SATAWU obo Theledi v Commission for Conciliation, Mediation and Arbitration and Others (JR262/20) [2021] ZALCJHB 368 (20 October 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: JR262/20

In the matter between:

SATAWU OBO VALERY THELEDI Applicant

and

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION First Respondent

COMMISSIONER M.A HAWYES N.O. Second Respondent

PRASA RAIL MLPS Third respondent

Enrolled: 12 October 2021 (deposed of without oral argument)

Delivered: In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be 20 October 2021.

Summary: Review application of a ruling refusing postponement – postponement is not merely for the taking – Commissioner exercised discretion judiciously – no good cause to grant condonation.

JUDGMENT

NKUTHA-NKONTWANA, J

Introduction

[1] In this application, the applicant (SATAWU), acting on behalf of its member, Ms Valery Theledi (Ms Theledi), seeks an order reviewing and setting aside the ruling issued by the second respondent (Commissioner) under case number GAJB6210-19 dated 13 December 2019

under the auspices of the first respondent (CCMA) in terms of section 158(1)(g) of the Labour Relations Act[1] (LRA). The Commissioner rejected the SATAWU’s request for postponement and consequently dismissed its claim for unfair dismissal.

[2] The applicant is also seeking condonation of the late filing of the review application. The third respondent (PRASA) is the only

respondent opposing both the review and condonation applications.

Condonation application

[3] SATAWU asserts that it became aware of the impugned ruling on 05 December 2019. However, the review application was only filed on 10 February 2020, 17 days late. PRASA, on the other hand, disputes the computation of the degree of lateness. It contends that SATAWU was served with the impugned ruling on 13 December 2019. As such, the delay is 15 weeks.

[4] It is apparent ex facie the impugned ruling that the Commissioner refused SATAWU’s requests for postponement and accordingly dismissed its claim when it was clear that it could not present its case. Curiously, SATAWU still persists that it was still expecting the Commissioner to issue an arbitration award despite the fact that its claim had already dismissed. I accordingly agree with PRASA that the degree of lateness 15 weeks.

[5] While section 158(1)(g) provides no time period for the filing of the review application, it is trite that a review application must be brought within a reasonable time and, once brought outside six weeks, condonation must be sought.[2] In this instance, the delay is patently excessive. The explanation for the delay is untenable as lack of funds or manpower cannot constitute reasonable explanation for the delay.[3] It is not SATAWU’s case that the regional union officials, like Mr Lindelani Sigidane (Mr Sigidane) who appeared on its behalf at the CCMA, could not file a mere review application. Tellingly, most litigants in this Court, despite lack of funds or representation of some sort, successfully prosecute their disputes within the time limits or reasonable time. It is baffling that a recruitment of one official could prevent SATAWU from efficiently attending to its members’ interests when it has other officials at its disposal.

[6] Nonetheless, I am not convinced condonation application can be disposed of without taking into account all the relevant facts, including the prospects of success, the prejudice to the parties.

[7] SATAWU referred an unfair dismissal on behalf of Ms Theledi. The arbitration proceedings had been postponed twice before the set down of 12 and 13 September 2019. On 12 September 2019, PRASA presented its case. SATAWU was expected to present its case the next day, being 13 September 2019. However, the union official Mr Sigidane sought a postponement due to Ms Theledi being booked off sick. He showed the commissioner a medical certificate that had been sent to him through his cell phone. PRASA opposed the postponement. The Commissioner took issue with the medical certificate and was of the view that Ms Theledi was deliberately delaying the finalisation of the matter. He refused to postpone the matter and dismissed SATAWU’s claim.

[8] In Psychological Society of South Africa v Qwelane and Others,[4] the Constitutional Court, reaffirming its observations on postponements, stated that:

[30] Postponements are not merely for the taking. They have to be properly motivated and substantiated. And when considering an application for a postponement a court has to exercise its discretion whether to grant the application. It is a discretion in the true or narrow sense – meaning that, so long as it is judicially exercised, another court cannot substitute its decision simply because it disagrees. The decision to postpone is primarily one for the first instance court to make.

