Nkosi v Tsogo Sun Holdings (PTY) Ltd and Others (JR2695/19) [2022] ZALCJHB 214 (11 August 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR2695/19

In the matter between:

ESTER N NKOSI

Applicant

and

TSOGO SUN HOLDINGS (PTY) LTD

First Respondent

COMMISSIONER MICHAEL HOWITZ N. O

Second Respondent

COMMISSION FOR CONCILIATION MEDIATION

AND ARBITRATION

Third Respondent

Heard: 01 July 2022

Delivered: 11 August 2022

(This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website and released to SAFLII. The date for hand-down is deemed to be 11 August 2022.)

JUDGMENT

MAMABOLO, AJ

Introduction

[1] This is an application to review and set aside the arbitration award issued by the Second Respondent on 13 August 2019. The review application was filed outside the stipulated six weeks period. The Applicant applied for condonation of the late filing of the review application. The First Respondent opposes the application for condonation.

Background

[2] Arbitration proceedings were concluded on 31 July 2019. A copy of the award was sent to the parties on 13 August 2019. Accordingly, the six weeks period within which the Applicant was required to file her application for review expired on 24 September 2019. The review application was only filed on 4 December 2019 which makes it ten weeks late.

[3] In support of her application to condone the late filing of the review application, the Applicant alleges that she only learnt of the award on 21 August 2019 when she visited the union’s offices. She then advised her union that she was not happy with the award. The union advised her that the matter would be taken on review and undertook to call her. On 23 August 2019 the Applicant visited the offices of the union and was advised that the Head office would give her a call to ask a few questions prior to referring the matter to the Labour Court.

[4] She further alleges that mid-September 2019 she realized that the union was delaying in referring the matter on review and she started making enquiries about which attorneys to engage. She was given a few contacts. She contacted the attorneys, but they never phoned her back.

[5] For the month of September and October she suffered from depression. She approached the Labour Court on 20 November 2019. She met her current attorneys of record at the Labour Court, and it was agreed that she should come for a consultation at their offices and also pay a deposit. A consultation only took place on 28 November 2019. The review application was subsequently filed on 4 December 2019.

[6] The First Respondent argued that the delay is excessive, that the Applicant failed to provide sufficient details to explain the delay, that she failed to explain every period of the delay and that the Applicant cannot hide behind the conduct of her union representative.

Explanation for the delay

[7] This court, and in particular in the matter of NUM v Council for Mineral Technology[1] maintained the position that in considering whether good cause has been shown in an application for condonation, the approach in Melane v Santam Insurance Co Ltd[2] should largely be adopted. The court has a discretion that has to be applied judicially upon a consideration of all facts and that it is a matter of fairness to both sides. Amongst the relevant factors to be considered are the degree of lateness, the explanation therefor, the prospects of success and the importance of the case. In terms of this approach, a slight delay and a good explanation might compensate for weak prospects of success and the importance of the case and strong prospects may compensate for a long delay.

[8] The Labour Appeal Court in the matter of Chetty v Baker McKenzie[3] held that:

“However, the further principle in conjunction with the broad approach of Melane is that, in the absence of a full and reasonable (acceptable) explanation for the delay, the prospects of success are immaterial, and that if there are no prospects of success an application for condonation should be refused even if there is a good explanation for the delay. 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. The explanation for the delay must thus be full and reasonably clear, logical, and convincing to excuse the default.

(Own emphasis)

[9] The court is called upon to make a determination on whether the Applicant has tendered a compelling excuse for non-compliance with the required time frames. In this matter, the delay is ten weeks. It is therefore required of the Applicant to advance a full and acceptable explanation.

[10] It is apparent from her explanation that at the time she became aware of the award, i.e on 21 August 2001, she was still within the six weeks period, and further even when she made a follow up enquiry on 23 August 2019, she was still within the six weeks period. However, absolutely nothing was done to ensure that the review is filed timeously. It only dawned on her in September 2019 that the union was delaying. Seeing that she was receiving no telephone calls from the union, it was incumbent on the Applicant to take steps to challenge the award if it was indeed her intention to do so. This she failed to do.

[11] As alluded above, the six weeks period expired on 24 September 2019. The Applicant is therefore required to account for the period between 24 September 2019 and 4 December 2019.

[12] According to the Applicant, she noticed in the middle of September 2019 that her union was delaying in referring the matter to the Labour Court. She makes bald statements that she made enquiries on which attorneys to engage and was given a few contacts whom she contacted but received no co-operation.

[13] The dates on which the alleged enquiries were made and when such referrals were obtained, are not mentioned and neither are the dates on which calls where allegedly made to the attorneys.

