SAMWU obo Ramokgopa v Ekurhuleni Metropolitan Municipality (JR981/22) [2024] ZALCJHB 467 (18 November 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 981 / 22

In the matter between:

SAMWU obo KGOSIENTSHO REUBEN RAMOKGOPA Applicant and EKURHULENI METROPOLITAN MUNICIPALITY First Respondent THE SOUTH AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL Second Respondent TIYANI MAKUBELE N.O. Third Respondent

Heard: 12 November 2024

Delivered: 18 November 2024

This judgment was handed down electronically by circulation to the parties by email. The date and time for hand-down is deemed to be 18 November 2024

Summary: Bargaining Council arbitration proceedings – condonation ruling by arbitrator – test for review – s 145 / 158(1)(g) of LRA 1995 considered

Condonation application – principles considered – applicant failing to make out proper case for condonation – condonation ruling by arbitrator upheld

Condonation – explanation for delay considered – no explanation for a material delay – prospects of success irrelevant – no basis for granting condonation arbitrator justly and properly discharging duties under the LRA – no basis to interfere with ruling established – review application dismissed

JUDGMENT: REASONS

SNYMAN, AJ

Introduction

[1] The application before me concerns an application by the applicant to review and set aside a condonation ruling made by the third

respondent in his capacity as arbitrator of the South African Local Government Bargaining Council (SALGBC), being the second respondent.

In terms of this condonation ruling the third respondent refused to condone the applicant’s late referral of an unfair dismissal

dispute to the SALGBC. The application has been brought in terms of section 145 as read with 158(1)(g) of the Labour Relations Act (LRA).[1]

[2] The applicant’s review application was filed some two weeks outside the six weeks’ time limit as contemplated by section 145(1) of the LRA. The applicant did apply for condonation to regularise this late application. The requirements for condonation to be granted are trite. In the well-known judgment of Melane v Santam Insurance Co Ltd[2] the Court held that these requirements are the length of the delay, the explanation for the delay, the importance of the case (prejudice)

and the prospects of success. These requirements are interrelated and must be holistically considered.

[3] Applying these principles, I first consider the length of the delay. It is less than two weeks, and thus a minimal delay. The delay was caused by the applicant erroneously pursuing a rescission application in the CCMA, which it believed, albeit wrongly, was the appropriate course of action. Upon receiving the recission ruling in which the CCMA indicated it could not entertain the matter, the applicant acted promptly in bringing this review application. In argument before Court, the first respondent did not take issue with the granting of condonation. Overall considered, the delay that was occasioned in this case should not serve to deprive the applicant of the opportunity to ventilate its review application on the merits. For such purpose, I am therefore inclined to grant condonation for the late filing of the applicant’s review application.

[4] Having considered the pleadings and heads of argument in this matter, and having heard argument by the parties, I granted the following order on 12 November 2024:

1. The late filing of the applicant’s review application is condoned.

2. The applicant’s review application is dismissed

3. There is no order as to costs.

4. Written reasons for this order will be sent to the parties on 18 November 2024.

[5] This judgment constitutes the written reasons as contemplated by paragraph 4 of the order above. I will commence by setting out the background facts relating to the issue of condonation as it came before the SALGBC and the third respondent.

The relevant background

[6] From the outset, I must deal with the fact that in its review application, the applicant sought to supplement the grounds and facts for seeking condonation in the SALGBC. This is not permitted. The applicant cannot make out a new case for condonation on review. After all, the third respondent can hardly be criticised for refusing condonation based on issues never placed before him to decide.[3] I will therefore have no regard to grounds for condonation and evidence relating to the same that was not placed before the third

respondent when he decided the condonation application.

[7] So what was actually before the third respondent where it came to condonation, especially considering that the condonation application was decided by the third respondent on paper, and on an unopposed basis?

