Solidarity obo Taljaard v Assmang Ltd (BlackRock Operations) and Others (JR1856/20) [2023] ZALCJHB 304 (28 February 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

case no: JR 1856 / 20

In the matter between:

SOLIDARITY obo W B TALJAARDApplicantAndASSMANG LTD (BLACKROCK OPERATIONS)First RespondentCOMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATIONSecond RespondentCOMMISSIONER M MAJEN.O.Third Respondent

SOLIDARITY obo W B TALJAARDApplicant

SOLIDARITY obo W B TALJAARD

Applicant

ASSMANG LTD (BLACKROCK OPERATIONS)First Respondent

ASSMANG LTD (BLACKROCK OPERATIONS)

First Respondent

COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATIONSecond Respondent

COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION

Second Respondent

COMMISSIONER M MAJEN.O.Third Respondent

COMMISSIONER M MAJEN.O.

Third Respondent

Heard:18 August 2022

18 August 2022

Delivered:28 February 2023

Delivered

28 February 2023

Summary:Review application–application to review condonation ruling by CCMA commissioner – principles considered – condonation constituting exercise of discretion – basis for interference limited – reasonable outcome test considered

Summary:

Review application

application to review condonation ruling by CCMA commissioner – principles considered – condonation constituting exercise of discretion – basis for interference limited – reasonable outcome test considered

Condonation – principles considered – commissioner failing to fairly and properly consider and apply condonation principles – condonation ruling of commissioner unreasonable – failure of judicial exercise of discretion by commissioner – case for review made out

Review application – applicant succeeding to make out proper case for review and satisfying applicable review test – review application granted – condonation ruling set aside and substituted with determination that condonation granted – matter remitted to CCMA for arbitration

JUDGMENT

SNYMAN, AJ

Introduction

[1]The current application concerns an application by the applicants to review and set aside a condonation ruling made by the third

respondent in his capacity a commissioner of the Commission for Conciliation, Mediation and Arbitration (CCMA), being the second

respondent. In terms of this condonation ruling the third respondent refused to condone the applicant’s late referral of an unfair dismissal dispute to the CCMA for arbitration. The application has been brought in terms of section 145 as read with 158(1)(g) of the Labour Relations Act (LRA)[1].

The current application concerns an application by the applicants to review and set aside a condonation ruling made by the third

respondent in his capacity a commissioner of the Commission for Conciliation, Mediation and Arbitration (CCMA), being the second

respondent. In terms of this condonation ruling the third respondent refused to condone the applicant’s late referral of an unfair dismissal dispute to the CCMA for arbitration. The application has been brought in terms of section 145 as read with 158(1)(g) of the Labour Relations Act (LRA)[1].

[2]The condonation ruling forming the subject matter of this review application was handed down by the second respondent on 13 October 2020 by way of e-mail to the parties. The review application was brought by the applicant on 23 November 2020, and was therefore brought within the prescribed time limit as contemplated by section 145(1) of the LRA and is properly before Court. I will commence deciding the review application by first setting out the relevant background facts.

The condonation ruling forming the subject matter of this review application was handed down by the second respondent on 13 October 2020 by way of e-mail to the parties. The review application was brought by the applicant on 23 November 2020, and was therefore brought within the prescribed time limit as contemplated by section 145(1) of the LRA and is properly before Court. I will commence deciding the review application by first setting out the relevant background facts.

Background facts

[3]This matter arose from the dismissal of the individual applicant, Willem Taljaard (Taljaard) on 3 December 2019 for the reason that he called a fellow employee, being a Mr Masiane (Masiane), a “baboon”. The dismissal was only effective on 19 February 2020, after completion of an internal appeal process in the first respondent.

This matter arose from the dismissal of the individual applicant, Willem Taljaard (Taljaard) on 3 December 2019 for the reason that he called a fellow employee, being a Mr Masiane (Masiane), a “

baboon

”. The dismissal was only effective on 19 February 2020, after completion of an internal appeal process in the first respondent.

[4]Solidarity, on behalf of Taljaard, referred an unfair dismissal dispute to the CCMA on 12 March 2020. Pursuant to this referral, the matter was then set down by the CCMA for con/arb on 8 April 2020. The first respondent however objected to con/arb on 20 March 2020, meaning that the proceedings on 8 April 2020 would only be conciliation. For obvious reasons, being the advent of the COVID-19 pandemic and the resulting lockdown, neither Solidarity nor the first respondent attended at the conciliation on 8 April 2020. The CCMA then issued a certificate of failure to settle on 8 April 2020. According to Solidarity, it never received the certificate of failure to settle, and as will be dealt with further below, this was indeed the case.

Solidarity, on behalf of Taljaard, referred an unfair dismissal dispute to the CCMA on 12 March 2020. Pursuant to this referral, the matter was then set down by the CCMA for con/arb on 8 April 2020. The first respondent however objected to con/arb on 20 March 2020, meaning that the proceedings on 8 April 2020 would only be conciliation. For obvious reasons, being the advent of the COVID-19 pandemic and the resulting lockdown, neither Solidarity nor the first respondent attended at the conciliation on 8 April 2020. The CCMA then issued a certificate of failure to settle on 8 April 2020. According to Solidarity, it never received the certificate of failure to settle, and as will be dealt with further below, this was indeed the case.

[5]Solidarity did not file a referral of the dispute to arbitration (form 7.13). In fact, and in an e-mail to the CCMA on 1 June 2020, it enquired from the CCMA when the matter would be set down for conciliation. The CCMA answered on the same date (1 June 2020) that a certificate of failure to settle would be issued and the matter would be scheduled for arbitration once the commissioners were able to travel. The CCMA took it upon itself to set the dispute down for arbitration on 14 July 2020, without an arbitration referral being filed by Solidarity, by way of a set down notice transmitted to the parties on 30 June 2020.

Solidarity did not file a referral of the dispute to arbitration (form 7.13). In fact, and in an e-mail to the CCMA on 1 June 2020, it enquired from the CCMA when the matter would be set down for conciliation. The CCMA answered on the same date (1 June 2020) that a certificate of failure to settle would be issued and the matter would be scheduled for arbitration once the commissioners were able to travel. The CCMA took it upon itself to set the dispute down for arbitration on 14 July 2020, without an arbitration referral being filed by Solidarity, by way of a set down notice transmitted to the parties on 30 June 2020.

[6]The arbitration convened before commissioner Zoliswa Taba on 14 July 2020. Commissioner Tabamero moturaised the issue that there was no arbitration referral on file, despite both parties being ready to proceed with arbitration. In a written ruling dated 14 July 2020, the commissioner determined that the CCMA had no jurisdiction to arbitrate the dispute in the absence of it having been referred to arbitration by Solidarity by way of the filing of an arbitration referral.

The arbitration convened before commissioner Zoliswa Taba on 14 July 2020. Commissioner Taba

mero motu

raised the issue that there was no arbitration referral on file, despite both parties being ready to proceed with arbitration. In a written ruling dated 14 July 2020, the commissioner determined that the CCMA had no jurisdiction to arbitrate the dispute in the absence of it having been referred to arbitration by Solidarity by way of the filing of an arbitration referral.

[7]Having been confronted with this ruling on 14 July 2020, Solidarity then immediately filed a referral to arbitration on the very same day (14 July 2020). Pursuant to this arbitration referral, the dispute was then set down for arbitration on 25 August 2020, by way of a notice sent to the parties by the CCMA on 5 August 2020.

Having been confronted with this ruling on 14 July 2020, Solidarity then immediately filed a referral to arbitration on the very same day (14 July 2020). Pursuant to this arbitration referral, the dispute was then set down for arbitration on 25 August 2020, by way of a notice sent to the parties by the CCMA on 5 August 2020.

[8]The arbitration convened before commissioner Bonang Matli on 25 August 2020. In these arbitration proceedings, the issue that then arose was whether the arbitration referral by Solidarity was filed out of time, with no condonation having been applied for. In a written ruling dated 6 September 2020, commissioner Matli determined that the CCMA had no jurisdiction to arbitrate the dispute because the arbitration referral was filed out of time without an application for condonation. The reasons given for this ruling was that in the absence of a certificate of failure to settle, the right to refer the matter to arbitration accrued to Solidarity upon the expiry of 30 days after the referral to conciliation had been made, and the 90 days’ time limit within which to then refer the dispute to arbitration accrued as from that point. According to commissioner Matli, this meant that in this case,

the 90 days’ time limit expired on 7 July 2020, and considering the dispute was referred to arbitration on 14 July 2020, it was late and condonation needed to be applied for. This ruling was sent to the parties by the CCMA on 10 September 2020 by e-mail.

The arbitration convened before commissioner Bonang Matli on 25 August 2020. In these arbitration proceedings, the issue that then arose was whether the arbitration referral by Solidarity was filed out of time, with no condonation having been applied for. In a written ruling dated 6 September 2020, commissioner Matli determined that the CCMA had no jurisdiction to arbitrate the dispute because the arbitration referral was filed out of time without an application for condonation. The reasons given for this ruling was that in the absence of a certificate of failure to settle, the right to refer the matter to arbitration accrued to Solidarity upon the expiry of 30 days after the referral to conciliation had been made, and the 90 days’ time limit within which to then refer the dispute to arbitration accrued as from that point. According to commissioner Matli, this meant that in this case,

the 90 days’ time limit expired on 7 July 2020, and considering the dispute was referred to arbitration on 14 July 2020, it was late and condonation needed to be applied for. This ruling was sent to the parties by the CCMA on 10 September 2020 by e-mail.

[9]Reacting to this ruling, Solidarity then filed a condonation application on 14 September 2020, seeking to condone the late filing of the arbitration referral. In this condonation application, Solidarity did contend that the arbitration referral was made in time, because according to it the 90 days’ time limit should be counted from the date of the e-mail from the CCMA on 1 June 2020 indicating that a certificate of failure to settle will be issued. Fortunately however for Solidarity, it did not pin its entire case on this contention. In the condonation application, Solidarity specifically pleaded that should it be mistaken in its view, it did seek condonation, on the basis of the explanation summarized below.

Reacting to this ruling, Solidarity then filed a condonation application on 14 September 2020, seeking to condone the late filing of the arbitration referral. In this condonation application, Solidarity did contend that the arbitration referral was made in time, because according to it the 90 days’ time limit should be counted from the date of the e-mail from the CCMA on 1 June 2020 indicating that a certificate of failure to settle will be issued. Fortunately however for Solidarity, it did not pin its entire case on this contention. In the condonation application, Solidarity specifically pleaded that should it be mistaken in its view, it did seek condonation, on the basis of the explanation summarized below.

[10]In offering an explanation for the delay in this case, Solidarity relied on the COVID-19 restrictions and the resulting lockdown, stating that as a result, and after having referred the dispute to the CCMA for conciliation, it heard nothing further from the CCMA until 1 June 2020, when it communicated with the CCMA. The CCMA then informed that Solidarity that a certificate of failure to settle “will be issued”. This indicated to Solidarity that this was the date of the certificate. Therefore, when Solidarity then referred the dispute to arbitration upon becoming aware on 14 July 2020 that an arbitration referral was needed, it believed the arbitration referral was in time.

In offering an explanation for the delay in this case, Solidarity relied on the COVID-19 restrictions and the resulting lockdown, stating that as a result, and after having referred the dispute to the CCMA for conciliation, it heard nothing further from the CCMA until 1 June 2020, when it communicated with the CCMA. The CCMA then informed that Solidarity that a certificate of failure to settle “

will be issued

”. This indicated to Solidarity that this was the date of the certificate. Therefore, when Solidarity then referred the dispute to arbitration upon becoming aware on 14 July 2020 that an arbitration referral was needed, it believed the arbitration referral was in time.

