Tywakadi v Bidvest McCarthy Toyota Woodmead (JS304/21) [2021] ZALCJHB 381 (19 October 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JS 304/21

In the matter between:

NONCEBA BOUSEY TYWAKADI Applicant

and

BIDVEST MCCARTHY TOYOTA WOODMEAD Respondent

Heard: 15 October 2021.

Delivered: 19 October 2021 (through email)

Summary: An opposed condonation application – explanation poor and unreasonable – interest of justice not allowing the granting of condonation. Held: (1) The condonation application is refused. Held: (2) No order as to costs.

JUDGMENT

MOSHOANA, J

Introduction

[1] Ms Nonceba Bousey Tywakadi (Tywakadi), the applicant in this matter is the victim of circumstances. Her door to this Court became sealed because of the choices she made. She chose an attorney, who came highly recommended to her, which attorney in due course became the source of her agony and misery. This is an application where Tywakadi seeks condonation for the late referral of a dispute alleging unfair dismissal for adjudication. The application is duly opposed. Although after being ditched by her trusted alter ego, attorney Makhanya, Tywakadi was allegedly assisted by a pro bono attorney, who never came on record. Her misery unabatedly dogged her when the pro bono attorney, who never came on record, left her vincible on the day of the hearing. Allegedly, some notes were to be prepared for her on the day, which will navigate her through the matter. To her utter disdain, such notes were not prepared as promised. Owing to that haughty scoff from the pro bono lawyer, Tywakadi was compelled to launch an application seeking to postpone the hearing of the matter. As expected, the application was sternly opposed.

[2] In view of the fact that the application for postponement was bereft of substantial grounds, this Court refused to grant it. Although this Court was commiserative to the cause of Tywakadi, a postponement would have increased her misery if it were granted. However, the application was groundless. Throughout, Tywakadi elegantly prepared the papers before Court on her own. She only mentioned it during the postponement application that in truth someone was assisting her to elegantly prepare the papers. However, on the face of it the papers were prepared and signed by her. Had it not been for the belated confession, this Court would have been duped into believing that Tywakadi possesses competence equal to none compared to lay litigants that visits this Court.

Background facts

[3] Tywakadi was employed as a Senior Administration Clerk at the Bidvest McCarthy Toyota branch effective 01 November 2016. In the course of her employment, she became a member of Motor Industry Staff Association (MISA), a recognised trade union. In due course, MISA and the respondent concluded a collective agreement known as Restructuring/Rationalization Process Agreement (RRPA). MISA

represented about 67% of the workforce of the respondent.

[4] On 8 June 2020 and in accordance with RRPA, MISA and the respondent commenced a consultation process within the contemplation of section 189A of the Labour Relations Act[1] (LRA). On 12 June 2020, Tywakadi was issued with a section 189 (3) notice. She was advised that consultation would happen with her trade union MISA. On 11 August 2020, a further collective agreement was concluded in terms of which termination due to operational

requirements was agreed upon. As a sequel, Tywakadi was issued with a letter of termination due to the operational requirements of the respondent.

[5] Discomfited by the dismissal, on 20 August 2020, Tywakadi referred a dispute to the bargaining council alleging unfair dismissal. On 5 October 2021, the dispute was certified unresolved. During the referral process, attorney Makhanya duly represented Tywakadi. For some unexplained reasons, Tywakadi only furnished a copy of the certificate of outcome on some undisclosed date in November 2020 to Makhanya. For reasons that are not apparent from the papers, Tywakadi and Makhanya failed to meet or consult in December and early January 2021. On 13 January 2021, notably few days after the expiry of the prescribed 90-days period, Makhanya demanded a copy of the employment contract from Tywakadi. It is unclear what the purpose thereof was.

[6] For a period of about two months after the request, Tywakadi went on a “wild goose chase” in search of that employment contract. On 31 March 2021, Tywakadi submitted a statement of claim. On 06 April 2021, Tywakadi filed a founding affidavit with the office of the registrar, which appeared to seek condonation for the 59 days delay. It is unclear whether this founding affidavit was served on the respondent or not. Nonetheless, on or about 20 April 2021, the respondent filed a statement of response. A preliminary point was raised regarding lack of condonation. On 6 May 2021, Tywakadi visited the pro bono offices. One Venolan Naidoo, a Senior Associate at Faskens Attorneys, expressed an opinion that Tywakadi was possessed with prospects for condonation. Naidoo asked whether it was possible for another attorney to draft the condonation papers.

[7] On the papers before me, it is unclear whether an attorney drafted these condonation papers. What became apparent later is that on or about 3 June 2021, Tywakadi personally filed the present application. The respondent duly opposed the application.

