Segwe v Dispute Resolution Centre for the Motor Industry Bargaining Council and Others (JR378/21) [2023] ZALCJHB 355 (25 August 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR378/21

In the matter between:

KEOBAKO CLIFFORD SEGWE

Applicant

and

DISPUTE RESOLUTION CENTRE FOR THE MOTOR INDUSTRY

BARGAINING COUNCIL First Respondent

COMMISSIONER SI BHABHA NO

Second Respondent

BITLINE SA 95 ICC T/A SASOL ROODEPOORT WEST Third Respondent

Heard: 28 June 2023

Delivered: 25 August 2023

JUDGMENT

TSHISEVHE AJ

Introduction

[1] Mr Segwe (Applicant) seeks to review and set aside an arbitration award issued by the Second Respondent (commissioner) dated 26 October 2019 in terms of section 145 (1) (a) of the Labour Relations Act[1] (LRA).

[2] In the award, the commissioner held that the dismissal of the Applicant by Sasol Roodepoort (Third Respondent ) was substantively fair.

[3] The present application was filed outside of the six-week time period established by the LRA and the Applicant seeks condonation for the late filing of the review application.

[4] If condonation is not granted, then this Court lacks the necessary jurisdiction to consider the review application and the review application stands to be dismissed. If the condonation is granted, then I will turn to consider the merits of the review application.

[5] I, therefore, deem it legally necessary to deal with the condonation application first.

[6] Despite proper service, the Third Respondent failed to attend the review application hearing as scheduled and the matter proceeded in its absence.

Background

[7] The Applicant was employed by the Third Respondent as a Petrol attendant on 1 October 2017 and was dismissed on 9 January 2020 on account of charges of gross misconduct viz:

‘Failure to comply with company duties and responsibilities in that he filled [the] wrong fuel on a vehicle and the vehicle got stuck on the road.’

[8] Aggrieved by the dismissal, he referred the matter to the First Respondent with the Second Respondent as an arbitrator challenging the substantive fairness thereof.

[9] Arbitration was held on 21 October 2020, whereas the award was issued on 26 October 2020, dismissing the application.

[10] The review application should have been launched on or before 7 December 2020 and it was, however, served and filed on 26 February 2021 hence the application for condonation.

The condonation application

[11] The facts are recorded in the papers and there is no need to burden this judgment with a repetition of the factual background.

[12] It is sufficient to record that:

12.1. the commissioner’s award was dated 21 October 2020 but was issued on 26 October 2020;

12.2. the Applicant’s review application was served and filed on 26 February 2021;

12.3. the six-week time period referred to in section 145 of the LRA, calculated from 27 October 2020, elapsed on or about 7 December 2020;

12.4. The Third Respondent served and filed its answering affidavit on 3 and 8 March 2021 respectively, opposing condonation amongst others.

[13] The Applicant has to provide an explanation for every period of delay in order to enable this Court to assess the reasonableness of the delay and the explanation for it. The Applicant failed to do so and the explanation tendered is inadequate and far from compelling, convincing or comprehensive.

[14] The length of the delay was not common cause. The Applicant contended that the delay was 52 court days and the Third Respondent stated that the review application is around 80 days late.

[15] This court has no dies non.

[16] The length of the delay is therefore 80 days.

Applicable legal principles

[17] Turning to the substance of the Applicant's condonation application, it is important to first identify the legal principles applicable to condonation applications.

[18] In line with the provisions of section 145(1A) of the LRA, this Court may, on good cause, shown condone the late filing of an application in terms of section 145 (1) of the LRA.

The length of the delay/degree of lateness

[19] The review application was served and filed 80 days late.

[20] The Applicant is therefore required to explain the period of delay in filing the condonation application - from 8 December 2020 to 25 February 2021.

[21] The period of delay is excessive and is most importantly unexplained as the Applicant only provides the explanation for a second week of each month beginning from the second week of December 2020 to the second week of February 2021 and that is insufficient.

[22] The approach which the Labour Court and the Labour Appeal Court (LAC) have followed in determining whether good cause has been shown is the often referred to passage enunciated by Holmes JA in Melane v Santam Insurance Co. Ltd[2] (Melane):

‘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 therefor, the prospects of success, and the importance of the case. Ordinarily these facts are interrelated: they are not individually decisive, for that would be a piecemeal approach incompatible with a true discretion...’

