Regenesys Management (Pty) Ltd v Mantshule N.O and Others (JR316/21) [2022] ZALCJHB 358 (22 November 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR316/21

In the matter between

REGENESYS MANAGEMENT (PTY) LTD Applicant

and

NTHABISENG LORETTA MANTSHULE N.O. First

Respondent

NAMASILE KHESWA N.O. Second

Respondent

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION Third

Respondent

JEAN DOVEY Fourth

Respondent

Heard: 9 November 2022

Delivered: 22 November 2022

(This judgment was handed down electronically by circulation to the parties’ representatives, by email. The date on which the judgment is delivered is deemed 22 November 2022).

SUMMARY: Condonation for the jurisdictional ruling being 381 days late as well as condonation for the arbitration award, being 318 days late. Delay in filing section 145 and/or section 158(1)(g) of the Labour Relations Act No. 66 of 1995 review applications – stringent test to be applied – prospects of success immaterial where delay egregious and no compelling explanation tendered – condonation refused – rationale for stringent test considered.

JUDGMENT

SWARTZ AJ

Introduction

[1] This is an application for condonation in respect of a jurisdictional ruling as well as an application for condonation in respect of an arbitration award. If condonation is granted then the merits of the review applications can be dealt with.

[2] The jurisdictional ruling was issued on 24 December 2019. In terms of S158(1)(g) of the LRA: (1) The Labour Court may—(g) subject to section 145, review the performance or purported performance of any function provided for in this Act on any grounds that are permissible in law. In Weder v MEC for the Department of Health, Western Cape [2013] 1 BLLR 94 (LC) this court suggested that, because the processes in section 158 are closely aligned to the process set out in section 145, anything more than six weeks should at least trigger an application for condonation. If regard is had to the six-week period as prescribed in section 145(1)(a) of the Labour Relations Act[1] (LRA) the review was to be launched by 4 February 2020. By the time the review was launched the application was 381 days late. The applicant contends that as the jurisdictional ruling is brought in terms of section 158(1)(g) of the LRA, and hence the six-week period to launch a review is not applicable. The fourth respondent contends that the applicant failed to launch this review application within a reasonable time.

[3] The arbitration award was issued on 24 February 2020. The review was to be launched by 7 April 2020, being six weeks from the applicant being notified of the award. By the time the review was launched, it was 318 days late.

Factual background

[4] On 11 August 2020 pursuant to an urgent application to stay the enforcement of the arbitration award, this Court ordered the stay of the enforcement award on condition that the review applications be launched by 12 September 2020, failing which the suspension of the enforcement of the award would lapse.

[5] Despite this Court’s order, the applicant still failed to launch its review applications. The review applications were launched on 22 February 2021.

[6] The jurisdictional ruling review was initially launched on 30 September 2020 but was irregular as the Notice of Motion was not signed. This application was never pursued by the applicant.

Parties’ Submissions

[7] The applicant submits that an adequate explanation is given as to the reasons for the delay and highlighted that the Covid-19 pandemic had a large part to play in the delay. In any event, the applicant further submits that the prospects of success are good given the evidence before this Court that the fourth respondent was an independent contractor and not an employee as the jurisdictional ruling found. Accordingly, the matter should be remitted to the Commission for Conciliation, Mediation and Arbitration (CCMA) as the prospects of success on this point are good.

[8] It was further submitted that the applicant’s jurisdictional review is not bound to the six-week period in terms of section 158(1)(g) of the LRA.

[9] The fourth respondent disputed the applicant’s submissions in this regard and highlighted that the prospects of success on the jurisdictional ruling are not strong. There was evidence to support the applicant’s allegations that she was an employee and not an independent contractor.

[10] Moreover, in any event, even if such prospects were strong there has been an inordinate delay in the launching of the review applications and as such, the review applications stand to be dismissed with punitive costs.

[11] The fourth respondent submitted that section 158(1)(g) of the LRA states that a review application must be made within a reasonable time, which it was not.

Reasoning

[12] The applicant’s previous legal officer Mr Tlale resigned on 23 November 2020. It was only in February 2021 that Ms Grobler, the applicant’s CEO, alerted Ms Laxton the new legal officer about this matter. The applicant’s attorneys of record were contacted and these applications were launched.

[13] There is no satisfactory explanation as to why Mr Tlale did not launch the review application in 2020 nor is there a satisfactory explanation as to why Ms Laxton being the new legal officer had to wait until Ms Grobler alerted her to this matter. There is no satisfactory reason why the applicant’s attorneys who seems to have been aware of the matter did not attend to the review application earlier. There are also no confirmatory affidavits by such role players that support the applicant’s contentions in this regard.

[14] The applicant has dismally failed to provide an adequate or detailed explanation for the delay. The extent of the time that has lapsed to bring the review applications is extreme.

[15] The prejudice favours the fourth respondent as her employment terminated on 16 October 2019. This is three years and almost one month from the hearing of this matter. The prejudice suffered by the fourth respondent is as a direct result of the applicant’s inaction to bring this matter to its finality.