Evaluation

[8] A trite and cardinal principle is that condonation is not there for a mere asking[2]. An applicant must provide a reasonable and an acceptable explanation and must demonstrate reasonable prospects of success.

Explanation for the delay

[9] Inasmuch as this Court appreciates the fact that Tywakadi was a victim of the circumstances, it remains a requirement that the delay must be explained to enable a Court to exercise its judicious discretion. The explanation provided by Tywakadi is scanty, poor and macerate. For a period of two full months, this Court is not appraised of what was happening to the dispute. It is the duty of the applicant for condonation to explain each facet of the delay.[3]

[10] The explanation is sparsely stated in the supporting affidavit. In summary, the 90 days expired on or about 4 January 2021. From that period, Tywakadi only interacted with her dismissal dispute on 13 January 2021. For a period of almost two months, she went on a wild goose chase in search of the contract of employment, for what good reason, this Court is not told. This Court does accept and take judicial notice that during the period 26 March 2020 to sometime in August 2020, this Country was placed on a lockdown due to the Covid19 pandemic. However, by the time the prescribed period expired, the country was placed on eased lockdown restrictions. Nevertheless, Tywakadi made no case that lockdown restrictions inhibited her in any manner whatsoever.

[11] Fifty six years ago, Steyn CJ in Saloojee and another NNO v Minister of Community Development[4], laid an imperishable rule that there is a limit beyond which a litigant cannot escape the results of his or her attorney’s

lack of diligence or insufficiency of the explanation tendered. At that time, Steyn CJ appropriately lamented that applications for condonations were increasing as a consequences of the ineptness of the attorneys. This lament remains true to this day. The Labour Court is inundated with applications for condonations where attorneys are to blame. In casu, if the version of Tywakadi is to be believed, she was let down by Makhanya. In November 2020, when she consulted him, the time period prescribed was still intact. As to why he sent Tywakadi on a wild goose chase is beyond this Court’s comprehension. What was the relevance of a contract of employment when the trigger for referral – certificate of outcome – was in hand since October 2020, it remains hazy.

[12] It is this type of conduct that professional bodies must take a sterner action towards. This conduct ricochets and spills over to the administration of justice. Courts become inundated with condonation applications, which ought to be processed in a busy motion Court. Litigants and practitioners must be warned that the immortal rule developed by Steyn CJ is here to stay. There is no reason why it should be changed. It fits snuggly within the provisions of section 34 of the Constitution of the Republic of South Africa[5] (Constitution). In the papers before me, Tywakadi does not explain why she had not returned to Makhanya, whom on her version she

consulted again after the expiry period. It is important to emphasis that the condonation that Tywakadi seeks is not for the non-compliance with Court rules but with legislative requirements. Effectively after 90 days, a claim referable to this Court prescribes. This Makhanya knew and Tywakadi possibly knew. Ignorantia legis neminem excusat – ignorance of the law is no excuse.

[13] Where an explanation is poor and unconvincing, as it is the case in this matter, such amounts to no explanation at all. Where there is no reasonable and acceptable explanation, the prospects of success are immaterial.[6]

Conclusions

[14] In sum, Tywakadi dismally failed to provide this Court with a reasonable and acceptable explanation for the three months delay. A delay of three months is excessive and deserves a proper explanation. It is not in the interest of justice to condone the late referral. A view on the prospect of success is not eccentric. In terms of section 189A (18) of the LRA, this Court is precluded from dealing with procedural fairness during a section 191 referral. The selection criteria employed by the respondent is one that has been agreed upon. Section 189 (7) provides that an agreed criterion is acceptable. One of the considerations in matters of this nature is not to grant condonation on hopeless cases. It is a pity; some attorney has expressed a view to Tywakadi that she bears some prospects. In that view, she was sold a dummy and was given a phantasmagorical hope. The prospects are zilch. Therefore, the application is bound to fail.

[15] In the results, I make the following order:

Order

1. The condonation application is refused.

2. There is no order as to costs.

Nasious. Moshoana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: In Person.

For the Respondent: Mr I Mahomed of CDH Inc.

[1] Act 66 of 1995 as amended.

[2] See: Makusa v CCMA and Others (2016) 37 ILJ 163 (LC)

[3] See Mulaudzi v Old Mutual Life Insurance Company (SA) Ltd and others [2017] 3 All SA 520 (SCA)

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

[5] Act 108 of 1996 as amended.

[6] See: NUM v Council of Mineral Technology [1999] 3 BLLR 209 (LAC) and Collet v CCMA [2014] 6 BLLR 523 (LAC).