[11]As to prospects of success, it was disputed that Taljaard had committed any misconduct. It was stated that he never called Masiane a baboon and there were no witnesses to back up the allegation. It was also stated that there was a polygraph test result to support Taljaard’s version that he did not call Masiane a baboon. It was explained further that Masiane fabricated this version because Taljaard took him to task for poor work performance, which Masiane did not like. Solidarity also dealt with the issue of prejudice, indicating that Taljaard would suffer the most prejudice as he would be unable to present this case to the CCMA, whilst the first respondent would suffer little prejudice in that it would still be fully able and capacitated to conduct and prove its case.

As to prospects of success, it was disputed that Taljaard had committed any misconduct. It was stated that he never called Masiane a baboon and there were no witnesses to back up the allegation. It was also stated that there was a polygraph test result to support Taljaard’s version that he did not call Masiane a baboon. It was explained further that Masiane fabricated this version because Taljaard took him to task for poor work performance, which Masiane did not like. Solidarity also dealt with the issue of prejudice, indicating that Taljaard would suffer the most prejudice as he would be unable to present this case to the CCMA, whilst the first respondent would suffer little prejudice in that it would still be fully able and capacitated to conduct and prove its case.

[12]The first respondent filed an answering affidavit on 19 September 2020. It contended in this answer that the referral was “extremely late”, being some 155 days late, because the CCMA requested Solidarity to file an application for condonation which it did not do, and referral date should therefore be considered to be only when the condonation application was filed. Where it came to the issue of prospects of success, the first respondent stated that based on the facts as presented in the internal disciplinary hearing, and the evidence led there, Taljaard indeed committed the misconduct with which he had been charged. According to the first respondent, this misconduct was serious and would justify dismissal. On the issue of prejudice, it was stated that the first respondent would be prejudiced because it had followed all the proper steps prior to dismissal. It was also contended that the first respondent should not be punished for the conduct by Solidarity in failing to heed the warnings by commissioners that it had to apply for condonation.

The first respondent filed an answering affidavit on 19 September 2020. It contended in this answer that the referral was “

extremely late

”, being some 155 days late, because the CCMA requested Solidarity to file an application for condonation which it did not do, and referral date should therefore be considered to be only when the condonation application was filed. Where it came to the issue of prospects of success, the first respondent stated that based on the facts as presented in the internal disciplinary hearing, and the evidence led there, Taljaard indeed committed the misconduct with which he had been charged. According to the first respondent, this misconduct was serious and would justify dismissal. On the issue of prejudice, it was stated that the first respondent would be prejudiced because it had followed all the proper steps prior to dismissal. It was also contended that the first respondent should not be punished for the conduct by Solidarity in failing to heed the warnings by commissioners that it had to apply for condonation.

[13]The third respondent was the arbitrator tasked with determining the condonation application. It was set down before him for hearing on 6 October 2020, by way of a notice issued by the CCMA on 21 September 2020. Pursuant to this hearing, the first respondent issued a condonation ruling dated 12 October 2020, in which he refused the application for condonation, for the reasons summarized below.

The third respondent was the arbitrator tasked with determining the condonation application. It was set down before him for hearing on 6 October 2020, by way of a notice issued by the CCMA on 21 September 2020. Pursuant to this hearing, the first respondent issued a condonation ruling dated 12 October 2020, in which he refused the application for condonation, for the reasons summarized below.

[14]The third respondent accepted that the certificate of failure to settle had been issued on 8 April 2020, and that Solidarity had 90 days from that date to refer the dispute to arbitration, meaning that the deadline for doing so expired on 7 July 2020. The third respondent found that the arbitration referral was 70 days late, because, according to the third respondent, even though the referral was made on 14 July 2020, it was only properly referred when condonation was applied for on 14 September 2020. Nonetheless,

the third respondent described the delay as “negligible”.

The third respondent accepted that the certificate of failure to settle had been issued on 8 April 2020, and that Solidarity had 90 days from that date to refer the dispute to arbitration, meaning that the deadline for doing so expired on 7 July 2020. The third respondent found that the arbitration referral was 70 days late, because, according to the third respondent, even though the referral was made on 14 July 2020, it was only properly referred when condonation was applied for on 14 September 2020. Nonetheless,

the third respondent described the delay as “

negligible

[15]As to the explanation for the delay, the third respondent held that a proper explanation had not been provided for the delay. He reasoned that there were two CCMA rulings advising Solidarity to apply for condonation which it failed to heed. He also held that that Solidarity was a well-resourced union where it came to using electronic means of communication with the CCMA which should have prevented the current state of affairs. The third respondent also considered that the COVID-19 regulations and associated lockdown

could not be used as a “scape-goat”, in essence meaning that according to him, it was no excuse. For these reasons, the third respondent rejected the contention by Solidarity that it did not receive e-mail communication from the CCMA enclosing the certificate of failure to settle. The third respondent considered the conduct of Solidarity to be negligent. The third respondent also expressed his dissatisfaction with the conduct of Solidarity on the basis that it was contrary to the principle of the expeditious resolution of employment disputes.

As to the explanation for the delay, the third respondent held that a proper explanation had not been provided for the delay. He reasoned that there were two CCMA rulings advising Solidarity to apply for condonation which it failed to heed. He also held that that Solidarity was a well-resourced union where it came to using electronic means of communication with the CCMA which should have prevented the current state of affairs. The third respondent also considered that the COVID-19 regulations and associated lockdown

could not be used as a “

scape-goat

”, in essence meaning that according to him, it was no excuse. For these reasons, the third respondent rejected the contention by Solidarity that it did not receive e-mail communication from the CCMA enclosing the certificate of failure to settle. The third respondent considered the conduct of Solidarity to be negligent. The third respondent also expressed his dissatisfaction with the conduct of Solidarity on the basis that it was contrary to the principle of the expeditious resolution of employment disputes.

[16]The third respondent held, on the issue of prosects of success, that such prospects of success were “slim”. According to the third respondent, the mere denial by Taljaard that he called Masiane a “baboon” was not sufficient to establish prospects of success. And finally, on the issue of prejudice, the third respondent held that the first respondent would be prejudiced in defending the case as it would have to prepare and bring witnesses to the proceedings, whilst Solidarity and Taljaard only have themselves to blame for what happened.

The third respondent held, on the issue of prosects of success, that such prospects of success were “

”. According to the third respondent, the mere denial by Taljaard that he called Masiane a “

” was not sufficient to establish prospects of success. And finally, on the issue of prejudice, the third respondent held that the first respondent would be prejudiced in defending the case as it would have to prepare and bring witnesses to the proceedings, whilst Solidarity and Taljaard only have themselves to blame for what happened.

[17]Dissatisfied with this condonation ruling, Solidarity then filed the current review application. In this review application, Solidarity sought, in the notice of motion, relief to the effect that the third respondent’s condonation ruling be reviewed and set aside, and the matter be remitted back to the CCMA for determination of the condonation application, alternatively that condonation be granted.

Dissatisfied with this condonation ruling, Solidarity then filed the current review application. In this review application, Solidarity sought, in the notice of motion, relief to the effect that the third respondent’s condonation ruling be reviewed and set aside, and the matter be remitted back to the CCMA for determination of the condonation application, alternatively that condonation be granted.

Test for review

[18]The test for review is trite. InSidumo and Another v Rustenburg Platinum Mines Ltd and Others[2]the Court held that ‘the reasonableness standard should now suffuse s 145 of the LRA’, and that the threshold test for the reasonableness of an award was: ‘…Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?...’[3].This means that the award in question is tested against the facts before the arbitrator to ascertain if it meets the requirement of reasonableness.[4]In conducting this test it is always necessary and important for the Court to enquire into and consider the merits of the matter and the entire evidence on record in deciding what is reasonable. InHerholdt v Nedbank Ltd and Another[5]the Court said:

The test for review is trite. In

Sidumo and Another v Rustenburg Platinum Mines Ltd and Others

the Court held that ‘

the reasonableness standard should now suffuse s 145 of the LRA

’, and that the threshold test for the reasonableness of an award was: ‘…

Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?...’

This means that the award in question is tested against the facts before the arbitrator to ascertain if it meets the requirement of reasonableness.[4]In conducting this test it is always necessary and important for the Court to enquire into and consider the merits of the matter and the entire evidence on record in deciding what is reasonable. In

Herholdt v Nedbank Ltd and Another

the Court said:

‘…A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to the particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of consequence if their effect is to render the outcome unreasonable.’

A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to the particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of consequence if their effect is to render the outcome unreasonable.’

A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to the particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of consequence if their effect is to render the outcome unreasonable.

[19]In sum, applying the correct review test has a logical chronology. First, it must be considered if there a failure or error on the part of the arbitrator. Second, and where there is such a failure or error, it must next be considered if the outcome arrived at by the arbitrator was reasonable, based on all the evidence and issues before the arbitrator, even if it may be for different reasons or on different grounds as those referred to by the arbitrator.[6]It would only be if the consideration of the evidence and issues before the arbitrator shows that the outcome arrived at by the

arbitrator cannot be sustained on any grounds, and the irregularity, failure or error concerned is the only basis to sustain the outcome the arbitrator arrived at, that the review application would succeed.[7]

In sum, applying the correct review test has a logical chronology. First, it must be considered if there a failure or error on the part of the arbitrator. Second, and where there is such a failure or error, it must next be considered if the outcome arrived at by the arbitrator was reasonable, based on all the evidence and issues before the arbitrator, even if it may be for different reasons or on different grounds as those referred to by the arbitrator.[6]It would only be if the consideration of the evidence and issues before the arbitrator shows that the outcome arrived at by the

arbitrator cannot be sustained on any grounds, and the irregularity, failure or error concerned is the only basis to sustain the outcome the arbitrator arrived at, that the review application would succeed.[7]

[20]However, and considering this was a condonation application, a further factor comes into play. InNational Education Health and Allied Workers Union (Nehawu) v Metrofile (Pty) Ltd[8]the Court said:

However, and considering this was a condonation application, a further factor comes into play. In

National Education Health and Allied Workers Union (Nehawu) v Metrofile (Pty) Ltd

[8]the Court said:

‘To grant condonation is an exercise of judicial discretion that is only fettered by being judicially explained. The test is whether the court whose decision is challenged on appeal has exercised its discretion judicially. The exercise of the discretion will not be judicial if it is based on incorrect facts or wrong principles of law or where the court of first instance acted capriciously, or in a biased manner, or committed a misdirection or an irregularity, or exercised its discretion improperly or unfairly. If none of these grounds is established, it cannot be said that the exercise of discretion was not judicial.’

To grant condonation is an exercise of judicial discretion that is only fettered by being judicially explained. The test is whether the court whose decision is challenged on appeal has exercised its discretion judicially. The exercise of the discretion will not be judicial if it is based on incorrect facts or wrong principles of law or where the court of first instance acted capriciously, or in a biased manner, or committed a misdirection or an irregularity, or exercised its discretion improperly or unfairly. If none of these grounds is established, it cannot be said that the exercise of discretion was not judicial.’

