NUMSA obo Oheko v Long Wharf Investments (Pty) Ltd (JS474/20) [2021] ZALCJHB 405 (25 October 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Not of interest to other judges

Case no: JS 474-20

In the matter between:

NUMSA OBO LUNGILE QHEKO OHEKO Applicant

and

LONG WHARF INVESTMENTS (PTY) LTD Respondent

Heard: 22 October 2021

Delivered: 25 October 2021

Delivered: This judgment was handed down electronically by circulation to the parties’ representatives by email and release to SAFLII. The date and time for hand-down is deemed to be 10h00 on 25 October 2021.

Summary: Condonation

JUDGMENT

COETZEE AJ

[1] The applicant approaches this Court for condonation for the late delivery of the statement of claim. The application is opposed.

[2] The applicant raised a point in limine in that the deponent to the answering affidavit has failed to establish his authority to file an opposing affidavit.

[3] There is no merit in this point. If the applicant wished to object it should have applied for the affidavit to be struck out to enable the respondent to deal with the point. The point is dismissed.

[4] I now deal with the condonation application.

The delay

[5] The applicant delivered the statement of claim on 31 August 2020, while the certificate was issued on 21 February 2020.

[6] According to the applicant the delay is one month. According to the respondent the delay is almost four months. This is an excessive delay.

The explanation

[7] The delay was caused by the internal procedures of the applicant and partly by the restriction on movements in terms of the state of disaster.

[8] The union representative that represented the union member at the arbitration handed a report on the merits to the Legal officer of Numsa on 25 February 2020, four days after the certificate was issued.

[9] The report was forwarded to the union's head office on 27 February 2020 for authority to appoint an attorney. Head office approved the appointment of an attorney on 6 March 2020.

[10] Numsa then instructed the attorneys on 12 March 2020 who requested a consultation with their member and the union representative on 20 March 2020. The union representative was unavailable as she was engaged in three arbitrations and the consultation was rescheduled for 30 March 2020.

[11] The President then announced the lockdown from 23 March 2020 for a period of three weeks which made the consultation impossible.

[12] The state of disaster was extended again, and the Legal Officer attempted to get the relevant documents from the organiser who then was on suspension. When he received the documents on 7 August 2020 he arranged a visual consultation for 11 August 2020 and after perusing the draft it was finalised and delivered on 17 August 2020.

Prospects of success

[13] The applicant argues that the member was not afforded an opportunity to state his case at a disciplinary hearing. The respondent denies this. Numsa also refers to the statement of case as to the prospects of success.

[14] The respondent also relies on its statement of defence to show that the applicant has poor prospects of success.

[15] Both parties plead prejudice by reason of not having its case adjudicated or the delay and costs respectively.

Analysis

[16] The relevant legal principles to be applied in an application for condonation are well established. This Court is required to exercise a discretion, having regard to the extent of the delay, the explanation for that delay, the prospects of success and the relative prejudice to the parties that would be occasioned by the application being granted or refused. The interest of justice will ordinarily reflect regard to all these factors.

[17] The third respondent relies upon NUM v Council for Mineral Technology[1] where the LAC said the following:

" The approach 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 therefore, the prospects of success and the importance of the case. These facts are interrelated: they are not individually decisive. What is needed is an objective conspectus of all the facts. A slight delay and a good explanation may help to compensate for prospects of success which are not strong. The importance of the issue and strong prospects of success may tend to compensate for a long delay. There is a further principle which is applied and that is that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused."(own emphasis)

[18] In Melane v Sanlam Insurance Co Ltd[2] it was held that:

“…. Among the facts usually relevant, are the degree of lateness, the explanation therefore, the prospects of success and the importance of the case. Ordinarily these facts are interrelated, they are not individually decisive, for that would be a piecemeal approach

incompatible with a true discretion, save of course that if there are no prospects of success there will be no point in granting

condonation. What is needed is an objective conspectus of all the facts.”

[19] In A Hardrodt (SA) (Pty) Ltd v Behardien and others[3] (Behardien) the Labour Appeal Court (LAC) restated the guidelines laid down in Queenstown Fuel Distributors CC v Labuschagne NO and others[4] inter alia that there must be good cause for condonation in the sense that the reasons tendered for the delay have to be convincing. In other words, the excuse for non-compliance with the six-week time period must be compelling. The onus is on the applicant for condonation to satisfy the Court that condonation should be granted.

[20] In this Court the principles have long been qualified by the rule that where there is an inordinate delay that is not satisfactorily explained, the applicant’s prospects of success are immaterial.

[21] The courts have held and emphasised that in applications to review and set aside arbitration awards, an applicant must act with the necessary degree of diligence required by the Rules of this Court and the Practice Manual, thus giving effect to the statutory imperative of expeditious dispute resolution.

