IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN

In the matter between:

ANBAGAVALI MOODLEY                                 First Applicant

ROOKAMMA BISHUN                                       Second Applicant

MOGANABAL NAIDOO                                    Third Applicant

and

ACCENTURE SERVlCES ( PTY) LTD              Respondent

Heard:              16 October 2020. The matter was considered on the papers as agreed , by the parties.

Delivered       This judgment was handed down electronically by circulation to the parties and I or their legal representatives by email. The date and time for handing-down is deemed 10h00 on 22 October 2020.

Summary:         Application for Condonation

JUDGMENT

SCHUMANN, AJ

[1]                   In this matter the Applicants seek condonation for the late filing of their statement of claim under the above case number by way of Notice of Motion dated 4 January 2020. The application is opposed by the Respondent.

[2]                  The founding affidavit is deposed to by the First Applicant who avers that the Applicants  were dismissed on  31 August 2017, after which an unfair dismissal  dispute was referred to the Commission for Conciliation, Arbitration. A Certificate of Outcome referring the matter to the Labour Court, as the dispute could not be resolved, was issued on 18 October 2017. On the day on which the certificate was issued the Applicants approached the offices of Legal Aid to seek assistance.

[3]                   The  First Applicant  states that they were advised that an attorney would be allocated  to their matter  and that they received letters to call at the offices of Legal Aid to discuss the merits of their case. On 22 January 2018 they consulted with their legal representative and were requested to submit further documents to assess the "prospects of the review.’ On 28 February 2018 they consulted with their  legal  aid  attorney and submitted  further  documents  as  requested.  The following claim is then made:

"After the consultation , one of the Applicants being I terminated the mandate with Legal Aid South Africa and withdrew from the action.’

This apparently, caused some or other delay in the further process of the matter as "Our legal representative was unable to proceed with preparing of the statement of case.’

[4]                  On 5 July 2018 they again approached Legal Aid requesting that a statement of case be prepared and were advised that an application for condonation would have to be brought. The statement of case was prepared on 5 July 2018 and served on the Respondent by registered post on 7 July 2018. The only further relevant contents of the founding affidavit are the bald allegations that the Respondent had not been prejudiced by the delay and that the Applicant good prospects of success in the matter. No particularity in this regard is given.

[5]                 It would appear from the contents of the court file that the registered mail was not received by the Respondent, and was only brought to their attention when an application  for default  judgment  was filed on 22 March 2019. The Applicants' statement of case was attached to the request for the default judgment.

[6]                 The Respondent filed an answering affidavit challenging the adequacy of the explanation tendered by the Applicants and dealing fairly comprehensively with the Applicants' prospects of success. The deponent points out that the Applicants do not deny the Respondent had a rationale for embarking on a restructuring process between its departments and that the Applicants were assessed for their suitability for posts in the restructured enterprise. They were also invited to apply for  the  position  of analyst and all three of them were interviewed for such post. The Third  Applicant  was  successful  during  the interview process appointed in the role effective from 1 September 2018. She served in this position until her services were transferred to Edcon by way of transfer. No replying affidavit was delivered by the Applicants.

[7]            The  two  main  considerations  in  an  application  for   condonation   are  the reasonableness of the explanation for the delay and the Applicants' prospects of success if condonation is granted. Considerations of prejudice to the other party in respect of the preparation and presentation of its case, occasioned by the delay, are a further relevant factor. While no substantial case for such prejudice is made out by the Respondent, the Applicants have satisfied neither of the first two requirements.

[8]                  Section 191(11) of the Labour Relations Act, 66 of 1995 provides that a referral to the Labour Court must be made within 90 days after the dispute is certified as unresolved. The Applicants ought thus to have filed their statement of claim by no later than 19 January 2018. The 90 day period is not inconsiderable and gives dismissed employees wishing to proceed with the matter more than adequate time to pursue their claim barring relatively exceptional and unforeseen circumstances. While the Applicants claim to have approached the Legal Aid offices on 18 October 2017, the explanation as to why they on January 2018 (after their expiry of the relevant time period).

[9]                    While the further delay from 22 January until 28 February to  provide further documentation might be acceptable at a push, tile explanation for the period from 28 February 2018 until 5 July 2018 is difficult to comprehend . The affidavit suggests that the First Applicant withdrew from the action at some point but does not explain how or why this affected the preparation for the matter in respect of the Second and Third Applicants. The First Applicant further does not explain why she withdrew and the changed her mind and again became an Applicant in  the  matter, when this w  it  facilitated  the case  of  all three Applicants once again being placed before Legal Aid.

[10]                 The explanation for the delay is, therefore, in my view poor. Had I been persuaded that the  Applicants  a  sound prospects of success this may have compensated for the poor explanation, but no such case is made out in a very scant founding affidavit. While it is often difficult to explore the merits and prospects of success in dismissals for operational  requirements  on affidavit,  the factual background against which the dismissals took place is set out fairly extensively in the answering affidavit. In the circumstances one would have expected the Applicants to provide some indication in reply as to where they might contest the facts set out by the Respondent and provide some clarity on oath as to precisely why they contend that their dismissals were unfair. They have not done so. I am accordingly not persuaded that it would be in the interests of justice to grant condonation.

[11] In the circumstances I make the following order:

[11.1]                          The application for condonation for the late filing of the Applicants' statement of claim is dismissed.

P Schumann

Acting Judge of the Labour Court of South Africa