Makuse v CCMA (Icasa) (JR2795/11) [2015] ZALCJHB 265; [2015] 12 BLLR 1216 (LC) (18 August 2015) per A Myburgh AJ.

The Labour Court applied a stringent test and refused to condone a delay of 8 months beyond the time allowed for reviewing an award.   The prospects of success were immaterial where the delay was egregious and no compelling explanation was tendered.   Myburgh AJ examined in great detail the test to be applied after considering various earlier judgments of the Labour Appeal Court.

Excerpts without footnotes

The test for the grant of condonation

[4] Labour law litigation is unique in that it takes place within a system designed to ensure the effective (and thus expeditious) resolution of labour disputes – this being one of the primary objects of the LRA.[3] The need for this, and the implications of delays, were explained as follows by Ngcobo J in CUSA v Tao Ying Metal Industries & others[2009] 1 BLLR 1 (CC):

“The LRA introduces a simple, quick, cheap and informal approach to the adjudication of labour disputes.  This alternative process is intended to bring about the expeditious resolution of labour disputes.  These disputes, by their very nature, require speedy resolution.  Any delay in resolving a labour dispute could be detrimental not only to the workers who may be without a source of income pending the resolution of the dispute, but it may, in the long run, have a detrimental effect on an employer who may have to reinstate workers after a number of years.”[4] (Emphasis added.)      

[5] It follows from this that condonation for delays in all labour law litigation is not simply there for the taking.  But this is particularly so when it comes to delays in the launching of section 145 review applications, especially in the context of individual dismissals.  Here the courts have made it clear that applications for condonation will be subject to “strict scrutiny”, and that the principles of condonation should be applied on a “much stricter” basis.  This can be traced back to this important dictum of the LAC (per Conradie JA) in Queenstown Fuel Distributors CC v Labuschagne N.O & others [2000] 1 BLLR 45 (LAC), which was decided in 1999:

“In principle, therefore, it is possible to condone non-compliance with the time-limit.  It follows, however, from what I have said above, that condonation in the case of disputes over individual dismissals will not readily be granted.  The excuse for non-compliance would have to be compelling, the case for attacking a defect in the proceedings would have to be cogent and the defect would have to be of a kind which would result in a miscarriage of justice if it were allowed to stand.

By adopting a policy of strict scrutiny of condonation applications in individual dismissal cases I think that the Labour Court would give effect to the intention of the legislature to swiftly resolve individual dismissal disputes by means of a restricted procedure, and to the desirable goal of making a successful contender, after the lapse of six weeks, feel secure in his award.”[5] (Emphasis added.)

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[10] As an institution, the labour courts took heed of this criticism and responded to it through a range of remedial measures.  Amongst them was the introduction of a pro bono judge system in 2011, in terms of which practitioners act as judges on a pro bono basis for a week during recesses, with the specific objective being to address the back-log in review applications.  Allied to this, in April 2013, a practice manual was introduced, which contains a number of provisions (in para 11.2) aimed at speeding up the determination of reviews.  It records that a review application “is by its very nature an urgent application”, and requires review records to be delivered within 60 days of them being made available by the CCMA (or bargaining council) and for all the necessary papers in the application to be filed within 12 months of the date of the launch of the application.

[11] In addition to this, the legislature found it necessary in the 2014 amendments to the LRA (which took effect on 1 January 2015) to pass three amendments to section 145, which are specifically aimed at expediting the prosecution of review applications.  The first is that an applicant on review must apply for a hearing date within six months of launching the review (subsection (5)); the second is that judgments in review applications must be delivered as soon as reasonably possible (subsection (6)); and the third is that the institution of a review does not suspend the operation of the award, unless the applicant furnishes security to the satisfaction of the court (subsection (7)).

[12] For present purposes, the amendment requiring the applicant to apply for a hearing date within six months of launching the review stands to be emphasised.  In practical terms, it halves the time for the completion of the filing of all papers set in the practice manual.  In effect, the legislature wants reviews determined twice as fast as the target set by the court itself in its practice manual.

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Evaluation

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[16] The question then is whether the applicant (in the words of the LAC in Queenstown Fuel Distributors) has tendered a “compelling” excuse for non-compliance.  The sum total of the explanation (such as it is) is this: once the award was received by Clientele Legal (the applicant’s legal insurers) on 2 March 2011, the matter was assessed internally, with the legal advisor assigned to the matter having changed on three occasions, which caused delays; and it ultimately took much time for Clientele Legal to give the go ahead for the review and the appointment of attorneys – this in circumstances where, so it is alleged, their internal legal advisors are not familiar with the time periods for the launching of a review (a scarcely credible allegation).