November v Metal Engineering Industries Bargaining Council (MEIBC) and Others (JR 2597-18) [2021] ZALCJHB 19 (8 February 2021)

IN

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR2597/18

In the matter between:

DOCTOR

GODFREY NOVEMBER Applicant

And

METAL

ENGINEERING

INDUSTRIES

First Respondent

BARGAINING COUNCIL (MEIBC)

RAYMOND

DIBOEN N.O Second Respondent

COZENS

RECRUITMENT SERVICES Third Respondent

ESKOM

ROTEK ENGINEERING GROUP Fourth Respondent

Heard: 13 January 2021

Delivered: 08 February 2021

Summary: Application to review and set aside arbitration award - late filing of review application - no condonation application - court lacks jurisdiction - punitive costs not awarded.

JUDGMENT

DEANE AJ

Background and Material Facts

[1] This is an application launched in terms of section 145 of the Labour Relations Act 66 of 1995 (the LRA) to review and set aside an arbitration award dated 26 October 2018 (The Award) rendered by Commissioner Raymond Dibden (The Commissioner) of the MEIBC under case number MEGA50386. The dispute related to an alleged dismissal by the Fourth Respondent on 31 March 2015. The dispute was previously referred 551 days late under case number MEGA50386. The Condonation was refused by Commissioner Coen Havenga in a Condonation Ruling dated 29 June 2017. The Applicant took the ruling on review where same was set aside by this Court in an order dated 24 April 2018; under case number JR1736/17.

[2] During the second arbitration hearing the Fourth Respondent denied the alleged dismissal on the basis that an employment relationship

did not exist between the two parties. Accordingly, there was no dismissal for purposes of section 186, read with section 192 of the LRA.

[3] The Commissioner in his Award found that the Applicant had failed to discharge the onus of showing that he had been dismissed by the Fourth Respondent and that his employment was terminated by the Third Respondent, a temporary employment service (TES) provider and; the Fourth Respondent was argued to be a client of the TES.

[4] The Applicant was employed by the Third Respondent on 1April 2014 until his termination by the Third Respondent on 31 March 2015. I will not burden this judgment with the background history which can be found from the various papers that have been filed.

[5] It is common cause that the Third Respondent had been liquidated in December 2016.

Grounds for Review

[6] It is noted that the Applicant's Founding Affidavit dated 11 December 2018 does not adequately and properly set out the grounds for review.

[7] The Applicant argues that the Commissioner's conduct is unlawful in that he "failed to narrow the issues to the dispute" and that "he a/so failed to comply with the Arbitration Act 42 of 1965 as amended to administer an Oath and/or affirmation on alleged witnesses".[1]

[8] Furthermore, the Applicant argues that the Commissioners conduct is unlawful as it would seem that he had already made up his mind about the matter, by refusing to allow the Fourth Respondent to call a witness to testify;[2] that the Commissioner "failed to advise the Applicant what was the process"[3] when he requested a copy of the audio recordings of the arbitration; that " the 1st Respondent ignored that the Applicant was recommended with other 4 candidates but it was only the Applicant who has not resumed his duties"; [4] and "that the Applicant was issued with an employee number and also subjected to medical routine check up by the 4th Respondent”.[5]

Preliminary Issues

RE: The Court Bundles

[9] it is hereby noted for the record that the state of the bundle of documents is appalling. There is no proper pagination, where there is some form of pagination, it is inconsistent; an index is provided but which index can be found in the middle of the file and, there are loose pages within the bundle; all of which greatly affected the efficient hearing of this case. In short, this was absolutely unprofessional and unacceptable. The Applicant's representative proceeded to give an explanation for the state of the bundle to the effect that he was newly briefed on the matter and that the case had passed through many hands and by implication he could not be held responsible for the state of the bundle, which explanation was noted.

RE: Notice of Set-down

[10] The Applicant in this matter initially indicated to the Fourth Respondent that he had not received the notice of set down but at the hearing of 13 January 2021, the Applicant's representative stated unequivocally that he did in fact receive the notice of set down and they received it timeously. The Fourth Respondent however submitted that they did not receive notice of set down and provided a communication dated 12 January 2021 to this effect. The Fourth Respondent remained adamant that despite this they were ready to proceed with the matter.

RE: No Condonation Application

[11] In the Fourth Respondent's Answering Affidavit dated 26 March 2019 and court stamped 27/03/2019 and in the Fourth Respondents Heads of Argument dated 12 July 2019, court stamped 15/07/2019; a number of preliminary objections were raised; the first being the defective filing and late delivery of the review application. The Fourth Respondent argues that the review application is not properly before this Court and objects to the jurisdiction of this Court to hear the review application on the basis that the application was launched outside the six weeks period prescribed by section 145(1)(a) of the LRA.[6] The Fourth Respondent submitted that this court lacks jurisdiction to entertain the application as the Applicant filed it out of time but failed to apply for condonation. The Fourth Respondent further submitted that lack of jurisdiction constituted grounds for the dismissal of the application.

[12] I will first look at the issue of the lack of a condonation application as its outcome will determine the necessity of considering the review application. Absent condonation the review application will not be properly before this Court.

[13] The review application is argued by the Fourth Respondent to have been filed on 11 December 2018. The Labour Court's stamp on the document bears evidence of this.

[14] By this version the review application should have been served on 11 January 2019, but which was only filed on 18 January 2019.The fact that the application was filed on 18 January 2018 is common cause.

