Ngqungwana v Port Elizabeth TVET College and Another (PS16/22) [2024] ZALCPE 29 (1 August 2024)

THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

Not Reportable

Case No: PS 16/2022

In the matter between:

SANGOLINYE NGQUNGWANA Applicant and PORT ELIZABETH TVET COLLEGE First Respondent DEPARTMENT OF EDUCATION OF HIGHER EDUCATION AND LEARNING Second Respondent

Heard: 12 June 2024

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date and time for hand-down is deemed to be on 1 August 2024.

JUDGMENT

THYS, AJ

Introduction

[1] This determination pertains to the late delivery of the statement of response by Port Elizabeth TVET College, the first respondent in the action proceedings pending before this Court.

[2] For ease of reference, the parties will be referred to herein/this judgment as they appear in the papers in the main action.

[3] Since the filing of the applicant’s statement of claim, the Rules of this Court have been repealed[1] and new Rules[2] have been published, introducing new time frames for the filing of court processes. At the time of the referral, the Court Rules stipulated that a statement of response “must be delivered within 10 days of the date on which the statement of claim is delivered”.[3]

The Legal position

[4] The late delivery of a statement of response, or non-compliance with the ten-day filing stipulation is curable in accordance with section 158(1)(f) of the Labour Relations Act[4] (LRA) because this Court has the authority to condone the late delivery of any document with the Court, obviously subject to the

provisions of the LRA. Additionally, Rule 12(2) of the now repealed Rules specified that the Court may, upon a showing of good cause, condone non-compliance with any period prescribed by the rules.

[5] As the law currently stands, condonation lies squarely within the Court’s discretion, which it must exercise judiciously. A party seeking condonation is therefore obligated to provide a reasonable explanation for the default, explicitly outlining how and why it occurred to benefit from this discretion.

[6] In more elaborate terms the factors to consider when evaluating a ‘reasonable explanation’ are well-established in law. In the notable case of Melane v Santam Insurance Co Ltd[5], the Appellate Division held that the Court’s discretion, exercised judiciously, hinges on fairness to both parties. Relevant

factors typically include the extent of lateness, the explanation provided, the case’s prospects of success, and its overall

importance. These factors are interconnected; no single factor is determinative. However, if there are no prospects of success,

granting condonation becomes moot. Rather than rigid rules, an objective assessment of all facts is essential. For instance, a minor delay with a compelling explanation might offset weak prospects of success. Conversely, the significance of the issue and strong prospects of success could mitigate a lengthy delay. Importantly, the opposing party’s interest in finality should not be disregarded. Lastly, brevity is advisable when discussing prospects of success in affidavits.

Condonation application

[7] To address the aforementioned delay, or in accordance with the lifelines provided in section 158(1)(f) and Rule 12(2), the first respondent applied for condonation.

[8] The first respondent bears the onus to satisfy the Court that sufficient grounds exist for granting the condonation.

Length of the delay

[9] The first respondent received Mr Ngqungwana’s (the applicant’s) statement of claim on 24 March 2022. However, the first respondent submitted its statement of response on 20 May 2022, which was outside the aforementioned ten-day requirement.[6] In light of this delay, the first respondent sought condonation on 3 October 2022, some 4 months and two weeks after the statement of response was filed. The totality of the delay in the filing of the statement of response was 121 days.

[10] A long delay, such as this, may in an appropriate instance nevertheless be condoned, depending on the circumstances of each case. In other words, the mere fact that there was a long delay is not, by itself, conclusive and dispositive of the question of whether or not the relief sought ought to be granted.

[11] Nevertheless, the significant delay in this matter warrants a comprehensive and reasonable explanation.

Reason for lateness

[12] The first respondent mainly attributes the delay to a bona fide misunderstanding on Mr Boonzaaier’s part concerning the first respondent’s representation. The first respondent, in this regard, alleges that Mr Boonzaaier was the appointed private attorney handling the matter on its behalf. However, on 1 April 2022, Mr Boonzaaier received an email from the second respondent (the Department) informing him that the office of the State Attorney had been instructed to oppose the case. Unfortunately, this email communication led to a misunderstanding on Mr Boonzaaier’s

part. He mistakenly believed that the State Attorney would represent both the first respondent and the Department. As a consequence of this misinterpretation, the first respondent failed to submit its response within the stipulated ten-day period.

[13] The first respondent’s explanation is problematic in many respects.

[14] This is so because it is evident that its explanation primarily focuses only on the period between receiving the statement of claim (24 March 2022) and delivering the statement of response (20 May 2022). The application does not address the delay between the (late) delivery of the statement of response (on 20 May 2022) and the submission of the condonation application (on 3 October 2022). The absence of any explanation before the Court regarding this period (between the delivery of the statement of response and submitting the condonation application) is concerning.

[15] It is also concerning that there is no explanation for the delay in delivering the response between 24 March 2024 (when the statement of claim was served) and 1 April 2022 (when the email was received from the Department).

[16] Additionally, there remains an unexplained gap between 28 March 2024 (when the notice of opposition was delivered) and 7 April 2024 (when the tenth day expired). There are also further unexplained gaps in the affidavit. I view these unaddressed gaps unfavorably because it is well-established that a party seeking condonation must provide a comprehensive/reasonable explanation for the delay that covers the entire duration of the delay.[7]

[17] In summary, while the initial misunderstanding involving Mr Boonzaaier provides context, it does not account for the entire delay as required and weakens the application.