[21]In my view, the above considerations inMetrofileshould equally be applied to the reasonableness test summarized above, where it comes to deciding whether or not condonation rulings handed down by commissioners in the CCMA would be susceptible to being reviewed. The reason for this is that the decision whether or not to grant condonation is a true discretion, and in this respect, the Court inSteenkamp and Others v Edcon Ltd[9]concluded as follows:

In my view, the above considerations in

Metrofile

should equally be applied to the reasonableness test summarized above, where it comes to deciding whether or not condonation rulings handed down by commissioners in the CCMA would be susceptible to being reviewed. The reason for this is that the decision whether or not to grant condonation is a true discretion, and in this respect, the Court in

Steenkamp and Others v Edcon Ltd

[9]concluded as follows:

‘…Where the nature of the discretion is one in the ‘true’ sense, an appellate court should be slow to substitute a decision of the lower court with that of its own. The possibility that an appellate court would have arrived at a different outcome within the permissible range of outcomes, does not entitle that appellate court to interfere with such a discretion. …’

Where the nature of the discretion is one in the ‘true’ sense, an appellate court should be slow to substitute a decision of the lower court with that of its own. The possibility that an appellate court would have arrived at a different outcome within the permissible range of outcomes, does not entitle that appellate court to interfere with such a discretion. …’

Where the nature of the discretion is one in the ‘true’ sense, an appellate court should be slow to substitute a decision of the lower court with that of its own. The possibility that an appellate court would have arrived at a different outcome within the permissible range of outcomes, does not entitle that appellate court to interfere with such a discretion. …

Analysis

[22]As stated above, what was before the third respondent was an application for condonation for the late referral of an unfair dismissal dispute to arbitration. This involves determining whether good cause has been shown to permit such late referral. Deciding whether good cause has been shown involves the following principles as set out inMelane v Santam Insurance Co Ltd[10]:

As stated above, what was before the third respondent was an application for condonation for the late referral of an unfair dismissal dispute to arbitration. This involves determining whether good cause has been shown to permit such late referral. Deciding whether good cause has been shown involves the following principles as set out in

Melane v Santam Insurance Co Ltd

‘…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, save of course that if there are no prospects of success there would be no point in granting condonation.’

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, save of course that if there are no prospects of success there would be no point in granting condonation.’

[23]As to the first requirement of the length of the delay, the longer the delay, the worse it is for the applicant seeking condonation. An excessive delay could in itself be seen to be highly prejudicial to the issue of good cause. As a general benchmark in employment law disputes, delays in excess of two months after the expiry of the time limit can generally be described to start becoming excessive.[11]

As to the first requirement of the length of the delay, the longer the delay, the worse it is for the applicant seeking condonation. An excessive delay could in itself be seen to be highly prejudicial to the issue of good cause. As a general benchmark in employment law disputes, delays in excess of two months after the expiry of the time limit can generally be described to start becoming excessive.[11]

[24]Where it comes to the explanation for the delay, this must be a proper explanation supported by sufficient particularity, dealing with the entire period of the delay. InSeatlolo and others v Entertainment Logistics Service(a division of Gallo Africa Ltd)[12]the Court held:

Where it comes to the explanation for the delay, this must be a proper explanation supported by sufficient particularity, dealing with the entire period of the delay. In

Seatlolo and others v Entertainment Logistics Service

a division of Gallo Africa Ltd

the Court held:

‘Inorder 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. SeeNUMSA & another v Hillside Aluminium[2005] ZALC 25;[2005] 6 BLLR 601(LC) where 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.’

Inorder 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. SeeNUMSA & another v Hillside Aluminium[2005] ZALC 25;[2005] 6 BLLR 601(LC) where 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.’

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. See

NUMSA & another v Hillside Aluminium

[2005] ZALC 25;[2005] 6 BLLR 601(LC) where 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.

[2005] ZALC 25

[2005] 6 BLLR 601

[25]I consider the issue of a proper explanation for the entire period of the delay to be the most critical component to any condonation

application. As to how this explanation must be provided, theCourt inIndependent Municipal and Allied Trade Union on behalf of Zungu v SA Local Government Bargaining Council and Others[13]provided the following guidance:

I consider the issue of a proper explanation for the entire period of the delay to be the most critical component to any condonation

application. As to how this explanation must be provided, the

Court in

Independent Municipal and Allied Trade Union on behalf of Zungu v SA Local Government Bargaining Council and Others

provided the following guidance:

‘In explaining the reason for the delay it is necessary for the party seeking condonation to fully explain the reason for the delay in order for the court to be in a proper position to assess whether or not the explanation is a good one. This in my view requires an explanation which covers the full length of the delay. The mere listing of significant events which took place during the period in question without an explanation for the time that lapsed between these events does not place a court in a position properly to assess the explanation for the delay. This amounts to nothing more than a recordal of the dates relevant to the processing of a dispute or application, as the case may be.’

In explaining the reason for the delay it is necessary for the party seeking condonation to fully explain the reason for the delay in order for the court to be in a proper position to assess whether or not the explanation is a good one. This in my view requires an explanation which covers the full length of the delay. The mere listing of significant events which took place during the period in question without an explanation for the time that lapsed between these events does not place a court in a position properly to assess the explanation for the delay. This amounts to nothing more than a recordal of the dates relevant to the processing of a dispute or application, as the case may be.’

In explaining the reason for the delay it is necessary for the party seeking condonation to fully explain the reason for the delay in order for the court to be in a proper position to assess whether or not the explanation is a good one. This in my view requires an explanation which covers the full length of the delay. The mere listing of significant events which took place during the period in question without an explanation for the time that lapsed between these events does not place a court in a position properly to assess the explanation for the delay. This amounts to nothing more than a recordal of the dates relevant to the processing of a dispute or application, as the case may be.

[26]Next, and on the issue of prejudice, the applicant must set out in what manner the applicant would be prejudiced if condonation is refused, again with sufficient particularity. The prejudice the applicant would suffer if condonation were to be refused should be compared to the possible prejudice the other party would suffer if condonation were to be granted, so as to enable the Court to make a balanced decision on this.

Next, and on the issue of prejudice, the applicant must set out in what manner the applicant would be prejudiced if condonation is refused, again with sufficient particularity. The prejudice the applicant would suffer if condonation were to be refused should be compared to the possible prejudice the other party would suffer if condonation were to be granted, so as to enable the Court to make a balanced decision on this.

[27]Turning to prospects of success, determining whether it exists does not entail that it must be decided whether the applicant would be successful in proving its case or whether that case is true. All that is necessary to consider is whether, if the claim as advanced by the applicant is true, the applicant would succeed.[14]However, and where it comes to considering the issue of prospects of success, there is a proviso, which proviso in fact illustrates the critical importance of the explanation for the delay. Where an applicant fails to provide an explanation for the delay or material

parts of the delay, the issue of prospects of success in fact becomes an irrelevant consideration.[15]In particular, inNUM v Council for Mineral Technology[16]the Court held:

Turning to prospects of success, determining whether it exists does not entail that it must be decided whether the applicant would be successful in proving its case or whether that case is true. All that is necessary to consider is whether, if the claim as advanced by the applicant is true, the applicant would succeed.[14]However, and where it comes to considering the issue of prospects of success, there is a proviso, which proviso in fact illustrates the critical importance of the explanation for the delay. Where an applicant fails to provide an explanation for the delay or material

parts of the delay, the issue of prospects of success in fact becomes an irrelevant consideration.[15]In particular, in

NUM v Council for Mineral Technology

the Court held:

‘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 good prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused …’

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 good prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused …’

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 good prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused …

[28]Despite all the normal condonation considerations of length of the delay, explanation for the delay, prejudice, and prospects of success, and especially in employment law disputes, there is one final consideration. This is the consideration of the interests of justice.[17]What this entails is that in a particular case, there may be some unique or exceptional circumstance that necessitates the Court to consider the case on the merits, because it is in the interest of justice to do so. A prime example is the judgment inNational Education Health and Allied Workers Union on behalf of Mofokeng and Others v Charlotte Theron Children's Home,[18]where the issue at stake was a case of a policy of an employer that only white house mothers were allowed to look after white children,

with the policy being a continuous and ongoing practice. Even though the appellants in that case had not made out a proper case for condonation on the traditional condonation considerations referred to above, the Court nonetheless held:[19]

Despite all the normal condonation considerations of length of the delay, explanation for the delay, prejudice, and prospects of success, and especially in employment law disputes, there is one final consideration. This is the consideration of the interests of justice.[17]What this entails is that in a particular case, there may be some unique or exceptional circumstance that necessitates the Court to consider the case on the merits, because it is in the interest of justice to do so. A prime example is the judgment in

National Education Health and Allied Workers Union on behalf of Mofokeng and Others v Charlotte Theron Children's Home

,[18]where the issue at stake was a case of a policy of an employer that only white house mothers were allowed to look after white children,

with the policy being a continuous and ongoing practice. Even though the appellants in that case had not made out a proper case for condonation on the traditional condonation considerations referred to above, the Court nonetheless held:[19]

‘It is clearly in the interests of justice that this kind of case be heard, particularly when appellants are able to support their

submissions regarding the prospects of success with a statement of respondent's policy given on affidavit and which appears to confirm that the policy is saturated with a racist outlook.’

It is clearly in the interests of justice that this kind of case be heard, particularly when appellants are able to support their

submissions regarding the prospects of success with a statement of respondent's policy given on affidavit and which appears to confirm that the policy is saturated with a racist outlook.’

It is clearly in the interests of justice that this kind of case be heard, particularly when appellants are able to support their

submissions regarding the prospects of success with a statement of respondent's policy given on affidavit and which appears to confirm that the policy is saturated with a racist outlook.

[29]And finally, where condonation is needed, it is essential that condonation must be applied for either immediately upon or at least

as expeditiously as possible after, the applicant became aware or reasonably should have become aware, that condonation is needed.[20]The failure to expeditiously apply for condonation and the resulting delay would be considered to add to the length of the delay, and the failure to properly justify and explain this further delay may of its own also lead to the refusal of condonation.[21]InVan Der Merwe v The Minister of Police[22]it was said that: ‘…However, the period of delay before the notices were delivered, is not the only aspect that has to be considered, because the delay of 6 months in filing the condonation application is of equal importance. If, for instance, it is found that there is no reasonable

and acceptable explanation for the delay in filing the application, then it would follow that the application for condonation as a whole cannot succeed …’. A similar approach was followed by this Court inSeatlolo supra[23], where it was said:

And finally, where condonation is needed, it is essential that condonation must be applied for either immediately upon or at least

as expeditiously as possible after, the applicant became aware or reasonably should have become aware, that condonation is needed.[20]The failure to expeditiously apply for condonation and the resulting delay would be considered to add to the length of the delay, and the failure to properly justify and explain this further delay may of its own also lead to the refusal of condonation.[21]In

Van Der Merwe v The Minister of Police

[22]it was said that: ‘…

However, the period of delay before the notices were delivered, is not the only aspect that has to be considered, because the delay of 6 months in filing the condonation application is of equal importance. If, for instance, it is found that there is no reasonable

and acceptable explanation for the delay in filing the application, then it would follow that the application for condonation as a whole cannot succeed …

’. A similar approach was followed by this Court in

Seatlolo supra

[23], where it was said:

‘…It is incumbent on a party to apply for condonation as soon as possible upon becoming aware of the default. This point has been repeatedly emphasized by the Supreme Court of Appeal …, an approach strongly endorsed by the Labour Appeal Court. Indeed the LAC has held that an application for condonation ought to be launched on the same day that the default is discovered …’

It is incumbent on a party to apply for condonation as soon as possible upon becoming aware of the default. This point has been repeatedly emphasized by the Supreme Court of Appeal …, an approach strongly endorsed by the Labour Appeal Court. Indeed the LAC has held that an application for condonation ought to be launched on the same day that the default is discovered …’

[30]Considering all the above requirements, did the third respondent then exercise his discretion in refusing condonation in a judicial manner, so as to pass muster on review? In my view, and for the reasons elaborated on below, this question must unfortunately be answered in the negative. I believe that the third respondent negated pertinent facts, and misapplied legal principles, to the extent that it can be said that his condonation ruling is founded on incorrect facts andwrong principles of law, and he had exercised his discretion unfairly.

