Nzima v Tourvest Accommodation and Activities, a division of Tourvest Holdings (Pty) Ltd (JS562/20) [2021] ZALCJHB 337 (5 October 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JS 562/20

In the matter between:

MSIZI NZIMA Applicant

and

TOURVEST ACCOMMODATION AND ACTIVITIES,

A DIVISION OF TOURVEST HOLDINGS (PTY) LTD Respondent

Heard: 08July 2021

Delivered: (In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be on 05 October 2021

JUDGMENT

MAKAMU, AJ

Introduction

[1] This is an opposed application for condonation of the Applicant’s late filing of his statement of claim.

[2] The Applicant had referred two statements of claim before this Court against the Respondent. The one claim relates to the alleged protected disclosure by the Applicant against the Respondent and the other to alleged unfair discrimination and harassment of the Applicant by the Respondent with case numbers: JS 563/20 and JS 562/20 respectively. The Applicant brought condonation applications for the late filing of both statements of claim. The facts in terms of the explanation for the delay, degree of lateness and prejudice are identical except, for obvious reasons, for issues relating to the prospects of success. These applications were heard simultaneously although judgments are made separately.

[3] This judgment is in respect of the condonation application for the late filing of the statement of claim relating to unfair discrimination and harassment.

Background

[4] The Applicant seeks condonation of the late filing of his statement of claim. The Applicant had referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) relating to unfair discrimination and harassment against the Respondent.

[5] The certificate of dispute was issued on 16 March 2020.

Explanation and degree of lateness

[6] The Applicant dealt with the degree of lateness in three parts i.e. the period between 17 March 2020 and 26 March 2020; 27 March 2020 and May 2020 and 1 June 2020 and 28 August 2020.

[7] It was submitted on behalf of the Applicant that subsequent to his dismissal he had arranged with his attorneys of record for an urgent consultation in order to prepare the statement of claim. A date set for the said consultation was 30 March 2020. The Applicant, who at the time was in KZN, had planned to return to Gauteng on 29 March 2020.

[8] When the announcement for level 5 lockdown effective 27 March 2020 was announced by the President of the Republic of South Africa, the scheduled consultation could not take place as a result thereof.

[9] It was submitted further that with the Applicant outside the Gauteng province and travelling between provinces being prohibited, there was nothing much that could have been achieved in terms of filing the statement of claim. Furthermore, the courts at the time were only adjudicating extremely urgent matters.

[10] When the partial relaxation of the Covid-19 regulations were announced permitting interprovincial travelling between 1 and 7 May 2020, the Applicant and his attorneys agreed to a meeting in the first week of June 2020.Due to financial constraints on his part, the Applicant was only able to travel to Gauteng on 7 May 2020.

[11] On 5 June 2020 the Applicant consulted with his attorneys of record resulting in the draft statement of claim being produced on 19 June 2020.A consultation was scheduled for 30 June 2020 to finalize the statement of claim.

[12] The Applicant and his attorneys of record then noticed that his pending dismissal dispute was due for arbitration on 21 July 2020 and it was decided to rather focus on the preparation thereof and not consult on 30 June 2020 as had been arranged. Preparations thereof were finalized on 14 July 2020. On 15 July pursuant to receipt of an email from the Respondent’s attorneys, they realized that the Respondent’s bundle of documents for the arbitration consisted of approximately 250 pages. The parties agreed on the postponement of the arbitration, which consequently did not proceed on 21 July 2020.

[13] However, on 15 August 2020, and notwithstanding the agreement by the parties to have the arbitration postponed, the Applicant received notification that his dismissal dispute was dismissed, which it, later emerged, was occasioned by the Respondent erroneously using an incorrect email address when notifying the CCMA of the agreement to have the dispute postponed. On 17 August 2020 the Applicant and his attorneys of record met to prepare a rescission application against the default award, which the Respondent undertook not to oppose. It was then agreed that the Applicant and his attorneys would meet on 28 August 2020 to finalize the statement of claim. The statement of claim was ultimately served on 3 September 2020.

[14] It was submitted that contributing to the delay was the fact that the Applicant’s attorneys of record were inundated with numerous urgent applications in the high courts. The delay was further blamed on the Respondent not (timeously) engaging them in the postponement as they then dedicated their time for preparation for the arbitration.

[15] Counsel for the Respondent made reference to quite a vast number of authorities dealing with condonation, thus extensively challenging the Applicant’s argument.

[16] It was made clear that the Respondent was not challenging the period of the delay during the lockdown period as he was still within the 90 day period within which he ought to have referred his claim to this Court.

