Telkom SA SOC Ltd v Commission for Conciliation, Mediation & Arbitration, Johannesburg and Others (JR1793/16) [2021] ZALCJHB 201 (2 August 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR1793/16

In the matter between:

TELKOM SA SOC LTD Applicant

and

COMMISSION FOR CONCILIATION

MEDIATION & ARBITRATION JOHANNESBURG First Respondent

COMMISSIONER NAMISILE KHESWA Second Respondent

COMMUNICATION WORKERS UNION Third Respondent

MAHLODI NGWEPE Fourth Respondent

Heard: 30 June 2021

Delivered: This judgment was handed down electronically by circulation to the parties’ legal representative by email. Publication on the Labour Court website and released to SAFLII. The date and time for hand-down is deemed to be 10:h00 on 02 August 2021.

JUDGMENT

NSIBANYONI, AJ

Introduction

[1] The Applicant Telkom SA SOC (Ltd) (Telkom) brought an application to review and set aside the condonation ruling dated 27 May 2016 issued by the Second Respondent (Commissioner) acting under the auspices of the First Respondent, the Commission for Conciliation Mediation and Arbitration (CCMA). The Commissioner ruled in favour of the Third Respondent, stating that the referral of Mr. Ngwepe was within the stipulated 30 day period.

[2] The Applicant further seeks condonation of the late filing of the review application. The Third Respondent (Communications Workers Union) opposes both applications.

Background

[3] Mr Ngwepe was employed by Telkom SA SOC LTD, which is a wireline and wireless telecommunications provider, operating in more than 38 countries across the African continent. Mr. Ngwepe was dismissed on 04 July 2008 for failure to fulfil his contractual obligations due to incarceration. Ngwepe was incarcerated and convicted for a criminal offence relating to domestic violence and sentenced for 17 years. He appealed the sentence, the appeal was granted and he was released from prison on 01 September 2015.

[4] Upon his release, Mr. Ngwepe approached Telkom seeking re-employment, a request which was declined on 29 October 2015. The parties continued to engage and on 07 January 2016, Mr. Ngwepe was furnished with a progress report and the decision was that he could not be re-employed.

[5] Aggrieved with this outcome, Mr. Ngwepe referred the matter to the first CCMA on 02 February 2016. In his referral, he stated that the dispute arose on 07 January 2016.

[6] The matter was before Commissioner Joyce Nkopane on 19 February 2016 and Telkom raised a jurisdictional issue stating that contrary to the referral form, Mr. Ngwepe was dismissed on 19 June 2008.

[7] After submissions by both parties, Commissioner Joyce Nkopane found as follows:

“Having considered the submissions, I find that the dispute of unfair dismissal arose on 19 June 2008. The referral is late and there is no application for condonation. thus the CCMA does not have jurisdiction.”

[8] Mr. Ngwepe duly applied for condonation and the matter was heard by the Second Respondent (the Commissioner). In her ruling, dated 27 May 2017, the Commissioner stated that the date of dismissal was 07 January 2016, thus second guessing and essentially overruling her colleague Joyce Nkopane.

[9] On 02 September 2016, Telkom instituted a review application with this Court. The ruling which is the subject of the review application is the second ruling which was issued on 27 May 2018.

Legal principles and application

[10] In Grootboom v National Prosecuting Authority,[1] the Constitutional Court expounded the principles applicable when dealing with condonation applications and referred to same with approval in Steenkamp and Others v Edcon Limited,[2] where the Constitutional Court, per Basson AJ, stated the following:

[36] Granting condonation must be in the interests of justice. This court in Grootboom set out the factors that must be considered in determining whether or not it is in the interests of justice to grant condonation:

‘[22] ...[T]he standard for considering an application for condonation is the interests of justice. However, the concept “interests of justice” is so elastic that it is not capable of precise definition. As the two cases demonstrate, it includes: the nature of the relief sought; the extent and cause of the delay; the effect of the delay on the administration of justice and other litigants; the reasonableness of the explanation for the delay; the importance of the issue to be raised in the intended appeal; and the prospects of success. It is crucial to reiterate that both Brummer and Van Wyk emphasise that the ultimate determination of what is in the interests of justice must reflect due regard to all the relevant factors but it is not necessarily limited to those mentioned above. The particular circumstances of each case will determine which of these factors are relevant.

