SAMWU obo Ngwenya v Ekurhuleni Metropolitan Muncipality and Others (JR1533/22) [2024] ZALCJHB 353 (21 August 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case Number: JR 1533/2022

In the matter between:

SAMWU obo THEMBA NGWENYA Applicant and EKURHULENI METROPOLITAN MUNCIPALITY First Respondent SOUTH AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL (SALGBC) Second Respondent LINDOKUHLE DLAMINI Third Respondent

Heard: 7 August 2024

Delivered: 21 August 2024

(This judgment was handed down electronically by circulation to the parties’ legal representatives, by email, publication on the Labour Court’s website and released to SAFLII. The date on which the judgment is delivered is deemed to be 21 August 2024.)

JUDGMENT

FORD, AJ

Introduction

[1] This is an application to reinstate a review application that is deemed withdrawn.

[2] The application is unopposed.

The facts

[3] The third respondent, whom I hereinafter refer to as “Ngwenya”, was employed by the first respondent, whom I refer to as "the Municipality”, in the Emergency Management Services Department, as a Fire Fighter, at the Palmridge Fire Station.

[4] Ngwenya was charged with various counts of misconduct and dismissed by the Municipality, on 23 December 2019.

[5] Unhappy with his dismissal, SAMWU referred an unfair dismissal dispute on Ngwenya’s behalf, to the Bargaining Council.

[6] On 4 May 2022, the third respondent, whom I refer to as “the commissioner”, issued his arbitration award, upholding the dismissal of Ngwenya.

[7] SAMWU filed a review application on 29 July 2022, outside the statutory six-week period, for which it applied for condonation. The review application and its composite application for condonation, are not before me for determination in this application.

[8] On 5 August 2022, the Registrar of this court, informed the parties that the record was filed on 5 August 2022. Soon thereafter, on 8 August 2022, the applicant uplifted the record.

[9] The applicant contends that after uplifting the record, it was sent to the transcribers affiliated to SAMWU, and that the delays which ensued in finalising the record, stem from the fact that the first audio recording was inaudible.

[10] The applicant in explaining the delay states that:

A lengthy period of time lapsed as a result of the Transcriber always making empty promises on telephone calls. I am informed that the Applicant involved the erstwhile representative of the employee, Mr. Arthur Mbonani to assist in getting the record filed and he did his part. Sadly, Mr. Mbonani passed away in December 2022.

[11] On 10 October 2022, and on 1 December 2022, SAMWU’s legal secretary sent reminders to the Transcribers, reminding them to submit the outstanding record.

[12] The matter was, according to the applicant, escalated to the SAMWU National Office on 2 December 2022, at which point the Transcriber responded, that he was still working on the records and that same will be submitted when ready.

[13] The record was eventually dispatched to Ms. Karabo Diale, the legal secretary of the applicant’s attorneys, on 26 January 2023.

[14] The transcribed record was eventually served on the respondents and filed with this court on 24 February 2023.

[15] In addressing the question of reasonable prospects of success, the applicant states that the court dealing with the review application, will be in a better position to determine the success or failure of the review application.

[16] With reference to the grounds of review listed in the founding papers, the applicant maintains that the commissioner ignored evidence presented in favour of Ngwenya, with particular reference to the binding provisions of the disciplinary procedure collective agreement. Further, that the commissioner did not apply his mind objectively to the facts and evidence presented before him, as he emphasised that Ngwenya was guilty of misconduct which was already resolved during a grievance hearing.

[17] The applicant contends, that Ngwenya was harshly dismissed for a minor transgression flouting the principal considerations of the disciplinary code, and that the commissioner arrived at a decision no reasonable decision-maker would have arrived at.

[18] The applicant submitted, that it would be in the interest of justice to grant an order reinstating the review application, as Ngwenya remains unemployed and unable to support his family as a result of his alleged unfair dismissal. It was submitted further, that if the arbitration award is not reviewed and set aside, it will create the impression that collective agreements signed between the Municipality and the unions, do not have a binding effect.