[31] In exercising its discretion, a court will consider whether the application has been timeously made, whether the explanation for the postponement is full and satisfactory, whether there is prejudice to any of the parties and whether the application is opposed. All these factors will be weighed to determine whether it is in the interests of justice to grant the postponement. And, importantly, this Court has added to the mix. It has said that what is in the interests of justice is determined not only by what is in the interests of the immediate parties, but also by what is in the broader public interest. (Emphasis added)

[9] Pertinently, the CCMA Practice and Procedure Manual,[5] also underscores the Commissioner’s discretion to decide whether an application for postponement should be granted or refused; a discretion that should be exercised judicially and for substantial reasons. It also enjoins a party seeking postponement to approach the CCMA timeously and as soon as the circumstances which may justify an application become known to the applicant. Most importantly, the application for postponement must bona fide and as a tactical ploy to delay or gain unfair advantage and should not cause prejudice to the other party.[6]

[10] In Carephone (Pty) Ltd v Marcus NO and Others,[7] while the LAC echoed the principles applicable in postponements as alluded to in Qwelane, it drew attention to the fact that postponements at the CCMA should be treated with circumspect as they are not necessarily on a par with that in courts of law for the following reasons: ‘The first is that arbitration proceedings must be structured to deal with a dispute fairly quickly (s 138(1)). Secondly, it must be done with 'the minimum of legal formalities' (s 138(1)). And thirdly, the possibility of making costs orders to counter prejudice in good faith postponement applications is severely restricted…’[8]

[11] In the present instance, the application for postponement was not made timeously nor was PRASA warned of the turn of events. The medical certificate was not presented to the Commissioner but a picture was shown from Mr Sigidane’s cell phone. The Commissioner took into account that there had been postponements before and was not convinced that Ms Theledi was indeed indisposed. Ms Theledi had attended the proceedings the previous day and it was reasonable for the Commissioner to request to know what had befallen her overnight.

[12] Nonetheless, SATAWU did not request indulgence to substantiate its claim by either calling the doctor or request that the matter stand down to make alternative arrangements. It would seem that SATAWU held a view that postponement is a right and that, by merely showing a medical certificate on a cell phone, the matter would be postponed automatically. When challenged, SATAWU was not prepared to prove its claim and willingly recoiled the same way it did during the disciplinary enquiry.

[13] Clearly, the Commissioner’s ruling is beyond reproach. By the same token, the review application has no prospect of success.

Conclusion

[14] Overall, it is my view that SATAWU failed to show good cause to excuse its failure to file the review application timeously. Accordingly, the condonation application stands to be dismissed.

Costs

[15] On the issue of costs, I am not inclined to grant costs in this matter because the parties have a persisting collective bargaining

relationship. In any event it is trite that in this Court costs do not follow the result.

Order

1. SATAWU’s condonation application is dismissed.

2. There is no order as to costs.

P Nkutha-Nkontwana

Judge of the Labour Court of South Africa

[1] Act 66 of 1995, as amended.

[2] See: Khumalo and Another v Member of the Executive Council for Education: KwaZulu Natal [2013] ZACC 49; 2014 (3) BCLR 333 (CC); (2014) 35 ILJ 613 (CC); 2014 (5) SA 579 (CC) at para 42. Fidelity Guards Holdings (Pty) Ltd v Epstein NO [2000] 12 BLLR 1389 (LAC) at par 15; JDG Trading (Pty) Ltd v Laka NO [2001] 3 BLLR 294 (LAC) at pars 17–20.

[3] See: Transport & Allied Workers Union of SA v Algoa Bus Co (Pty) Ltd and Others (2019) 40 ILJ 827 (LAC) at para 23.

[4] [2016] ZACC 48; 2017 (8) BCLR 1039 (CC) at paras 30-31.

[5] 7th Edition November 2014, chapter 15.

[6] Id.

[7] 1999 (3) SA 304 (LAC) at para 54.

[8] Id at para 55.