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IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT CAPE TOWN

CASE NO: C18/2006

In the matter between:

ANTONY CLIVE PEKEUR APPLICANT

and

SAFETY AND SECURITY SECTORAL

BARGAINING COUNCIL 1st RESPONDENT

A C E REYNOLDS 2nd RESPONDENT

MINISTER OF SAFETY AND SECURITY 3^rd RESPONDENT

JUDGMENT

NEL, AJ

[1] This is an application in which the applicant seeks to review and set aside an award of the second respondent (“the Commissioner”} which was handed down on 9 September 2004 under case number PSSS52-03/04 under the auspices of the first respondent.

[2] The applicant, a Sergeant in the South African Police Service, was charged in and during April 1997 with corruption and defeating the ends of justice. On 18 February 1999, the applicant applied in terms of Treasury Instructions for the State Attorney to conduct his defence in the criminal proceedings and to have the costs associated therewith paid for by the State.

[3] On 26 February 1999, the State attorney refused this application for legal assistance. The applicant then employed the services of a legal representative and incurred legal fees of some R42 656. The case against the applicant was however in 2002 withdrawn and the applicant then applied in terms of a standing order for a refund of his legal costs incurred. In June 2003 the applicant’s employer declined this application. This led to the applicant referring a dispute to the first respondent in terms of Section 186(2)(a) of the Labour Relations Act (“the LRA”) relating to the provision of a benefit to the applicant.

[4] The papers before this Court reflect that the award in the matter was delivered to the parties on 13 September 2004. In the premises, the applicant was obliged to file his review on or 15 October 2004. The applicant only filed his review application herein on 23 January 2006, some 60 weeks or approximately 15 months late. He has accordingly sought condonation for the late filing of his review application.

[5] In determining whether to grant condonation, it is fairly trite that this Court will have regard to the degree of lateness, the explanation for the lateness, the prospects of success and the importance of the case. There is no question that the degree of lateness herein is excessive in the extreme. Clearly a full acceptable explanation for the lateness is called for.

[6] Right from the outset one gains the impression that both the applicant and his union who represented him at the time did not take the applicant’s matter seriously. I say this by reason of the fact that the applicant says in his founding affidavit that the award was forwarded to his Union representative, a Mr Hickley, on 13 September 2004, but that it only came to his attention approximately three weeks later. No explanation is given for this already long period of delay in the communication between the applicant and his union.

[7] The applicant then proceeds to state that, on receipt of the award, he reasonably believed that Popcru, the Union who assisted him throughout, would take the matter further as he was dissatisfied with the ruling of the arbitrator. The Court is not advised whether any discussion took place between the applicant and his union. Such discussion is of course very material to the consideration whether to grant condonation herein or not, as the Court would have appreciated being advised whether the applicant instructed his union to have the arbitrator’s award reviewed.

[8] Startlingly, some two months later the applicant says that when nothing had been heard from Mr Hickley he, on 9 December 2004, approached a friend working for a firm of attorneys “to analyse if (his) matter constitutes an unfair labour practice or a civil claim and take the necessary steps.” The applicant confirms that this was not a formal instruction to the attorneys, but when he heard nothing from the friend, the applicant says he decided not to follow up with the attorneys.

[9] The applicant then advises that to formally instruct attorneys was not an option as he could not afford to do so. Yet another month later, in January 2005, the applicant says that he approached the provincial office of Popcru with the request that the matter be taken further. Yet again this statement, that he had requested Popcru to take the matter further, is clouded in uncertainty. The applicant advises that as he had no knowledge of what the next steps would be, he merely left a copy of the award at the Popcru provincial office with a secretary who promised to forward the documents to the provincial secretary.

[10] What is most damning of the applicant’s prospect of condonation being granted is that some six to seven months passed before he addressed a letter to the Union in which he allegedly registered his dissatisfaction with the lack of communication from their side. According to the applicant it was only at this point in time that he learnt that the document which he had handed to the Secretary had not been handed to the provincial secretary of the Union. The applicant says that he personally handed his request to Popcru that the matter be referred to its national office for the appointment of lawyers to the Union on 1 August 2005.

