Pheganyane v SANCA Witbank Alcohol and Drug Help Centre and Others (JS 170/20) [2021] ZALCJHB 55 (27 March 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: JS 170/20

In the matter between:

PHAKOAGO PHEGANYANE PRINCE

Applicant

and

SANCA WITBANK ALCOHOL AND DRUG HELP CENTRE First Respondent

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION

Second Respondent

COMMISSIONER LUYANDA NKWENKWE DUMISA Third Respondent

Enrolled: 19 March 2021 (Decided on the Papers)

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date and time for hand-down is deemed to be on 27 March 2021 at 11:00

JUDGMENT

TLHOTLHALEMAJE, J

[1] The Court is called upon to determine two preliminary points in this matter. The first is an application for condonation for the late filing of the applicant’s Statement of Claim. The second relates to an exception raised by the first respondent to the applicant’s Statement of Claim.

[2] The issues for determination are before the Court against the following summarised background;

2.1 The applicant is a qualified and registered Social Worker. He was employed by the first respondent (SANCA) as a Senior Social Worker, until his dismissal on 17 July 2019, on account of allegations of misconduct, following upon a duly constituted internal disciplinary enquiry held on 24 June 2019. SANCA is a non-profit organisation, with its main objective being the prevention and treatment of alcohol and drug dependence.

2.2 On 11 August 2019, the applicant referred an alleged unfair dismissal dispute to the second respondent, the Commission for Conciliation Mediation and Arbitration (CCMA), together with an application for condonation. Condonation was subsequently granted in terms of a ruling issued on 17 October 2019.

2.3 Conciliation proceedings held on 25 November 2019 could not resolve the dispute and a certificate of outcome was then issued. The dispute having been referred for arbitration ultimately came before the third respondent (Commissioner).

2.4 At the arbitration proceedings, and upon a determination of the real nature of the dispute between the parties, the Commissioner in a handwritten ruling dated 27 February 2020, concluded that the dispute fell under the provisions of section 187(h) of the Labour Relations Act (LRA)[1], and thus the CCMA lacked jurisdiction.

2.5 On 23 March 2020, the applicant filed and served his ‘Statement of Claim’ (in a form of an application), in which he sought no less than eight types of relief, ranging from upholding of the jurisdictional ruling issued by the Commissioner, to his reinstatement resulting from his alleged automatically unfair dismissal.

2.6 On 2 April 2020, SANCA raised an exception to the Statement of Claim, contending that it did not disclose a cause of action, alternatively that it was vague and embarrassing on various fronts.

2.7 Notwithstanding the exception raised, the applicant had on 9 April 2020, filed and served an application for a default judgment. The matter came before Van Niekerk J on 14 September 2020, who had removed the application for default judgment from the roll, and further ordered the applicant to file an application for condonation for the late filing of the statement of claim.

2.8 On 14 September 2020, the applicant filed his application for condonation, and this was followed by his notice of intention to oppose the exception. On 9 March 2020, SANCA filed and served its notice of intention to oppose without filing answering affidavit to the application for condonation. In filing its heads of argument, SANCA opposes the application for condonation purely on the applicant’s own papers.

[3] It is now trite that after conciliation has failed, a party should proceed directly to this Court for adjudication of the dispute if the dispute requires adjudication. Equally trite is that the time periods for the purposes of a referral under the provisions of sections 191(5) (b)(i) and 191(11) (a) of the LRA are calculated from the conciliation stage to the date of the filing of the Statement of Claim. The mere fact that a dispute was erroneously referred to the CCMA or a Bargaining Council, which had subsequently issued a jurisdictional ruling, does not therefore imply that the time periods are calculated from the date of the ruling[2].

[4] The provisions of section 191(11)(b) of the LRA empowers this Court to condone non-observance of the time frames set out in subsection (a) on good cause shown. In determining whether good cause has been shown, the Court must exercise its discretion judicially, taking into account the facts and circumstances of each case, and determine whether the interests of justice permit that condonation be granted[3]. In this regard, factors to be considered in determining whether the interests of justice dictate that condonation be granted include, but are not limited to the degree of lateness, the explanation thereof, the prospects of success, the prejudice to the parties, the importance of the case, the nature of the relief sought; and the effect of the delay on the administration of justice and other litigants[4].

[5] In this case, the delay in filing the statement of claim is about 103 days since the certificate of outcome was issued. There is no doubt that the delay is indeed excessive.

[6] In explaining the delay, the applicant averred that after the failure of the conciliation process, the conciliating commissioner had when issuing a certificate of outcome, directed that the dispute be referred for arbitration, and he had duly done so by requesting arbitration. He further averred that it was only when and after evidence was presented at the arbitration hearing, that the Commissioner had concluded that the CCMA lacked jurisdiction as the matter related to an automatically unfair dismissal.

