Satawu v SA Airways (Pty) Ltd (JA54/13) [2014] ZALAC 40; [2015] 2 BLLR 137 (LAC) (14 August 2014)
per Tlaletsi DJP [ Coppin and Sutherland AJJA concurring].
The LAC condoned the late filing of a statement of claim because the explanation for the delay, given the circumstances, is reasonable. Regarding the prospects, the issue in dispute relating to alleged discrimination that could not be justified, the employer bears the onus to prove that it was not discriminatory. The employment equity policy document is important and without it the LAC could not say the claim is without merit.
LAC summary:
Condonation for the late filing of the statement of claim in respect of claim in terms of the Employment Equity Act, 55 of 1998 (EEA).
Appellant filing statement of claim after CCMA ruling that it lacked jurisdiction. Appellant contending that the 90 day period to refer dispute for adjudication starts from the date when the jurisdictional ruling was issued.
Appellant further contending that section 10 of EEA not prescribing a time period for referral. Requirements that after failed conciliation dispute must be referred for adjudication within the 90 day period restated and confirmed previous decision of this court that the reasonable period for bringing a claim in terms of the EEA was 90 days.
However, explanation for the delay, given the circumstances, is reasonable- as regards the prospects, the issue in dispute relating to unfair discrimination- the employer bears the onus to prove the fairness of the discrimination- in casu, employment equity policy document important- in absence of cannot conclude at condonation stage that the claim does not have good prospects.
To be reported in [2015] 2 BLLR February issue (LAC)
Melane – flexible discretion for condonation
In 1962 the then highest court wrestled with when to condone court applications that were filed late or did not comply with the rules. One of giants of the court, Holmes JA, formulated an approach in his own inimitable way. It has been consistently adopted and followed. He decided that formulating a rule of thumb would only serve to harden the arteries. In the absence of any prospects of success there would be no point in granting condonation. A flexible discretion is required in deciding whether sufficient cause has been shown. The discretion must be exercised judicially after an objective overview and consideration of all the facts. There must be fairness to both sides. A piecemeal approach is incompatible with a true discretion. Ordinarily facts are not individually decisive and the following interrelated facts are relevant:
• degree of lateness,
• explanation therefor,
• prospects of success, and
• importance of the case.
Melane v Santam Insurance Company Ltd [1962] 4 All SA 442; 1962 (4) SA 531 (AD) per Holmes JA (Hoexter JA, Beyers JA, Ogilvie Thompson JA and Botha JA concurring) [Note: An in forma pauperis appeal with Adv S Kentridge appearing for the appellant.