[23] It is now trite that condonation cannot be had for the mere asking. A party seeking condonation must make out a case entitling it to the court’s indulgence. It must show sufficient cause. This requires a party to give a full explanation for the non-compliance with the rules or court’s directions. Of great significance, the explanation must be reasonable enough to excuse the default. ...

[51] The interests of justice must be determined with reference to all relevant factors. However, some of the factors may justifiably be left out of consideration in certain circumstances. For example, where the delay is unacceptably excessive and there is no explanation for the delay, there may be no need to consider the prospects of success. If the period of delay is short and there is an unsatisfactory explanation but there are reasonable prospects of success, condonation should be granted. However, despite the presence of reasonable prospects of success, condonation may be refused where the delay is excessive, the explanation is non-existent and granting condonation would prejudice the other party. As a general proposition the various factors are not individually decisive but should all be taken into account to arrive at a conclusion as to what is in the interests of justice.’

…

[39] This court in Toyota accepted that the expeditious resolution of disputes in the context of labour disputes is one of the primary objects of the LRA:

‘Time periods in the context of labour disputes are generally essential to bring about timely resolution of the disputes. The dispute-resolution dispensation of the old Labour Relations Act was uncertain, costly, inefficient and ineffective. The new Labour Relations Act (LRA) introduced a new approach to the adjudication of labour disputes. This alternative process was intended to bring about the expeditious resolution of labour disputes which, by their nature, require speedy resolution. Any delay in the resolution of labour disputes undermines the primary object of the LRA. It is detrimental not only to the workers who may be without a source of income pending the resolution of the dispute but, ultimately, also to an employer who may have to reinstate workers after many years.’

[40] In Myathaza four judges of this court, recognising the adverse effects delays impose on both the employers and employees, pronounced that

‘[e]mployment disputes by their very nature are urgent matters that require speedy resolution so that the employer’s business may continue to operate and the employees may earn a living’.

[41] In giving effect to this primary object, the LRA imposes strict time-limits within which various applications and referrals must be launched. Non-adherence to these time-limits may be condoned. Both the Labour and the Labour Appeal Courts have incorporated the general principles for condonation referred to above. But they have also infused factors and considerations specific to labour law: Condonation in the case of disputes over individual dismissals will not readily be granted. The explanation for non-compliance would have to be compelling, the case for attacking a defect in the proceedings would have to be cogent and the defect would have to be of a kind which would result in a miscarriage of justice if it were allowed to stand. Whether the delay was a result of a deliberate, wilful decision not to comply with a lawful and binding award in terms of the LRA is also an important factor to consider. Where the explanation for the delay is the internal processes and procedures of trade unions, the Labour Court has taken a stricter view.’ (Emphasis added)

[11] In explaining the lateness of the application, Telkom averred that this matter was handled by the Applicant’s Employee Relations Officer that was since retrenched on 31 July 2016 and no proper hand over was done in this regard Telkom only became aware of the CCMA arbitration proceedings upon receipt of the CCMA set down notification of the case.

[12] Telkom held the view that the Second Respondent’s ruling is invalid as her mandate on 27 May 2016 was to adjudicate over a condonation application rather than to “review” and or substitute Commissioner Nkopane’s ruling. On 02 September 2016, the day of the arbitration, Telkom briefly raised the issue of conflicting rulings off the record before the Commissioner, however due to ill health of the Telkom Representative, the proceedings were adjourned.

[13] Telkom sought legal advice from its attorneys of record regarding the conflicting rulings. Following a consultation and studying the conflicting rulings, Telkom attorneys advised that the only alternative was to launch the review of the second respondent’s ruling in this Court. The review application was duly instituted in this Court on 02 September 2016.

[14] Commissioner Nkopane ruled correctly on 19 February 2016 that the referral was late and the CCMA did not have jurisdiction to entertain the dispute. The Second Respondent therefore exceeded her powers by finding that the referral was not late and there was no need on the part of Mr. Ngwepe to apply for condonation.

[15] On the other hand, Mr. Ngwepe argued that on 10 February 2017, he filed his answering affidavit and expressly raised the point that the Labour Court has no jurisdiction to determine the review application in the absence of condonation being sought and granted for the late referral of the review application.

