Sekha v Commission for Conciliation, Meditation and Arbitration and Others (JR3092/12) [2016] ZALCJHB 94 (8 March 2016)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case no: JR 3092/12

In the matter between:

SEKHA, THABO

Applicant

and

THE COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION

First Respondent

SILAS RAMUSHOWANA

Second Respondent

KNIGHT PIESHOLD (PTY) LTD

Third Respondent

Date heard: 20 May 2015

Date delivered: 08 March 2016

Summary: Condonation application considered on the written submissions before the Commissioner; the Commissioner did not conduct irregularly or committed any error in terms of Rule 31 by not pointing out that the Applicant should file a replying affidavit, hear arguments or suggesting legal assistance. Review dismissed

Walele AJ,

Introduction

[1] This is an application to review the ruling of the Second Respondent dismissing the Applicant’s application for condonation of the late referral of his dispute to arbitration. The review application is opposed by the Third Respondent. The Applicant sought that the ruling be set aside and referred back to the First Respondent to be heard by another Commissioner or make such ruling as it deems fit.

Background

[2] The facts of this matter are briefly that the Applicant was employed by the Third Respondent until his dismissal based on operational

requirements on 31 January 2012. The Applicant felt aggrieved about his dismissal and referred an unfair dismissal dispute to the

Commission for Conciliation Mediation and Arbitration (“the CCMA”).The dispute was conciliated and remained unresolved

whereupon the First Respondent (“the Commissioner”) issued a certificate of non -resolution in terms of section 191 (5) of the Labour Relations Act[1] on 1 March 2012.

[3] The Applicant referred the dispute for arbitration on 2 October 2012 and applied for condonation of his late referral on 4 October 2012. The Third Respondent filed its answering affidavit to the condonation application on 18 October 2012 and the dispute was scheduled for arbitration on 6 November 2012. On this day the Commissioner correctly noted from the file that there had been an administrative error when it was scheduled for arbitration and that the condonation application be dealt with before the matter may proceed to arbitration.

The condonation ruling

[4] The Commissioner postponed the proceedings on this day 6 November 2015 so that he may consider the written application for condonation as indicated in the ruling. The ruling of the Second Respondent was based on the application for condonation and the answering affidavit of the Third Respondent. The Commissioner issued a condonation ruling dismissing the application for condonation on 19 November 2012.

Grounds for Review

[5] The Applicant challenged the ruling on a number of grounds but in the main the following grounds of review are apparent from the papers.

[6] The Applicant claimed that the Commissioner was obliged to give him a lending hand in relation to the process on 6 November 2012. Further that the Commissioner should have dealt with the matter in accordance with Rule 31 of the rules of the conduct of the proceedings in the CCMA. He submitted that the ruling is flawed both substantively and procedurally.

[7] He suggested that the Commissioner should have noted the inadequacies in his papers (application for condonation on the 2 page pro forma form and in relation to the Third Respondent’s answering affidavit of 72 pages) and postponed the matter in order to afford him an opportunity to file a replying affidavit and further to afford him an opportunity to be legally represented as requested.

[8] He also relied on the Commissioner’s miscalculation of the degree of the delay of the referral to arbitration as being six months instead of four months and claimed that the latter was not excessive.

[9] The gist of the Third Respondent’s case is that the Applicant failed to establish valid grounds of review and in each case sets out their reasoning for the aforesaid.

Legal framework

[10] The test for review is trite. The review test is a narrow one. It is whether the Commissioner reached a decision that a reasonable decision maker could not reach on the material before him or her. The Applicant must show that the Commissioner’s conduct resulted in an unreasonable decision. The Court may set an arbitration award aside only if the award represents a decision that is so unreasonable that no reasonable commissioner could make.

[11] In line with the jurisprudence relating to reviews it was said in Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation Mediation and Arbitration and Others[2]:

‘that a Court in exercising the power to review needs to consider the totality of the material before the Commissioner, consider whether the Commissioner dealt with the principal issue, considered the material before it and reached a reasonable decision’.

Evaluation

[12] The Applicant’s contention that the Commissioner breached Rule 31 is factually incorrect. The Applicant had himself to blame for being ill prepared in relation to the process that he faced and on his own version elected to prepare for arbitration in terms of the notification that he received from the First Respondent.

[13] The Third Respondent through its attorneys informed the Applicant and the First Respondent timeously that the condonation application had to be determined before the arbitration could be heard as indicated on the notification sent out by the First Respondent.

[14] The Applicant in his founding affidavit expressed a view that the Third Respondent was confused whilst it was the Third Respondent’s

legal representatives that correctly pointed out that there is an in limine point of condonation that requires to be decided before the arbitration may commence.

[15] It is interesting to note that in the Applicant’s founding affidavit he states that he was relieved when he received the notification for arbitration as he realised that condonation was dealt with. In other words condonation was granted and the matter would proceed to arbitration. There is thus inference that he was happy that the matter was dealt with by the second Commissioner on the papers before him.

