PSA obo Mkhatshwa v Commission For Conciliation, Mediation and Others (JR2723/16) [2020] ZALCJHB 122 (13 August 2020)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR2723/16

In the matter between:

PSA obo MKHATSHWA, PETUNIA THANDEKA Applicant

and

COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION

First Respondent

HAPPY HARRY MATHEBULA N.O

Second Respondent

SOUTH AFRICAN SOCIAL SECURITY AGENCY Third

Respondent

Enrolled: 08 July 2020

Decided on the papers

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 13 August 2020.

Summary: Condonation application – degree of lateness excessive – union administrative slip is not reasonable explanation for the delay – no need to consider the prospects of success.

JUDGMENT

NKUTHA-NKONTWANA, J

Introduction

[1] In this application, the Applicant, Public Servants Association (PSA), acting on behalf of its member, Ms Petunia Thandeka Mkhatshwa (Ms Mkhatshwa), impugns the arbitration award, dated 26 November 2015 with case number MP 6408-15, delivered by the Second Respondent, Mr Happy Harry Mathebula (Commissioner) under the auspices of the First Respondent, Commission for Conciliation, Mediation and Arbitration (CCMA). The Commissioner upheld the dismissal of Ms Mkhatshwa.

[2] PSA also seeks condonation of late delivery of the review application by almost one year. The Third Respondent, South African Security Agency (SASSA), is opposing both applications.

Background

[3] Ms Mkhatshwa was employed by SASSA with effect from 1 December 2005 and held a position of a Grant Administrator at its Bushbuckridge office. Her responsibilities included capturing social grant applications into the SASSA’s SOCPEN, a social pension system which is used to capture and verify social grants.

[4] Ms Mkhatshwa was charged for misconduct relating to the capturing of six fraudulent foster care grants. It is common cause that her password had been used to capture all six fraudulent foster care grants. She was found guilty as charged by the chairperson of the disciplinary enquiry and a sanction of dismissal was issued on 4 August 2014. She unsuccessfully appealed the sanction of dismissal and was dismissed on 14 August 2014.

[5] Displeased with the dismissal of Ms Mkhatshwa, PSA referred an unfair dismissal dispute to the CCMA. Consequent to the failed conciliation hearing, the matter progressed to arbitration at her request. On 26 November 2015, the Commissioner issued the impugned award wherein he found that the dismissal of Ms Mkhatshwa was procedurally and substantively fair.

Condonation

[6] Notwithstanding receiving the award on 26 November 2015, PSA delivered the review application on 13 December 2016, almost a year late.

[7] The blame for the excessive delay is attributed to PSA’s lengthy administrative processes that had to be followed in order to appoint its attorneys of record. Also, it would seem that PSA could only provide its attorneys of record with the requested documents on 28 November 2016.

[8] In Steenkamp and Others v Edcon Limited,[1] the Constitutional Court endorsed the factors that must be considered in determining whether it is in the interest of justice to grant condonation as set out in Grootboom v National Prosecuting Authority[2], where it was stated:

‘[36] Granting condonation must be in the interests of justice. This Court in Grootboom set out that:

“[T]he standard for considering an application for condonation is in 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 interest of justice to grant or refuse condonation.’[3] (Emphasis added)

[9] Turning to the present case, a delay of almost a year is patently excessive. To make matters worse, the explanation is wholly unsatisfactory. The importance of timeous action when it comes to disputes pertaining to individual dismissals cannot be overstated.[4] The threshold for the grant of condonation is set high because of the dictates of the Labour Relations Act[5] (LRA) for a speedy resolution of labour disputes. Moreover, the delay resulting from the ineptness of legal representatives or the internal procedures of trade unions may not constitute a compelling reason for the grant of condonation even if the client or member is not culpable.[6] These labour law specific factors and considerations are trite and have since been endorsed by the Constitutional Court in Steenkamp.[7]

[10] At a risk of repetition, I must once more beat the drum for this Court’s stern warning to the trade unions and its officials to sort out their bureaucratic bottlenecks and to attend to court processes timeously in the interest of their members.[8] It cannot be countenanced that a trade union of the PSA’s calibre would still not comply with statuary time frames solely

because it depends on lawyers to draft mundane review application papers. I am not convinced that union officials have no requisite skills. In any event, this Court has various pro forma court documents (like affidavit, statement of case, notice of motion, etc.) that are easy to complete or adapt. To date, they have been utilised by typically unsophisticated and unrepresented litigants with great success.

[11] It is accepted that where the delay is excessive and the explanation is unreasonable and unacceptable, the Court may refuse condonation without considering the prospects of success.[9] Even if the excessive delay is explained, it may not justify the grant of condonation, especially if the delay is attributed to the litigant’s representative.[10]

Conclusion

[1] In the circumstances, this is a typical case where I do not have to consider the prospects of success given the excessive delay and explanation that is unreasonable and unacceptable. Therefore, the application for condonation stands to be dismissed.

Costs

[2] I am disinclined to award costs given the fact that there is a persisting collective bargaining relationship between the PSA and SASSA.

[3] In the circumstances, I make the following order:

Order

1. The application for condonation is dismissed.

2. There is no order as to costs.

__________________

P Nkutha-Nkontwana

Judge of the Labour Court of South Africa

[1] 2019 (7) BCLR 826 (CC); (2019) 40 ILJ 1731 (CC)

[2] 2014 (2) SA 68 (CC); 2014 (1) BCLR 65 (CC) at para 20.

[3] The factors expounded in Grootboom clearly accords with the principles outlined in Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532- E.

[4] South African Post Office Ltd v Commission for Conciliation Mediation and Arbitration and Others [2012] 1 BLLR 30 (LAC); (2011) 32 ILJ 2442 (LAC) at para 22.

[5] Act 66 of 1995, as amended.

[6] See: National Education, Health and Allied Workers Union and Others v Vanderbijlpark Society for the Aged [2011] 7 BLLR 690 (LC); (2011) 32 ILJ 1959 (LC) at para 9.

[7] Supra n 1 at para 41.

[8] See: Samwu obo Matseko Flora Thulo v The South African Local Government Bargaining Council (“SALGBC”) and Others unreported JR2706/16 (30 June 2020).

[9] See Collet v Commission for Conciliation Mediation and Arbitration and Others (2014) 35 ILJ (LAC); 2014 6 BLLR 523 (LAC) at para 38.

[10] Waverly Blankets [1999] 11 (BLLR) 1143 (LAC) at 1145 I-J; see also NUM v Council for Mineral Technology [1999] 3 (BLLR) 209 (LAC) at para 21.