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IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT PORT ELIZABETH

Case No: P 127/98

In the matter between:

M. NONYUKELA Applicant

and

THE COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION First Respondent

MS LALLIE N.O. Second Respondent

NATIONAL UNION OF METAL WORKERS

OF SOUTH AFRICA Third Respondent

JUDGMENT ON APPLICATION FOR CONDONATION

BASSON, J:

[1] This is an application for condonation for the late filing of an application for review in terms of Section 145 of the Labour Relations Act 66 of 1995 (“the Act”).

[2] Although in terms of conflicting judgments of the Labour Court it was held that review proceedings of arbitration awards issued under the auspices of the Commission for Conciliation, Mediation and Arbitration (“the CCMA”) such as in the present matter can be brought in terms of Section 158(1)(g) of the Act, it is now settled law that such review arbitrations stand to be reviewed in terms of the provisions of Section 145 of the Act. See the judgment of the Labour Appeal Court in the matter of CAREPHONE v MARCUS N.O. AND OTHERS (unreported case no. JA52/98).

[3] In terms of Section 145(1)(a) of the Act, the application must be brought to the Labour Court within six weeks of the date that the award was served on the applicant.

[4] The principles that are applicable in applications for condonation were set out in the well-known judgment of MELANE v. SANTAM INSURANCE CO.LTD. 1962 (4) SA 531 (AD) at 532C-F:

"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, for that would be a piecemeal approach incompatible with a true discretion, save, of course, that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong. Or the importance of the issue and strong prospects of success may tend to compensate for a long delay. And the respondent's interest in finality must not be overlooked. I would add that discursiveness should be discouraged in canvassing the prospects of success in the affidavits”.

[5] The application in the present matter was lodged on 15 May 1998, some six weeks after the prescribed period of six weeks in terms of Section 145(1)(a). In view of the fact that this is a delay of almost double the period of time allowed, it can be described in my view as an excessive or long delay in lodging the Section 145 review proceedings.

[6] I now turn to the explanation for the delay. At page13 of the papers, the applicant offers the following explanation:

"That the fact that the delay was largely occasioned by the endeavours on the part of my attorneys of record to obtain legal aid on my behalf from the Legal Aid Board"

[7] The application also deals with these facts (at page 90 of the papers). However, the applicant fails to refer to any dates in this regard and it is therefore not possible for me to properly assess the alleged problems with obtaining legal aid from the Legal Aid Board. It is namely not indicated when the application to the Legal Aid Board was made and at what date it was eventually approved.

[8] The applicant also adds further reasons relating to the actions taken by his attorneys of record and counsel but which were not mentioned in the founding affidavit.

[9] In the event, I am not persuaded that the alleged problems with obtaining legal aid was a good or a reasonable explanation in the facts of this specific matter, especially in view of the paucity of the facts presented to Court.

[10] In assessing the prospects of success of the applicant in the present matter, the applicant's representative indicated that there was allegedly a gross irregularity in the proceedings in terms of a defect described as follows in terms of Section 145(2)(a)(ii) of the Act:

"Committed a gross irregularity in the conduct of the arbitration proceedings".

[11] This ground of review is not mentioned as a ground of review in the founding papers. However, this contention is based on the allegation that the arbitrator (the Commissioner of the CCMA) did not take into account written argument that was presented to her by the parties after the close of the oral evidence in the arbitration. There are, however, various indications in the arbitration award itself which indicate that argument was indeed taken into account. In the arbitration award (at page 16 at the bottom) an argument of the employer is dealt with in the following manner:

"It was argued on behalf of the employer that the employer would have been severely prejudiced if it had continued to pay the employee's car allowance while he was using the vehicle as a taxi and enriching himself secretly in the process at the expense of the employer".

[12] The argument referred to here is indeed taken up in the written arguments of the third respondent that were submitted to the arbitration (at page 63 of the papers, paragraph 9.2.9) where it was argued that:

"... the Respondent would have been severely prejudiced if they had continued to pay his car allowance while at the same time he was making money therefrom".

[13] In the same vein, the arbitrator states the following (at page 17 of the papers):

"I have considered the evidence and argument of both parties on this point"

and also (at the bottom of page 19):

"I have rejected the employee's argument that Katsha was incompetent as a chairperson of a disciplinary enquiry because he was inexperienced, since this was not supported by evidence".

[14] This last-mentioned argument is contained in the handwritten heads of argument of the applicant which was submitted to the arbitrator (at page 37 of the papers) and reads as follows:

"In addition Mr Katsha stated that he has nothing to do with the disciplinary standards. Instead he used his discretion to weigh the facts whilst he indicated that this was his first experience there fore he did not have necessary expertise in this field".

[15] I am accordingly not persuaded that the commissioner concerned (the arbitrator in this matter) did not allow the parties to fully ventilate their disputes in that she did not consider the written arguments placed before her. Indeed it would appear that the arbitrator had given due consideration to these arguments in her arbitration award.

[16] Further in regard to the prospects of success it was argued (as it is also set out in the grounds for review) that the arbitrator concerned failed to properly interpret the transport policy of the third respondent.

[17] The main gist of the arbitrator's award appears to be that the applicant had hidden the fact that he was operating a taxi with the car that he had bought, making use of the transport policy of the employer.

[18] This dishonesty clearly weighed heavily with the arbitrator when coming to the conclusion that the dismissal of the applicant had to be upheld.

[19] The fact that the applicant never disclosed the use of the car or the registration of the motor car as a taxi until he was confronted with this issue by the employer is common cause. The prospects of success therefore do not appear to be very strong. In fact, even if it weighs equally, I have to balance the prospects of success against the long delay and the absence of a proper explanation.

[20] In the event, even though I do accept that this case is of importance to the employee, the application for condonation is DISMISSED WITH COSTS.

BASSON J

JUDGE OF THE LABOUR COURT OF SOUTH AFRICA

DATE OF HEARING : 2 DECEMBER 1998

DATE OF JUDGMENT : EX TEMPORE (edited version)

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