[23] In applying the ratio in Melane, the court in Academic and Professional Staff Association v Pretorius NO and Others,[3] summarised the principles for consideration as follows:

‘[17] The factors which the court takes into consideration in assessing whether or not to grant condonation are:

(a) the degree of lateness or non compliance with the prescribed time frame;

(b) the explanation for the lateness or the failure to comply with time frame;

(c) prospects of success or bona fide defence in the main case;

(d) the importance of the case;

(e) the respondent's interest in the finality of the judgment;

(f) the convenience of the court; and

(g) avoidance of unnecessary delay in the administration of justice…

[18] It is trite that these factors are not individually decisive but are inter-related and must be weighed against each other. In weighing these factors, for instance, a good explanation for the lateness may assist the applicant in compensating for weak prospects of success. Similarly, strong prospects of success may compensate the inadequate explanation and the long delay.’

[24] In this Court, the principles have long been qualified by the rule that where there is an inordinate delay that is not satisfactorily explained, the applicant’s prospects of success are immaterial.

[25] In Foster v Stewart Scott Inc,[4] his Lordship Mr Justice Froneman (as he then was) stated:

‘It is well settled that in considering applications for condonation the court has a discretion, to be exercised judicially upon a consideration of all the facts. Relevant considerations may include the degree of non-compliance with the rules, the explanation therefor, the prospects of success on appeal, the importance of a case, the respondent's interest in the finality of the judgment, the convenience of the court, and the avoidance of unnecessary delay in the administration of justice, but the list is not exhaustive. These factors are not individually decisive, but are interrelated and must be weighed one against the other. A slight delay and good explanation for the delay may help to compensate for prospects of success which are not strong. Conversely, very good prospects of success on appeal may compensate for an otherwise perhaps inadequate explanation and long delay. See, in general, Erasmus Superior Court Practice at 360-366A.’

[26] In Colett v Commission for Conciliation, Mediation and Arbitration and others,[5] the LAC confirmed that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial and without good prospects of success, no matter how good the explanation for the delay, an application for condonation should be

refused. The onus is on the Applicant to satisfy the Court that condonation should be granted.

[27] In employment disputes there is an additional consideration which applies in determining whether the onus has been discharged, as was held in National Union of Metalworkers of SA on behalf of Thilivhali v Fry’s Metals (A Division of Zimco Group) and others:[6]

‘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.’

[28] Obviously, without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused. In this regard, in NUM v Council for Mineral Technology[7] (Mineral Technology), the court held as follows:

‘…The approach 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. These facts are interrelated; they are not individually decisive. What is needed is an objective conspectus of all the facts. A slight delay and a good explanation may help to compensate for prospects of success which are not strong. The importance of the issue and strong prospects of success may tend to compensate for a long delay. There is a further principle which is applied and that is that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused...’

[29] It is my firm view and understanding that, a presiding judge has a discretion to condone or refuse a condonation application, however, same cannot be exercised outside the band of reasonableness and in total disregard of our jurisprudence.

[30] Once again, 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. In NUMSA and another v Hillside Aluminium,[8] 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.

[31] The abovementioned principles have been further adopted in numerous other cases in the Labour Court and in the LAC.

[32] This Court needs to be convinced that the Applicant has provided a satisfactory explanation for each period of delay because, besides a period of 28 days which is not mentioned anywhere, he failed to explain the 52 ‘court days’ that he mentioned.

Is it in the interest of justice to grant condonation?

[33] The Constitutional Court pointed out in Brummer v Gorfil Brothers Investments (Pty) Ltd,[9] that an application for condonation should be granted if it is in the interests of justice to do so and refused if it is not. The

Constitutional Court went on to say that the interests of justice must be determined by reference to all relevant factors outlined in Melane, including the nature of the relief sought, the nature and cause of any other defect in respect of which condonation is sought, and the effect of the delay on the administration of justice.

