Transport and Allied Workers Union of South Africa and Others v National Bargaining Council for the Road Freight and Logistics Industry and Others (JR1534/14) [2016] ZALCJHB 468 (9 June 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case no: JR 1534/14

In the matter between TRANSPORT AND ALLIED WORKERS UNION OF SOUTH AFRICA RONALD MASOWA AND 2 OTHERS First Applicant Second Applicant And NATIONAL BARGAINING COUNCIL FOR THE ROAD FREIGHT AND LOGISTICS INDUSTRY First Respondent SEELE MOKWENA N.O Second Respondent

IMPERIAL DISTRIBUTION (PTY) LTD

Third Respondent

Heard: 8 June 2016

Delivered: 9 June 2016

VAN NIEKERK J

[1] This is an application to condone the late filing of an application to review and set aside an arbitration award issued by the second respondent on 14 February 2014. In his award, the second respondent appealed the dismissal of the 2nd to further applicants. The review application was filed on 1 August 2014.

[2] The six-week period within which the application ought to have been filed expired at the end of March 2014. The delay of some 4 months is excessive. The reason for the delay is the subject of a single paragraph the founding affidavit and relates to a dispute about fees between the applicant and its previous attorneys of record. In relation to the applicant’s prospects of success, the deponent to the founding affidavit submits in a single sentence that the applicant’s prospects of success in the review application are good.

[3] It is trite that an applicant in a condonation application seeks an indulgence from the court is required to provide a full and proper explanation for every period of the delay. There is no indication in the founding affidavit is to when the fee dispute arose, the circumstances in which the present application became the subject of a refusal by the attorneys to prosecute the matter, or the point at which the first applicant instructed its new attorneys. All that the explanation suggests, in general terms, is that as a consequence of the fee dispute the applicant’s previous attorneys of record were ‘not prosecuting its matters’. There is no explanation as to why other attorneys could not be instructed. In particular, there is no suggestion or explanation as to why the dispute had the direct consequence of an inability by the first applicant to give instructions to its present attorneys of record to file the present application within the statutory time limit. In any event, the deponent to the affidavit is the general secretary of the applicant. He must have been aware of the applicable time limit and ought to be quite capable of filing an application for review without the assistance of attorneys. Indeed, many unrepresented applicants in review applications do so, using pro forma documentation available at this court. In short, the explanation for what is an excessive delay in filing the review application is inadequate and unsatisfactory.

[4] Insofar as the applicant’s prospects of success are concerned, it is incumbent on an applicant seeking condonation to set out, in the condonation application, its prospects of success in the main application. It is not sufficient, as the applicant is done in the present circumstances, simply to assert that its prospects of good and to leave it to the court to discern whether that is in fact so. To the extent that the applicant’s counsel urged me at the hearing of the application to have regard to supplementary heads of argument relating to the second respondent’s assessment of the evidence in the proceedings under review, that point and amounts to no more than an assertion that the second respondent failed to undertake credibility assessments of all the witnesses before coming to the findings that he did. There are two answers to this proposition. First, it is not open to the applicant to introduce new grounds for review in heads of argument, even if these grounds are founded on a point of law. Grounds for review must be properly articulated in the founding and supplementary affidavit. In any event, the failure by an arbitrator to undertake credibility assessments of witnesses with this is a material dispute of fact does not raise a point of law – it is no more than an indication that the outcome of the proceedings under review may be unreasonable. The Labour Appeal Court made it clear that a failure of this nature is not in itself a basis for review – it is incumbent on the applicant to establish that the result of the proceedings, in the form of the arbitrator’s decision, is so unreasonable that no reasonable decision-maker could come to it. I am not persuaded that the applicants’ prospects of success are such that the failure to provide a satisfactory explanation for an excessive delay should be condoned.

For the above reasons, I make the following order:

1. Condonation for the late filing of the review application is refused.

2. The review application is dismissed.

ANDRE VAN NIEKERK

JUDGE OF THE LABOUR COURT

REPRESENTATION

For the applicants: Adv F Wilke, instructed by Lennon Molele & Partners

For the third respondent: Mr R Orton, Snyman Attorneys