[11] The applicant advises one that it allegedly takes Popcru national office at least two to three months to assess a member’s request that a matter be taken on review and to appoint legal representatives. He however does not inform the Court of any steps he took, in light of the fact that the matter had now already been grossly delayed, to expedite the matter. The applicant advises that it took Popcru about three months to consider the prospects of sending the matter on review and reverting to him with its decision. From this allegation of the applicant’s, one must assume that the applicant was advised by Popcru of its decision towards the end of October 2005 or the beginning of November 2005. He however alleges in his affidavit that it was only on 12 December 2005 that the Popcru national office wrote to inform him that they had mandated attorneys to take the matter on review. Once again, there is a period of some five to six months delay for which the applicant simply tends the proposition that it normally takes about two to three months for his Union to act on matters such as this.

[12] As I have already said, the period of delay herein is excessively lengthy. It is very trite that the explanation tendered by an applicant for condonation must be sufficiently full to enable the Court to determine what caused the delay as well as what steps an applicant took during the period of lateness in order to move his matter forward. There must also be an acceptable explanation tendered in respect of each period of delay.

[13] It is an accepted fact that the whole framework of the Labour Relations Legislation has been structured such that it would enhance the expeditious resolution of disputes. It was clearly with this objective in mind that the legislature has set specific time periods within which a party must perform specific acts or take certain steps to bring a matter to finality. Where a party is late in doing so and accordingly seeks an indulgence from the Court to have the non-compliance with the time periods condoned, the excuse for non-compliance must be compelling. I have found the explanation tendered by the applicant for the late filing of his review application herein to have been particularly unpersuasive. It is in fact vague and devoid of the necessary particularity to enable me to come to the conclusion that the delay in bringing the review application herein has been reasonable to an extent which justifies the lateness being condoned. In fact this is the kind of matter where the explanation tendered for the lateness is so feeble that I do not believe that the enquiry needs to progress any further to include the consideration of the prospects of success. I am of the view that this is a matter where the delay by the applicant in prosecuting his review application has been so excessive and so gross that in the absence of a very good explanation for the various periods of delay herein it justifies a conclusion on my part that condonation should not be granted. No reasonable person in my view will be able to conclude on the facts placed before this Court that the applicant could reasonably be held to be serious in the prosecution of his review application.

[14] Parties will be well advised not to think that condonation is there simply for the asking. In considering condonation applications, the intention of the legislature to have disputes swiftly resolved remains of paramount importance. It is wholly inexcusable for any party wishing to attack an award by way of review proceedings to take steps in two to three month intervals without fully explaining the delays in taking these steps. To approach the Court with flimsy excuses and an absence of exhaustive and satisfactory reasons for the delays and expect to have his or her matter heard years after the alleged unfair labour practice has purportedly been perpetrated by the employer amounts to a flagrant disregard of the processes of this Court. The event, which gave rise to this whole incident herein, took place more than ten years ago. The alleged unfair labour practice by the employer party occurred in June 2003. That is some four years ago. It most certainly was not the intention of the legislature that matters should drag on for so long and I am of the view that the applicant herein for condonation has failed dismally to make out a case for condonation for the late filing of his review application herein.

[15] Turning to the issue of costs, I do not believe that any circumstances have been placed before the Court which would justify a cost order other than that it should follow the result. Accordingly the following order is made:

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

2. The review application is dismissed.

3. The applicant is ordered to pay the third respondent’s cost of suit herein.

DEON NEL

ACTING JUDGE OF THE LABOUR COURT

Date of hearing: 29 May 2007

Date of Judgment:

Appearances:

For the applicant: Miss Tapiwa Gandidze of Cheatle Thompson and Haysom.

For the third respondent: Advocate E A de Villiers-Jansen instructed by the State Attorney.

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