[34] In Steenkamp and Others v Edcon Limited[10] (Steenkamp), the Constitutional Court reaffirmed that granting condonation must be in the interests of justice and it referred with approval to its decision in Grootboom v National Prosecuting Authority and Another.[11]

Condonation is not there merely for the asking

[35] Significant for the determination of such applications is that condonation cannot be had merely for the asking, and a party is required to make out a case entitling it to the court’s indulgence by showing sufficient cause, and giving a full, detailed and accurate account of the causes of the delay. In the end, the explanation must be reasonable enough to excuse the default.

Speedy resolution of labour disputes

[36] In Steenkamp[12] under the heading “Broader object of the LRA”, the Constitutional Court placed emphasis on the fact that the expeditious resolution of labour disputes is one of the primary

objects of the LRA. This had important consequences[13], commencing with the proposition that “time periods in the context of labour disputes are generally essential to bring about timely resolution of the disputes”[14].The further points made by the Court include that labour disputes by their nature require speedy resolution, and that any delay in the resolution of labour disputes undermines the primary object of the LRA. The Court also expressly gave support to Myathaza v Johannesburg Metropolitan Bus Services (SOC) Ltd t/a Metrobus and others[15] wherein the Constitutional Court held that: “employment disputes by their very nature are urgent matters which require speedy resolution”.[16]

The explanation for the delay

[37] A review application is urgent in its very nature and any unreasonable delay should be succinctly explained.

[38] The Applicant’s explanation for the delay is blamed on Scorpion Legal Protection, his legal insurance. He alleges that his erstwhile lawyers received the award on 5 November 2020. The review application was supposed to have been launched on or before 7 December 2020. He alleges that the condonation application is some 55 days late.

[39] Without accepting the explanation provided herein, besides his failure to explain the 52 days as stated, the Applicant also failed to explain a period of almost 28 days in addition to the 52 days he mentioned.

[40] I wish to state that this Court does not have a dies non and when counting all the days from 8 December 2020 to 25 February 2021, the review application is around 80 days late.

[41] He alleges that he is a layperson and therefore is not familiar with court processes.

[42] He alleges that he contacted Scorpion Legal Protection during the second week of December 2020 and was assisted by a legal advisor who advised him that there are internal processes to be followed before an attorney is appointed on his behalf.

[43] He was required to supply them with the supporting documents and it was difficult as staff were working remotely and he then emailed the required documents which its receipt was confirmed during the second week of January 2021.

[44] He alleges that he had to wait for Scorpion Legal Protection to advise him on the next step which came on 15 February 2021 wherein he had to visit their offices in Johannesburg for consultation.

[45] He then stated that he consulted with his attorneys and they promised to file a review application on his behalf on 26 February 2021.

[46] In Royal Auto Spares CC v NUMSA and Others[17] the court referred with approval to the headnote of Saloojee and another, NNO v the Minister of Community Development[18] (Saloojee) which stated that:

‘There is a limit beyond which a litigant cannot escape the results of his attorney’s lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the Rules of the Appellate Division. Considerations ad misericordiam should not be allowed to become an invitation to laxity.’

[47] The LAC has held as follows in Universal Product Network (Pty) Ltd v Mabaso and others:[19]

‘[18] As has often been stated the court is hesitant to debar a litigant from relief, particularly where it is his attorney who has been at fault… There are limits, however, even where the attorney is largely to blame for the delay, beyond which the courts are not prepared to assist an appellant. The remarks made in [Saloojee] at 141C-E by Steyn CJ bear repeating again:

“…The attorney, after all, is the representative whom the litigant has chosen for himself, and there is little reason why, in regard to condonation of a failure to comply with the Rule of court, the litigant should be absolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are.”

[20] The Supreme Court of Appeal has pointed out that an unacceptable explanation remains just that, whatever the prospects of success on the merits.[20]’

[48] In Finbro Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein and Others,[21] Hoexter JA also made reference to the “oft-repeated judicial warning that there is a limit beyond which a litigant cannot escape the results of his attorney’s lack of diligence or the insufficiency of the explanation tendered”.

[49] In UTI South Africa v Pilusa and Others,[22] the applicant, through its former attorneys of record, failed to lodge the review application timeously and later sought condonation for the delay. The applicant blamed the negligence of its previous attorneys for the delay. However, the Court, relying on Saloojee stated that an applicant cannot solely rely on the tardiness or negligence of its legal representative in a condonation application to justify the delay, and condonation was refused on the basis that good cause was not shown to justify the granting of condonation. The applicant was held accountable for the lack of diligence on the part of its former attorneys of record.

