Trailord SA (Pty) Ltd v Fourie NO and Others (JR2090/19) [2021] ZALCJHB 245 (17 August 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR2090/19

In the matter between:

TRAILORD S.A (PTY) LTD Applicant

and

A.M FOURIE N.O First

Respondent

MIBCO Second

Respondent

MISA obo GIDEON JACOBS De LA REY Third

and further Respondent

Heard: Decided on papers

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 17 August 2021.

Summary: Condonation – even though the delay is not inordinate, the explanation is unreasonable.

JUDGMENT

NSIBANYONI, AJ

Introduction

[1] The applicant, Trailord S.A (Pty) Ltd (Trailord SA) brought the application to review and set aside the arbitration award dated 19 July 2019 issued by the first respondent (the Commissioner) acting under the auspices of the Motor Industry Bargaining Council (MIBCO). The Commissioner ruled in favour of the third respondent, thus ordering Trailord SA to compensate the individual third respondent, Mr. Gideon Jacobs De La Rey (De La Rey) to the amount of R152 229.45 which is equivalent to five months’ salary.

[2] Trailord SA further seeks condonation of the late filing of the review application. Both applications are opposed by MISA and De La Rey.

Background

[3] De La Ray was employed by Trailord SA on 12 January 2006 as a Foreman and was earning R30 445.89 per month (Thirty Thousand Four Hundred and Forty-Five Rands and Eighty-Nine Cents). He was found guilty as charged and dismissed for assaulting a fellow employee.

[4] Aggrieved by his dismissal, De La Ray, referred an unfair dismissal to MIBCO. The Commissioner found that the Trailord SA failed to prove that De La Rey was guilty of assault and that his dismissal was substantively unfair and awarded compensation.

Legal principles and application

[5] In Grootboom v National Prosecuting Authority,[1] the Constitutional Court expounded the principles applicable when dealing with condonation applications and referred to 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’.(my emphasis)

[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

‘employment 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 and footnotes omitted)

[6] In explaining the lateness of the application, Frank Dewitt, the Financial Manager of Trailord SA stated that he became aware of the arbitration award on the 31st July 2019 and the review application had to have been filed on or before 11 September 2019. The review application was only delivered on 1st October 2019, rendering it 20 (twenty) days late.

[7] De La Rey, stated that it is common cause that the review application was filed on 01 October 2019. It was further stated that despite knowing that the review application was late, it took the Applicant four months to deliver a condonation application and this was done on 03 February 2020, delaying the matter even further.

[8] With regards to the reasons for lateness, the Applicant stated that after becoming aware of the arbitration award, he consulted the Applicant’s consultant, since he was in disagreement with the award. He stated that the attorneys followed up with him on 30 August, 04, 06, 10 and 11 September 2019 on whether or not they should proceed with the review application.

[9] He was only able to furnish the attorneys with instructions to proceed with the review application and was provided with the draft affidavit for approval on 18 September 2019 which he did not immediately approve the draft affidavit. It was after being reminded of the draft affidavit on 26 September 2019 that he deposed of the affidavit on 01 October 2019. The Applicant stated that this delay was due to him being inundated with other responsibility at the workplace.

[10] De La Ray stated that the reason for lateness is unsatisfactory. De La Ray stated that the review application was filed on 01 October 2019 which was twenty days late. De La Ray further stated as at 01 October 2019, the Applicant and its attorneys were aware that the review application was late but took a further four months to file for condonation and there is no explanation for such a delay.

Analysis

[11] As alluded above in Grootboom, condonation may be refused where the delay is excessive and the explanation is not satisfactory. The Applicant and its attorneys were aware that the review application was to be filed on 11 September 2019 but only filed the review application on 01 October 2019. The reason that the applicant’s representative proferred was that he was inundated with work, is unacceptable. The Applicant does not bring this Court into its confidence on what could have led to the late filing of the review application.

[12] The Applicant and his attorneys were aware on 01 October 2019 that the review application was late, however, they failed to take necessary and urgent steps to file the condonation application. It took the Applicant a further four months to file a condonation application. As the Courts have alluded that a condonation application must be launched as soon as it becomes apparent that there has been a delay and condonation is required[3]. The Applicant failed to do so in this instance.

[13] The expeditious dispute resolution is one of the primary objects of the LRA[4].It is for this reason that condonation is not for the taking. The party seeking such indulgence must satisfy the court completely that it deserves the indulgence of the court. Any delay is detrimental to the worker who may be without any source of income pending the resolution of the dispute. It is for this reason that the reasons for lateness must be acceptable and complete. In this matter, the Applicant failed to show that it treated this matter with the urgency it deserved.

Conclusion

[14] In conclusion and based on the above, the Applicant has not shown good cause for the late filing of the review application. It should therefore follow that the application for condonation stands to be dismissed.

Costs

[15] I am not persuaded that the facts and circumstances of the case calls for a cost order. In any event, the rule that costs follow the result does not apply in this Court.

[16] In the circumstances, I make the following order is made:

Order

1. The condonation application is dismissed.

2. Consequently, the review application is dismissed.

3. There is no order as to cost.

T. Nsibanyoni

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Snyman

Attorneys

For the Third and Further Respondent: Gerrie Ebershon Attorneys inc.

[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) 40 ILJ 1731 (CC) (Steenkamp).

[3] Librapac CC v Fedcraw and Others 1999 ILJ 1510 (LAC)

[4] No. 66 of 1995, as amended