---

 

THE LABOUR COUR OF SOUTH AFRICA,

HELD AT CAPE TOWN

Case No: C01/2022

Of interest to other judges

 

In the matter between:

 

NUMSA OBO LEWIS SIYNA & 63 OTHERS                 First Applicant

 

And

 

JEEVES HEATED TOWEL RAILS (PTY) LTD              Respondent

 

 

 

Date of Hearing:                    31 August 2022

Date of Judgment:                6 March 2023

 

Summary: (Condonation for a late referral – dismissed on long period of non-existent or inadequately explained delay. In any event no merits pleaded to suggest any prospects of success)

 

 

JUDGMENT

 

 

LAGRANGE J

Introduction

 

[1]         This is an application for condonation for the late referral of a dismissal dispute for alleged participation in an extended unprotected strike on 12 April 2017 and related misconduct.

 

Background narrative

 

[2]         The applicants were dismissed by the respondent (Jeeves) for the participation in an unprotected strike on 25 April 2017. The dispute was unsuccessfully conciliated on 13 June 2017. On 11 July 2018, the arbitrator before whom the dispute had been set down for arbitration issued a jurisdictional ruling that the dispute concerned an alleged unfair dismissal for participation in an unprotected strike. Accordingly, the arbitrator concluded that the bargaining council lacked jurisdiction to determine the dispute as the matter had to be referred to the Labour Court, which has exclusive jurisdiction to hear such a claim in terms of section 191(5)(b)(iii) of the Labour Relations Act, 66 of 1995 (‘the LRA’). The arbitrator.

 

[3]         At that stage, the applicants were still represented by Numsa. They allege they were members of Numsa, but that Numsa terminated their membership after their case was referred to the Labour Court. A case number C 01/2022 was only issued by the registrar of Labour Court on 3 January 2022.

 

[4]         The condonation application for the late referral to the Labour Court was then filed on 17 January 2022. Since the dispute was unsuccessfully conciliated at the CCMA on 13 June 2017 the case should have been referred to the labour court within 90 days of that date, namely by 11 September 2017[1].

 

[5]         What is bizarre about the application, is that the applicants ask for condonation in advance of actually filing a referral of a statement of case. At paragraph 5.1.8 of the founding affidavit the principal applicant Mr L Siyona states:

 

“I then approached Kruger and Blignaut Attorneys who have agreed to assist us and inform us that we need to request for condonation first before the referral itself is heard. …”

(Emphasis added)

 

[6]         In other words, the application in fact is an application for condonation in anticipation of a referral still to be brought. Had the condonation application accompanied a referral on the same date the referral would already have been well over four years late at that time. It must be mentioned that despite denying knowledge of the time limits until the matter was with their current attorneys of record, the deponent to the founding affidavit admits to becoming aware of the time limits after the jurisdictional ruling of the bargaining council, which appears to contradict the main narrative about when they claim to have acquired knowledge of the deadline for referral to the court.

 

[7]         When the answering affidavit of the respondent was filed, it is apparent that the provisional nature of condonation and the absence of a referral had somehow escaped the attention of the respondent and its attorneys. The answering affidavit was premised on the erroneous assumption that the date of the filing of the condonation application on 17 January 2022 was also the date on which a statement of case was referred.

 

[8]         Clearly an application for condonation of a late referral yet to be made is irregular. Nonetheless, in the interest of avoiding further delay, the respondent was willing to argue the condonation application on the basis that the referral would be made on a date to be determined by the court in the event of a condonation ruling in the applicants’ favour.

 

[9]         Accordingly, the court has considered the condonation application on the basis that if condonation is justified, an award condoning the late referral would be made, save that the condonation ruling would automatically fall away and have no legal effect if the referral was not subsequently filed by the date determined by the court. As it happens such an order is not necessary.

 

Period of delay

 

[10]     It is also necessary to make an assumption about the period of delay, which is dealt with below. Assuming that the court makes an order requiring the applicants to file their statement of case by a certain date, and given that the application for condonation was launched on 17 January 2022, the extent of the degree of delay under consideration cannot be considered less than the period beginning on 11 September 2017 and ending on 17 January 2022, a period of about four years and four months.

 

[11]     The first point to be made is that a delay of over four years is astoundingly long and required the applicants must provide a full and reasonable explanation for the entire period of the delay[2].

 

[12]     In the founding affidavit, the first step the applicants claim that they took themselves in pursuit of their rights was on 2 May 2019, some nine months after the jurisdictional ruling of 11 September 2018. Even making allowance for an email provided only in their replying affidavit, which indicated that there was an initial approach to SASLAW in March 2019, that was still over five months after the jurisdictional ruling.

