SAMWU obo Sefanyetso v South African Local Government Bargaining Council and Others - Ex Tempore Judgment Condonation Application (JR265/2021) [2023] ZALCJHB 288 (10 October 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR265/2021

In the matter between: SAMWU obo RAYMOND SEFANYETSO Applicant and SOUTH AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL First Respondent JOHANNESBURG MARKET SOC LTD Second Respondent LUNGILE MATSHAKA N.O. Third Respondent

Heard: 10 October 2023

Delivered: 10 October 2023

EX TEMPORE JUDGMENT

CONDONATION APPLICATION

PHEHANE, J

Introduction

[1] The applicant seeks condonation for the late filing of the review application. The condonation application is opposed by the second respondent. At the commencement of the proceedings, the second respondent raised

contentions that the review application is deemed withdrawn for lack of compliance with item 11.2.3 of the Practice Manual[1] and has lapsed for lack of compliance with item 11.2.7 of the Practice Manual, but later withdrew these contentions and wisely so.

[2] The third respondent issued an arbitration award which the applicant seeks to challenge in the review application. The arbitration award is dated 4 February 2019 and it was served on the parties by the first respondent on 7 February 2019 by email. That the arbitration

award was emailed to the applicant union that represented the individual applicant (Mr. Sefanyetso) during the arbitration proceedings is not disputed.[2]

[3] The applicant union avers that Mr. Sefanyetso attended at its offices in January 2020 to make enquiries about the arbitration, as he had last attended the arbitration proceedings in January 2019. The applicant union avers that Mr. Sefanyetso explained that the reason he delayed approaching the offices of the union to enquire about his arbitration is that he “had challenges with his eyesight and was partially blind for the whole of 2019 due to the earlier eye operation on 2018”. Nothing is attached as evidence of this eye challenge and the confirmatory affidavit of Mr Sefanyetso does not elaborate on this. The problem for the applicant does not end here. No specificity is advanced about when this eye challenge started and ended, if at all.

[4] In the answering affidavit, the second respondent avers that the applicant was represented by more than one union official at the arbitration proceedings and the email correspondence annexed as “B” and “C” to the answering affidavit shows that the union received the arbitration award on 7 February 2019. No replying affidavit is filed disputing these averments.

[5] According to the applicant union, it was too busy to assist Mr. Sefanyetso, as the deponent to the applicant’s founding affidavit (Mr. Langa) states that he was attending a conference to nominate new union leadership in February 2020. The applicant union advised the applicant, it would seem, in March 2020, after the Covid-19 lockdown measures were implemented, to approach the bargaining council to obtain a copy of the arbitration award. Mr. Sefanyetso received no joy due to the Covid-19 retsrictions and only received a printed copy of the award, it would seem, in November 2020. Once more, it would appear that the applicant union was attending to other matters and annual leave over the festive season and only on 30 January 2021, did the union make arrangements to consult with Mr Sefanyetso and seek authorization to appoint a law firm to “deal with his matter”.

[6] On 4 February 2021, the union consulted with Mr. Sefanyetso and recommended that a legal opinion be sourced to consider the prospects on review. A consultation was held with the applicant’s attorney, it would seem, on 22 February 2021.

[7] The condonation application was only launched on 19 March 2021. The review application was launched on 1 March 2021, wherein the applicant stated that a condonation application would be launched separately from the review application.

[8] The applicant avers that Mr. Sefanyetso became aware of the arbitration award in November 2020 and that the statutorily prescribed period of 6 weeks within which to launch the review application should be calculated from that date.

Condonation test

[9] The test to succeed on condonation is trite.[3]

[10] In Grootboom v National Procecuting Authority and Another,[4] the Constitutional Court stated as follows at paragraph [51]:

‘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.’ (Emphasis added).

Evaluation

[11] The union received the arbitration award on 7 February 2019. The union fails dismally to explain what its officials did when they received the arbitration award on this date. It is disingenuous of the applicant to state that Mr. Sefanyetso only learned of the arbitration award in November 2020, it would seem when it was “printed” for him. On the facts, the union that represented Mr. Sefanyetso was already in receipt of the arbitration award long before November 2020 and long before the Covid-19 pandemic restrictions.

[12] No explanation is proffered as to what occurred between 7 February 2019 to November 2020. Mr. Senfanyetso’s alleged eye challenges predated the issuing of the arbitration award.

[13] The union was lackadaisical in dealing with Mr. Sefanyetso’s matter, as it was focusing on its leadership elections, other commitments and the festive season.

[14] A review application is an urgent application. This is a classic case where an individual did not follow up on his case with speed and a union did not assist its member, as nothing was done by it upon receipt of the arbitration award; it had other commitments and did not assist its member to approach this Court expediently.

[15] No explanation is provided by the applicant of every period of delay, as is incumbent on an applicant seeking condonation.[5] In addition, it is trite that when a party in default becomes aware that condonation is necessary, an application for condonation should be filed without delay.[6] In the present case, the applicant did not launch this application without delay and the period of delay is unexplained.

[16] The extent of the delay is unacceptably excessive. Absent a good explanation, as in the present case, there is no need to consider the prospects of success.

[17] In the circumstances, I am of the view that it is not in the interests of justice that condonation be granted for the late filing of the review application.

[18] In view of the foregoing, the following order is made:

Order

1. Condonation for the late filing of the review application is refused.

2. There is no order as to costs.

M. T. M. Phehane

Judge of the Labour Court of South Africa

Appearances For the Applicant: Ms. Phakedi of Phakedi Attorneys For the Third Respondent: Adv. West Instructed by: Molefe Knight Attorneys

[1] Effective 2 April 2013.

[2] See: answering affidavit at paras 7.2 and 7.4 on p 27 annexures “B” and “C” on pages 35 and 36 respectively. No replying affidavit is filed by the applicant contesting these allegations in the answering affidavit.

[3] See: Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A); [1962] 4 All SA 442 (A); NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC); [1998] JOL 3074 (LAC); Grootboom v National Prosecuting Authority and another [2013] ZACC 37; (2014) 35 ILJ 121 (CC).

[4] Supra.

[5] Ntsele v Commission for Conciliation, Mediation and Arbitration [2017] ZALCJHB 161.

[6] CWIU & another v Ryan & others [2001] 3 BLLR 337 (LC); [2001] JOL 7634 (LC).