[8] Firstly, the third respondent had before him the dispute referral form itself. It was filed on 25 March 2022. In the referral, the applicant records that the individual applicant was dismissed on 28 September 2021, that the dismissal was substantively and procedurally unfair, and retrospective reinstatement was sought. There is no exposition in the referral of the circumstances relating to the dismissal of the individual applicant, save for recording that the dismissal was procedurally unfair because the chairperson did not dismiss the individual applicant, and that the dismissal was substantively unfair because the individual applicant’s submissions were not considered.

[9] The referral was accompanied by a condonation application. In the condonation application, the applicant records that the referral is 142 days late. It is further stated that the individual applicant approached his union on 22 March 2022 for assistance. Where it comes to the reasons for lateness, the explanation offered is that the presiding officer of the disciplinary hearing did not issue an immediate dismissal, but instead issued a suspended dismissal with conditions, being that he should attend counselling, should not be convicted of sexual harassment going forward, that he would not be entitled to apply for promotion and that he should forfeit his salary increment for the 2022/2023 year. According to the applicant, the first respondent then amended this sanction to dismissal two months after the ruling, however the individual applicant was allowed to work for two months and was paid a salary for December 2021 and January 2022. It is when the individual applicant did not receive a salary in February 2022, that he regarded himself as being dismissed. He also said that he wrote letters to the city manager, speaker and mayor and he was informed his matter was under investigation.

[10] As to the issue of prospects of success, the applicant stated that the first respondent contravened the disciplinary procedure collective agreement in dismissing the individual applicant. It was contended, with reference to the letter of dismissal of the individual applicant of 28 September 2021, that the letter suggested the chairperson dismissed the individual applicant, when that was not the case. It was pointed out that the chairperson recommended a sanction other than dismissal. The letter of dismissal and the finding by the chairperson was attached to the condonation application. The applicant added that he was still waiting for his matter to receive attention following his letters to the first respondent and when his salary was stopped, he went to his union for assistance.

[11] In the context of the aforesaid explanation, it is also important to consider what emerged from the affidavits before Court, as having actually happened upon receiving the letter of dismissal on 28 September 2021. It turned out that the individual did not seek the assistance of his union. Instead, he instructed a firm of attorneys, Machaka Attorneys, to bring an urgent application in the High Court to challenge this dismissal. The application was brought on 20 October 2021 under case number 21 / 49984. The relief sought was inter alia that the first respondent’s decision to terminate the individual applicant’s employment contract on 28 September 2021 be declared to be unlawful, it be set aside, and the individual applicant be reinstated. The application was struck from the roll for want of urgency, and appears not to have been pursued further since.

[12] Returning to the condonation proceedings before the third respondent, it was decided on paper in terms of Rule 31 of the SALGBC Rules. It was decided on the basis of being unopposed. It is clear from the ruling of the third respondent that he had full regard to the explanation and prospects of success provided by the applicant, as set out above. It is also clear that the third respondent properly appreciated the principles to be considered when deciding whether or not to grant condonation.

[13] According to the third respondent, the referral was five months late, considering the dismissal date of 28 September 2021 and the referral date of 25 March 2022. This finding is in essence correct, considering that the actual delay is two days short of five

months. The third respondent considered this delay inordinate.

[14] In considering the explanation for the delay, the third respondent believed the explanation to be ‘implausible and unsatisfactory’. He held that the applicant did not explain the delay in full. He also pointed out that there was no evidence provided that the applicant was in fact paid his salary in full for two months and that he made enquiries about his employment. Where it came to prospects of success, he concluded that the applicant had limited prospects of success. The third respondent then declined to

grant condonation. This led to the current review application.

