NEHAWU v Nyembezi (PA1/97) [1999] ZALAC 31 (3 March 1999)

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[1999] ZALAC 31
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NEHAWU v Nyembezi (PA1/97) [1999] ZALAC 31; [1999] 5 BLLR 463 (LAC) (3 March 1999)

IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD
AT PORT ELIZABETH)
CASE NO: PA 1/97
IN THE MATTER
BETWEEN:
NEHAWU APPLICANT
AND
MICHAEL
NYEMBEZI RESPONDENT
______________________________________________________________________________
JUDGMENT
______________________________________________________________________________
KROON
JA
:
[1] On 11 February 1999 this Court issued an
order dismissing an application for the condonation of the failure to
comply with the
relevant rules of court relating to the noting and
prosecution of an appeal against a decision of the industrial court.
The dismissal
of the application carried with it an order for costs,
to include the costs incurred in connection with the appeal. It was
intimated
that the reasons for the issue of the order would be
furnished later. These are they.
[2] In terms of the
then applicable rules of the industrial court the appeal should have
been noted within 14 days of 27 November
1996. It was in fact noted
on 8 January 1997.
[3] The affidavits
filed in support of the application for condonation of the late
noting of the appeal advance as reasons therefor
the need to secure,
and the delay in securing (due to certain logistical problems), the
approval of the applicant’s National Executive
Committee for the
appeal to be noted; the unavailability for a period thereafter of the
applicant’s attorney; the closure thereafter
of the attorney’s
offices for a period during the holiday season; and the ignorance of
the applicant’s representative of the
time limit prescribed by the
rules in respect of the noting of the appeal.
[4] In some respects
the explanation tendered is unsatisfactory. E.g., it is not
explained why the applicant did not seek the assistance
of one of the
partners of the attorney whom it wished to engage. On balance,
however, it may be accepted that the explanation passes
muster.
[5] However, what is not explained is the delay
in filing the application for condonation of the late noting of the
appeal. In common
with other courts this Court has laid down that an
application for condonation should be filed as expeditiously as
possible after
the need to seek condonation arises. See, e.g.,
All
Round Tooling (Pty) Ltd v NUMSA
[1998] 8 BLLR 847
at 849H-J. The relevant notice of motion is dated
20 February 1997, itself a date considerably long after the date by
which the
appeal ought to have been noted. The application was,
however, not filed then. That only occurred after 15 April 1997, the
date
on which the supporting affidavits were attested. No
explanation for this delay was forthcoming, and it cannot accordingly
be condoned.
[6] The power of
attorney to note and prosecute the appeal was (a) filed out of time
(it was dated 10 April 1997), and (b) referred
to an appeal to be
heard in the relevant provincial division of the former Labour Appeal
Court. No condonation for these defects
was sought and accordingly
none can be granted.
[7] Condonation is,
however, further sought in respect of the late filing of the record
on appeal and of the applicant’s heads of
argument. The former was
required, in terms of the relevant rules, to have been filed within
60 days of the noting of the appeal.
It was in fact only filed
during August 1998. That the delay in question was exceedingly long
is manifest. The explanation proffered
therefor may be summarised as
follows:
(a) The request of the applicant (through its
attorneys) for the record and tapes of the proceedings in the
industrial court was not
made until more than a month after the date
on which the record should have been filed. Initially the request
was directed to the
wrong court.
(b) Financial
constraints prevented the applicant from being in a position to pay
for the transcription of the evidence given in
the industrial court
until the end of January 1998; the transcription itself was received
on 10 February 1998.
(c ) The record could,
however, not be filed at that stage because copies of the exhibits
had to be prepared and the applicant’s
attorneys had not yet been
placed in possession of the pleadings and other documents filed of
record in the industrial court. Same
had to be obtained from the
registrar of the industrial court in Pretoria. There followed, over
a period of some months: the filing
of a record that was not bound,
paginated or indexed; the retrieval thereof by the applicant’s
attorneys; delays in forwarding
the record for binding and pagination
and delays, after receipt of the properly prepared record, in the
filing thereof.
The heads of argument, which should have been
filed by 27 November 1998, were in fact filed on 2 December 1998. The
explanation therefor
was, in short, that counsel could only be
briefed on 25 November 1998 to draft the heads of argument by reason
of the applicant’s
failure, despite repeated requests from its
attorneys, over an extended period of some months, to make the
required funds available
to its attorneys. That failure was in turn
ascribed to the financial constraints under which the applicant was
labouring.
[8] The application for
condonation of the late filing of the appeal record and of the
applicant’s heads of argument was only filed
on 5 February 1999,
i.e., four court days before the date assigned for the hearing of the
appeal, and a considerable period after
the need to seek condonation
in both respects arose.
[9] The following
comments fall to be made:
(a) Whatever the financial constraints under
which the applicant was labouring, the inference from the papers is
that it deliberately
chose the make the appeal in this matter
subservient to other demands on its resources; this applied both to
its duty to file the
record and to enable counsel to be briefed
timeously to permit of the heads of argument to be filed by due date.
It is not unfair
to hold that the applicant should bear the
consequences of that deliberate decision;
(b) While the delay in
filing the heads of argument was not substantial, the delay in filing
the record can only be described as inordinate;
(c ) Included in the
total period of that delay were a number of periods, of cognizable
length, where the failure to take any action
was not explained at
all. There are also instances where wrong action taken was not
explained, viz., the initial request to the
wrong court for the
record and tapes of the proceedings in the industrial court and the
filing of a record that was not bound, paginated
or indexed. As
already stated, what has not been explained cannot be condoned.
(d) There is no
explanation for the delay in filing the application for condonation.
Again, it follows that no condonation thereof
can be granted.
[10] The cumulative
effect of all the respects in which the applicant failed to comply
with the applicable rules, in some instances
grossly so, and the
failure to explain same, was such that this Court was not called upon
even to consider the applicant’s prospects
of success in the
appeal, but was required summarily to refuse the application for
condonation together with the costs order referred
to earlier.
___________
KROON JA
I agree
________________
FRONEMAN DJP
I agree
______________
CONRADIE JA
Appearance for
Appellant: Mr TALJAARD
Instructed by Smith Tabota-Barnes & Ross
Appearance for
Respondent: Mr WADE
Instructed by Marshall & Kaplan
Date of Hearing: 11
February 1999
Date of Reasons: 3
March 1999