BEWARE OF TIME LIMITS OF REFFERAL TO THE LABOUR COURT, CONDONATIONS ARE NOT EASY, I FELT TO SHARE THIS. REFER TO THE CASE OF Bouwer v Ethekwini Municipality and Others (D134/12) [2014] ZALCD 29 (7 July 2014) 145. Review of arbitration awards (1) Any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply to the Labour Court for an order setting aside the arbitration award- (a) within six weeks of the date that the award was served on the applicant, unless the alleged defect involves corruption; or (b) if the alleged defect involves corruption, within six weeks of the date that the applicant discovers the corruption. (1A) The Labour Court may on good cause shown condone the late filing of an application in terms of subsection The purpose of the time limit in s 145 this Court has emphasised recently in a number of matters is to meet the statutory imperative of expeditious dispute resolution. Court applies the test of good cause and considers those factors identified as relevant in the case decided by the then Appellate Division of the Supreme Court in Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A). In terms of that test the Court is required to consider first, the degree of lateness then the explanation given for that lateness, the prospects of success and finally the respective prejudice that might be caused to either party. The test established in Melane has been supplemented by decisions of the Labour Appeal Court which indicate that if an applicant fails to provide a satisfactory explanation for a significant period of delay then the prospects of success are irrelevant. In other words, in the absence of a satisfactory explanation for an inordinate delay, the application for condonation must fail. The first factor that must necessarily be the subject of enquiry is the degree of lateness. Supreme Court of Appeal has emphasised on a number of occasions that an applicant seeking condonation must take the Court into his or her confidence and must set out with a degree of precision the explanation for the delay. The Courts have gone so far as to suggest that an explanation is required in respect of each day of the period of delay . In your condonation application it is further important to set out clearly, and convincingly the last two factors, prospects of success and prejudice that the Court must take into account.
Posted on: Fri, 18 Jul 2014 07:13:05 +0000
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