 

[13]     In May 2019 they had approached the Legal Practice Council (‘LPC’) for pro bono assistance and refer to a letter dated dated 2 May 2019 addressed to the Pro bono clinic as evidence of this. The letter itself does not set out a clear chronology of prior events, but as far back as April 2017, the applicants say they had complained to Numsa that it was not acting in their best interests.

 

[14]     On some indeterminate date a new union organiser took over the duties of the previous organiser who had resigned. They claim that the case went awry from that point, without specifying when that was, except to say that the regional organiser appears to have told them he had obtained an offer to settle their dismissal case on payment of a sum of R 500,000, presumably as a final settlement, to be divided amongst them. This would have given each of them roughly R 7,800 each, if divided equally amongst them. They rejected the proposed settlement and asked the union to proceed with their case, but the union declined, because it believed their case was weak. From the letter to Pro Bono, it appears Numsa’s decision not to proceed was conveyed to them around 16 September 2018. This is corroborated by an email of the company to Numsa confirming that the monetary offer made to the dismissed employees expired on 18 September 2018. Taking the founding and answering affidavits together, the applicants must have realised when they rejected Numsa’s recommendation to accept the monetary settlement and heard its view that their case was week, that it was not going to assist them further.

 

[15]     In the letter to the LPC the applicants also claimed that before they approached it, they tried many times to persuade Numsa to proceed with their case, even going so far as to ask the GS to assist them. No detail of when these communications took place was provided. The remainder of the letter to the LPC is incoherent as a narrative of events and appears to be dealing with the reasons for the dismissal rather than explaining the delay.

 

[16]     At best, the letter to the LPC is evidence that the applicants made some effort to get Numsa to prosecute their case after the arbitrator’s jurisdictional ruling, but there is no concrete evidence to suggest how and when such efforts were made and with whom they were dealing with from the time of the ruling in July 2018 to the approach to the LPC in May 2019, over 9 months later. It can be accepted that they knew from mid-September 2018 that Numsa had made an effort to secure a settlement which they had rejected and Numsa was unwilling to pursue what it considered to be a weak case. There is insufficient detail provided about what steps the applicants took during the seven and a half months before writing the letter to the LPC to explain the long delay.

 

[17]     Even if I were to take account of the correspondence subsequently provided in the replying affidavit, which should have been attached to the founding affidavit, it is telling that there is not a single piece of evidence of any communication with the union, to substantiate the applicants’ claim that they still tried to persuade the union to take their case after September 2018. The same correspondence shows that it was only in March 2019 that they first made some effort to prosecute the case themselves, nearly six months after the union refused to take it further.

 

[18]     Similarly, even if other correspondence attached to the replying affidavit had been dealt with in the founding affidavit, there is an inexplicable gap between obtaining advice in October 2020 that the claim had not prescribed and instructing the current attorneys of record around December 2021, more than a year later.

 

[19]     The applicants claim they were unable to secure pro bono assistance, but fail to take the court into their confidence about when they became aware LPC would not assist them.

 

[20]     They subsequently approached their current attorneys of record, who advised them they needed to obtain condonation for the late referral. No date is provided when they instructed their attorneys or why they approached them when they did. All they speak of is their difficulty in finding attorneys who would assist them at a discounted rate, without providing any details of the unsuccessful efforts they made in this regard.

 

[21]      It is only in reply that the applicant’s provided correspondence in support of their claims of trying to obtain assistance, which their current attorneys ought to have been aware should have been raised in the founding affidavit. No reason is given for not providing these details in the founding affidavit and not attaching the documents. It is trite that in motion proceedings for final relief the principle enunciated in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A), namely ‘It is correct that, where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those facts averred in the applicant's affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order.’[3]

 

[22]     As I have already mentioned, even if the Plascon Evans principle is disregarded, the extra documentation provided does not help much in explaining the delay.

 

[23]     If the overall period of unexplained, or poorly explained, periods of delay are looked at it is comprised as follows:

 

23.1       At best for the applicants, the initial period was from October 2018 to March 2019, a period of 4 months (if the application of Plascon Evans rule was ignored). At worst the initial period was from October 2018 to May 2019, a period of 6 months.

 

23.2       The second period, for which the applicants were required to provide an explanation, again assuming in their favour that the Plascon Evans rule does is not applied, started when they received an email from the law firm of Logan Martin Inc on 19 October 2020. The email effectively indicated the firm did not have a positive view of their prospects of success and advised them to obtain representation in Cape Town where the Labour is situated. The period only ends when they claimed they approached their current attorneys of record ‘around December 2021’. On the most indulgent interpretation of the pleadings this leaves an unexplained period of a year and one month. Applying the Plascon Evans rule, the second period runs from 2 May 2019 until 17 January 2022, amounting to just over two years and four months.

