Sehume v Department of Health - Gauteng Province and Others (JR2002/02) [2016] ZALCJHB 353 (14 September 2016)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable/Reportable

CASE NO: JR 2002/02

In the matter between:

L.A. SEHUME

Applicant

And

DEPARTMENT OF HEALTH- GAUTENG PROVINCE

First Respondent

PUBLIC HEALTH & WELFARE SECTORAL

BARGAINING COUNCIL

Second Respondent

MUSA BALOYI NO.

Third Respondent

Date heard:

05 July 2016

Date delivered: 14 September 2016

BERKOWITZ AJ,

Introduction

[1] This is an application in which the applicant seeks condonation for the late filing of an application to review and set aside an arbitration award made by the third respondent acting under the auspices of the second respondent.

[2] The first respondent opposed the relief sought by the applicant.

[3] The arbitration award was received by the applicant on 23 October 2002 and the review application filed on 11 December 2002, 1 week out of time.

[4] In addition to the late filing of the review application, there was a seven month delay between the record having been made available to the applicant on 11 February 2003 in terms of Rule 7A(2) of the Rules of this Court, and the filing of a Notice in terms of Rule 7A(8) of the Rules of this Court.

Postponement request

[5] Ms Schensema appeared on behalf of the applicant. She advised that she had been instructed in the Pro Bono offices at the Labour Court shortly before Court commenced to move an application for postponement of the matter on the basis that the applicant’s

attorneys had withdrawn as attorneys of record, and that the applicant needed an opportunity to appoint new attorneys. A letter

dated 1 July 2016 from Selomo Attorneys was furnished. The first respondent opposed the postponement request. The application for

postponement was refused, whereupon Ms Schensema excused herself, as her instructions were confined to seeking a postponement. My reasons for refusing the postponement are as follows.

[6] In Commercial Workers Union of SA v Tao Ying Metal Industries & others [2008] ZACC 15; 2009 (2) SA 204 (CC); (2008) 29 ILJ 2461 (CC) Ncobo J at [63] stated :

‘The LRA introduces a simple, quick, cheap and informal approach to the adjudication of labour disputes. This alternative process is intended to bring about the expeditious resolution of labour disputes. These disputes, by their very nature, require speedy resolution. Any delay in resolving a labour dispute could be detrimental not only to the workers who may be without a source of income pending the resolution of the dispute, but it may, in the long run, have a detrimental effect on an employer who may have to reinstate workers after a number of years.'

[7] It is apposite to refer to the judgment in Carephone (Pty) Ltd v Marcus NO & others Carephone (Pty) Ltd v Marcus NO & others (1998) 19 ILJ 1425 (LAC) where the court held as follows:

'In a court of law the granting of an application for postponement is not a matter of right. It is an indulgence granted by the court to a litigant in the exercise of a judicial discretion. What is normally required is a reasonable explanation for the need to postpone and the capability of an appropriate costs order to nullify the opposing party's prejudice or potential prejudice. Interference on appeal in a matter involving the lower court's exercise of a discretion will follow only if it is concluded that the discretion was not judicially exercised (Madnitsky v Rosenberg 1949 (2) SA 392 (A) at 398?9).'

[8] In addition to the fact that no less than nearly thirteen years had passed since the Court file had been indexed and paginated on 24 October 2003, and that any further delays were simply unacceptable, not to mention prejudicial to the first respondent, it was evident from the aforesaid letter that Selomo Attorneys had never actually appointed themselves as the attorneys of record, as they had not been provided with a signed engagement and mandate letter from the applicant. The applicant appeared in this Court on 19 May 2016 when the matter was postponed to 5 July 2016, and the applicant thus had ample opportunity to obtain legal representation but yet waited until 1 July 2016 to try and do so. Counsel for the 1st respondent advised that the reason for the matter not proceeding on 5 July 2016 was because the applicant wanted the opportunity to obtain legal representation. The applicant made no tender of costs.

[9] In keeping with the need for expeditious resolution of labour disputes and despite that an application for postponement must be made timeously and as soon as the circumstances which might justify an application become known to the applicant, the applicant waited until the day of proceedings to bring a postponement application; as proceedings had already been postponed once before for the same reason of the applicant wanting to obtain legal representation, and the applicant did not make use of that opportunity, and as an order of costs would not remedy the prejudice because of the already inordinate length of the delay in finalising this matter, the postponement was refused.

Condonation

[10] As no substantive condonation application had been filed, the applicant was afforded an opportunity to make submissions from the bar in regard to the delays.

[11] The applicant, who appeared in person, explained that both delays were attributable to his attorneys.

[12] Mr Nameng on behalf of the first respondent submitted, that in the absence of a substantive application, the matter was not properly before the Court.

[13] The Labour Appeal Court in Colett v Commission for Conciliation, Mediation & Arbitration & others (2014) 35 ILJ 1948 (LAC), held at [39]

‘The submission that the court a quo had to consider the prospects of success irrespective of the unsatisfactory and unacceptable explanation for the gross and flagrant disregard of the rules is without merit.’

[14] In Queenstown Fuel Distributors CC v Labuschagne NO & others (2000) 21 ILJ 166 (LAC); [2000] 1 BLLR 45 (LAC) at paras 24 and 25 Conradie JA stated as follows:

'[24] ... In principle, therefore, it is possible to condone non-compliance with the time-limit [in s 145(1)(a) ]. It follows, however, from what I have said above, 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.

[25] By adopting a policy of strict scrutiny for condonation applications in individual dismissal cases I think that the Labour Court would give effect to the intention of the legislature to swiftly resolve individual dismissal disputes by means of a restricted procedure, and to the desirable goal of making a successful contender, after the lapse of six weeks, feel secure in his award.

[15] In A Hardrodt (SA) (Pty) Ltd v Behardien & others (2002) 23 ILJ 1229 (LAC) stated ‘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.

[16] In Saloojee & another v Minister of Community Development at 141C-E Steyn CJ said:

'I should point out, however, that it has not at any time been held that condonation will not in any circumstances be withheld if the blame lies with the attorney. 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 this Court. Considerations ad misericordiam should not be allowed to become an invitation to laxity. In fact this Court has lately been burdened with an undue and increasing number of applications for condonation in which the failure to comply with the Rules of this Court was due to neglect on the part of the attorney. 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 a 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.'

[17] And stated further at “[20] Furthermore as Conradie JA emphasized in the Queenstown Fuel Distributors CC case condonation in the case in individual dismissals is not readily granted.”

[18] The applicant has offered an unsatisfactory and unacceptable explanation for the gross and flagrant disregard of the rules, and there is thus no need to consider the applicant’s prospects of success. His explanation of laying the blame at the door of his attorneys is also of no assistance to him, as, in keeping with the judgments referred to above, there are limits beyond which courts are prepared to assist a litigant even where the attorney is to blame for the delay. Finally, in adopting a policy of strict scrutiny for condonation applications in individual dismissal cases, no acceptable, let alone a compelling explanation, for the delay has been provided.

[19] In regard to costs, s162 provides that an order for the payment of costs may be made according to the requirements of law and fairness. Whilst costs ordinarily follow the result, and the applicant has put the first respondent to unnecessary expense in having never filed a condonation application to place the matter properly before the court, the first respondent took no steps itself to expedite the hearing of the review application, but adopted a 'wait-and-see' approach.

[20] As a result the Court makes the following order:

1. The application for condonation is dismissed;

2. The review application is accordingly dismissed;

3. There is no order as to costs.

______________

BERKOWITZ AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant: In person

For the Respondent: Advocate G Nameng

Instructed by: Department of Justice