The Test for Review

[15] The test for review is trite. In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others,[4] the Court held that ‘the reasonableness standard should now suffuse s 145 of the LRA’, and that the threshold test for the reasonableness of an award was: ‘… Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?...’[5]. This means that the award in question is tested against the facts before the arbitrator to ascertain if it meets the requirement of reasonableness.[6] In conducting this test it is always necessary and important for the Court to enquire into and consider the merits of the matter and the entire evidence on record in deciding what is reasonable.[7] In Herholdt v Nedbank Ltd and Another[8] the Court said:

‘… A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to the particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of consequence if their effect is to render the outcome unreasonable.’

[16] In sum, applying the correct review test has a logical chronology. First, it must be determined if there is a failure or error on the part of the arbitrator. Second, and where there is such a failure or error, it must be shown that the outcome arrived at by the arbitrator was unreasonable, based on all the evidence and issues before the arbitrator, even if it may be for different reasons or on different grounds as those referred to by the arbitrator.[9] Third, it would only be if the consideration of the evidence and issues before the arbitrator shows that the outcome arrived at by the arbitrator cannot be sustained on any grounds, and the irregularity, failure or error concerned is the only basis to sustain the outcome the arbitrator arrived at, that the review application would succeed.[10]

[17] However, and considering that what was before the third respondent to decide was a condonation application, a further factor comes into play. In National Education Health and Allied Workers Union (Nehawu) v Metrofile (Pty) Ltd[11] the Court said:

‘… To grant condonation is an exercise of judicial discretion that is only fettered by being judicially explained. The test is whether the court whose decision is challenged on appeal has exercised its discretion judicially. The exercise of the discretion will not be judicial if it is based on incorrect facts or wrong principles of law or where the court of first instance acted capriciously, or in a biased manner, or committed a misdirection or an irregularity, or exercised its discretion improperly or unfairly. If none of these grounds is established, it cannot be said that the exercise of discretion was not judicial. …’

This can equally be applied to the reasonableness test on review where it comes to condonation rulings.

[18] Against the above principles and test, I will now proceed to consider the applicant’s application to review and set aside the condonation ruling of the third respondent.

Analysis

[19] In my view, there is simply no basis to interfere with the third respondent’s condonation ruling on review. The applicant was dismissed on 28 September 2021, and he only referred his dispute to the SALGBC on 25 March 2025, which is some five months outside the 30 day time limit in terms of section 191 of the LRA. As the third respondent correctly recognized, this was a material and excessive delay, or as the third respondent called it ‘an inordinate delay’. As a general benchmark, it is my view delays in excess of two months after the expiry of the time limit can generally be described as starting to become excessive.[12] The extent of the delay in this case thus strongly mitigated against the granting of condonation, barring an exceptional explanation.

[20] It must always be borne in mind that the imperative of expedition underlies all employment disputes, and especially unfair dismissal

disputes referred to the CCMA or bargaining councils such as the SALGBC. In Food and Allied Workers Union on behalf of Gaoshubelwe v Pieman’s Pantry (Pty) Ltd[13] the Court said the following:

‘Our courts have, on occasion, pronounced on the importance of labour disputes to be conducted with expedition. For example, in National Research Foundation the Labour Court held: ‘[15] It is now trite that there exists a particular requirement of expedition where it comes to the prosecution of employment law disputes. …’

[21] The explanation offered by the applicant for the material delay is far from exceptional. In fact, it is so poor so as to constitute no explanation at all. First and foremost, it is unsubstantiated. The individual applicant refers to continuing working for two months and earning a salary until end January 2022, after he was dismissed, yet he provided no evidence to substantiate this, for example payslips or other work related correspondence in this period. He also referred to correspondence that he had allegedly sent to various functionaries at the first respondent about the status of his employment, but did not provide this correspondence to substantiate this allegation. Instead, he simply made bald and unsubstantiated statements. The third respondent was very much alive to these failures, and properly so. The third respondent cannot be faulted for his conclusions that the applicant did not substantiate his explanation and that the explanation was materially lacking.

