NUMSA obo Mahlatsi v Metal and Engineering Industries Bargaining Council and Others (JR24425/13) [2016] ZALCJHB 538 (28 June 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no JR24425/13

In the matter between

NUMSA obo MAHLATSI, MOJALEFA Applicant

And

METAL AND ENGINEERING INDUSTRIES First

Respondent

BARAGAINING COUNCIL

LC SHANDU N.O. Second

Respondent

GAMMATECH

Third Respondent

Heard: 23 June 2016

Delivered: 28 June 2016

JUDGMENT

VAN NIEKERK J

[1] This is an application to review and set aside an arbitration award issued by the second respondent. The award was issued on 4 August 2013. In his award, the second respondent dismissed an unfair dismissal claim referred to the first respondent for arbitration.

[2] The present application was filed on 10 December 2013. The applicant concedes that the delay of some 10 weeks beyond the six-week period within which the application ought to have been filed is inordinate. The explanation for the delay is centred on the applicant seeking legal opinion on the prospects of success in the review application. The deponent to the founding affidavit (who provides the explanation for the delay), states that he is the union’s regional legal officer and that he represented the applicant during the proceedings under review. When the award was furnished to him for his opinion on the prospects of success on review, he expressed the view, in writing, that the applicant did not have good prospects of success and that the applicant should not seek to review the award. The applicant was dissatisfied with this view and sought a second opinion. The matter was referred to the union’s national legal officer who for reasons that are not apparent was unable to apply himself to the matter. Ultimately, during November 2013, a meeting was convened with the national legal officer during which the applicant remained adamant that the review application needed to be filed. Attempts thereafter between the regional legal officer and the national legal officer to draft the papers were fruitless, and it would appear that the regional legal officer drafted and filed the papers during December 2013.

[3] In my view, the explanation for the delay in filing the review application is unsatisfactory. The essence of the explanation for delay amounts to no more than the applicant, having been advised by the regional legal officer that he had no prospects of success, insisting on a further opinion and on the filing of the review. The legal officers concerned held senior positions within the union. They must have been aware of the six-week time limit applicable to review applications, and must have been aware of the statutory imperative of expeditious dispute resolution and their obligation to ensure that the statutory deadline was met. What the explanation for the delay discloses is no concern whatsoever for the statutory time limit. The explanation amounts to no more than the fact of a conversation between the two legal officers, conducted over weeks, as to the prospects of success, and the disinclination of both to pursue the matter with any degree of diligence.

[4] Strictly, where there has been an unreasonable delay in filing review application and no satisfactory explanation for the delay is provided, this would generally preclude the granting of condemnation, irrespective of the prospects of success. Even if I were to have regard to the applicant’s prospects, these are minimal (if they exist at all) primarily because the case made by the applicant at the arbitration hearing is at odds with the case made out in the papers before me. In the arbitration hearing, the applicant’s case was that he had been offered and accepted permanent employment with the third respondent during December 2012 and that on 8 February 2013, he was dismissed. The second respondent rejected this version and upheld the third respondent’s version to the effect that the applicant had signed a fixed-term contract to commence on 22 December 2012 and to terminate on 22 March 2013. The second respondent specifically held that the applicant had built a case ‘based on deceits’ and that he failed to establish that he had signed a contract of permanent employment or that he was offered such a contract. The case

made out on review is rather different. The applicant avers that on 10 December 2012, he was offered a fixed-term contract that was to expire on 22 March 2013 but that on 1 February 2013, that contract was terminated with effect from 8 February 2013. There is no mention of permanent employment. It would appear therefore that the applicant was less than honest during the proceedings under review, and that he has been less than honest in the present proceedings. In his recordal of the relevant facts, the applicant states that he is ‘claiming actual damages for loss of remuneration due to unlawful termination of employment contract’. This is not a remedy available to the applicant.

[5] In any event, as the third respondent’s counsel submitted at the hearing of the present application, there is no proper

application before the court since the applicant failed to file a notice of motion. The papers filed before the court in December 2013 extend only to a filing sheet and a founding affidavit. In the absence of a proper application before the court, this matter stands to be dismissed for that reason alone.

For the above reasons, I make the following order:

1. Condonation for the late filing of the review application is refused

2. The review application is dismissed.

ANDRE VAN NIEKERK

JUDGE OF THE LABOUR COURT

REPRESENTATION

For the applicant: Union official

For the third respondent: Adv. EM Masombuka, instructed by DM5 Inc.