Considering all the above requirements, did the third respondent then exercise his discretion in refusing condonation in a judicial manner, so as to pass muster on review? In my view, and for the reasons elaborated on below, this question must unfortunately be answered in the negative. I believe that the third respondent negated pertinent facts, and misapplied legal principles, to the extent that it can be said that his condonation ruling is founded on incorrect facts and

wrong principles of law, and he had exercised his discretion unfairly.

[31]In my view, it is clear on the facts that what happened in this case is nothing more than a series of unfortunate events,[24]starting with the COVID-19 pandemic. I am convinced that was it not for the intervention of the pandemic and the resulting lockdown, none of what happened in this case would likely have happened and this case would have concluded long ago. The fact is that Solidarity

originally referred the unfair dismissal dispute to the CCMA in time, followed by the first respondent’s objection to con-arb. Was it not for the lockdown, conciliation would have been held in the normal course, Solidarity would have walked away with the certificate of failure to settle on 8 April 2020 in hand, and the matter would have been referred to arbitration. It is simply unfair and unreasonable for the third respondent to effectively ignore the implications of COVID-19 and what it caused, by simply glibly stating that it is not an excuse, without paying proper mind to what I have said above.

In my view, it is clear on the facts that what happened in this case is nothing more than a series of unfortunate events,[24]starting with the COVID-19 pandemic. I am convinced that was it not for the intervention of the pandemic and the resulting lockdown, none of what happened in this case would likely have happened and this case would have concluded long ago. The fact is that Solidarity

originally referred the unfair dismissal dispute to the CCMA in time, followed by the first respondent’s objection to con-arb. Was it not for the lockdown, conciliation would have been held in the normal course, Solidarity would have walked away with the certificate of failure to settle on 8 April 2020 in hand, and the matter would have been referred to arbitration. It is simply unfair and unreasonable for the third respondent to effectively ignore the implications of COVID-19 and what it caused, by simply glibly stating that it is not an excuse, without paying proper mind to what I have said above.

[32]In addition, the so-called hard lockdown ended on 31 May 2020. It is clear to me that this being the case, Solidarity immediately attended to the case and corresponded with the CCMA about this matter and when it could be scheduled for a conciliation hearing. Its communication of 1 June 2020 to the CCMA is genuine, considering that it is clear from the record that the certificate of failure to settle that was issued on 8 April 2020 was never sent to Solidarity. In fact, in the jurisdictional ruling by commissioner Taba dated 14 July 2020, which dealt with the issue of there being no arbitration referral, the commissioner recorded “I also note that the said certificate was never sent to the applicant to allow the applicant an opportunity to request for arbitration”, referring to the certificate of failure to settle. The third respondent inexplicably rejected the explanation by Solidarity that it did not receive this certificate, which is my view confirms that he did not properly and reasonably apply his mind to the facts.

In addition, the so-called hard lockdown ended on 31 May 2020. It is clear to me that this being the case, Solidarity immediately attended to the case and corresponded with the CCMA about this matter and when it could be scheduled for a conciliation hearing. Its communication of 1 June 2020 to the CCMA is genuine, considering that it is clear from the record that the certificate of failure to settle that was issued on 8 April 2020 was never sent to Solidarity. In fact, in the jurisdictional ruling by commissioner Taba dated 14 July 2020, which dealt with the issue of there being no arbitration referral, the commissioner recorded “

I also note that the said certificate was never sent to the applicant to allow the applicant an opportunity to request for arbitration

”, referring to the certificate of failure to settle. The third respondent inexplicably rejected the explanation by Solidarity that it did not receive this certificate, which is my view confirms that he did not properly and reasonably apply his mind to the facts.

[33]The response from the CCMA to the e-mail by Solidarity of 1 June 2020 is also significant. The CCMA records that certificates “are to be issued”, referringinter aliato the casein casu, as the 30 days’ period had expired. It is then stated that the cases would be scheduled for arbitration once the commissioners are able to travel. In fact, a proper consideration of the record suggests that both parties were ready to proceed with arbitration on 14 July 2020. There is a bundle of documents prepared by Solidarity for the purposes of arbitration contained in the record, as well as a pre-arbitration minute concluded between Solidarity and the first respondent on 10 July 2020, dealinginter aliawith the issues in dispute, the exchange of documents and witnesses to be called. This must have been in the CCMA file when the matter came before the third respondent. Yet he had no regard to it. It is important to consider this, as it shows the intentions of the parties where it came to the conducting the matter, which is a relevant consideration when exercising a discretion whether or not to grant condonation. The intention clearly was that the matter proceed to arbitration on 14 July 2020.

The response from the CCMA to the e-mail by Solidarity of 1 June 2020 is also significant. The CCMA records that certificates “

are to be issued

”, referring

inter alia

to the case

in casu

, as the 30 days’ period had expired. It is then stated that the cases would be scheduled for arbitration once the commissioners are able to travel. In fact, a proper consideration of the record suggests that both parties were ready to proceed with arbitration on 14 July 2020. There is a bundle of documents prepared by Solidarity for the purposes of arbitration contained in the record, as well as a pre-arbitration minute concluded between Solidarity and the first respondent on 10 July 2020, dealing

inter alia

with the issues in dispute, the exchange of documents and witnesses to be called. This must have been in the CCMA file when the matter came before the third respondent. Yet he had no regard to it. It is important to consider this, as it shows the intentions of the parties where it came to the conducting the matter, which is a relevant consideration when exercising a discretion whether or not to grant condonation. The intention clearly was that the matter proceed to arbitration on 14 July 2020.

[34]I do accept that the third respondent, and the two commissioners before him, correctly held that where there is an objection to con-arb, the matter cannot proceed to arbitration without a proper arbitration referral (form 7.13) being filed.[25]I also accept that the third respondent and commissioner Matli correctly held that in the absence of a certificate of failure to

settle being issued, which would be the case where Solidarity had received no certificate from the CCMA, the right to refer the matter to arbitration accrued upon the expiry of the period of 30 days calculated from the date when the dispute was referred to the CCMA for conciliation.[26]However, the fact that Solidarity did not act accordingly does not mean that it must be non-suitedper se, which is what the third respondent appears to suggest. Where Solidarity erred or acted in accordance with incorrect assumptions or views, this could still form the basis of a proper explanation for condonation to be granted. In fact, commissioner Matli was alive to this, where he stated in his jurisdictional ruling of 6 September 2020 that:

I do accept that the third respondent, and the two commissioners before him, correctly held that where there is an objection to con-arb, the matter cannot proceed to arbitration without a proper arbitration referral (form 7.13) being filed.[25]I also accept that the third respondent and commissioner Matli correctly held that in the absence of a certificate of failure to

settle being issued, which would be the case where Solidarity had received no certificate from the CCMA, the right to refer the matter to arbitration accrued upon the expiry of the period of 30 days calculated from the date when the dispute was referred to the CCMA for conciliation.[26]However, the fact that Solidarity did not act accordingly does not mean that it must be non-suited

per se

, which is what the third respondent appears to suggest. Where Solidarity erred or acted in accordance with incorrect assumptions or views, this could still form the basis of a proper explanation for condonation to be granted. In fact, commissioner Matli was alive to this, where he stated in his jurisdictional ruling of 6 September 2020 that:

‘…The fact that the Employee/union has an explanation as to why they requested arbitration on a later date does not deem the request to be on time, but such explanation is best suited in an application for condonation …’. This is exactly what Solidarity then did, upon receipt of this ruling.

The fact that the Employee/union has an explanation as to why they requested arbitration on a later date does not deem the request to be on time, but such explanation is best suited in an application for condonation …

’. This is exactly what Solidarity then did, upon receipt of this ruling.

[35]The above being said, I will now turn to the condonation applicationper se, as it came before the third respondent. From the outset, it is clear to me that the third respondent got the length of the delay wrong. Considering the dispute was referred to the CCMA on 12 March 2020, the 30 days’ time limit expired on 11 April 2020. However, 11 April 2020 was a Saturday, making the date of expiry of the 30 days’ period to be the following Monday 13 April 2020.[27]That in turn meant that the 90 days’ time limit within which to refer the dispute to arbitration must be calculated from 13 April 2020, making the last day of this period to be 12 July2020. But 12July 2020 was a Sunday, making the last day to be Monday 13 July 2020. The arbitration referral was filed on 14 July 2020. It is one day late. That is a minimal day that should have strongly mitigated in favour of granting condonation.[28]

The above being said, I will now turn to the condonation application

, as it came before the third respondent. From the outset, it is clear to me that the third respondent got the length of the delay wrong. Considering the dispute was referred to the CCMA on 12 March 2020, the 30 days’ time limit expired on 11 April 2020. However, 11 April 2020 was a Saturday, making the date of expiry of the 30 days’ period to be the following Monday 13 April 2020.[27]That in turn meant that the 90 days’ time limit within which to refer the dispute to arbitration must be calculated from 13 April 2020, making the last day of this period to be 12 July2020. But 12July 2020 was a Sunday, making the last day to be Monday 13 July 2020. The arbitration referral was filed on 14 July 2020. It is one day late. That is a minimal day that should have strongly mitigated in favour of granting condonation.[28]

2020. But 12

[36]Even though the third respondent described the delay as negligible in his ruling, he still considered the delay to be 70 days, because of the fact that according to him, the dispute was only legitimately referred when the condonation application was filed. This approach cannot be correct. The fact that a condonation application is filed at a later stage does not change the fact of when the referral was originally filed. As discussed above, it is of course true that a delay in filing a condonation application would also be considered and would have to be explained, where to comes to exercising a discretion whether or not grant condonation. It has been held that a material delay in filing a condonation application that is not explained may lead to condonation being refused on that basis alone.[29]That is however an additional consideration and does not change the original period of delay in making the referral in the first place. That delay, as said, was only one day, which in my view should have been considered to weigh strongly in favour of granting condonation.

Even though the third respondent described the delay as negligible in his ruling, he still considered the delay to be 70 days, because of the fact that according to him, the dispute was only legitimately referred when the condonation application was filed. This approach cannot be correct. The fact that a condonation application is filed at a later stage does not change the fact of when the referral was originally filed. As discussed above, it is of course true that a delay in filing a condonation application would also be considered and would have to be explained, where to comes to exercising a discretion whether or not grant condonation. It has been held that a material delay in filing a condonation application that is not explained may lead to condonation being refused on that basis alone.[29]That is however an additional consideration and does not change the original period of delay in making the referral in the first place. That delay, as said, was only one day, which in my view should have been considered to weigh strongly in favour of granting condonation.