[22] It is trite that there must be a proper explanation supported by sufficient particularity, dealing with the entire period of the

delay. In Seatlolo and others v Entertainment Logistics Service (a division of Gallo Africa Ltd)[14] the Court held:

‘In order to exercise its discretion whether or not to grant condonation, this court must be appraised of all the facts and circumstances relating to the delay. The applicant for condonation must therefore provide a satisfactory explanation for each period of delay. See NUMSA & another v Hillside Aluminium [2005] ZALC 25; [2005] 6 BLLR 601 (LC) where Murphy AJ held that an unsatisfactory explanation for any period of delay will normally be fatal to an application, irrespective of the applicant's prospects of success.’

[23] As to how this explanation must be provided, the Court in Independent Municipal and Allied Trade Union on behalf of Zungu v SA Local Government Bargaining Council and Others[15] provided the following guidance:

‘In explaining the reason for the delay it is necessary for the party seeking condonation to fully explain the reason for the delay in order for the court to be in a proper position to assess whether or not the explanation is a good one. This in my view requires an explanation which covers the full length of the delay. The mere listing of significant events which took place during the period in question without an explanation for the time that lapsed between these events does not place a court in a position properly to assess the explanation for the delay. This amounts to nothing more than a recordal of the dates relevant to the processing of a dispute or application, as the case may be.’

[24] The explanation submitted by the applicant in the condonation applications fails on all counts where it to what is required when providing an explanation in terms of the above principles. The applicant has simply not explained why he could not have referred an unfair dismissal dispute to the SALGBC immediately after receiving the letter of 28 September 2021, which letter without any doubt makes it clear he was dismissed. In particular, considering the applicant always believed this letter was unlawful in the light of what the chairperson of the disciplinary hearing recommended, that was a further impetus to take immediate action and not wait. Even taking the applicant’s version that he was paid for December 2021 and January 2022, this should not stand in the way of him referring a dispute, again considering the clear terms of the letter of dismissal of 28 September 2021. And lastly, why did he not immediately go to his union to assist him, and only do so for the first time on 22 March 2022. In short, virtually the entire period of the delay is left unexplained.

[25] When presenting argument in Court, the applicant sought to blame Machaka Attorneys for the delay, because they gave the individual applicant wrong advice by pursuing this case to the High Court instead of referring it to the SALGBC. The immediate problem with this argument is that it was not raised before the third respondent in the condonation application. It thus cannot be raised now. But even if this is considered, the individual applicant chose his attorneys, and must stand or fall by any ineptitude on their part.[16]

[26] I also believe the applicant’s explanation, all considered, has a credibility problem, in the sense that it is false. It is difficult to understand that the applicant can explain on the one hand that based on the chairperson’s finding he believed he was not dismissed until he did not receive a salary in Februay 2022, but on the other hand refer a case to the High Court on 20 October 2021 in which he made it clear that he considered himself unlawfully dismissed don 28 September 2021. And further, the letter of dismissal of 28 September 2021 came after the chairperson’s ruling two months earlier, which would surely leave the applicant with no doubt as to the first respondent’s intentions, no matter what the ruling stipulated. To approach a Court with a false explanation is entirely destructive of good cause being shown.[17]

[27] In my view, what happened in this case shows a complete lack of diligence and simply remissness exhibited by the applicant in the

conduct of his own case. It is an explanation that cannot be accepted.[18] In National Union of Metalworkers of SA on behalf of Nkuna and Others v Wilson Drills-Bore (Pty) Ltd t/a A and G Electrical,[19] the Court said the following:

‘In Saraiva Construction (Pty) Ltd v Zululand Electrical and Engineering Wholesalers (Pty) Ltd 1975 (1) SA 612 (D), the court held that good cause is shown by the applicant giving an explanation that shows how and why the default occurred. It was further held in this case that the court could decline the granting of condonation if it appears that the default was wilful or was due to gross negligence on the part of the applicant. In fact, the court could on this ground alone decline to grant an indulgence to the applicant.’