Analysis

[19] A reinstatement application is akin to an application for condonation. This position is now trite. In Pudi v Tshwane University of Technology[1] it was held as follows:

‘… the Court must determine a reinstatement application like a condonation application. It is trite that condonation is not there for the taking. In such applications, the applicant is seeking an indulgence from the Court to reinstate his matter [that he has voluntarily

withdrawn]. Therefore, the discretion whether to reinstate or not must be exercised judiciously taking into account the length of the delay, the reason for the delay, prospects of success, prejudice and interest of justice …’

[20] In Zono v Minister of Justice and Correctional Services; In Re: Minister of Justice and Correctional Services v Zono and Others[2], the court held:

‘An application for reinstatement of a review application deemed to have been withdrawn is, in essence, an application for condonation. 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 …’

[21] Samuels v Old Mutual Bank[3], concerned a matter, like the one before me, where the court dealt with clause 11.2.7 of the Practice Manual, in terms of which a reinstatement application is required in order to revive a review application, that has been archived in terms of the Practice Manual. The court said:

In essence, an application for the retrieval of a file from the archives is a form of an application for condonation for failure to comply with the court rules, time frames and directives. Showing good cause demands that the application be bona fide; that the applicant provide a reasonable explanation which covers the entire period of the default; and show that he/she has reasonable prospects of success in the main application, and lastly, that it is in the interest of justice to grant the order. …

Period of delay

[22] The application for reinstatement dealt very sparsely with the period of delay. The transcribed record had to be filed within 60-days from the date it was uplifted. On the applicant’s version, the record was uplifted on 8 August 2022, and ought to have been filed by 1 November 2022.

Reasons for the delay

[23] The applicant contends that the blame for the filing of the record falls squarely on the shoulders of its transcribers. I find this explanation, woefully inadequate and wholly unconvincing. The applicant does not set out what steps he took from 8 August 2022 to 1 October 2022, to ensure that the record is transcribed. And if the applicant had issues with the transcribers’ efficiency, a lot more ought to have been done to get the transcribers to finalise the transcription of the record. The relevant paragraphs of the Practice Manual (as it applied then) also made it easy for the applicant to ameliorate any delay, by simply requesting an indulgence from the Municipality, to file the record outside of the 60-day period, and if such indulgence was refused, to approach the Judge President to seek an indulgence.

[24] All the applicant says in this regard is the following:

I am advised that item 11.2.3 states that if the Applicant fails to file a record within the prescribed period, the Applicant will be deemed to have withdrawn the review application unless consent for late filing of the record has been sought from the Respondent. The Applicant did not seek any consent from the Respondent as it was in the dark regarding the availability and/or existence of the record of arbitration.

[25] I am not certain what “in the dark regarding the availability and/or existence of the record of arbitration” means? The applicant uplifted the record and submitted same for transcription; it could therefore not have been in the dark about the existence of the record. I am also unable to link the failure to seek an indulgence with the applicant being “in the dark”. An indulgence is sought when it becomes apparent that that 60-day period would not be met. It has nothing to do with the applicant being “in the dark” about the existence or availability of the record.

Prospects of success

[26] The applicant committed five paragraphs to this most important consideration. I have carefully considered the averments set out therein and cannot conclude that he dealt sufficiently, with the issue concerning prospects of success. The averments in relation to prospects of success are cast in sweeping and generic terms. When dealing with prospects of success, a litigant should put up as comprehensive a case as he possibly can. In addressing arguably, the most important aspect of the application, the applicant simply said this:

37. I am advised that it is not a requirement that the Applicant must deal fully with the merits of the dispute to establish reasonable prospects of success. It is sufficient to set out facts which, if established would result in the application being granted or refused by the Honourable Court in the exercise of its discretion which must be exercised judiciously.

38. I further submit that the court dealing with the review application will be in a better position to determine the success or failure of the said review taking into account all the papers filed in support of the said application.