[18] Another problem I have with the first respondent’s explanation is that since its application relies on Mr Boonzaaier’s understanding of the email (regarding the appointment of the State Attorney), a confirmatory affidavit from Mr Boonzaaier is crucial. Such an affidavit would provide valuable insight into his frame of mind or his interpretation of the email in question. The present deponent cannot establish Mr Boonzaaier’s perspective without direct evidence from Mr Boonzaaier himself. Mr Boonzaaier’s understanding of the email (dated 1 April 2022) holds particular importance as it would provide valuable insights into why he did not, for instance, take the step of filing a notice of withdrawal as attorneys of record, or seeking proper instructions directly from his principals and/or clarity from the State Attorney. By examining his perspective, the Court could have better understood

the context and motivations behind his (in)actions. It was also crucial to have obtained an affidavit from Mr Mashinini, the author

of the email dated 1 April 2022 and the person who had purportedly caused the confusion which resulted in the delay. Therefore, the absence of confirmatory affidavits also weakens the first respondent’s case.

[19] Another significant concern is that the first respondent has not presented any evidence to the Court regarding Mr Mashinini's position within the Department or instructions under which he wrote the email. Simply put, who supported him, and why have not his backers come forward? This lingering question remains unanswered. Establishing Mr Mashinini’s position within the Department not only provides context for evaluating the weight and relevance of his email but also establishes its authority. Knowing whether Mr Mashinini acted within his official capacity or under authorized instructions or the circumstances under which he wrote the email is crucial. This determination would have helped to ascertain whether the email authoritatively reflects the Department’s stance or if it was merely Mr Mashinini’s personal opinion or him misunderstanding some or other instruction.

[20] Input from Messrs Boonzaaizer and Mashinini is also necessary to clarify the contents of the email. Taking into account that the construction of the email does not suggest that the Department signaled to the first respondent to stop its potential application. Instead, it could simply mean that the Department would ‘also’ oppose the matter ‘in addition’ to the first respondent’s opposition to the applicant’s referral.

[21] I acknowledge that some may argue that the fault for filing the papers late lies squarely with the first respondent’s attorneys and that the first respondent should not be penalized for their attorneys’ shortcomings. However, this case does not neatly fit into this category, because the blame cannot be solely attributed to the first respondent’s legal representatives. This is because the email dated 1 April 2022, was not only addressed to Mr Boonzaaier but also to officials within the first respondent’s organization. Regrettably, there is no evidence before the court that these officials took appropriate action to address the issue at hand. In this context, their silence speaks volumes and/or their inaction (on the facts before court) also contributed to the delay.

[22] Another obstacle preventing the first respondent from obtaining condonation is the failure to submit a replying affidavit. This omission is problematic because without a replying affidavit, the court lacks a comprehensive view of the case and leaves some of the employee’s statements undisputed.

[23] In light of the circumstances outlined above, I conclude that the first respondent has not successfully established good cause. Based on this factor alone, its application is susceptible to rejection because (according to the precedent set by the Labour Appeal Court in NUM v Council for Mineral Technology[8]) the issue of prospects becomes irrelevant when the reasons for late filing are deemed unacceptable. In simpler terms, a detailed

assessment of prospects is unnecessary if the party’s explanation for the delay is unacceptable

Prospects of success

[24] I also reject the manner in which the alleged prospects of success were presented. Consequently, I conclude that the first respondent has failed to establish good prospects. The reasons for this conclusion are twofold: First, the first respondent did not present evidence regarding its prospects of success in its founding papers. Second, the first respondent invited the Court to search for evidence within its ‘late’ statement of response in the action proceedings. Expecting the Court to deduce a party’s prospects of success from another proceeding is not only unreasonable but also contrary to established best practices and procedures.

[25] Furthermore, exacerbating the situation is the fact that the paper the first respondent referred to in Court is a ‘statement of response’ which generally does not qualify as evidence. Unlike affidavits, which provide detailed sworn testimony, statements of response serve merely as concise statements of the facts relied upon. To build a compelling case, a party should clearly present their evidence within the context of the specific application before the Court

Importance of the matter

[26] The first respondent followed a similar approach regarding the “importance of the case”. Although the first respondent campaigns that the outcome would have far-reaching consequences, it failed to provide evidence to convince the court that this case is of such paramount importance that the default on its part should be overlooked, warranting condonation.

Prejudice

[27] It may very well be that the first respondent may suffer prejudice but this is self-inflicted – if any.

[28] I understand the importance of keeping the doors of justice accessible to labour court litigants. However, considering the facts and legal principles outlined above, this is not a scenario where the doors should remain open. Furthermore, the first respondent is not entirely without recourse; action (against the blameworthy) may still be available to them. On the other hand Mr Ngqungwana’s interest in finality – ensuring timely resolution of legal matters – cannot be overlooked.

Conclusion

[29] Considering all the circumstances and the relevant authorities, I am unable to conclude that the first respondent has established good cause, as required for the grant of condonation, for the late filing of its statement of response.

[30] In other words, based on the facts and legal principles outlined above, this is not a situation where condonation can be granted. Accordingly, the condonation application falls to be dismissed and in the premise, the following order is made:

Order

1. This application is dismissed.

2. There is no order as to costs.

Mark Thys

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: In person For the Respondent: Adv. Gajjar Instructed by The State Attorney

[1] Rules for the Conduct of Proceedings in the Labour Court GN 1665 of 1996 (repealed)

[2] New Court Rules were published in May 2024, with effect from 17 July 2024 entitled ‘Rules Regulating the Conduct of Proceedings of the Labour Court GN 4775 of 3 May 2024’.

[3]. See Rule 6(3)(c) of the now repealed Rules.

[4] Act 66 of 1995, as amended.

[5] 1962 (4) SA 531 (A) at 532C-F.

[6] The statement of response should have been delivered on or before 7 April 2022.

[7] Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae) [2007] ZACC 24; 2008 (2) SA 472 (CC).

[8] [1998] ZALAC 22; [1999] 3 BLLR 209 (LAC).