Padayachee v South African Police Service and Others (JR 881/20) [2022] ZALCJHB 130 (27 May 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 881/20

In the matter between:

GONASAGARIE ASHODA PADAYACHEE APPLICANT

And

SOUTH AFRICAN POLICE SERVICE

FIRST RESPONDENT

SAFETY AND SECURITY SECTORIAL

BARGAINING COUNCIL

SECOND RESPONDENT

MRS J CARELESE N.O.

THIRD RESPONDENT

Heard: 26 May 2022

Delivered: 27 May 2022

(In view of the measures implemented as a result of the Covid 19 pandemic, this judgement was handed down electronically by circulation to the parties’ representatives, by email. The date on which the judgment is delivered is deemed to be 27 May 2022.)

JUDGMENT

VAN NIEKERK, J

[1] The applicant seeks to review and set aside a ruling issued by the second respondent (the arbitrator) on 2 February 2020. In her ruling, the arbitrator refused to condone the late referral by the applicant of a dispute concerning her alleged unfair dismissal by the third respondent.

[2] The application for condonation was decided on the basis of the papers that served before the commissioner, with the applicant appearing in person and an employee representing the third respondent. The background facts are recorded in the ruling, and need not be traversed here. It is sufficient to state that the applicant’s employment was terminated on 30 June 2017, and that her referral was made to the bargaining council on 19 September 2019.

[3] The arbitrator applied the correct legal test to determine whether the applicant had shown good cause for the late referral. In regard to the degree of lateness, the arbitrator recorded that a delay of 780 days was ‘extremely excessive’. In regard to the reasons for the delay, the arbitrator noted in response to the applicant’s averment that she had continuously sought legal advice from different legal advisers, that in terms of the applicable authorities, litigants were not permitted to hide behind the tardiness of their representatives, and that the applicant had failed to give an adequate account for the whole period of delay. In regard to the prospects of success, the arbitrator found that the applicant had set out averments which, if proved in the main case, would entitle her to relief. In regard to prejudice, the arbitrator recorded that the applicant would suffer prejudice if condonation were to be refused. On a weighing of all of the relevant factors, and in the light of authority to the effect that where an applicant has failed to proffer a satisfactory explanation for an excessive delay the prospects of success are immaterial, the arbitrator concluded that the applicant had failed to show good cause and refused the condonation application.

[4] In her founding affidavit, the applicant has failed to articulate any cogent ground for review. She has simply recorded a number of statutes and other regulatory measures.

[5] The present application was filed outside of the time period of six weeks prescribed by section 145. After the application was removed from the unopposed roll on 27 October 2020, the applicant applied for condonation. The test to be applied is that applied by the arbiter in the proceedings under review. It is incumbent on the applicant to show good cause why, in this case, the record of the proceedings under review was not filed within the prescribed time limit. Condonation is not there merely for the asking, nor are applications for condonation a mere formality (see NUMSA v Hillside Aluminium [2005] ZALC 25; [2005] 6 BLLR 601 (LC); Derrick Grootboom v National Prosecuting Authority & another [2014] 1 BLLR (CC)). A party seeking condonation must make out a case for the indulgence sought and bears the onus to satisfy the court that condonation should be granted. This court is required to exercise a discretion, having regard to the extent of the delay, the explanation proffered for that delay, the applicant’s prospects of success, and the relative prejudice to the parties that would be occasioned by the application being granted or refused. In this court, that formulation, which has its roots in Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A), has 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 (see Collett v Commission for Conciliation, Mediation and Arbitration [2014] 6 BLLR 523 (LAC)).

[6] The ruling under review was dispatched to the parties on 4 February 2020. The applicant filed the review application on 16 September 2020, over seven months later. At the hearing of the present application, counsel submitted supplementary heads of argument in which he submitted that the prejudice to the third respondent was limited to a period of approximately one week, given that the Rule 7A documents were served timeously and that the matter was ripe for hearing within ten months of the date on which the review application was meant to have been filed. Counsel further factored in the period of six weeks during which a full lock-down was in place, and contended that the prejudice to the third respondent occasioned by the late filing was minimal.

[7] While that may be so, prejudice is but one of the factors that the court must necessarily take into account. The delay in filing the review application was excessive. The practice manual makes clear that a review application is in the nature of an urgent application, and must be prosecuted with the same degree of diligence. In regard to the explanation for the delay, the applicant has failed to proffer any substantive explanation for her failure to file the review application timeously. In accordance with the applicable authorities, this is the end of the enquiry, and condonation ought to be refused.

[8] Even if I were to take the applicant’s prospects of success into account, my decision would be no different. As I have indicated, the founding affidavit discloses no proper ground for review. In the supplementary heads of argument filed on her behalf, the applicant submits that she was not aware that the application would be assessed on papers and that there was certain additional information and documentation which she had not supplied. The applicable rule provides that an arbitrator may consider a condonation application on the basis of the affidavits filed or may convene a hearing on oral evidence. In essence, the applicant contends that the arbitrator ought to have afforded her an oral hearing on the basis that the applicant was a layperson and might not have fully explained the full period of each delay with sufficient clarity and that while the arbitrator had regard to the referral documents, other correspondence was referenced and that in the circumstances, reasonably pointed to the need for an oral hearing. It is not open to the applicant to make out a case for review in the heads of argument. In any event, the submissions contained in the supplementary heads have no merit given that the arbitrator exercised a discretion on the material that served before her and cannot be said to have committed any reviewable irregularity only because she did not call for oral evidence.

[9] Given a failure to satisfactorily explain an excessive delay, condonation for the late filing of the review application stands to be refused. I should add further that to grant condonation in circumstances where the applicant’s employment was terminated some five years ago would undermine the statutory purpose of expeditious dispute resolution. The terms of the practice manual and recent legislative amendments have made clear that review applications are to be prosecuted expeditiously. To grant condonation in the present circumstances would undermine the statutory purpose to which I have referred.

[10] In relation to costs, the third respondent sought the costs of the application. In this court, costs do not follow the result, and a party seeking costs must satisfy the court that for the purposes of section 162, the interests of the law and fairness are best advanced by an order for costs. At the hearing, counsel for the third respondent could not advance any cogent grounds on which the applicants should be liable for the costs of the application, and I intend to make no order in that regard.

I make the following order:

1. The application for condonation for the late filing of the review application is dismissed.

2. The review application is dismissed.

André van Niekerk

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

A Nel

Instructed by:

Goldberg Attorneys

For the respondents: L Liphoto

Instructed by:

State attorney