[16] He does not know which misconduct he was found guilty of since he was not the cause of his incarceration. It was a factor that was beyond his control. It cannot be said that he was the author of his misfortune since he had a valid reason for his absence.

[17] He further stated that no letter was delivered to him either at a police station or at a prison where he was held on June 2008 or at his last known address and furthermore, Telkom failed to attach a copy of a dismissal letter addressed to him to show how the letter was served. The second Respondent was correct to find that the referral was within the 30 days prescribed by the Labour Relations Act[3] (LRA) and there was no need to apply for condonation.

Analysis

[18] A condonation ruling is reviewed in terms of section 158(1)(g) of the LRA which does not prescribe a period for the delivery of the review application. It is however trite that a reasonable period is determined in terms of section 145(1)(a) of the LRA which is six weeks.

[19] It is therefore my considered view that the degree of lateness is not minimal, the explanation for the delay is reasonable and acceptable. Condonation is accordingly granted

[20] Mr. Ngwepe argued that the application is defective in that it has been overtaken by events. The matter was set down for hearing on 2 September 2016 and there was no application filed with this Court to interdict the proceedings at the CCMA.

[21] Mr. Ngwepe in his answering affidavit stated that the Second Respondent was correct to find that his referral was within the 30 days’ time frame because the dismissal dispute arose on 07 January 2016.

[22] It is common cause that Commissioner Nkopane, after having considered the submissions, ruled that Mr. Ngwepe must apply for condonation. Mr. Ngwepe, through his conduct during the CCMA proceedings did apply for condonation thus abiding by Commissioner Nkopane’s ruling. There was therefore concession between the parties that there has to be a condonation application, hence Mr. Ngwepe applied for condonation and it was opposed by Telkom. If indeed Mr. Ngwepe believed that Commissioner Nkopane was incorrect in her ruling, he had the right to challenge the ruling of Commissioner Nkopane but he failed to do so, instead he abided by the decision of Commissioner Nkopane.

[23] The Second Respondent was therefore bound by the ruling of Commissioner Nkopane and was to decide whether or not to grant condonation. In ruling that she did not have to consider the condonation application, because the referral was within the 30-day period, she exceeded her powers and misconstrued the facts before her.

[24] As stated in Myathaza supra, the case for attacking a defect would have to be cogent and the defect would have to be of a kind which would result in a miscarriage of justice if it were allowed to stand. In this instance not to correct such a defect would indeed result in the miscarriage of justice.

[25] Commissioner Nkopane ruled that Mr. Ngwepe was dismissed on 19 June 2008 and not 07 January 2016. The Second Respondent was mandated to consider the condonation application and decide whether or not to grant condonation. Instead, the Second Respondent second guessed the ruling of Commissioner Nkopane by ruling that the dismissal was on 07 January 2016, by so doing, she exceeding her powers. As a Commissioner, she lacks the power to second guess or “review’ the decision of another Commissioner. It will therefore be in the interest of justice that the ruling of the Second Respondent be reviewed and set aside.

Conclusion

[26] It follows, that the Commissioner misconstrued the nature of the enquiry before her and accordingly arrived at an incorrect outcome. As such, the condonation ruling stands to be reviewed and set aside.

[27] Further, based on the evidence before me, the matter is remitted to the CCMA for consideration of the condonation application before a Senior Commissioner.

Costs

[28] With regards to costs, I am of the opinion that the requirement of law and fairness dictate that there should be no order as to costs.

[29] In the premise, the following order is made:

Order:

1. The Applicant’s application for the late filing of the review application is granted.

2. The ruling issued by the Second Respondent under the auspices of the CCMA under case number GAJB1908-16 is reviewed and set aside.

3. The matter is remitted to the First Respondent for condonation hearing before a Commissioner other than the Second Respondent and preferably a Senior Commissioner.

4. There is no order as to costs.

T. Nsibanyoni

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Maseremule Attorneys

For the Third Respondent: Adv. Ramano

Instructed by: Communications Workers Union

[1] 2014 (2) SA 68 (CC); 2014 (1) BCLR 65 (CC) (Grootboom) at para 22-23. See also Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532- E.

[2] 2019 (7) BCLR 826 (CC); (2019) at para 36.

[3] No. 66 of 1995, as amended