[28] Strictly speaking, and in the absence of any acceptable explanation for what is an excessive delay, prospects of success are actually irrelevant and immaterial.[20] As said in Moila v Shai No and Others[21]:

‘…. Where, in an application for condonation, the delay is excessive and no explanation has been given for that delay or an 'explanation' has been given but such 'explanation' amounts to no explanation at all, I do not think that it is necessary to consider the prospects of success.’

[29] But even if prospects of success are considered, all that was before the third respondent was the letter of dismissal and finding of the chairperson. From the finding, it is clear that the individual applicant was found guilty of sexual harassment, which he has never disputed in the condonation application. That is gross misconduct deserving of dismissal. The summary of facts as contained in the chairperson’s finding shows the material prejudice suffered by the complainant at the hands of the individual applicant. It is true that the chairperson recommends dismissal of the individual applicant, but then recommends it be suspended based on a number of conditions. Clearly the first respondent did not accept these recommended conditions and instead implemented the recommended dismissal. On a prima facie basis, and in the absence of a proper case being made out to the contrary before the third respondent, I can find no fault with the conclusion that under these circumstances, the individual applicant has limited prospects of success.

[30] Finally, and even if the applicant has a good case as he alleges, and even if this case may have merit, it is my view that the following dictum in Ferreira v Die Burger[22] aptly describes what should equally apply in casu:

‘I am sympathetic to the fact that the applicant may have a case but, were we to grant this application, this court would subvert a crucial principle in matters which deal with personal relationships, namely labour relations, that these disputes have to be dealt with expeditiously and finalized as quickly as possible. Where in a case such as this, there has been so flagrant of violation of the rules, then, as Myburgh JP correctly decided, a lack of any explanation at all shrugs off other considerations …’

[31] Overall considered, the third respondent’s refusal of the applicant’s application for condonation would resort well within the bands of what may be considered a reasonable outcome. It is certainly a judicial exercise of his discretion, unassailable on review. The applicant has thus failed to make out a case for the review of the third respondent’s condonation ruling, and the review application thus stands to be dismissed.

Conclusion

[32] Therefore, based on all the reasons set out above, I conclude that the third respondent’s condonation ruling is simply not reviewable. I am satisfied that the third respondent’s findings of fact and application of legal principles where it came to deciding the applicant’s condonation application constitutes a proper and judicial exercise of his discretion. Insofar as the issue of the outcome arrived at by the third respondent may be considered on the basis of it being reasonable or unreasonable, there is in my view no doubt that it would comfortably resort within the parameters of reasonableness as required, in order to be sustainable on review. The applicant’s review application thus falls to be dismissed.

Costs

[33] This then leaves only the issue of costs. In terms of the provisions of section 162(1) of the LRA, I have a wide discretion where it comes to the issue of costs. I am aware of what the Constitutional Court said with regard to costs in employment disputes as expressed in Zungu v Premier of the Province of Kwa-Zulu Natal and Others[23]. In exercising this judicial discretion, the same Court recently re-affirmed the principle set in Zungu supra and stated that ‘when making an adverse costs order in a labour matter, a presiding officer is required to consider the principle of fairness and have due regard to the conduct of the parties.’[24]

[34] I do not believe that the applicant acted in an unreasonable and frivolous manner in pursuing this case. I also consider that the case was prosecuted in a proper manner by the applicant. These factors, coupled with an overall consideration of fairness to both parties, leaves me convinced that it would be appropriate and fair to make no order as to costs.

Order

[35] It is for all the reasons as set out above that I made the order that I did, as set out in para 4 of this judgment, supra.

S Snyman

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Pkakedi Attorneys Inc

For the Third Respondent: Du Plessis De Heus & Van Wyk Attorneys

[1] Act 66 of 1995 (as amended).

[2] 1962 (4) SA 531 (A) at 532C-E.