[17] It was however, argued that it was not the Applicant’s argument that during this time, he was unable to communicate with his attorneys of record during the said lockdown period i.e. 27 March to 30 May 2020 and same could have been made possible by other means.

[18] It was submitted that the Applicant’s reliance on his attorneys’ busy schedule is not accompanied by a confirmatory affidavit by the said attorney. Furthermore, such excuse is held to be insufficient and unreasonable by the numerous authorities referred to.

[19] It was agreed by the parties that the Applicant’s statement of claim was approximately 77 days outside the prescribed time period.

Test for condonation

[20] Granting condonation for a party’s non-compliance with the rules of the Court is an indulgence where a Court is seized with the matter has a discretion whether or not to grant such a condonation application.

[21] It is trite that condonation is not there for the mere asking and that a party seeking condonation must give a full explanation for the delay. In addition, the explanation must cover the entire period of delay. And, what is more, the explanation given must be reasonable.[1]

[22] 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.’

[23] In Grootboom v National Prosecuting Authority and Another[3]the Court held that:

“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.”

[24] The challenges the Applicant’s condonation is confronted with is that, albeit it claims to address three periods of the delay, it simply fails to explain the entire period of the delay in full. The first period of the delay being between 17 March 2020 and 26 March 2020 is really immaterial considering that it was still a period within the 90 days within which the Applicant ought to refer his claim. It was common cause that the statement of claim ought to have been filed with this Court by 15 June 2020.

[25] Having explained the challenges encountered as a result of the lockdown and the financial constraints, the Applicant failed to explain why he and his attorneys of record could not implement other means of communication, such as telephone consultation etc in order to avoid delaying drafting the statement of claim. It was never the Applicant’s argument that he was unaware of the date on which the statement of claim ought to be filed.

[26] The Applicant did not explain, having submitted that he returned to Gauteng on 7 May 2020, why the consultation was not scheduled earlier i.e. prior to 5 June 2020 seeing that the period within which the statement of claim ought to be filed was swiftly approaching.

[27] Having held their first consultation on 5 June 2020, the Applicant and/or his attorneys completely neglects to provide an explanation as to the reason it took approximately nine days i.e. from 5 June to 19 June 2020 to have the first draft of the statement of claim. Moreover, and without tendering any reasonable explanation, the Applicant and his attorneys of record made an arrangement to consult and finalize the statement of claim on 30 June 2020 during which time the filing of the statement of claim would already be outside the prescribed time period.

[28] The Applicant then explains that he and his attorneys of record noticed that his pending dismissal dispute at the CCMA was scheduled for arbitration on 21 July 2020.Save to mention that this was not this Court’s concern, there is no explanation offered as to when exactly this discovery was made about the date of the arbitration; there is no explanation as to why a consultation that was scheduled to finalize the statement of claim on 30 June was put on hold to prepare for an unrelated matter for a period of approximately a month.

[29] In the Applicant’s own words, as at 21 July 2020, the parties had agreed to postpone the arbitration. The Applicant failed to tender any explanation for the period following the postponement of the arbitration on 21 July 2020 to 15 August 2020 when he was notified of the dismissal of his dismissal dispute.

[30] Lastly, the Applicant failed to explain the period between 19 August 2020, when he filed the rescission application against the default award and 3 September 2020 when he ultimately filed his statement of claim, as though there was no obligation on his part to do so.

[31] In an attempt to persuade this Court to accept his explanation the Applicant attributed the delay to some of the urgent applications his attorneys had to deal with. No specific dates on which the said urgent applications were heard were provided. Attributing more blame on the Respondent’s attorneys in not engaging them timeously on the postponement of an unrelated matter as one of the reasons for the delay exposes disingenuity on the part of the Applicant and his attorneys of record.

[32] A sincere litigant ought not to be probed for adequate material meant to support his submissions, but will volunteer same to demonstrate authenticity and persuasion. The Applicant left certain periods of the delay unexplained.

[33] This Court has disapproved of busy schedules of representatives as a valid explanation for the delay in complying with the rules of this Court.

[34] In Petro Chem Technical Service (Pty) Ltd v Motor Industry Bargaining Council Dispute Resolution Centre and Others[4] the Court made reference to the following authorities and said:

“The Court in Allround Tooling v NUMSA and another held that a practitioner's busy schedule is not an acceptable explanation for delay in observing time limits. This approach was followed in Minister of Social Development v Veldhuizen. For this reason, the fact that the Applicant's representatives were busy with the other applications brought forward, is insufficient.”[5]

[35] There appears a flagrant disregard of the rules of this Court more particularly when taking into account the manner in which the

Applicant and his attorneys of record kept on shoving the finalization and filing of the statement of the claim to the side in

preference to other matters unrelated hereto. Regrettably, the Applicant’s conduct has further demonstrated blatant disregard

for the requirement for expeditious resolution of the employment disputes.[6]

[36] It is rather despicable how the Applicant and his attorneys of record failed to take accountability for the delay that was clearly occasioned by their own negligence.