[37]I also do not believe the third respondent dealt with the explanation for the delay in a just and fair manner. Whilst it may be true that Solidarity should have referred the dispute to arbitration by filing an arbitration referral, the undeniable reality is that the COVID-19 pandemic and all its consequences happened, which certainly disrupted ordinary dispute resolution processes, and the CCMA then actually set the dispute down for arbitration when Solidarity made enquiries about the dispute. It also cannot be ignored that it is apparent that the parties were ready to proceed with arbitration on 14 July 2020, being the date the CCMA set it down for. Solidarity in my view should be afforded an indulgence for mistakenly deciding to proceed with the scheduled arbitration, and for failing to appreciate that an actual arbitration referral was due to be filed. Circumstances were unique, and I do not believe that this conduct showed the kind of gross ineptitude or negligence that should serve to non-suit it and with it Taljaard as its member,[30]especially considering that both parties went to arbitration on 14 July 2020 ready to proceed. Comparable is the followingdictuminGrilo v Julius Solomon Group and Others[31]:

I also do not believe the third respondent dealt with the explanation for the delay in a just and fair manner. Whilst it may be true that Solidarity should have referred the dispute to arbitration by filing an arbitration referral, the undeniable reality is that the COVID-19 pandemic and all its consequences happened, which certainly disrupted ordinary dispute resolution processes, and the CCMA then actually set the dispute down for arbitration when Solidarity made enquiries about the dispute. It also cannot be ignored that it is apparent that the parties were ready to proceed with arbitration on 14 July 2020, being the date the CCMA set it down for. Solidarity in my view should be afforded an indulgence for mistakenly deciding to proceed with the scheduled arbitration, and for failing to appreciate that an actual arbitration referral was due to be filed. Circumstances were unique, and I do not believe that this conduct showed the kind of gross ineptitude or negligence that should serve to non-suit it and with it Taljaard as its member,[30]especially considering that both parties went to arbitration on 14 July 2020 ready to proceed. Comparable is the following

dictum

Grilo v Julius Solomon Group and Others

‘The first respondent's further argument that the third respondent's decision should not be reviewed, because it is a normal

consequence of the applicant's submission that the matter had to be referred back to the bargaining council for condonation for the late referral, may have been of some merit had all of the parties then present, not been under the mistaken belief that the applicant's submission was based on that being the only route open for him to follow. Whereall parties make a common mistake, why should the consequence to one of them be more drastic than to the other. I believe that the objection raised by the first respondent at the arbitration led to a sequence of events, which, if this court fails to intervene, will lead to a miscarriage of justice. The court also cannot stand by and see a layman who, for good reason, believes he has a valid claim, being left in oblivion while lawyers find delirium in fanciful points …’

The first respondent's further argument that the third respondent's decision should not be reviewed, because it is a normal

consequence of the applicant's submission that the matter had to be referred back to the bargaining council for condonation for the late referral, may have been of some merit had all of the parties then present, not been under the mistaken belief that the applicant's submission was based on that being the only route open for him to follow. Whereall parties make a common mistake, why should the consequence to one of them be more drastic than to the other. I believe that the objection raised by the first respondent at the arbitration led to a sequence of events, which, if this court fails to intervene, will lead to a miscarriage of justice. The court also cannot stand by and see a layman who, for good reason, believes he has a valid claim, being left in oblivion while lawyers find delirium in fanciful points …’

The first respondent's further argument that the third respondent's decision should not be reviewed, because it is a normal

consequence of the applicant's submission that the matter had to be referred back to the bargaining council for condonation for the late referral, may have been of some merit had all of the parties then present, not been under the mistaken belief that the applicant's submission was based on that being the only route open for him to follow. Where

all parties make a common mistake

, why should the consequence to one of them be more drastic than to the other. I believe that the objection raised by the first respondent at the arbitration led to a sequence of events, which, if this court fails to intervene, will lead to a miscarriage of justice. The court also cannot stand by and see a layman who, for good reason, believes he has a valid claim, being left in oblivion while lawyers find delirium in fanciful points …’

[38]Even if one can argue that Solidarity should, considering its resources and experience, have been more alert and should have noticed that no arbitration referral was filed when the matter was set down for arbitration, I do not believe that its failure is such that it can legitimately deprive Taljaard of the right to have his unfair dismissal case heard. That failure should thus not be imputed upon him in the circumstances of this case. InWallace NO v Rooibos Tea Control Board[32]it was held as follows with regard to a defective discovery affidavit filed by an attorney: ‘…the attorney should perhaps have been more alert and should have noticed the defect in the discovery affidavit, but weall make mistakesand I do not think this oversight by the attorney should be visited on his client. …’. In my view, what happenedin casuwas a mistake, and this mistake was remedied immediately upon Solidarity realizing it had been made. On this basis, Taljaard should

not be visited with the manifestly prejudicial consequences of a refusal of condonation.[33]I also believe the judgment inAmathole District Municipality v Commission for Conciliation, Mediation and Arbitration and Others[34]is an example comparable to the casein casu. The Court decided that condonation should have been granted, and the followingdictaare instructive where it comes to the reasoning of the Court in so finding:[35]

Even if one can argue that Solidarity should, considering its resources and experience, have been more alert and should have noticed that no arbitration referral was filed when the matter was set down for arbitration, I do not believe that its failure is such that it can legitimately deprive Taljaard of the right to have his unfair dismissal case heard. That failure should thus not be imputed upon him in the circumstances of this case. In

Wallace NO v Rooibos Tea Control Board

[32]it was held as follows with regard to a defective discovery affidavit filed by an attorney: ‘…

the attorney should perhaps have been more alert and should have noticed the defect in the discovery affidavit, but we

all make mistakes

and I do not think this oversight by the attorney should be visited on his client. …

. In my view, what happened

in casu

was a mistake, and this mistake was remedied immediately upon Solidarity realizing it had been made. On this basis, Taljaard should

not be visited with the manifestly prejudicial consequences of a refusal of condonation.[33]

I also believe the judgment in

Amathole District Municipality v Commission for Conciliation, Mediation and Arbitration and Others

[34]is an example comparable to the case

. The Court decided that condonation should have been granted, and the following

are instructive where it comes to the reasoning of the Court in so finding:[35]

‘In casu, the employer did not waste time after the outcome of the arbitration. The award was handed down on 26 September 2016. On 5 October 2016, the employer instructed Smith Tabata Attorneys to take steps to challenge the award. Instead of noting an appeal, the legal representatives launched a review on 7 November 2016. It was only when counsel was briefed that it was pointed out that a review was not an appropriate remedy regard being had to the nature of this case. It is clear therefore that the delay in noting an appeal was attributable to the employer’s legal representatives …

In casu, the employer did not waste time after the outcome of the arbitration. The award was handed down on 26 September 2016. On 5 October 2016, the employer instructed Smith Tabata Attorneys to take steps to challenge the award. Instead of noting an appeal, the legal representatives launched a review on 7 November 2016. It was only when counsel was briefed that it was pointed out that a review was not an appropriate remedy regard being had to the nature of this case. It is clear therefore that the delay in noting an appeal was attributable to the employer’s legal representatives …

An ignorant lay client can, with justification, rely upon its legal advisers to do all that is necessary to safeguard its rights provided that the client constantly monitors the situation. In my view, this is a typical case where the blame for the delay can be attributed squarely to the legal advisers …’

An ignorant lay client can, with justification, rely upon its legal advisers to do all that is necessary to safeguard its rights provided that the client constantly monitors the situation. In my view, this is a typical case where the blame for the delay can be attributed squarely to the legal advisers …

[39]Commissioner Taba on 14 July 2020mero moturaised the issue of a lack of an arbitration referral. I am convinced that it was only then that all parties appreciated thelacunain the process and the implications it had to the CCMA’s jurisdiction. Solidarity reacted immediately and filed the requisite

referral. It thus cannot be said that Solidarity procrastinated and did not act upon being confronted with what was needed.[36]The third respondent unfortunately did not consider or appreciate this, which in my view was a material misdirection.

Commissioner Taba on 14 July 2020

raised the issue of a lack of an arbitration referral. I am convinced that it was only then that all parties appreciated the

lacuna

in the process and the implications it had to the CCMA’s jurisdiction. Solidarity reacted immediately and filed the requisite

referral. It thus cannot be said that Solidarity procrastinated and did not act upon being confronted with what was needed.[36]The third respondent unfortunately did not consider or appreciate this, which in my view was a material misdirection.

[40]In sum, the arbitration referral was minimally late (one day), and the undisputed explanation is that Solidarity believed it was still in time considering the content of the e-mail from the CCMA on 1 June 2020, and thus made such referral without an application for condonation. Solidarity was certainly mistaken in its view in this regard, as discussed above. But does this mean that it showed the kind of ineptitude, recklessness, indifference or negligence that should serve to justify the refusal condonation? In my view, the answer must be no. Everyone makes mistakes. This reality is one of the reasons why there is something like condonation. It is how one acts when realizing that a mistake was made that is important. I am satisfied the mistake in this case was genuine and not a contrived situation to try and explain the unexplainable. In the end, Solidarity acted like a representative that genuinely appreciated a mistake was made and acted promptly to rectify it.

In sum, the arbitration referral was minimally late (one day), and the undisputed explanation is that Solidarity believed it was still in time considering the content of the e-mail from the CCMA on 1 June 2020, and thus made such referral without an application for condonation. Solidarity was certainly mistaken in its view in this regard, as discussed above. But does this mean that it showed the kind of ineptitude, recklessness, indifference or negligence that should serve to justify the refusal condonation? In my view, the answer must be no. Everyone makes mistakes. This reality is one of the reasons why there is something like condonation. It is how one acts when realizing that a mistake was made that is important. I am satisfied the mistake in this case was genuine and not a contrived situation to try and explain the unexplainable. In the end, Solidarity acted like a representative that genuinely appreciated a mistake was made and acted promptly to rectify it.

[41]The third respondent was overly harsh in evaluating the explanation offered by Solidarity. He reasoned that Solidarity is an experienced and resourced trade union and should know better. Whilst I accept that generally this view may hold true, it cannot be applied without any qualification. Again, and as I have said, mistakes do happen, and in this case, the mistake is not of the nature so that Solidarity can be called grossly negligent, as the third respondent effectively did. It also certainly should not be imputed on Taljaard. In my view, the third respondent’s criticism of Solidarity is unfounded, unduly harsh, and unsustainable on review.

The third respondent was overly harsh in evaluating the explanation offered by Solidarity. He reasoned that Solidarity is an experienced and resourced trade union and should know better. Whilst I accept that generally this view may hold true, it cannot be applied without any qualification. Again, and as I have said, mistakes do happen, and in this case, the mistake is not of the nature so that Solidarity can be called grossly negligent, as the third respondent effectively did. It also certainly should not be imputed on Taljaard. In my view, the third respondent’s criticism of Solidarity is unfounded, unduly harsh, and unsustainable on review.

[42]The third respondent also reasoned that Solidarity was twice warned by CCMA commissioners in the past to apply for condonation, which warning it spurned. This assessment of the third respondent is not entirely accurate and is in my view misdirected. Commissioner Taba recorded in his ruling that Solidarity should have the opportunity to refer the dispute to arbitration, and if that referral was outside the 90 days, Solidarity should apply for condonation. As discussed above, Solidarity believed its dispute was still within the 90 days, which is why it did not apply for condonation. As it turns out, it was wrong, but that cannot mean that it simply ignored the direction provided by commissioner Taba, as the third respondent suggests in his ruling. Next, and where it came to the ruling by commissioner Matli, what this commissioner needed to do was to decide if the arbitration referral was made in time. At that point, Solidarity believed the referral was made in time, and presented its case accordingly. The first respondent believed the referral was out of time, and sought to make out such a case. Commissioner Matli held that it was out of time and that condonation was indeed needed. Once again, it is not a case where the commissioner dispensed a warning or provided direction which Solidarity ignored by not applying for condonation. In fact, Solidarity immediately heeded what was contained in this ruling and applied for condonation. The finding by the third respondent that Solidarity in essence flouted the advice by two commissioners to apply for condonation and thus acted negligently is simply unfounded once the true facts are considered.