[7] In relation to the prospects of success, the applicant averred that his claim was grounded in the provisions of section 187(1)(h) of the LRA, and that he sought protection under the provisions of section 3 of the Protected Disclosure Act (The PDA)[5]. In this regard, he contended that his dismissal was consequent upon a disclosure of confidential and private information of the employer to a third party, being the South African Council for Social Service Professions, the regulatory professional body for professional conduct of registered Social workers.

[8] In its submissions, SANCA relied on NUMSA v and another v Hillside Aluminium[6] for the proposition that since the delay was excessive, the prospects of success were immaterial. It further contended that to the extent that the applicant’s claim was grounded in the provisions of the PDA, to which he had made extensive reference, this was indicative that he had clear knowledge of these provisions, and should from the outset, have been aware, or reasonably have been expected to be aware of the fact that this Court had jurisdiction over his dispute, rather than the CCMA.

[9] It is trite that in the absence of an acceptable and satisfactory explanation for the excessive delay in complying with the time

frames, condonation should be refused without the need to consider other relevant factors related to good cause[7]. A number of considerations however must be taken into account before it can be concluded that the good cause has not been shown, and that it would not be in the interests of justice to condone the delay.

[10] In this case, the applicant is pursuing his claim against SANCA without legal representation. Inasmuch as his referral at the CCMA was equally late and was nonetheless granted condonation, his primary contention was that he had referred the matter for arbitration upon the direction of the conciliating commissioner. I accept that given the applicant’s extensive reference to the provisions of the PDA, he ought to have known or that it was reasonably expected of him to have known that the dispute ought to have been referred to the Court. In my view however, to the extent that the nature of his dispute ultimately became clearer when the matter was initially heard at arbitration, and further to the extent that according to the applicant, SANCA was prepared to have his alleged unfair dismissal dispute disposed of at the CCMA but for the fact that his case ultimately pointed to the CCMA lacking jurisdiction, this is not a case where it can be said that the applicant sat idle, or that the explanation he had proffered for the delay is not reasonable or satisfactory.

[11] In any event, it is trite that to the extent that the ruling on jurisdiction was issued at arbitration proceedings, a Commissioner

can only ascertain the nature of the real dispute between the parties by dealing with the substantial merits of the dispute, and without being necessarily bound by what the parties say the dispute is all about[8]. Equally so, a certificate of outcome attaching a label to a dispute is not definitive, nor can it change the underlying nature of the dispute to be determined.

[12] To the extent that SANCA had not filed an answering affidavit, the averments of the applicant in respect of his prospects of success on the merits remain unchallenged. Be that as it may, I am of the view that it would not be in the interests of justice to deny the applicant condonation, in circumstances where the explanation for the excessive delay is clearly reasonable and acceptable; where SANCA had not demonstrated in what manner it would be prejudiced by the granting of condonation; and where the applicant unassisted as he is, has made all reasonable attempts to pursue his claim.

[13] The next preliminary issue relates to the exceptions raised by SANCA to the applicant’s Statement of Claim. To a large extent, I agree that the exceptions should be upheld. This is so in that first, I do not appreciate the necessity of having cited the CCMA and the Commissioner in these proceedings, especially where the ruling of the Commissioner on jurisdiction was not challenged. To the extent that the applicant’s papers further refers to a ‘review’, it is not clear as to what is the subject of review that deserves the attention of this Court.

[14] The second consideration is that the Statement of Claim as correctly pointed out on behalf of SANCA is crafted in a manner from which the requirements of a claim of automatically unfair dismissal are not easily ascertainable. This is so in that the statement is not concise, nor are the legal issues raised or relied upon easily ascertainable, from which SANCA can be in a position to mount a factual, let alone a legal defence.

[15] The Statement of Claim is encapsulated in the form of Notice of Motion and application, in which the applicant seeks a variety of orders. Clearly this has caused confusion given how such claims ought to be brought before the Court as contemplated in Rule 6 of the Rules of this Court. The applicant’s papers are indeed not only prolix but also voluminous, and SANCA’s complaints that it is difficult for it to assess which case it is supposed to answer to are indeed legitimate.

[16] Inasmuch as it is appreciated that the applicant is not legally assisted in pursuing his claim, his Statement of Claim in its current form is not in compliance with the requirements set out in Rule 6, and is not one from which it can reasonably be expected of SANCA or the Court to make sense of it. To that end, I agree that it ought to be struck off, and that the applicant be afforded an opportunity to file an amendment.

[17] I have further had regards to the requirements of law and fairness in relation to an award of costs. Given the Court’s conclusions in regards to the two preliminary points, I am of the view that an award of costs is not appropriate in this case.

[18] Accordingly, the following order is made;

Order:

1. The late filing of the Applicant’s Statement of Claim is condoned.

2. The exceptions raised by the First Respondent are upheld.

3. The Applicant’s Statement of Claim is struck out, and he is granted leave to file and serve an amended Statement of Claim, within 30 days from the date of this order.

