SAMWU obo K Shongwe v Moloi NO
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Phatshoane ADJP and Coppin JA and Kathree-Setiloane AJA |
| Judgment Date | 26 February 2021 |
| Court | Labour Appeal Court |
| Docket Number | JA81/19 |
Coppin JA:
This is an appeal against an order of the Labour Court (Lagrange J), with the leave of that court, dismissing both, an application for condonation of the late filing of a notice in terms of (Labour Court) Rule 7A(8)(b) and the related application to review a jurisdictional ruling of the first respondent, acting under
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the auspices of the second respondent, and made in favour of the third respondent.
The third respondent is the only party opposing the appeal. A cross-appeal noted by it, and in respect of which it has also filed an application for the condonation of its lateness, was expressly abandoned by counsel on its behalf at the hearing on 7 December 2020 and was not proceeded with.
Background:
The appellant union, SAMWU, acting on behalf of its members, Mrs. K Shongwe and 45 others, employed or formerly employed in the Johannesburg Metropolitan Police Department of the third respondent("JMPD") and then assigned to its Corporate and Shared Services Department, and the third respondent are in dispute about whether the said individual members are entitled to payment in terms of a collective agreement concluded between the appellant union and the third respondent on 28 June 2008 in respect of minimum salaries payable to Metro police officers ("the settlement agreement"). The third respondent has denied that the settlement agreement applies to Mrs K Shongwe and the 45 others.
On 17 July 2013, the appellant referred the dispute, concerning the interpretation and application of the settlement agreement, to the second respondent, the Commission for Conciliation, Mediation and Arbitration (CCMA). The referral form is dated 28 June 2013.
Following an unsuccessful conciliation, on 2 August 2013, the dispute was referred for arbitration that was to commence on 4 February 2014 and to be presided over by the first respondent. At the arbitration, the third respondent raised a technical point at the outset to the effect that the claims of the individual employees (presumably arising from the settlement agreement) had prescribed and that the arbitrator, consequently, did not have jurisdiction to entertain the matter.
On 6 February 2014, the arbitrator handed down a written jurisdictional ruling upholding the point ('the ruling"). In the ruling, the arbitrator describes the
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issue that had to be determined as one which required him to "establish whether the claim had prescribed in terms of the Prescription Act and if so, whether the CCMA has jurisdiction to hear the matter". The arbitrator ruled, in particular, the following: (a) Even if he were to rule that the employees in question were employed by the JMPD, as conceded by the third respondent's representative, the claim had prescribed and the CCMA lacked jurisdiction to deal with the application of the settlement agreement "as per section 15 of the Prescription Act"; and (b) that the application was dismissed.
Unaccepting of that ruling, the appellant launched proceedings in the Labour Court on 25 March 2014 to review and set it aside. The third respondent opposed that application.
According to the appellant, the CCMA delivered the record of the arbitration proceedings, subsequently found to be defective, to the Registrar of the Labour Court on 2 April 2014. After the Registrar had notified the appellant's erstwhile attorneys (CHSM attorneys, Mr Sicelo Mngomezulu) that the record had been filed, those attorneys had communicated with the third respondent by letter dated 30 May 2014 informing it, inter alia, that the record was defective in that the compact disc (CD) that had been filed was empty, and had requested an indulgence to afford the CCMA a further opportunity to release complete records. The third respondent replied by letter dated 17 June 2014, inter alia, urging that the review application be expedited.
During June 2014, the appellant terminated the mandate of their former attorneys and engaged new attorneys (Maenetja Attorneys) who requested the previous attorneys to hand over the appellant's files by July 2014. The former attorneys advised that the hand over could only occur upon settlement of their account.
According to the appellant, the account was settled on 15 July 2014. The new attorneys (particularly, Mr Happy Magoma) then arranged a consultation with counsel for 18 July 2014.
On 22 July 2014, allegedly acting on counsel's advice, the appellant, now assisted by new attorneys (Maenetja Attorneys) caused a letter of demand to
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be served on the third respondent in which payment of monies was claimed, alleged to be owing to its members in terms of the settlement agreement and totalling more than R22 million.
On 28 August 2014, supposedly in pursuit of that demand, the appellant filed a statement of claim in the Labour Court in which those monies were claimed from the third respondent.
The third respondent defended the claim and successfully raised a plea of lis alibi pendens, resulting in the claim being dismissed by the Labour Court on that basis on 22 February 2016. An application for leave to appeal against that dismissal was refused on 11 August 2016.
Shortly thereafter the appellant filed the record of the CCMA arbitration in the review proceedings that it had instituted earlier. The third respondent, in response, filed an application in terms of rule 11 of the Labour Court Rules in which it sought dismissal of the review application because of the delay in its prosecution. The appellant opposed that application and filed answering papers.
As the review application the appellant had brought was late, and because the record and supplementary affidavit, and particularly the notice in terms of rule 7A(8)(b) of the Labour Court's Rules, had also been filed late, the appellant also brought an application(s) for condonation of the same.
Hearing in the court a quo:
The condonation applications, i.e., for the late bringing of the review, and for the late filing of the rule 7A(8)(b) notice, the rule 11 application, the application to dismiss it, and the appellant's review application were set down to be heard and disposed of by the Labour Court in the same sitting.
In respect of the condonation for the late filing of the review, the Labour Court concluded the following: the ruling of the arbitrator was issued on 6 February 2014, but was only received by the appellant on 10 February 2014; the review application, which was launched on 26 March 2014, was only two days late;
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the delay of two days was trivial and the late filing of the review ought to be condoned.
The Labour Court reasoned that the rule 11 application for the dismissal of the review application and the second condonation application (i.e. essentially to condone the delay in the prosecution of the review) were "inextricably linked". Having considered the...
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