The third respondent also reasoned that Solidarity was twice warned by CCMA commissioners in the past to apply for condonation, which warning it spurned. This assessment of the third respondent is not entirely accurate and is in my view misdirected. Commissioner Taba recorded in his ruling that Solidarity should have the opportunity to refer the dispute to arbitration, and if that referral was outside the 90 days, Solidarity should apply for condonation. As discussed above, Solidarity believed its dispute was still within the 90 days, which is why it did not apply for condonation. As it turns out, it was wrong, but that cannot mean that it simply ignored the direction provided by commissioner Taba, as the third respondent suggests in his ruling. Next, and where it came to the ruling by commissioner Matli, what this commissioner needed to do was to decide if the arbitration referral was made in time. At that point, Solidarity believed the referral was made in time, and presented its case accordingly. The first respondent believed the referral was out of time, and sought to make out such a case. Commissioner Matli held that it was out of time and that condonation was indeed needed. Once again, it is not a case where the commissioner dispensed a warning or provided direction which Solidarity ignored by not applying for condonation. In fact, Solidarity immediately heeded what was contained in this ruling and applied for condonation. The finding by the third respondent that Solidarity in essence flouted the advice by two commissioners to apply for condonation and thus acted negligently is simply unfounded once the true facts are considered.

[43]The delay in the filing of the condonation application was simply caused by Solidarity’s mistaken belief that the referral was filed in time. Once that belief was corrected by the ruling of commissioner Matli, the condonation application promptly followed. In my view, this constitutes a proper explanation for the delay of some two months in filing the condonation application. The third respondent should have appreciated this and did not.

The delay in the filing of the condonation application was simply caused by Solidarity’s mistaken belief that the referral was filed in time. Once that belief was corrected by the ruling of commissioner Matli, the condonation application promptly followed. In my view, this constitutes a proper explanation for the delay of some two months in filing the condonation application. The third respondent should have appreciated this and did not.

[44]On the issue of prospects of success, it is my view that the third respondent materially erred, and failed to properly and fairly consider the issue of prospects of success in line with the principles discussed above. In simple terms, the third respondent decided the issue of prospects of success on the basis of whether the case of Taljaard was proven to be true. He should have considered whether, if true, Taljaard would have a proper case that he did not commit the misconduct. In this context, it was specifically disputed that Taljaard called Masiane a baboon and reference was made to a polygraph report to back this up. It was further contended by that there were no witnesses to back up Masiane’s version. Context was also provided as to why Masiane fabricated this version. The fact of the matter is that if it is true that Taljaard made no such utterance, his case of establishing an unfair dismissal would succeed. It is as simple as that. Also, the first respondent’s answering affidavit actually supported the

proposition that there was sufficient prospects of success for condonation to be granted. The first respondent referred to its

ability to prove the misconduct by way of witnesses and by presenting what happened in the internal disciplinary process, which certainly implies there is a case to be proven.

On the issue of prospects of success, it is my view that the third respondent materially erred, and failed to properly and fairly consider the issue of prospects of success in line with the principles discussed above. In simple terms, the third respondent decided the issue of prospects of success on the basis of whether the case of Taljaard was proven to be true. He should have considered whether, if true, Taljaard would have a proper case that he did not commit the misconduct. In this context, it was specifically disputed that Taljaard called Masiane a baboon and reference was made to a polygraph report to back this up. It was further contended by that there were no witnesses to back up Masiane’s version. Context was also provided as to why Masiane fabricated this version. The fact of the matter is that if it is true that Taljaard made no such utterance, his case of establishing an unfair dismissal would succeed. It is as simple as that. Also, the first respondent’s answering affidavit actually supported the

proposition that there was sufficient prospects of success for condonation to be granted. The first respondent referred to its

ability to prove the misconduct by way of witnesses and by presenting what happened in the internal disciplinary process, which certainly implies there is a case to be proven.

[45]It is clear to me that what one has in this case are two mutually destructive versions. Either Taljaard called Masiane a baboon, or he did not. Answering this simple question would be decisive of the entire matter. The pre-arbitration minute found in the record

supports this proposition. In my view, the only way in which this kind of dispute can be resolved is by way of arbitration proceeding

in the CCMA whereviva voceevidence can be presented by both parties, and proper credibility and probability findings can be made. The alleged misconduct is serious, and would have significant implications for the employment prospects of Taljaard going forward. I consider it to be in the interests of justice and fairness that the issue at hand be properly ventilated in arbitration.[37]The third respondent’s finding that Taljaard and Solidarity simply offered a bare denial of the misconduct and this was not sufficient to establish prospects of success, ignores what is reflected in both sets of affidavits. It further ignores what the dispute is all about and how such misconduct would be proven, especially considering the issue is simply founded on an exchange between Taljaard and Masiane and thatviva voceevidence is essential to properly determine what happened between them. The third respondent, had he exercised his discretion judicially, would have found that there are sufficient prospects of success for the purposes of granting condonation.[38]

It is clear to me that what one has in this case are two mutually destructive versions. Either Taljaard called Masiane a baboon, or he did not. Answering this simple question would be decisive of the entire matter. The pre-arbitration minute found in the record

supports this proposition. In my view, the only way in which this kind of dispute can be resolved is by way of arbitration proceeding

in the CCMA where

viva voce

evidence can be presented by both parties, and proper credibility and probability findings can be made. The alleged misconduct is serious, and would have significant implications for the employment prospects of Taljaard going forward. I consider it to be in the interests of justice and fairness that the issue at hand be properly ventilated in arbitration.[37]The third respondent’s finding that Taljaard and Solidarity simply offered a bare denial of the misconduct and this was not sufficient to establish prospects of success, ignores what is reflected in both sets of affidavits. It further ignores what the dispute is all about and how such misconduct would be proven, especially considering the issue is simply founded on an exchange between Taljaard and Masiane and that

evidence is essential to properly determine what happened between them. The third respondent, had he exercised his discretion judicially, would have found that there are sufficient prospects of success for the purposes of granting condonation.[38]

[46]This only leaves the issue of prejudice. The third respondent believed this consideration favoured the first respondent. I accept that he would legitimately exercise his discretion in coming to such a conclusion, even though I might disagree. In my view however, and overall considered, prejudice is a neutral factor in deciding whether or not condonation should have been granted. I am convinced that the minimal delay, the proper explanation for the delay, and the prospects of success should carry the day. I also believe that considering the kind of allegation made against Taljaard, it would be in the interest of justice and fairness that this should be ventilated in arbitration.

This only leaves the issue of prejudice. The third respondent believed this consideration favoured the first respondent. I accept that he would legitimately exercise his discretion in coming to such a conclusion, even though I might disagree. In my view however, and overall considered, prejudice is a neutral factor in deciding whether or not condonation should have been granted. I am convinced that the minimal delay, the proper explanation for the delay, and the prospects of success should carry the day. I also believe that considering the kind of allegation made against Taljaard, it would be in the interest of justice and fairness that this should be ventilated in arbitration.

[47]Accordingly, this was a matter where condonation should have been granted. The circumstances were unique and even thought the legal prescripts relating to arbitration referrals were not complied with, it was in the circumstances understandable. If condonation had simply ben granted, as it should have, this matter would have been concluded before the end of 2020, considering its fairly rapid progress once the lockdown had ended. As said inAdams v National Bargaining Council for the Road Freight and Logistics Industry and Others[39]:

Accordingly, this was a matter where condonation should have been granted. The circumstances were unique and even thought the legal prescripts relating to arbitration referrals were not complied with, it was in the circumstances understandable. If condonation had simply ben granted, as it should have, this matter would have been concluded before the end of 2020, considering its fairly rapid progress once the lockdown had ended. As said in

Adams v National Bargaining Council for the Road Freight and Logistics Industry and Others

‘Although it is highly desirable for good order that rules be complied with on their own terms, the function of the rule is the paramount

consideration and, where it can be safely found that the purpose of the rule is achieved, it is highly undesirable to approach the matter in a literalist way. Mechanical thinking is anathema to our law: cessante ratione legis cessat et ipsa lex. The objectives of theLabour Relations Act 66 of 1995inform the context of interpretation and its penumbra of pragmatism. Ourlaw is not an ass.’

Although it is highly desirable for good order that rules be complied with on their own terms, the function of the rule is the paramount

consideration and, where it can be safely found that the purpose of the rule is achieved, it is highly undesirable to approach the matter in a literalist way. Mechanical thinking is anathema to our law: cessante ratione legis cessat et ipsa lex. The objectives of theLabour Relations Act 66 of 1995inform the context of interpretation and its penumbra of pragmatism. Ourlaw is not an ass.’

Although it is highly desirable for good order that rules be complied with on their own terms, the function of the rule is the paramount

consideration and, where it can be safely found that the purpose of the rule is achieved, it is highly undesirable to approach the matter in a literalist way. Mechanical thinking is anathema to our law: cessante ratione legis cessat et ipsa lex. The objectives of theLabour Relations Act 66 of 1995inform the context of interpretation and its penumbra of pragmatism. Our

Labour Relations Act 66 of 1995

law is not an ass.’

[48]In sum, I am satisfied that the third respondent failed to exercise a judicial discretion in refusing to grant the applicants’ application for condonation for the late referral of the dispute to arbitration. The third respondent misdirected himself on the facts, and also failed to even consider several pertinent factual considerations. He also failed to properly, reasonably and fairly assess the explanation for the delay, which delay was minimal in the first place. There existed sufficient prospects of success to justify the granting of condonation, so the dispute could be ventilated at arbitration. There accordingly exists a justified basis on which to interfere with the condonation ruling of the third respondent, which must be set aside on review. It follows that the applicants’ review application must succeed.

In sum, I am satisfied that the third respondent failed to exercise a judicial discretion in refusing to grant the applicants’ application for condonation for the late referral of the dispute to arbitration. The third respondent misdirected himself on the facts, and also failed to even consider several pertinent factual considerations. He also failed to properly, reasonably and fairly assess the explanation for the delay, which delay was minimal in the first place. There existed sufficient prospects of success to justify the granting of condonation, so the dispute could be ventilated at arbitration. There accordingly exists a justified basis on which to interfere with the condonation ruling of the third respondent, which must be set aside on review. It follows that the applicants’ review application must succeed.

Conclusion

[49]For all the reasons as set out above, it is my view that the third respondent failed to exercise a judicial discretion when he decided to refuse the applicants’ application for condonation for the late referral of the dispute to arbitration. A proper consideration of the facts and the applicable legal principles relating to condonation applications can only lead to the conclusion that the third respondent’s condonation ruling resorts well outside the bands of what may be considered to be a reasonable outcome. As such, the condonation ruling of the third respondent falls to be reviewed and set aside.

For all the reasons as set out above, it is my view that the third respondent failed to exercise a judicial discretion when he decided to refuse the applicants’ application for condonation for the late referral of the dispute to arbitration. A proper consideration of the facts and the applicable legal principles relating to condonation applications can only lead to the conclusion that the third respondent’s condonation ruling resorts well outside the bands of what may be considered to be a reasonable outcome. As such, the condonation ruling of the third respondent falls to be reviewed and set aside.

[50]Having reviewed and set aside the condonation ruling of the third respondent, I see no reason to remit this matter back to the second respondent again for determination of the condonation applicationde novobefore another arbitrator. The factual matrix relating to the condonation application is straight forward, and the record before me is in all respects complete. The same issues I have been called upon to consider in this judgment will feature before any arbitrator

called upon to decide the condonation application, and there is simply no need to duplicate the whole exercise all over again. I therefore consider it appropriate to finally determine this matter, now, once and for all, and I thus exercise the powers afforded to me undersection 145(4)of the LRA and substitute the condonation ruling of the third respondent with a determination that the applicants’ application for condonation is granted.