[50] The Honourable Justice Nicholson AJA stated the following in the Superb Meat Supplies CC v Maritz:[23]

‘In this Court and the Supreme Court of Appeal there have been frequently repeated judicial warnings that there is a limit beyond which a litigant cannot escape the results of his attorney's lack of diligence or the insufficiency of the explanation tendered. It has never been the law that invariably a litigant will be excused if the blame lies with the attorney. To hold otherwise might have a disastrous effect upon the observance of the Rules of this Court and set a dangerous precedent. It would invite or encourage laxity on the part of practitioners.’

[51] This principle was enunciated in the PPWAWU and Others v AF Dreyer and Co (Pty) Ltd,[24] where the court held that:

‘The courts have stressed many times, there is a limit to which a litigant can rely on the negligence of his representative in failing to comply timeously with time limits.’

[52] There are therefore limits beyond which a party cannot rely on their legal representative’s lack of diligence or negligence when they are themselves innocent insofar as an explanation is provided for any delay or non-compliance with time periods.

[53] I am satisfied that the above properly summarises what I am required to consider when exercising my discretion on whether or not to grant condonation for the late filing of the Applicant’s review application, and what constitutes a proper basis upon which this Court should decide condonation.

[54] The various factors should of course be considered cumulatively when determining whether there is good cause for the granting of condonation. Whilst the factors should not be considered on a piecemeal basis, I address the most relevant below in turn.

Prospects of success

[55] The Applicant contended that he has a good prospect of success.

[56] In this matter, the Applicant has dismally failed to give a reasonable explanation for the delay in filing a review application.

[57] For that reason, it is not necessary to visit the prospects of success. The Applicant in any event failed to address the prospects of success in reviewing the award.

[58] In Gaoshubelwe and others v Pie Man's Pantry (Pty) Ltd,[25] it was held that a consideration of prospects of success merely implies a determination of the likelihood or chance of success when the main case is heard.

[59] A similar approach was followed in Seatlholo and others v Entertainment Logistics Service (A division of Gallo Africa Ltd),[26] where it was held that the test is whether the Applicants would succeed in the main action if the facts pleaded by them in their condonation application were established at trial. Equally so, the prospects of success do not entail an applicant having to prove on a balance of probabilities that he or she would succeed when the merits of the case are heard.

[60] In the case of Chetty v Law Society, Transvaal,[27] the court held that a bona fide defence and good prospects of success are not sufficient in the absence of a reasonable explanation of the delay. This principle has been interpreted as follows by the LAC in Mineral Technology:[28]

‘There is a further principle which is applied and that is that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial,

and without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused.’

[61] The Applicant has, however, failed to make out a case for condonation in that, for prospects of success, he only relies on the issue of consistent application of the rule in that other employees have not been dismissed.

[62] I should also indicate that the Applicant failed to challenge the Third Respondent’s argument that, despite being informed by the customer of the type of fuel to be poured and also his assertion that the fuel cap had no sticker which indicate the fuel type, it is part of his standard operating procedures that he ought to have gone back to the customer to confirm the correct fuel type but he failed to do so and as such, he was gross negligent which caused the Third Respondent to suffer financially.

[63] I must also indicate that the Third Respondent had to provide the customer with a full tank of diesel in order to make up for the inconveniences caused by the actions of the Applicant.

[64] The Third Respondent, in their answering affidavit, submitted that the Applicant’s case is different to that of other employees, because in their cases, pleaded guilty (whilst the Applicant pleaded not guilty) and the wrong fuel was established before the said motor vehicles could leave the yard whereas in the Applicant’s case, a customer got stuck on the road and the vehicle had to be towed back to the garage.

Prejudice

[65] The Applicant stated that he would suffer prejudice as he is currently unemployed as he is a breadwinner of his household.

[66] If one has regard to the nature of the relief sought and the effect of the delay on the administration of justice, which is unreasonable in the context of unreasonably delaying launching of the review application, it can easily be said that the granting of condonation would not be in the interests of justice.

