an application for condonation must be brought as soon as the party which applies for it becomes aware of the default.

See: Seatlolo and Others v Entertainment Logistics Service (A Division of Gallo Africa Ltd).” And “[6] This Court has endorsed the abovementioned approach advocating the bringing of the application for condonation as soon as the litigant becomes aware of the need to do so. See: Allround Tooling (Pty) Ltd v NUMSA and Others;NEHAWU v Nyembezi and Librapac CC v Fedcraw and Others.I emphasize that a condonation application must itself be pursued with diligence. However, one must always bear in mind that most

individual litigants (such as the Appellant in the instant matter) depend wholly on the advice and expertise of their legal representatives. The individual litigant hardly knows about time limits within which disputes must be referred.” See also Meintjies v HD Combrinck (Edms) Bpk 1961 (1) SA 262 (A) at 263 H-264B.

[3] See also Khosa v Absa Bank Limited (JA55/2013) [2015] ZALCJHB 1 (15 January 2015), where the Labour Appeal Court held that; “[5] One of the factors to determine whether or not the condonation application ought to have been granted is whether it was in the interests of justice to do so. See: NEHAWU obo Mafokeng and Others v Charlotte Theron Children’s Home. Also an application for condonation must be brought as soon as the party which applies for it becomes aware of the default.

See: Seatlolo and Others v Entertainment Logistics Service (A Division of Gallo Africa Ltd).” And “[6] This Court has endorsed the abovementioned approach advocating the bringing of the application for condonation as soon as the litigant becomes aware of the need to do so. See: Allround Tooling (Pty) Ltd v NUMSA and Others;NEHAWU v Nyembezi and Librapac CC v Fedcraw and Others.I emphasize that a condonation application must itself be pursued with diligence. However, one must always bear in mind that most

individual litigants (such as the Appellant in the instant matter) depend wholly on the advice and expertise of their legal representatives. The individual litigant hardly knows about time limits within which disputes must be referred.”

See also Meintjies v HD Combrinck (Edms) Bpk 1961 (1) SA 262 (A) at 263 H-264B.

[4] See NUMSA and another v Hillside Aluminium [2005] 6 BLLR 601 (LC)

[5] 1965 (2) SA 135 (A) 141B-H. See also Silplat (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others [2008] ZALC 33; [2011] 8 BLLR 798 (LC) at paragraphs 54 to 58

[6] (2007) 28 ILJ 1028 (LAC) at para 34

[7] Act 66 of 1995

[8] 2009 30 ILJ 347 (LC) at para 27

[9] [2000] ZACC 3; [2000] (2) SA 837 (CC) at 839 F