 

[24]     Consequently, even if the effect of the Plascon Evans rule is ignored, the applicants ought at least to have explained a period of 17 months during which the matter was in their hands and the matter did not progress. On a proper application of the rule, the period in question they should have accounted for was two years and ten months.

 

[25]     To this may be added, that there is insufficient detail of how often the applicants liaised with the Pro Bono office of the LPC once their application had been approved to satisfy the court that there is a good explanation why it took several months before the response from Logan Martin Inc, which had taken responsibility for offering them pro bono assistance.

 

[26]     I note there are sixty-four applicants, but it appears that the driving force amongst them has been Mr C Majeke. Without his efforts it seems nothing would have been done at all. I accept that efforts have been made to advance their case since Numsa refused to pursue it further. Even so, those efforts have been fitful and spread over a long period of time Allowing for the period when the matter was in the hands of the LPC Pro Bono department and Logan Martin Inc, which should have concluded much earlier that it would not assist them further, the two periods above are unexplained.

 

[27]     It is an established legal principal that where there is a long period of delay which is not explained, or inadequately explained, a condonation application may be dismissed on that ground alone, without considering prospects of success. See National Union of Mineworkers v Council for Mineral Technology [1999] 3 BLLR 209 (LAC), where the LAC stated:

 

“[10] … without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused.”

 

[28]     In Collett v Commission for Conciliation, Mediation and Arbitration [2014] 6 BLLR 523 (LAC), the LAC reaffirmed this, viz:

 

[38] There are overwhelming precedents in this court, the Supreme Court of Appeal and the Constitutional Court for the proposition that where there is a flagrant or gross failure to comply with the rules of court condonation may be refused without considering the prospects of success. In NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC) at para 10, it was pointed out that in considering whether good cause has been shown the well-known approach adopted in Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532C-D … Should be followed but:

‘(T)here is a further principle which is applied and that is without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without good prospects of success, no matter how good the explanation for delay, an application for condonation should be refused.’

 

[39] The submission that the court a quo had to consider the prospects of success irrespective of the unsatisfactory and unacceptable explanation for the gross and flagrant disregard of the rules is without merit.”

 

[29]      On the facts set out above, given that the whole delay requiring condonation is four years and four months, which is seventeen times longer than it should have taken and, applying the Plascon Evans rule, half of that is completely unexplained. Moreover, the long delay while the matter was with the LPC Pro Bono office and Logan Martin is also not adequately explained. Even if the replying affidavit is taken into account, this period remains insufficiently explained, to which must still be added a period of over a year where not explanation is offered. I am satisfied that this is a case where the sporadic efforts of the applicants to pursue their case over a long period of time, do not excuse the long intervals of inaction which are either poorly explained or not at all. Having an enduring intention to pursue a case is not enough: that intention must be manifested by a persistent pursuit of the case and not assuming a passive attitude when it does not seem to be progressing over a long period. In my view this warrants condonation being refused on these grounds alone.

 

Merits

 

[30]     Even if I am wrong that the extent of the delay and the inadequate explanation therefore is sufficient justification dismissing the application, I will briefly consider the merits.

 

[31]     In the applicants founding affidavit, virtually nothing is said of the merits save for a bald contention that they were procedurally unfair and for an unfair reason. The most information available arises from the answering affidavit and the chairperson of the disciplinary hearings detailed findings. It appears the strike was prompted by disciplinary action being taken against two shop stewards who were eventually dismissed. The shop stewards’ dismissals were upheld as being fair when they were referred to arbitration. On the pleadings it is clear the strike was unprotected and prima facie should not have provoked strike action. I infer this from the shop stewards’ dismissals having been found to be fair and in the absence of the applicants advancing any reason why they believed disciplining the shop stewards was unfair. I also note that it is common cause that the applicants’ union was not prepared to litigate over their dismissals once a settlement could not be achieved. I cannot take account of the findings of the chairperson, since it is material introduced for the first time as an attachment to the applicants replying affidavit. If I did it would not help the applicants anyway.

 

[32]     In short, the applicants simply have not even made out a prima facie case why their dismissals might have been unfair. Accordingly, even if I had regard to the merits of the case, it would not alter my conclusion that the condonation application should be refused.

 

Order

 

[33]     The application to condone a late filing of the Applicants’ statement of case is dismissed.

 

[34]     No order is made as to costs.

 

 

Lagrange J

Judge of the Labour Court of South Africa

 

Appearances:

 

For the Applicants:                    D Chamisa

Instructed by:                            Kruger & Blignaut Attorneys

 

For the Respondent                  C Bosch

Instructed by:                            Nirenstein Attorneys Inc.

 

 

---