Having reviewed and set aside the condonation ruling of the third respondent, I see no reason to remit this matter back to the second respondent again for determination of the condonation application

de novo

before another arbitrator. The factual matrix relating to the condonation application is straight forward, and the record before me is in all respects complete. The same issues I have been called upon to consider in this judgment will feature before any arbitrator

called upon to decide the condonation application, and there is simply no need to duplicate the whole exercise all over again. I therefore consider it appropriate to finally determine this matter, now, once and for all, and I thus exercise the powers afforded to me undersection 145(4)of the LRA and substitute the condonation ruling of the third respondent with a determination that the applicants’ application for condonation is granted.

section 145(4)

[51]In terms ofsection 162(1)of the LRA, I have a wide discretion where it comes to awarding costs. I am mindful of the followingdictuminUnion for Police Security and Corrections Organisation v SA Custodial Management (Pty) Ltd and Others[40]where it was held as follows:

In terms ofsection 162(1)of the LRA, I have a wide discretion where it comes to awarding costs. I am mindful of the following

section 162(1)

Union for Police Security and Corrections Organisation v SA Custodial Management (Pty) Ltd and Others

where it was held as follows:

‘In the labour context, the judicial exercise of a court’s discretion to award costs requires, at the very least, that the court must do two things. First, it must give reasons for doing so and must account for its departure from the ordinary rule that costs should not be ordered. Second, it must apply its mind to the dictates of the fairness standard ins 162, and the constitutional and statutory imperatives that underpin it …’

In the labour context, the judicial exercise of a court’s discretion to award costs requires, at the very least, that the court must do two things. First, it must give reasons for doing so and must account for its departure from the ordinary rule that costs should not be ordered. Second, it must apply its mind to the dictates of the fairness standard ins 162, and the constitutional and statutory imperatives that underpin it …’

[52]In this case, even though the applicants were successful, it is still an instance of the applicants seeking an indulgence for mistakes that were made. I also do not believe the first respondent behaved unreasonably in opposing the review application. I further consider that there is clearly further legal proceedings that will take place between the parties, considering the outstanding arbitration in the CCMA, and it would not be fair and proper to mulch either party with a costs award in this content. Therefore, and in my view, there is no justified reason to depart from the general principle that costs do not follow the result and I consequently make no order as to costs.

In this case, even though the applicants were successful, it is still an instance of the applicants seeking an indulgence for mistakes that were made. I also do not believe the first respondent behaved unreasonably in opposing the review application. I further consider that there is clearly further legal proceedings that will take place between the parties, considering the outstanding arbitration in the CCMA, and it would not be fair and proper to mulch either party with a costs award in this content. Therefore, and in my view, there is no justified reason to depart from the general principle that costs do not follow the result and I consequently make no order as to costs.

[53]In the premises, I make the following order:

In the premises, I make the following order:

1.The applicants’ review application is granted.

The applicants’ review application is granted.

2.The condonation ruling issued by the third respondent, commissioner Mothusi Maje, dated 12 October 2020 and issued under case number NC 846-20, is reviewed and set aside.

The condonation ruling issued by the third respondent, commissioner Mothusi Maje, dated 12 October 2020 and issued under case number NC 846-20, is reviewed and set aside.

3.The condonation ruling is substituted with a ruling that the applicants’ application for condonation for the late referral of the dispute to arbitration is granted.

The condonation ruling is substituted with a ruling that the applicants’ application for condonation for the late referral of the dispute to arbitration is granted.

4.The second respondent, the Commission for Conciliation, Mediation and Arbitration, is directed to set the dispute down for arbitration on the merits thereof.

The second respondent, the Commission for Conciliation, Mediation and Arbitration, is directed to set the dispute down for arbitration on the merits thereof.

5.There is no order as to costs.

There is no order as to costs.

S Snyman

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicants:

Ms M Jansen Van Rensburg from Solidarity

For the First Respondent:

Advocate M Van As

Instructed by:

Cliffe Dekker Hofmeyr Inc Attorneys

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

Act 66 of 1995 (as amended).

[2](2007) 28 ILJ 2405 (CC).

(2007) 28 ILJ 2405 (CC).

[3]Id at para 110. See alsoCUSA v Tao Ying Metal Industries and Others(2008) 29 ILJ 2461 (CC)at para 134;Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others(2008) 29ILJ964 (LAC) at para 96.

Id at para 110. See also

CUSA v Tao Ying Metal Industries and Others

(2008) 29 ILJ 2461 (CC)

at para 134;

Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others

(2008) 29

964 (LAC) at para 96.

[4]SeeDuncanmec (Pty) Ltd v Gaylard NO and Others(2018) 39 ILJ 2633 (CC) at paras 43.

Duncanmec (Pty

) Ltd v Gaylard NO and Others

(2018) 39 ILJ 2633 (CC) at paras 43.

[5](2013) 34ILJ2795 (SCA)at para 25. See alsoGold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others(2014) 35 ILJ 943 (LAC) at para 14;Monare v SA Tourism and Others(2016) 37 ILJ 394 (LAC) at para 59;Quest Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp Fulfilment Services (Pty) Ltd) v Legobate(2015) 36 ILJ 968 (LAC) at paras 15 – 17;National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others(2015) 36 ILJ 2038 (LAC) at para 16.

(2013) 34ILJ2795 (SCA)

(2013) 34

2795 (SCA)

at para 25. See also

Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others

(2014) 35 ILJ 943 (LAC) at para 14;

Monare v SA Tourism and Others

(2016) 37 ILJ 394 (LAC) at para 59;

Quest Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp Fulfilment Services (Pty) Ltd) v Legobate

(2015) 36 ILJ 968 (LAC) at paras 15 – 17;

National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others

(2015) 36 ILJ 2038 (LAC) at para 16.

[6]Fidelity Cash Management Service (supra)at para 102.

Fidelity Cash Management Service (supra)

at para 102.

[7]SeeCampbell Scientific Africa (Pty) Ltd v Simmers and Others(2016) 37 ILJ 116 (LAC) at para 32;Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others(2015) 36 ILJ 1453 (LAC) at para 12.

Campbell Scientific Africa (Pty) Ltd v Simmers and Others

(2016) 37 ILJ 116 (LAC) at para 32;

Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others

(2015) 36 ILJ 1453 (LAC) at para 12.

[8](2021) 42 ILJ 1914 (LAC) at para 10. See alsoChetty v Baker McKenzie(2022) 43 ILJ 1599 (LAC) at para 7.

(2021) 42 ILJ 1914 (LAC) at para 10. See also

Chetty v Baker McKenzie

(2022) 43 ILJ 1599 (LAC) at para 7.

[9](2019) 40 ILJ 1731 (CC) at para 33.

(2019) 40 ILJ 1731 (CC) at para 33.

[10]1962 (4) SA 531(A) 532C-E.

1962 (4) SA 531(A) 532C-E.

1962 (4) SA 531

[11]ComparePlastics Convertors Association of SA and Another v Metal and Engineering Industries Bargaining Council and Others(2017) 38 ILJ 2081 (LC) at para 15;Silplat (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others(2011) 32 ILJ 1739 (LC)at para 24;National Education Health and Allied Workers Union and Others v Vanderbijlpark Society for the Aged(2011) 32 ILJ 1959 (LC) at para 2;Van Dyk v Autonet (A Division of Transnet Ltd)(2000) 21 ILJ 2484 (LC) at para 12.

Compare

Plastics Convertors Association of SA and Another v Metal and Engineering Industries Bargaining Council and Others

(2017) 38 ILJ 2081 (LC) at para 15;

Silplat (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others

(2011) 32 ILJ 1739 (LC)

at para 24;

National Education Health and Allied Workers Union and Others v Vanderbijlpark Society for the Aged

(2011) 32 ILJ 1959 (LC) at para 2;

Van Dyk v Autonet (A Division of Transnet Ltd)

(2000) 21 ILJ 2484 (LC) at para 12.

[12](2011) 32 ILJ 2206 (LC)at para 11.

(2011) 32 ILJ 2206 (LC)

at para 11.

[13](2010) 31ILJ1413 (LC) para 13.

(2010) 31

1413 (LC) para 13.

[14]SeeNature's Choice Products (Pty) Ltd v Food and Allied Workers Union and Others(2014) 35 ILJ 1512 (LAC) at para 21; National Union of Metalworkers of SA and Others v Crisburd (Pty) Ltd(2008) 29 ILJ 694 (LC) at para 8;Dial Tech CC v Hudson and Another(2007) 28 ILJ 1237 (LC) at para 38;Gaoshubelwe and Others v Pie Man's Pantry (Pty) Ltd(2009) 30 ILJ 347 (LC) at para 27.

Nature's Choice Products (Pty) Ltd v Food and Allied Workers Union and Others

(2014) 35 ILJ 1512 (LAC) at para 21

; National Union of Metalworkers of SA and Others v Crisburd (Pty) Ltd

(2008) 29 ILJ 694 (LC) at para 8;

Dial Tech CC v Hudson and Another

(2007) 28 ILJ 1237 (LC) at para 38;

Gaoshubelwe and Others v Pie Man's Pantry (Pty) Ltd

(2009) 30 ILJ 347 (LC) at para 27.

[15]SeeMziya v Putco Ltd(1999) 3 BLLR 103(LAC) at para 9;Moila v Shai NO and Others(2007) 28 ILJ 1028 (LAC) at para 34;Universal Product Network (Pty) Ltd v Mabaso and Others(2006) 27 ILJ 991 (LAC) at para 20;Colett v Commission for Conciliation, Mediation and Arbitration and Others(2014) 35ILJ1948 (LAC)at para 38;Mgobhozi v Naidoo NO and Others(2006) 27ILJ786 (LAC)at para 34.

Mziya v Putco Ltd

(1999) 3 BLLR 103(LAC) at para 9;

(1999) 3 BLLR 103

Moila v Shai NO and Others

(2007) 28 ILJ 1028 (LAC) at para 34;

Universal Product Network (Pty) Ltd v Mabaso and Others

(2006) 27 ILJ 991 (LAC) at para 20;

Colett v Commission for Conciliation, Mediation and Arbitration and Others

(2014) 35ILJ1948 (LAC)

(2014) 35

1948 (LAC)

at para 38;

Mgobhozi v Naidoo NO and Others

(2006) 27ILJ786 (LAC)

(2006) 27

786 (LAC)

at para 34.

[16](1999) 3 BLLR 209(LAC) at para 10.

(1999) 3 BLLR 209(LAC) at para 10.

(1999) 3 BLLR 209

[17]SeeMJRM Transport Services CC v Commission for Conciliation, Mediation and Arbitration and Others(2017) 38 ILJ 414 (LC) at para 22;Sasol Infrachem v Sefafe and Others(2015) 36 ILJ 655 (LAC) at para 29;Thiso and Others v Moodley NO and Others(2015) 36 ILJ 1628 (LC) at para 7;SA Post Office Ltd v CCMA and Others(2011) 32ILJ2442 (LAC)atpara 17.