[14] It is undisputed that the Applicant was aware that the award can be challenged in the Labour Court. With this knowledge, and taking into cognizance the fact that the union was dragging its feet, the Applicant should have proceeded and filed her review application. Instead, she did virtually nothing and waited until 20 November 2019 to approach the Labour Court where she met her current attorneys of record.

[15] It is important to note that on 20 November 2019 the Applicant was advised that she was already out of time in filing a review application. Again despite this knowledge, she only consulted her attorneys on 28 November 2019.

[16] Accordingly, the following illustrates the periods which are unaccounted:

16.1 Mid-September – 31 October 2019

16.2 1 November – 19 November 2019

16.3 21 November – 27 November 2019

16.4 28 November – 3 December 2019.

[17] It is trite that an application for condonation must offer an explanation for the full length of the delay[4]. Thus the explanation must cover the entire period of the delay. I find that the delay is significant and that it was incumbent on the Applicant to explain the entire period of the delay which, she failed to do.

[18] The allegation that the Applicant was depressed and treated by a traditional healer is not supported by any documentary evidence. She failed to mention the dates on which consultations with the traditional healer took place. There is again no confirmatory affidavit by the traditional healer.

[19] To the extent that she seeks to lay the blame on the doorstep of her union representative, the law is quite clear on that. The Labour Appeal Court in the matter of Superb Meat Supplies CC v Maritz[5] had the following to say in relation to the litigant’s duties:

“In this court and the Supreme court of appeal there have been frequently repeated judicial warnings that there is a limit beyond which a litigant cannot escape the results of his attorneys’ lack of diligence on the inefficiency of the explanation tendered. It has never been the law that invariably a litigant will be excused if the blame lies with the attorneys. To hold otherwise might have disastrous effect upon the observance of the rules of this court and set a dangerous precedent. It would invite or encourage laxity on the part of the practitioners.”

[20] Based on her conduct, the Court is satisfied that the Applicant cannot be absolved from blame. According to her explanation, it became apparent ‟middle September 2019” that the union was delaying in referring the matter and she decided to seek assistance of a legal representative. The legal representatives

undertook to call her but never did.

[21] So she sat and waited for a call from the attorneys. Seeing that the attorneys were not calling her as undertaken, the Applicant should have approached other attorneys for assistance. She therefore contributed towards the delay and is equally to blame.

[22] Furthermore, the month of September has 30 days therefore ‟middle September” can only be 15 September which in my view, was before 24 September 2019 which was the last day of the six weeks period within which to file a review application. Had she acted swiftly, the delay could have been avoided and if not avoided, could have been minimal. Accordingly, the Applicant has offered no full and reasonable (acceptable) explanation for the delay.

[23] One of the primary objectives of the Labour Relations Act[6] (LRA) is to facilitate and ensure effective resolution of labour disputes. In keeping with this objective, it is trite that there

exists a particular requirement of expedition when it comes to the prosecution of employment law disputes.

[24] In Toyota SA Motors (Pty) Ltd v CCMA and Others[7] the Constitutional Court held that:

“Time periods in the context of labour deputes are generally essential to bring about timely resolution of the disputes. The dispute-resolution

dispensation of the old Labour Relations Act was uncertain, costly, inefficient, and ineffective. The new Labour Relations Act (LRA) introduced a new approach to the adjudication of labour disputes. This alternative process was intended to bring about the expeditious resolution of labour disputes which, by their nature, require speedy resolution. Any delay in the resolution of labour disputes undermines the primary object of the LRA. It is detrimental not only to the workers who may be without a source of income pending the resolution of the dispute but, ultimately, also to employer who may have to reinstate workers after many years.”

[25] Having said all of the above, in the absence of a full, logical, and convincing excuse for the delay, it is not necessary for the Court to embark on an enquiry into the prospects of success.

Costs

[26] In so far as costs are concerned, the Court has a broad discretion to exercise according to the requirements of law and fairness. I have considered the issue on costs and am of the view that it will not be in the interests of justice to award a costs order.

[27] In the results, the following order is made:

Order

1. Applicant’s application to condone the late filing of the review application is dismissed.

2. There is no order as to costs.

Olivia Mamabolo

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant

: Nishlan Moodley of Nishlan Moodley Attorneys

For the Respondent

: Advocate Victor Mndebele

Instructed by

: ENS AFrica

[1] [1999] 3 BLLR 209 (LAC) at para 10

[2] 1962 (4) SA 531 (A)

[3] (2022) 43 ILJ 1599 (LAC)

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

[5] (2004) 25 ILJ 96 (LAC) at para 16.

[6] No. 66 of 995, as amended.

[7] (2016) 37 ILJ 313 (CC) at para 1.