SACCAWU obo Shabangu and Others v Spar Lowveld (JS733/13) [2014] ZALCJHB 346 (5 September 2014)

REPUBLIC OF SOUTH AFRICA

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case No: JS 733/13

In the matter between -

SACCAWU obo S SHABANGU AND 18 OTHERS

Applicant

and

SPAR LOWVELD

Respondent

Heard: 14 May 2014

Delivered: 05 September 2014

Summary: Statement of case filed late. Applicant filing condonation late.

MOLAHLEHI J

Introduction

[1] The applicant’s union have filed a statement of case claiming that the dismissal of the individual applicants by the respondent for allegedly participating in an unprotected strike action was illegal.

[2] After their dismissal the individual applicants referred a dispute for conciliation at the CCMA. The matter was subsequently referred to arbitration. On 19 July 2013, the arbitrator issued a ruling in terms of which he found that the CCMA did not have jurisdiction to entertain the dispute.

[3] It was after the ruling that the applicants filed the statement of case with this Court. The respondent has opposed the applicant’s

claim and raised a point in limine concerning the late filing of the statement of case.

[4] The applicants have filed an application for condonation for the late filing of the statement of case. The deponent to the founding

affidavit in support of the condonation under the heading “Degree of lateness” states the following:

- The applicants acknowledge the fact that this application is late, however this omission was without any mala fide intentions.

- The application is indeed 46 days late excluding the 90 days period in terms of the provisions of the Act and Labour Court proceedings,

however by default and the applicant had no intention whatsoever to let this application exceed the time restraints as stipulated in terms of the Labour Court rules.’

[5] The reason for the delay according to the applicants was “due to the fact that there was an administration and calculation error in the specific amount of number of days in which the referral of the application has to be filed with the Labour Court.”

[6] They state that they calculated the date for the referral to the Court from the date the Commissioner issued the ruling.

[7] In respect to the prospects of success the deponent to the affidavit states:

‘Prospects of success

- I believe that we have good prospects of success because the Respondent was unfair. The Applicants therefore request that the referral plea is taken into consideration.

- The Applicants was found guilty during disciplinary hearing and chairperson of the inquiry recommends the dismissal.

- The respondent never inform the union the union official during the time they requested the meeting for consultation in order to follow the proper procedure in terms of the Labour Relation Act 66 of 1995 as amended regarding the industrial action

- All relevant documentation regarding the prospects of success are attached.

Evaluation

[8] It is trite that in terms of section 190 of the LRA the applicants ought to have filed their statement of case within 90 days of the date on which the certificate of non-resolution of the dispute was issued.

[9] In considering whether condonation for the late filing of the statement of case of the applicants should be condoned, I am enjoined to exercise a judicial discretion. The approach to adopt when dealing with an application for condonation is set out in the often quoted case of Melanie v Santam Insurance Co Ltd[1], as follows

'In deciding whether sufficient cause has been shown, the basic principle 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. Ordinarily these facts are interrelated; they are not individually decisive, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate prospects which are not strong. Or the importance of the issue and strong prospects of success may tend to compensate for a long delay. And the respondent's interests in finality must not be overlooked.'

[10] It has been emphasised in several Court decisions that condonation is not there for the taking. The applicant is required as a matter of fundamental principle to provide a full explanation for the delay. This means explaining every period of the delay including the delay in filing the condonation application once he or she became aware of the need to do so. The basic principle in this regard is that a condonation application should be brought immediately a party becomes aware the time within which a claim is to be launched has lapsed..

[11] The certificate of non-resolution in the present matter was issued on 20 May 2013. The referral to the labour Court is dated 10 October 2013.

[12] The explanation of the applicants for the delay in filing the statement of case is unsatisfactory when regard is had to the period of the delay. The other important factor to take into account is the fact that the respondent filed its statement of opposition to the statement of case on 22 October 2013; wherein the issue of condonation was raised. The applicants filed their condonation on 4 April 2014. There is no explanation from the applicants as to why the condonation application was not made as soon as the issue was brought to their attention. This is the period that the applicants can be assumed to have became aware of the need to file the condonation. The failure by the applicants to explain the period of the delay from the time the need to apply for condonation was raised by the respondent is fatal.

[13] For this reason alone, I see no reason why I should exercise the discretion to grant the applicants an indulgence.

[14] For the reason that the parties are still in a relationship, I do not believe that it would be proper to order costs to follow the result.

[15] In the premises, the following order is made:

1. The applicants’ condonation for the late filing of their statement of case is dismissed with no order as to costs.

____________________

Molahlehi J

Judge of the labour Court of South Africa

APPEARANCES

For the Applicant: Mr HH Mathebula

Instructed by: SACCAWU

For the Respondent: ADV RG Beeton

Instructed by: Erusmus –Scheepers Attorney

[1] 1962 (4) SA 531 (A)