MJRM Transport Services CC v Commission for Conciliation, Mediation and Arbitration and Others

(2017) 38 ILJ 414 (LC) at para 22;

Sasol Infrachem v Sefafe and Others

(2015) 36 ILJ 655 (LAC) at para 29;

Thiso and Others v Moodley NO and Others

(2015) 36 ILJ 1628 (LC) at para 7;

SA Post Office Ltd v CCMA and Others

(2011) 32ILJ2442 (LAC)

(2011) 32

2442 (LAC)

para 17

[18](2004) 25 ILJ 2195 (LAC) at paras 24 and 26.

(2004) 25 ILJ 2195 (LAC) at paras 24 and 26.

[19]Id at para 25. The Court went on to say this was a dispute of an ‘exceptional nature’at para 26 of the judgment.

Id at para 25. The Court went on to say this was a dispute of an ‘

exceptional nature’

at para 26 of the judgment.

[20]SeeCommissioner for Inland Revenue v Burger1956 (4) SA 446(A)at 449G;Darries v Sheriff, Magistrate's Court, Wynberg, and Another1998 (3) SA 34(SCA) at40I-41B;Minister of Agriculture and Land Affairs v CJ Rance (Pty) Ltd2010 (4) SA 109(SCA) at para 39;A Hardrodt (SA) (Pty) Ltd v Behardien and Others(2002) 23 ILJ 1229 (LAC) at para 18.

Commissioner for Inland Revenue v Burger

1956 (4) SA 446(A)

1956 (4) SA 446

at 449G;

Darries v Sheriff, Magistrate's Court, Wynberg, and Another

1998 (3) SA 34(SCA) at

1998 (3) SA 34

40I-41B;

Minister of Agriculture and Land Affairs v CJ Rance (Pty) Ltd

2010 (4) SA 109(SCA) at para 39;

2010 (4) SA 109

A Hardrodt (SA) (Pty) Ltd v Behardien and Others

(2002) 23 ILJ 1229 (LAC) at para 18.

[21]SeeDe Beer en 'n Ander v Western Bank Ltd1981 (4) SA 255(A) at 257; Rennie v Kamby Farms (Pty) Ltd1989 (2) SA 124(A) at 129G;Ferreira v Ntshingila1990 (4) SA 271(A) at281C-F.

De Beer en 'n Ander v Western Bank Ltd

1981 (4) SA 255(A) at 257

1981 (4) SA 255

; Rennie v Kamby Farms (Pty) Ltd

1989 (2) SA 124(A) at 129G

1989 (2) SA 124

Ferreira v Ntshingila

1990 (4) SA 271(A) at

1990 (4) SA 271

281C-F.

[22]2019 JDR 1263 (FB) at para 8.

2019 JDR 1263 (FB) at para 8.

[23](2011) 32 ILJ 410 (LC) at para 12.

(2011) 32 ILJ 410 (LC) at para 12.

[24]Borrowing from ‘Lemony Snicket's A Series of Unfortunate Events’, a 2004 Americanadventureblack comedy filmdirected byBrad Silberling.

Borrowing from ‘

Lemony Snicket's A Series of Unfortunate Events

’, a 2004 American

adventure

black comedy film

directed by

Brad Silberling

[25]InCeramic Industries Ltd v Commission for Conciliation, Mediation and Arbitration and Another(2005) 26 ILJ 89 (LC) 91F-G, the Court held: ‘.. In my opinion the result of the provisions relating to con-arb is that if one partyobjects to taking part in con-arbthe CCMA is precluded from invoking s 191(5A). The CCMA may not rely on rule 17 which provides for the conducting of the con-arb process. The effect of this is that the procedure which was in place prior to 1 August 2002 must be used. This means that after conciliation, the commissioner must issue a certificate of non-resolution, should this be the case, and thereafter the employee must request the CCMA to conduct an arbitration by completing form LRA 7.13 and serving it on the employer …’..

Ceramic Industries Ltd v Commission for Conciliation, Mediation and Arbitration and Another

(2005) 26 ILJ 89 (LC) 91F-G, the Court held: ‘

.. In my opinion the result of the provisions relating to con-arb is that if one party

objects to taking part in con-arb

the CCMA is precluded from invoking s 191(5A). The CCMA may not rely on rule 17 which provides for the conducting of the con-arb process. The effect of this is that the procedure which was in place prior to 1 August 2002 must be used. This means that after conciliation, the commissioner must issue a certificate of non-resolution, should this be the case, and thereafter the employee must request the CCMA to conduct an arbitration by completing form LRA 7.13 and serving it on the employer …

[26]SeeSA Municipal Workers Union on behalf of Manentza vNgwathe LocalMunicipality and Others(2015) 36 ILJ 2581 (LAC) at para 28, where the Court said: ‘Section 191(5) of the LRA provides for the occurrence of either of the events: the issue of a certificate or expiry of 30 days from receipt of the referral as an objective fact which founds the employee's right to proceed to arbitration or adjudication.’.

SA Municipal Workers Union on behalf of Manentza v

Ngwathe Local

Municipality and Others

(2015) 36 ILJ 2581 (LAC) at para 28, where the Court said: ‘

Section 191(5) of the LRA provides for the occurrence of either of the events: the issue of a certificate or expiry of 30 days from receipt of the referral as an objective fact which founds the employee's right to proceed to arbitration or adjudication.

[27]Section 4 of the Interpretation Act No 33 of 1957 reads: ‘When any particular number of days is prescribed for the doing of any act, or for any other purpose, the same shall be reckoned

exclusively of the first and inclusively of the last day, unless the last day happens to fall on a Sunday or on any public holiday, in which case the time shall be reckoned exclusively of the first day and exclusively also of every such Sunday or public holiday’. InA Penglides (Pty) Ltd and Another v Minister of Agriculture, Forestry and Fisheries and Another2022 (5) SA 401(SCA) at para 24 the Court included a Saturday in the above definition, in cases of the body concerned not being open for business on a Saturday, where the Court held: ‘…I am prepared to hold that when a time is prescribed by statute for doing any act, and that act can only be done if the court office is open on the day when the time expires, then, if it turns out in any particular case that the day is a Sunday or other dies non, the time is extended until the next day on which the court office is open.' InLatiff v Donro (Pty) Ltd(2004) 25 ILJ 2219 (LC) at para10, the Court accepted that section 4 of the Interpretation Act applies to time limit under the LRA.

Section 4 of the Interpretation Act No 33 of 1957 reads: ‘

When any particular number of days is prescribed for the doing of any act, or for any other purpose, the same shall be reckoned

exclusively of the first and inclusively of the last day, unless the last day happens to fall on a Sunday or on any public holiday, in which case the time shall be reckoned exclusively of the first day and exclusively also of every such Sunday or public holiday

’. In

A Penglides (Pty) Ltd and Another v Minister of Agriculture, Forestry and Fisheries and Another

2022 (5) SA 401(SCA) at para 24 the Court included a Saturday in the above definition, in cases of the body concerned not being open for business on a Saturday, where the Court held: ‘…

2022 (5) SA 401

I am prepared to hold that when a time is prescribed by statute for doing any act, and that act can only be done if the court office is open on the day when the time expires, then, if it turns out in any particular case that the day is a Sunday or other dies non, the time is extended until the next day on which the court office is open

.' In

Latiff v Donro (Pty) Ltd

(2004) 25 ILJ 2219 (LC) at para

10, the Court accepted that section 4 of the Interpretation Act applies to time limit under the LRA.

[28]SeeGbenga-Oluwatoye v Reckitt Benckiser SA (Pty) Ltd and Another(2016) 37 ILJ 2723 (CC)at para 10;Transport and Allied Workers Union of SA v Putco Ltd(2016) 37 ILJ 1091 (CC) at para 25;Baur Research CC v Commission for Conciliation, Mediation and Arbitration and Others(2014) 35 ILJ 1528 (LC) at para 3.

Gbenga-Oluwatoye v Reckitt Benckiser SA (Pty) Ltd and Another

(2016) 37 ILJ 2723 (CC)

at para 10;

Transport and Allied Workers Union of SA v Putco Ltd

(2016) 37 ILJ 1091 (CC) at para 25;

Baur Research CC v Commission for Conciliation, Mediation and Arbitration and Others

(2014) 35 ILJ 1528 (LC) at para 3.

[29]See fn 21supra.

See fn 21

[30]For examples of such gross ineptitude by a representative that would serve to non-suit a litigant, seeWaverley Blankets Ltd v Ndima and Others; Waverley Blankets Ltd v Sithukuza and Others(1999) 20 ILJ 2564 (LAC) at para 10;AHardrodt(SA) (Pty) Ltd v Behardien and Others(2002) 23 ILJ 1229 (LAC) at para 14;SuperbMeatSuppliesCC v Maritz(2004) 25 ILJ 96 (LAC)at paras 26 – 27. The current matter is nothing like what transpired in these judgments.

For examples of such gross ineptitude by a representative that would serve to non-suit a litigant, see

Waverley Blankets Ltd v Ndima and Others; Waverley Blankets Ltd v Sithukuza and Others

(1999) 20 ILJ 2564 (LAC) at para 10;

Hardrodt

(SA) (Pty) Ltd v Behardien and Others

(2002) 23 ILJ 1229 (LAC) at para 14;

Superb

Supplies

CC v Maritz

(2004) 25 ILJ 96 (LAC)

at paras 26 – 27. The current matter is nothing like what transpired in these judgments.

[31](2002) 23 ILJ 2052 (LC) at para 16.

(2002) 23 ILJ 2052 (LC) at para 16.

[32]1989 (1) SA 137(C) at 138

1989 (1) SA 137(C) at 138

1989 (1) SA 137

[33]CompareKhayzif Amusement Machines CC v Southern Life Association Ltd1998 (2) SA 958(D) at963I.

Khayzif Amusement Machines CC v Southern Life Association Ltd

1998 (2) SA 958(D) at

1998 (2) SA 958

[34](2023) 44 ILJ 109 (LAC).

(2023) 44 ILJ 109 (LAC).

[35]Id at paras 31 – 32.

Id at paras 31 – 32.

[36]As to the conduct of Solidarity of taking immediate action to remedy the defect, compareLephoto and Others v WHBO (Pty) Ltd(JS232/2014) [2018] ZALCJHB 277 (21 August 2018) at para 18.

As to the conduct of Solidarity of taking immediate action to remedy the defect, compare

Lephoto and Others v WHBO (Pty) Ltd

(JS232/2014) [2018] ZALCJHB 277 (21 August 2018) at para 18.

[37]The fact is that calling a person a baboon would generally be regarded as racist or hurtful conduct and is a dispute worthy of being properly ventilated at arbitration – seeStrydom v Chiloane(2008) 29 ILJ 607 (T) at para 13;SA Revenue Service v Commission for Conciliation, Mediation and Arbitration and Others(2017) 38 ILJ 97 (CC) para 4 fn 5.

The fact is that calling a person a baboon would generally be regarded as racist or hurtful conduct and is a dispute worthy of being properly ventilated at arbitration – see

Strydom v Chiloane

(2008) 29 ILJ 607 (T) at para 13;

SA Revenue Service v Commission for Conciliation, Mediation and Arbitration and Others

(2017) 38 ILJ 97 (CC) para 4 fn 5.

[38]CompareFortuin v Commission for Conciliation, Mediation and Arbitration and Others(2005) 26 ILJ 96 (LC) at para 26.

Fortuin v Commission for Conciliation, Mediation and Arbitration and Others

(2005) 26 ILJ 96 (LC) at para 26.

[39](2020) 41 ILJ 2051 (LAC) at para 16.

(2020) 41 ILJ 2051 (LAC) at para 16.

[40](2021) 42 ILJ 2371 (CC) at para 35.

(2021) 42 ILJ 2371 (CC) at para 35.