Analysis of condonation application

[67] It is trite that the period to file a review application is determined in terms of section 145(1)(a) of the LRA, which is a period of six weeks.[29]

[68] The Applicant argued that, at the time he was supposed to file for review, he was hospitalised and/or his mother also passed away at the time. However, despite the fact that there is no proof to support those claims, those submissions were also not addressed in his review application.

[69] It is equally surprising that the Applicant argues that he is a layperson but the review application was launched by his attorneys, Ishmail and Dhaya attorneys whom he allege withdrew at the time they were supposed to file heads of argument.

[70] I find it disturbing that the Applicant is trying to blame his legal insurance, Scorpion Legal Protection for the delay but he failed to attach any confirmatory document to support his claim.

[71] In Queenstown Fuel Distributors CC v Labuschagne N.O and others,[30] the court held that:

‘…condonation in the case of disputes over individual dismissals will not readily be granted. The excuse for non-compliance would have to be compelling, the case for attacking a defect in the proceedings would have to be cogent and the defect would have to be of a kind which would result in a miscarriage of justice if it were allowed to stand.’

[72] It is therefore my firm view that the Applicant is where he is because of his own doing and as a result, he cannot cry foul and continue to blame others for his own actions.

[73] However, where an applicant’s exculpatory explanation is based on negligence or other misconduct on the part of his legal advisors, the courts have often been hesitant to bar him from relief.[31]

[74] It is therefore my considered view that the degree of lateness is excessive, the explanation for the delay is both unreasonable and unacceptable.

Conclusion

[75] In all the circumstances, I am not convinced that the Applicant has established that it is in the interest of justice that condonation be granted or that there is good cause for the granting of condonation, and that a proper case for condonation has been made out.

[76] It therefore follows that, the application for condonation is refused.

[77] In the premise, I make the following order:

Order

1. The application for condonation for the late filing of the review application is dismissed.

2. I make no costs as to order.

N Tshisevhe

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Self-representing

For the Third Respondent: No appearance

[1] Act 66 of 1995, as amended.

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

[3] [2008] 1 BLLR 1 (LC) at paras 17 - 18.

[4] (1997) 18 ILJ 367 (LAC) at 369C-F.

[5] (2014) 35 ILJ 1948 (LAC).

[6] (2015) 36 ILJ 232 (LC) at para 25.

[7] [1999] 3 BLLR 209 (LAC) at para 10.

[8] [2005] ZALC 25; [2005] 6 BLLR 601 (LC) at para 12.

[9] [2000] ZACC 3; 2000 (2) SA 837 (CC) at para 3.

[10] (2019) 40 ILJ 1731 (CC) at para 36.

[11] 2014 (2) SA 68 (CC) at paras 22 - 23.

[12] Steenkamp at para 38.

[13] The Constitutional Court in Steenkamp described the importance of expeditious resolution of labour disputes in more detail in paragraphs 39 to 41 of the judgment.

[14] Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others (2016) 37 ILJ 313 (CC) at para 1.

[15] (2017) 38 ILJ 527 (CC).

[16] Ibid at para 33.

[17] [2001] 10 BLLR 1164 (LC) at para 11.

[18] 1965 (2) SA 135 (A).

[19] (2006) 27 ILJ 991 (LAC) at paras 18 and 20.

[20] See Chetty v Law Society, Transvaal (1985) (2) SA 756 (A) at 768 B-C).

[21] [1985] ZASCA 71; [1985] 4 All SA 388 (AD) at 391.

[22] [2016] ZALCJHB 270 (21 July 2016) at paras 11 - 15 and 22 - 24.

[23] [2005] JOL 13712 (LAC) at para 16.

[24] [1997] 9 BLLR 1141 (LAC) at 1143.

[25] (2009) 30 ILJ 347 (LC) at para 27.

[26] (2011) 32 ILJ 2206 (LC) para 24.

[27] 1985 (2) SA 756 (A) at 765.

[28] Mineral Technology at para 10.

[29] Section 145(1)(a) reads as follows: “[a]ny party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply to the Labour Court for an order setting aside the arbitration award…”

[30] [1999] JOL 5740 (LAC) at para 24.

[31] See: Meintjies v HD Combrinck (Edms) BPK 1961 (1) SA at 262H – 264 A.