4. There is no order as to costs.

___________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

Representation:

For the Applicant: In

Person

For the First Respondent: Heads of Argument submitted by Adv L Steenkamp, instructed by Cavanagh & Richards Attorneys

[1] Act 66 of 1995, as amended

[2] See SATAWU obo Members v South African Airways (Pty) Ltd and Others (JA54/13) [2014] ZALAC 40; [2015] 2 BLLR 137 (LAC) at para 13; F & J Electrical CC v Metal and Electrical Workers Union of South Africa obo Mashatola and others [2015] 5 BLLR 453 (CC) at 461, para [30], where it was held; “The union contended that the referral of the dispute to the Labour Court was within the prescribed period. It seems that this contention was based on a misconception that the 90-day period was to be reckoned from the date of the ruling of the CCMA. That is not so. In this case the period had to be reckoned from the date when the certificate was issued. In the absence of a finding that there was good cause for the failure to refer the dispute within the prescribed period, the Court had no jurisdiction to adjudicate the dispute.”

[2] See SATAWU obo Members v South African Airways (Pty) Ltd and Others (JA54/13) [2014] ZALAC 40; [2015] 2 BLLR 137 (LAC) at para 13; F & J Electrical CC v Metal and Electrical Workers Union of South Africa obo Mashatola and others [2015] 5 BLLR 453 (CC) at 461, para [30], where it was held;

“The union contended that the referral of the dispute to the Labour Court was within the prescribed period. It seems that this contention was based on a misconception that the 90-day period was to be reckoned from the date of the ruling of the CCMA. That is not so. In this case the period had to be reckoned from the date when the certificate was issued. In the absence of a finding that there was good cause for the failure to refer the dispute within the prescribed period, the Court had no jurisdiction to adjudicate the dispute.”

[3] See Steenkamp and Others v Edcon Limited 2019 (7) BCLR 826 (CC); (2019) 40 ILJ 1731 (CC); [2019] 11 BLLR 1189 (CC), where it was held that “[36] Granting condonation must be in the interests of justice. This Court in Grootboom set out the factors that must be considered in determining whether or not it is in the interests of justice to grant condonation: “[T]he standard for considering an application for condonation is the interests of justice. However, the concept ‘interests of justice’ is so elastic that it is not capable of precise definition. As the two cases demonstrate, it includes: the nature of the relief sought; the extent and cause of the delay; the effect of the delay on the administration of justice and other litigants; the reasonableness of the explanation for the delay; the importance of the issue to be raised in the intended appeal; and the prospects of success. It is crucial to reiterate that both Brummer and Van Wyk emphasise that the ultimate determination of what is in the interests of justice must reflect due regard to all the relevant factors but it is not necessarily limited to those mentioned above. The particular circumstances of each case will determine which of these factors are relevant. It is now 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. The interests of justice must be determined with reference to all relevant factors. However, some of the 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 the prospects of success. 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 is

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.” [37] All factors should therefore be taken into account when assessing whether it is in the interests of justice to grant or refuse condonation.”

[3] See Steenkamp and Others v Edcon Limited 2019 (7) BCLR 826 (CC); (2019) 40 ILJ 1731 (CC); [2019] 11 BLLR 1189 (CC), where it was held that

“[36] Granting condonation must be in the interests of justice. This Court in Grootboom set out the factors that must be considered in determining whether or not it is in the interests of justice to grant condonation:

“[T]he standard for considering an application for condonation is the interests of justice. However, the concept ‘interests of justice’ is so elastic that it is not capable of precise definition. As the two cases demonstrate, it includes: the nature of the relief sought; the extent and cause of the delay; the effect of the delay on the administration of justice and other litigants; the reasonableness of the explanation for the delay; the importance of the issue to be raised in the intended appeal; and the prospects of success. It is crucial to reiterate that both Brummer and Van Wyk emphasise that the ultimate determination of what is in the interests of justice must reflect due regard to all the relevant factors but it is not necessarily limited to those mentioned above. The particular circumstances of each case will determine which of these factors are relevant.

It is now 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.

The interests of justice must be determined with reference to all relevant factors. However, some of the 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 the prospects of success. 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 is

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.”

[37] All factors should therefore be taken into account when assessing whether it is in the interests of justice to grant or refuse condonation.”

[4] See Melane v Santam Insurance Co. Ltd 1962 (4) SA 531 (A)

[5] Act 26 of 2000

[6] [2005] ZALC 25; [2005] 6 BLLR 601 (LC) at para 12

[7] NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC) at 211G-H: where in was held: “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 delay, an application for condonation should be refused”

[7] NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC) at 211G-H: where in was held:

“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 delay, an application for condonation should be refused”

[8] CUSA v Tao Ying Metal Industries [2008] ZACC 15; 2009 (2) SA (CC)[2008] ZACC 15; ; 2009 (1) BCLR 1 (CC) at para 66.