The test for the grant of condonation

[16] Labour law litigation is unique in that it takes place within a system designed to ensure the effective (and thus expeditious) resolution of labour disputes – this being one of the primary objects of the LRA[2]. The need for this, and the implications of delays, were explained as follows by the Constitutional Court when Ngcobo J in CUSA v Tao Ying Metal Industries & others[3] stated:

‘The LRA introduces a simple, quick, cheap and informal approach to the adjudication of labour disputes. This alternative process is intended to bring about the expeditious resolution of labour disputes. These disputes, by their very nature, require speedy resolution. Any delay in resolving a labour dispute could be detrimental not only to the workers who may be without a source of income pending the resolution of the dispute, but it may, in the long run, have a detrimental effect on an employer who may have to reinstate workers after a number of years.’

[17] It follows from this that condonation for delays in all labour law litigation is not simply there for the taking. But this is particularly so when it comes to delays in the launching of review applications, especially in the context of individual dismissals. Here the courts have made it clear that applications for condonation will be subject to “strict scrutiny”, and that the principles of condonation should be applied on a “much stricter” basis. This can be traced back to this important dictum of the Labour Appeal Court (LAC) (per Conradie JA) in Queenstown Fuel Distributors CC v Labuschagne N.O & others[4] which stated:

‘[24] …In principle, therefore, it is possible to condone non-compliance with the time limit. It follows, however, from what I have said above, that condonation in the case of disputes over individual dismissals will not readily be granted. The excuse for non-compliance would have to be compelling, the case for attacking a defect in the proceedings would have to be cogent and the defect would have to be of a kind which would result in a miscarriage of justice if it were allowed to stand.

[25] By adopting a policy of strict scrutiny of condonation applications in individual dismissal cases I think that the Labour Court would give effect to the intention of the legislature to swiftly resolve individual dismissal disputes by means of a restricted procedure, and to the desirable goal of making a successful contender, after the lapse of six weeks, feel secure in his award.’

[18] In Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae)[5] , it was held that:

‘There is an important principle involved here. An inordinate delay induces a reasonable belief that the order had become unassailable. This is a belief that the hospital entertained and it was reasonable for it to do so. It waited for some time before it took steps to recover its costs. A litigant is entitled to have closure on litigation. The principle of finality in litigation is intended to allow parties to get on with their lives. After an inordinate delay a litigant is entitled to assume that the losing party has accepted the finality of the order and does not intend to pursue the matter any further. To grant condonation after such an inordinate delay and in the absence of a reasonable explanation, would undermine the principle of finality and cannot be in the interests of justice.’

[19] 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.

[20] The LAC in NUM v Council for Mineral Technology[6] stated 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)

[21] In this matter, the prospects of success are not clear. There is no clear evidence that the fourth respondent was an independent contractor. However, what is clear is that the applicant’s inordinate delay is not satisfactorily explained, and even if the applicant’s prospects of success were clear, the applicant’s prospects of success are immaterial given the inordinate delay in launching its review applications.

[22] The general principles applicable to deciding applications for condonation apply even more stringently when it comes to review applications. I find that even though there is no time limit in section 158(1)(g) reviews a delay of 381 days is excessive and accordingly unreasonable.

[23] The fourth respondent contended that inter alia, because of the delay and the applicant not filing a practice note, an adverse costs order should be made against the applicant.

[24] Since this Court enjoys the inherent powers in relation to matters under its jurisdiction as a High Court has in relation to matters under its jurisdiction, it is clear that this Court, in appropriate circumstances, may make an adverse costs order.

[25] In this Court, adverse costs orders are not generally made. Orders of this nature are conventionally reserved for those instances where a claim is brought or defended frivolously or where a party has conducted itself in a mala fide way, where a claim or defence is entirely devoid of merit, or where the conduct of a representative warrants a punitive order.

[26] The stagnation of prosecuting the review applications seems to lie with Mr Tlale who is no longer in the employ of the applicant. I, therefore, find that it is in the interest of justice that no adverse cost order is made.

[27] In the circumstances, the following order is made:

Order

1. The application for condonation is dismissed;

2. The review applications are accordingly dismissed;

3. No order as to costs.

S Swartz

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant: Ms S Lancaster from Higgs Attorneys

For the Respondent: Mr A Goldberg from Goldberg Attorneys

[1] Act 66 of 1995, as amended

[2] See section 1(d)(iv). The delay in the resolution of labour disputes is “one of the underlying problems that the LRA seeks to remedy” - Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile & others [2010] 5 BLLR 465 (CC) at para 45.

[3] [2009] 1 BLLR 1 (CC) at para 63.

[4] [2000] 1 BLLR 45 (LAC) at paras 24 – 25.

[5] [2007] ZACC 24; 2008 (2) SA 472 (CC) at para 31.

[6] [1999] 3 BLLR 209 (LAC) at para 10.