[3] See Albany Bakeries Ltd v Van Wyk and Others (2005) 26 ILJ 2142 (LAC) at para 25; Brodie v Commission for Conciliation, Mediation and Arbitration and Others (2013) 34 ILJ 608 (LC) at para 33; Xorile v Commission for Conciliation, Mediation and Arbitration and Others (JR2345/2011) [2014] ZALCJHB 512 (8 December 2014) at para 40; First National Bank — A Division of First Rand Bank Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2017) 38 ILJ 2545 (LC) at paras 121 – 122.

[4] (2007) 28 ILJ 2405 (CC).

[5] Id at para 110. See also CUSA v Tao Ying Metal Industries and Others (2008) 29 ILJ 2461 (CC) at para 134; Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 964 (LAC) at para 96.

[6] See Duncanmec (Pty) Ltd v Gaylard NO and Others (2018) 39 ILJ 2633 (CC) at paras 43.

[7] Id at para 41.

[8] (2013) 34 ILJ 2795 (SCA) at para 25. See also Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 943 (LAC) at para 14; Monare v SA Tourism and Others (2016) 37 ILJ 394 (LAC) at para 59; Quest Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp Fulfilment Services (Pty) Ltd) v Legobate (2015) 36 ILJ 968 (LAC) at paras 15 – 17; National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others (2015) 36 ILJ 2038 (LAC) at para 16.

[9] Fidelity Cash Management Service (supra) at para 102.

[10] See Campbell Scientific Africa (Pty) Ltd v Simmers and Others (2016) 37 ILJ 116 (LAC) at para 32; Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others (2015) 36 ILJ 1453 (LAC) at para 12.

[11] (2021) 42 ILJ 1914 (LAC) at para 10.

[12] Compare Plastics Convertors Association of SA and Another v Metal and Engineering Industries Bargaining Council and Others (2017) 38 ILJ 2081 (LC) at para 15; Silplat (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2011) 32 ILJ 1739 (LC) at para 24; National Education Health and Allied Workers Union and Others v Vanderbijlpark Society for the Aged (2011) 32 ILJ 1959 (LC) at para 2; Van Dyk v Autonet (A Division of Transnet Ltd) (2000) 21 ILJ 2484 (LC) at para 12.

[13] (2018) 39 ILJ 1213 (CC) at para 187.

[14] (2011) 32 ILJ 2206 (LC) at para 11.

[15] (2010) 31 ILJ 1413 (LC) para 13.

[16] See Saloojee and Another NNO v Minister of Community Development 1965 (2) SA 135 (A) at 141E-H; Superb Meat Supplies CC v Maritz (2004) 25 ILJ 96 (LAC) at para 27; National Union of Metalworkers of SA on behalf of Thilivali v Fry's Metals (A Division of Zimco Group) and Others (2015) 36 ILJ 232 (LC) at para 28.

[17] Compare Trentyre (Pty) Ltd v National Union of Metalworkers of SA and Another (2012) 33 ILJ 1438 (LAC) at paras 20 – 21.

[18] See Arnott v Kunene Solutions and Services (Pty) Ltd (2002) 23 ILJ 1367 (LC) at paras 30 – 32.

[19] (2007) 28 ILJ 2030 (LC) at para 16.

[20] See Mziya v Putco Ltd (1999) 3 BLLR 103 (LAC) at para 9; Universal Product Network (Pty) Ltd v Mabaso and Others (2006) 27 ILJ 991 (LAC) at para 20; Colett v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 1948 (LAC) at para 38; Mgobhozi v Naidoo NO and Others (2006) 27 ILJ 786 (LAC) at para 34.

[21] (2007) 28 ILJ 1028 (LAC) at para 34.

[22] (2008) 29 ILJ 1704 (LAC) at para 8.

[23] (2018) 39 ILJ 523 (CC) at para 25.

[24] Long v South African Breweries (Pty) Ltd and Others (2019) 40 ILJ 965 (CC) at para 30.