[16] The Applicant further claims that the Commissioner should have had regard to the scant information in his condonation application in relation to the Third Respondent’s 72 page answering affidavit and having seen that there was no replying affidavit should have advised that the Applicant seek assistance to file a proper replying affidavit and postponed the proceedings for this purpose.

[17] The Applicant in his founding affidavit avers that when he left the “arbitration” on 6 November 2012 he understood (without saying how) that he had seven days within which to file his replying affidavit.

[18] He claims that he had instructed his attorney of record (unknown date) to proceed with filing of same, however, his attorney was informed upon investigation and discussion with the Third Respondent’s attorney that the ruling had been made. The question begs then if in his understanding that he had seven days to file a reply so on what basis does the Applicant place belatedly an obligation on the Commissioner.

[19] The plain facts are that the application was dealt with on the papers by the Commissioner as the manner in which he deemed fit in line with expediency bearing in mind also that the pleadings had closed.

[20] Rule 31 (6) (a) provides that the party iniating proceedings may deliver (my emphasis) a replying affidavit within 7 days from the day on which any notice and answering affidavit is served on it. An applicant is thus not required or obliged to deliver a replying affidavit.

[21] It is trite that a party cannot embellish or make out a case in heads of argument or in the replying affidavit. A litigant stands or falls by its founding affidavit.

(see Betlane v Shelley Court CC)[3].

[22] It was correctly argued by the Third Respondent’s Counsel that nowhere in Rule 31 does it require the Commissioner to instruct, direct or suggest to any of the parties that they ought to obtain legal representation in dealing with a process or file further written submissions in the form of a replying affidavit. A Commissioner does not sit in an advisory capacity and neither should a Commissioner be seen as assisting any one party.

[23] The Applicant is opportunistic in attempting to rely on his ignorance on legal representation as he had been represented when he launched the dispute, his attorney was present at the conciliation and even for a while thereafter he was assisted by his attorney. He also averred that he was in the process of seeking other legal assistance but that time was of the essence. The notification of a process issued by the CCMA also makes reference to the question of legal representation and yet he persists with his claims of ignorance.

[24] In any event, I could not find anywhere in the papers whether or at what stage the Applicant applied for legal representation or sought a postponement to secure representation at the proceedings. To submit that the Commissioner should have suggested or assisted him by granting a postponement in these circumstances is ludicrous. The notification for arbitration also clearly spells out what a party should do in the event that a party sought a postponement.

[25] In the condonation ruling, the Commissioner considered the information placed before him and in his ruling says that although he has not mentioned all the submissions he has had regard to same.

[26] The Applicant averred in his application that his attorney did not submit the application for arbitration after the certificate of non-resolution was issued and that he was not aware that it had not been done. The Applicant further under the general section of the pro forma document made unsubstantiated claims of dates that the attorney had given to him in July and August but it does not take the attorney’s

role in relation to the reasons for the delay any further. There is only so much that a litigant can place at the door of its legal

representative. A period of six months had passed after the certificate was issued before he referred the matter for arbitration.

The reasons were given during the argument of the Applicant’s representative. This was not before the Second Respondent.

[27] The Commissioner found the explanation for the delay as unreasonable and unacceptable. It is only in exceptional circumstance where the Court will come to the assistance of a litigant who places the blame squarely at the feet of his attorney. Saloogee and Another v Minister of Community Development[4]

[28] In NUM v Council for Mineral Technology [5] the Labour Appeal Court stated that:

‘…the principle applicable to a condonation application as follows: “Without a reasonable and acceptable explanation for the delay, the prospects for 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] In my view the Commissioner’s reasoning that the explanation for delay was unacceptable cannot be attacked.

[30] In so far as the prospects are concerned he averred that he did not get an opportunity to bargain with his Employer during the consultation

process. He claims that the severance package amount paid to his bank account is not the amount that they had agreed to or that he signed for. This can hardly resonate with good prospects as in similar circumstances very often an agreement is not reached.

Conclusion.

[31] Most importantly the Applicant failed to establish how the Commissioner’s errors as he claimed in his papers were committed had affected the reasonableness of his decision or on what basis the Commissioner would have arrived at a different conclusion. All the errors pointed out did not lead to the Commissioner to arrive at an unreasonable conclusion.

[32] The ruling of the Commissioner falls within the bounds of reasonableness.

Order.

1. The application of review is dismissed.

2. There is no order as to costs.

________________

Walele AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES

For the Applicant: J Kotze

Instructed by:

Kotze Attorneys

For the Respondent: Advocate J Driver

Instructed by:

Webber Wentzel Attorneys

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

[2] [2014] 1 BLLR 20 (LAC)

[3] 2011 (3) BCLR 264 (CC) at para 29.

[4] 1965 (2) SA 135 (A) .

[5] (1999) 3 BLLR 209 (LAC) :