[15] In the Applicant's replying affidavit dated 18 July 2019 and court stamped on the same day, the Applicant indicates that the review application was filed timeously and writes ''attached hereto is a copy of the proof of service marked 'DGN 1"'.[7]

[16] It is pointed out that the "DGN 1'' referred to was however an affidavit deposed to by the Applicant to the effect that service was affected,[8] but not actual proof of service as required.

[17] Counsel for the Applicant. during the hearing, then emailed to this court what is purported to be a "proof of service" that was dated 14 December 2018 to an email address mohutspc@eskoni.co.za.

[18] The Fourth Respondent argues that the email address of mohuts pc@eskom.co.za is not the e-mail address noted in the Notice of Opposition dated 21 December 2017; which e-mail is listed as being sibekont @eskom.co.za.

[19] When questioned, Counsel for the Applicant could not provide an adequate response to these averments.

[20] I have traversed the documents or what could be made of the mess that is the bundles and whilst reference is made to Phillip Mohutsioa, including an affidavit deposed to by him[9] no email address of mohuts pc@eskom :co.za is given as a person of record or as a person who has been authorised to receive notices on behalf of the Fourth Respondent.

[21] I have subsequently noted that the Applicant did make use of email address sibekont@eskom.co .za for a notice of set down for hearing for 19 July 2019 [10] They were therefore aware of the correct address to use for notification and service.

[22] Regarding condonation; the Constitutional Court in Grootboom v National Prosecuting Authority and Another [11] expressed its disapproval for non­ compliance with court rules and the failure to give proper reasons for condonation in the following words:

'The language used in both Van Wyk and Ethekwini is unequivocal. The warning is expressed in very stern terms. The picture depicted in the two judgements is disconcerting . One gets the impression that we have reached a state where litigants and lawyers disregard the Rules and directions issued by the Court with monotonous reg1,1larity. In many instances very flimsy explanations are proffered. In others there is no explanation at all. The prejudice caused to the Court is self -evident. A message must be sent to litigants that the Rules and the Court's decisions cannot be disregarded with impunity.'

The court expressed the need for a proper condonation application thus:

'[23] It is trite that condonation cannot be had for the mere asking. A party seeking condonation must make out a case entitling it to the court's indulgence. It must show sufficient cause. This requires a party to give a full explanation for the non-compliance with the rules or court's directions. Of great significance, the explanation must be reasonable enough to excuse the default.

[23] The review application is late. There is no condonation application before this Court. Absent the necessary condonation application, this Court lacks jurisdiction to hear this application.

[24] The Fourth Respondent sought a costs order against the Applicant. I have considered the arguments on the issue of costs. What is of utmost concern is the manner in which the Applicant has been conducting himself throughout these proceedings.

[25] An example is on 12 January 2021, the Fourth Respondent, sent a communication detailing a conversation that they had with the

Applicant's representative indicting the Applicant also did not receive notice of sent down. When questioned by myself on the issue

of set down at the hearing, the Applicant indicated that they did indeed receive the notice of set down and no other explanation was given as to the misdirection given to the Fourth Respondent or a denial of what was written in the communication dated 12 January

2021.

[26] Another example is where in the Fourth Respondent's Answering Affidavit[12] and on 6 February 2019 in a communication dated 11 February 2019, it would seem that the Applicant attempted to place the matter on the unopposed roll of 23 April 2019, without following the proper rules of the Court.[13] No responding affidavit was filed by the Applicant. In an order stamped 22/05/2019, Judge Rabkin-Naicker ordered the review application to be placed on the opposed roll.

[27] There are also other instances where the Applicant failed to comply with the Court rules relating to the service of documents.[14] However, notwithstanding the manner in which the Applicant conducted this matter, I am not convinced that both the law and fairness justify a costs order. However, this ought to be reconsidered should the Applicant continue pursuing what is clearly a very weak case.

[28] In the premises, the following order is made:

Order

1. The court lacks jurisdiction to hear the review application.

2. No order is made as to costs.

T Deane

Acting Judge of the Labour Court

Appearances :

For the Applicant: Adv Zwane

Instructed by Litha Makhuni Attorneys

For the Fourth Respondent: Ms Gugulethu Mthalane

[1] See para 34 of the Applicant's Founding Affidavit dated 11 December 2018 and court stamped 11/12/2018.

[2] See para 34-35 of the of the Applicant's Founding Affidavit dated 11 Decbmber 2018 and court stamped 11/12/2018.·

[3] See pg 17 of the Bundle of Documents.

[4] See para 47 of the Applicant's Founding Affidavit dated 11 December 2018 and court stamped 11/12/2018.

[5] See para 48 of the Applicant's Founding Affidavit dated 11 December 2018 and court stamped 11/12/2018

[6] See para 3.1 of the Fourth Respondent’s Head of Argument court stamped 15/072019.

[7] Applicant's Replying Affidavit at pg 2.

[8] See pg marked as “DGN 1" pg 125 of the Bundle of Documents.

[9] See Founding Affidavit of Phillip Chabaesele Mohutsiwa dated 1 April 2019 court stamped 03/04/2019; see pg 2 of the Confirmatory Affidavit: Fourth Respondent's Answering Affidavit dated 4 April 2019, court stamped. 04/04/2019; see also unpaginated Notice in Terms Of Rule 7A(8)(b) dated 23 January 2019 and court stamped 24101/2019 .

[10] See unpaginated document attached after an orange divider titled "class tests".

[11] [2014] 1 BLLR 1 (CC) at para 34,

[12] See pg 103 of the Bundle of Documents.

[13] See page 143 of the Bundle of Documents.

[14] See pg 3 of the Judgment in Callie number JR2597/18.