[22] In Toyota SA Motors (Pty) Ltd v CCMA and others[5] the Constitutional Court emphasised that one of the fundamental purposes of the Labour Relations Act[6] (LRA) was to establish a system for the simple, quick, cheap, and informal adjudication of labour disputes. When it assesses the

reasonableness of a delay, the Court must not lose sight of this purpose.

[23] Condonation for delays in all labour law litigation is not simply there for the taking. The starting point is that an applicant in an application such as the present, seeks an indulgence and bears the onus to show good cause and a proper case should be made out before the indulgence could be granted.

[24] In Gaoshubelwe and Others v Pieman's Pantry (Pty) Ltd [7] it was held that a consideration of prospects of success merely implies a determination of the likelihood or chance of success when the main case is heard. A similar approach was followed in Seatlholo & others v Entertainment Logistics Service (A division of Gallo Africa Ltd)[8], where it was held that the test is whether the applicants would succeed in the main action if the facts pleaded by them in their condonation application were established at trial. Equally so, the prospects of success do not entail an applicant having to prove on a balance of probabilities that he or she would succeed when the merits of the case are heard[9] .

[25] It is in this context that the application for condonation stands to be determined.

[26] The delay is excessive. The application for condonation was only delivered on 15 September 2020 after the applicant having been alerted to it by the statement of defence on 31 August 2020.

[27] The explanation relies heavily upon the restrictions on movement and to a lesser degree upon the unavailability of the documents in the possession of the organiser.

[28] The respondent does not dispute that a hard lockdown ended 31 May 2020.

[29] The explanation for the delay during the lockdown period is very thin. The period from 31 May 2020 to 15 September 2020 does not inform the Court as to what really happened.

[30] The prospects of success are considered on the basis of Seatlholo & others v Entertainment Logistics Service (A division of Gallo Africa Ltd)[10]. If the applicant can prove that the member did not have the benefit of being heard, then it has prospects of success.

[31] The applicant denies that he was given an opportunity to state his case. The respondent maintains that the union was engaged in respect of the applicant who was dismissed for participating in an unprotected strike. The applicant maintains that he was present as a shop steward to control the individual union members. The applicant has some prospects of success.

[32] Prejudice does not take the matter any further.

[33] In conclusion, having regard to the long delay, the explanation, and prospects of success, I am of the view that the applicant has done enough to deserve condonation.

Costs

[34] The respondent asked for costs. This is not a matter where a cost order is justified.

Order

[35] I make the following order:

1. The point in limine is dismissed.

2. The late delivery of the statement of claim is condoned with no order as to costs.

F. Coetzee

Acting Judge of the Labour Court of South Africa

Appearances

For the applicant: Adv T Ntaka

Instructed by: Phungo

Inc

For the Respondent: Adv Willem Bekker

Instructed by: Geyser

& Ferreira Inc

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

[2] 1962 (4) SA 531 (A) at 532 C - F.

[3] (2002) 23 ILJ 1229 (LAC).

[4] (2000) 21 ILJ 166 (LAC).

[5] (2016) 37 ILJ 313 (CC).

[6] Act 66 of 1995 as amended.

[7] 2009 30 ILJ 347 (LC) at para 27.

[8] (2011) 32 ILJ 2206 (LC) para 24.

[9] Production Institute of South Africa (PTY) Ltd v CCMA and others (Case No: JR1974/2009) at para 12; See also SA Democratic Teachers Union v Commission for Conciliation, Mediation and Arbitration and others (2007) 28 ILJ 1124 (LC) at para 38, where it was held that; ‘A commissioner in considering prospects of success does not have to pronounce on the merits of the case. All that the commissioner needs to do is to investigate whether on the averments made by the applicant there is a prima facie case, that there is a chance of succeeding when the main case is heard. In other words to establish whether there is a reasonable prospect of success on the merits, it suffices if an applicant can show a prima facie case through setting out averments which, if established at the proceedings of the main case, would entitle the applicant to some relief. The applicant need not deal fully with the merits of the case’.

[9] Production Institute of South Africa (PTY) Ltd v CCMA and others (Case No: JR1974/2009) at para 12; See also SA Democratic Teachers Union v Commission for Conciliation, Mediation and Arbitration and others (2007) 28 ILJ 1124 (LC) at para 38, where it was held that;

‘A commissioner in considering prospects of success does not have to pronounce on the merits of the case. All that the commissioner needs to do is to investigate whether on the averments made by the applicant there is a prima facie case, that there is a chance of succeeding when the main case is heard. In other words to establish whether there is a reasonable prospect of success on the merits, it suffices if an applicant can show a prima facie case through setting out averments which, if established at the proceedings of the main case, would entitle the applicant to some relief. The applicant need not deal fully with the merits of the case’.

[10] (2011) 32 ILJ 2206 (LC) para 24.