39. I still maintain that the grounds of review listed in the founding papers confirm that the Arbitrator ignored the evidence presented in favour of the employee with particular reference to the binding provisions of the Disciplinary Procedure Collective Agreement (the DPCA). The Arbitrator did not apply his mind objectively to the facts and evidence presented before him. He emphasized that the employee was guilty of misconduct which was already resolved during a grievance hearing.

40. The Applicant employee was harshly dismissed for a minor transgression which the DPCA provides that no disciplinary proceedings must be authorised for such.

41. I submit that the commissioner arrived at a decision which no reasonable Commissioner in his position, presented with the same evidence could have arrived at. The decision to uphold a dismissal was unreasonable and not supported by any evidence.

[27] An applicant seeking to persuade a court to exercise a discretion in his favour, should do more than what the applicant before me, has conveyed about his prospects of success.

[28] When a party says he has reasonable prospects of success, he is effectively saying that, at some future date – a court, having regard to the facts and circumstances set out in the [reinstatement] application, will (not might) find that a probable case worthy of success has been advanced, and that the court will find in his favour.

[29] Whilst I accept that the review application is not before me, it would have helped the applicant’s cause had he set out his prospects of success, in the review application, in broad terms. This he failed to do.

Prejudice

[30] The applicant has not addressed an iota of evidence to the issue of the potential prejudice that he is likely to suffer, if the reinstatement application is not granted.

Interest of justice

[31] The interest of justice is all about fairness. Fairness to both the employer and the employee. Differently stated, the question to be answered in respect of the issue pertaining to the interest of justice, in relation to condonation, is this – Would it be fair (having regard to all the facts and circumstances) to grant condonation or not.

[32] Schensema AJ, addressed this issue as follows in Department of Home Affairs v Madonsela and Others[4]:

The onus is on an applicant seeking condonation to satisfy the Court that condonation should be granted. In employment disputes, there is an additional consideration which applies in determining whether the onus has been discharged, as was held in National Metalworkers of SA on behalf of Thilivali v Fry’s Metals (A Division of Zimco Group) and others [2014] ZALCJHB 115; (2015) 36 ILJ 232 (LC) at para 22:

‘There is, however, an additional consideration which applies in employment disputes in determining whether an applicant for condonation has discharged this onus. This is the fundamental requirement of expedition. The Constitutional Court has, as a matter of fundamental principle, confirmed that all employment law disputes must be expeditiously dealt with and any determination of the issue of good cause must always be conducted against the back drop of this fundamental principle in employment law.’ [Own emphasis]

In summary: the Courts have endorsed the principle that where there is a delay with no reasonable, satisfactory and acceptable explanation for the delay, condonation may be refused without considering prospects of success, and to grant condonation where the delay is not explained may not serve the interests of justice. The expeditious resolution of labour disputes is a fundamental consideration.

[33] I have considered the facts and circumstances of this matter, and I am not convinced that it would be in the interest of justice to grant the reinstatement of the review.

[34] In the result, I make the following order:

Order

1. The reinstatement application is refused.

2. I make no order as to costs.

Bart Ford

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Ms. G. Phakedi (Phakedi Attorneys)

For the third respondent: No appearance

[1] (JR 801/17) [2022] ZALCJHB 160 (3 June 2022) at para 27

[2] [2020] 11 BLLR 1160 (LC) at para 17. See also SA Municipal Workers Union on behalf of Mlalandle v SA Local Government Bargaining Council and Others (2017) 38 ILJ 477 (LC) at para 6.9; MJRM Transport Services CC v Commission for Conciliation, Mediation and Arbitration and Others (2017) 38 ILJ 414 (LC) at para 21; Kock v Commission for Conciliation, Mediation and Arbitration and Others (JR764/18) [2021] ZALCJHB 101 (31 May 2021) at para 53.

[3] (2017) 38 ILJ 1790 (LAC) at para 17. See also E Tradex (Pty) Ltd t/a Global Trade Solution v Finch and Others (2022) 43 ILJ 2727 (LAC) at para 20.

[4] (JR2374/15) [2024] ZALCJHB 242 (24 June 2024) para 44-45