[37] The degree of lateness is not only excessive, but the Applicant has as well dismally failed to show good cause for such. In this regard I find that the Applicant’s explanation is extremely wanting, insufficient and unacceptable. The purported explanation for the delay was simply a listing of some of the dates without truly tendering an explanation that was reasonable and cogent, thus failing to satisfy the requirement for explanation for each period of the delay.

Prospects of success

[38] It is trite that where there is a delay with no reasonable, satisfactory and acceptable explanation, condonation may be refused without considering the prospects of success.

[39] In Collett v Commission for Conciliation, Mediation and Arbitration[7]a unanimous judgment of the LAC, Musi AJA held as follows:

“There are overwhelming precedents in this court, the Supreme Court of Appeal and the Constitutional Court for the proposition that where there is a flagrant or gross failure to comply with the rules of court condonation may be refused without considering prospects of success. In NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC) at para 10, it was pointed out that considering whether good cause has been shown the well-known approach adopted in Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 523 C-D … should be followed, but:

‘There is a further principle which is applied and that is without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without good prospects, no matter how good the explanation for delay, an application for condonation should be refused.’

The submission that the court a quo had to consider the prospects of success irrespective of the unsatisfactory and unacceptable explanation for the gross and flagrant disregard of the rules is without merit.”[8]

(Own emphasis)

[40] I have already expressed my utter dissatisfaction of the Applicant’s failure to tender an explanation that was sufficient and acceptable to satisfy the requirements for the condoning of his non-compliance with the rules of this Court.

[41] In this regard, I am not inclined to consider his prospects of success as same is rendered immaterial by the utter lack of good cause shown in the explanation for the delay.

Prejudice and interest of justice

[42] It was submitted on behalf of the Applicant that there would be no prejudice on the Respondent if this matter is adjudicated in an open court. It was submitted that the nature of the disputes herein dictates that the issues herein be adjudicated fully in an open court.

[43] The court in Grootboom supra held that[9]:

“Recently this Court has been inundated with cases where there have been disregard for its directions. In its efforts to arrest this unhealthy trend, the Court has issued many warnings which have gone largely unheeded. This year, on 28 March 2013, this Court once again expressed its displeasure in eThekwini as follows:

“The conduct of litigants in failing to observe Rules of this Court is unfortunate and should be brought to a halt. This term alone, in eight of the 13 matters set down for hearing, litigants failed to comply with the time limits in the rules and directions issued by the Chief Justice. It is unacceptable that this is the position in spite of the warning issued by this Court in the past. In [Van Wyk], this Court warned litigants to stop the trend. The Court said:

‘There is now a growing trend for litigants in this court to disregard time limits without seeking condonation. Last term alone, in eight out of ten matters, litigants did not comply with the time limits or the directions setting out the time limits. In some cases litigants either did not apply for condonation at all or if they did, they put up flimsy explanations. This non-compliance with the time limits or the rules of Court resulted in one matter being postponed and the other being struck from the roll. This is undesirable. This practice must be stopped in its tracks.’

The statistics referred to above illustrate that the caution was not heeded. The Court cannot continue issuing warnings that are

disregarded by litigants. It must find a way of bringing this unacceptable behaviour to a stop. One way that readily presents itself is for the Court to require proper compliance with the rules and refuse condonation where these requirements are not met.

Compliance must be demanded even in relation to rules regulating applications for condonation.” (Footnotes omitted.)

[44] Writing for the minority, Zondo J held as follows:[10]

“In this Court, the test for determining whether condonation should be granted or refused is the interests of justice. If it is in the interests of justice that condonation be granted, it will be granted. If it is not in the interests of justice to do so, it will not be granted. The factors that are taken into account in that inquiry include: (a) the length of the delay; (b) the explanation of, or cause for, the delay; (c) the prospects of success of the party seeking condonation; (d) the importance of the issues that the matter raises; (e) the prejudice to the other party or parties; and (f) the effect of the delay on the administration of justice. Although the existence of the prospects of success in favour of the party seeking condonation is not decisive, it is an important factor in favour of granting condonation. The interests of justice must be determined with reference to all relevant factors. However, some factors may justifiably be left out of consideration in certain circumstances. For example, where the delay is unacceptably excessive and there is no explanation for the delay, there may be no need to consider prospects of success (own emphasis). If the period of delay is short and there is an unsatisfactory explanation but there are reasonable prospects of success, condonation should be granted. However, despite the presence of reasonable prospects of success, condonation may be refused where the delay is excessive, the explanation non-existent and granting condonation would prejudice the other party. As a general proposition the various factors are not individually decisive but should all be taken into account to arrive at a conclusion as to what is in the interests of justice.”

(footnotes omitted)

[45] In Brummer v Gorfil Brothers Investments (Pty) Ltd and Others,[11] it was held that:

‘It was appropriate that an application for condonation be considered and granted if that is in the interests of justice and refused if it is not. The interests of justice must be determined by reference to all relevant factors including the nature of the relief sought, the extent and cause of the delay, the nature and cause of any other defect in respect of which condonation is sought, the effect on the administration of justice, prejudice and the reasonableness of the applicant’s explanation for the delay or defect’.[12]

[46] In light of the principles set out in Brummer supra, and in cognisance of all the factors in toto, there is not the slightest of doubt that the Applicant has failed to establish that it would be in the interest of justice to grant the condonation application. In conclusion and in light of the wanting explanation furnished, the application for condonation was clearly brought as a mere formality i.e. the explanation tendered almost amounted to no explanation at all.

[47] The Respondent requested me to dismiss the Applicant’s statement of claim if the condonation is denied in that there is no merit in keeping same alive where condonation is denied. I beg to differ with counsel for the Respondent in this regard. I have difficulty dismissing a claim where the merits thereof have not been fully ventilated by the parties.

[48] Both parties sought costs against each other. I have duly considered the provisions of Section 162 of the Labour Relations Act and other relevant authorities in this regard. Specifically, the Constitutional Court (CC) has recently reiterated in Zungu v Premier of the Province of Kwa-Zulu Natal and Others (Zungu)[13] that the rule of practice that costs follow the result does not apply in Labour Court matters and further that costs orders should be made in accordance with the requirements of law and fairness. In Zungu, the CC referred to Member of the Executive Council for Finance, KwaZulu-Natal v Wentworth Dorkin N.O[14] where it was stated as follows:

‘The rule of practice that costs follow the result does not govern the making of orders of costs in this Court. The relevant statutory provision is to the effect that orders of costs in this Court are to be made in accordance with the requirements of the law and fairness. And the norm ought to be that costs orders are not made unless the requirements are met. In making decisions on costs orders this Court should seek to strike a fair balance between on the one hand, not unduly discouraging workers, employers, unions and employers’ organisations from approaching the Labour Court and this Court to have their disputes dealt with, and, on the other, allowing those parties to bring to the Labour Court and this Court frivolous cases that should not be brought to Court.’

[49] I am thus not persuaded, having considered the above, that it would be in accordance with the requirements of law and fairness to grant costs against the Respondent.

[50] In the premise, the following order is made:

Order:

1. The application for condonation for the late filing of the Applicant’s statement of claim is denied;

2. There is no order as to costs.

Makamu AJ

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr. Marweshe

Instructed by: Marweshe Inc Attorneys

For the Respondent: Advocate R Grundlingh

Instructed by: Joubert Attorneys

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

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

[3] 2014 (2) SA 68 (CC) at para 23.

[4] (2020) 41 ILJ 1216 (LC).

[5] [1998] 8 BLLR 847 (LAC) at para 10; [2009] JOL 24322 (LC) at para 27

[6]National Union of Metalworkers of SA on behalf of Thilivali v Fry’s Metals (A Division of Zimco Group) and others(2015) 36 ILJ 232 (LC): ‘There is, however, an additional consideration which applies in employment disputes in determining whether an applicant for condonation has discharged this onus. This is the fundamental requirement of expedition. The Constitutional Court has, as a matter of fundamental

principle, confirmed that all employment law disputes must be expeditiously dealt with and any determination of the issue of good cause must always be conducted against the back drop of this fundamental principle in employment law.’

[7]Collett v Commission for Conciliation, Mediation and Arbitration (2014) 6 BLLR 523 (LAC).

[9]Id fn 3 at para 33.

[10] Ibid at para 50 and 51

[11] [2000] ZACC 3; 2000 (5) BCLR 465.

[12]Ibid at para 3

[13] 2018) 39 ILJ 523 (CC)

[14] [2007] ZALAC 41 at para 19