Gilbey Distillers & Vintners (Pty) Ltd v Mandla Shinga (DA14/98) [1999] ZALAC 5 (9 March 1999)

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[1999] ZALAC 5
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Gilbey Distillers & Vintners (Pty) Ltd v Mandla Shinga (DA14/98) [1999] ZALAC 5 (9 March 1999)

IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD AT DURBAN)
CASE NO: DA14/98
IN THE MATTER BETWEEN:
GILBEY DISTILLERS & VINTNERS (PTY) LTD APPELLANT
AND
MANDLA SHINGA RESPONDENT
______________________________________________________________________________
JUDGMENT
______________________________________________________________________________
KROON JA
:
[1] The respondent was summarily dismissed from his employment with
the appellant on the grounds that he had committed theft. He
disputed the fairness of the dismissal. The compulsory charade of
conciliation board proceedings came to an end on 1 November 1996.
In
terms of section 46(9)(b)(ii) of the Labour Relations Act No 28 of
1956 (“the Act”) any referral by the respondent of the
dispute to
the industrial court was required to be done by 30 January 1997.
That step was in fact taken on 14 March 1997, i.e.,
the referral was
forty-three days out of time. The appellant took the point that the
industrial court accordingly had no jurisdiction
to entertain the
application. The respondent sought condonation of the late referral.
The industrial court (per BOLTON AM) granted
the application for
condonation.
[2] That grant is the subject of this appeal;.
[3] The first issue requiring decision is whether the order of the
industrial court is appealable. Authority going in both directions
was quoted during the debate at the Bar. In particular Mr VAN
NIEKERK, for the appellant, relied on the decision of MYBURGH
JP,
sitting in the former Labour Appeal Court (Witwatersrand Local
Division) in the matter of
Era Bricks (Pty) Ltd v Building
Construction and Allied Workers Union and Others
(25 March 1997,
unreported, appeal in case no. NH 11/2/2 5861). After a review of
a number of authorities MYBURGH JP came down
on the side of the
view that an order such as that in issue
in casu
is
appealable. Mr KHANYILE, for the respondent, very properly drew our
attention to a further unreported judgment given by MYBURGH
JP in
the same court on 14 November 1997 in the matter of
African
Commerce Developing Company v SACWU
(appeal in case no. 11/2/1
2964). The same issue arose in that case. MYBURGH JP held that
his conclusion in the
Era Bricks
case was correct and he
followed the same approach. Mr KHANYILE sought, however, to
persuade us that these cases had been wrongly
decided.
[4] For reasons that will appear presently it is unnecessary to
enter into this debate. I will assume, without deciding, that
the
order of the industrial court is appealable.
[5] The principles applicable to the grant or refusal of condonation
such as that in issue
in
casu
were laid down in the
case of
Melane v Santam Insurance Company Ltd
1962 (4) SA 531
(A). In deciding whether good cause for condonation has been shown
the court will look at,
inter alia
, the degree of lateness,
the explanation therefor, the applicant’s prospects of success on
the merits and the importance of the
case to him. Prejudice to the
opposing party must be considered and weighed. At the end of the
day the court, after having regard
to all relevant considerations,
makes a value judgment as to what would be fair to both parties.
[6] In essence the respondent’s explanation for the late referral
of the dispute to the industrial court was the following:
(1) After his internal appeal against his dismissal failed he
instructed a firm of attorneys, Messrs Motloli Mdledle and Partners,
to pursue the matter in the industrial court;
(2) Those instructions were given prior to the conciliation board
proceedings; and everything was left by him in the hands of his
attorneys;
(3) During February 1997 he called on his attorneys and was advised
by Mr Mdledle that he would hand the matter over to Mr Shangase,
of
the respondent’s present firm of attorneys, whom he described as
“an expert on labour matters”; thereafter he, Mr Mdedle,
would
withdraw as the respondent’s attorney;
(4) During March 1997 he attended on Mr Shangase. On 7 March 1997
the latter addressed a letter to Mr Mdledle. Therein,
inter
alia
:
(a) receipt of certain documents forwarded by Mr Mdledle was
acknowledged;
(b) the fact that the Act laid down certain time limits for referral
of the matter to a conciliation board and thereafter to the
industrial court was recorded;
(c ) by implication, copies of documents relating to such referrals
were requested;
(5) He, the respondent, was unable to say why his erstwhile
attorneys had, despite his timeous instructions, failed to refer the
matter to the court
a quo
in time; it must, however, have
been due to their ineptitude and negligence; had they acted
promptly, a timeous referral would
have been effected; it was
through no neglect of his own that there had been a failure in that
regard; he should not suffer for
the neglect of his attorneys.
[7] Mr VAN NIEKERK advised us from the Bar that he would not be
contending that the respondent did not have prospects of success
on
the merits. Similarly, the present is not a case where prejudice to
the appellant is a consideration. Indeed, the allegation
by the
respondent in his affidavit filed in support of the application for
condonation that the delay in referring the matter to
the industrial
court was unlikely to occasion the appellant any prejudice, was not
placed in dispute by the latter. Further, Mr
VAN NIEKERK did not
seek to contest that the matter was one of importance for the
respondent.
[8] What was argued was that the delay in question was inordinate
and that the explanation tendered therefor was deficient, and
that
those factors, seen in the light of certain other considerations,
were sufficient to non-suit the respondent in the matter
of
condonation.
[9] As to the sufficiency of the explanation it was contended that
it was vague and lacking in particularly in material respects.

Counsel pointed to
- the absence of information as to what occurred between the
termination of the conciliation board proceedings and the
respondent’s
visit to his attorneys during February 1997;
- the non-disclosure of the exact date in February 1997 on which the
respondent reverted to his attorneys;
- the lack of an explanation why the respondent did not contact his
attorneys in the interim;
- the lack of an explanation for the delay in consulting his new
attorneys;
- the absence of an indication whether there was a response by the
former attorneys to Mr Shangase’s letter of 7 March 1997 and,
if
so, the content thereof;
- the absence of a supporting affidavit by Mr Mdledle or,
alternatively, a statement that attempts to secure such an affidavit
had proved fruitless.
The contention was that in the absence of a full and complete
explanation it could not be said that none of the ineptitude or

remissness that gave rise to the delay was to be attributed to the
respondent or that he himself was sufficiently diligent in his
claim.
[10] The nonchalant attitude by which the respondent’s prosecution
of the litigation in question was characterized, was, so counsel
argued, further underlined by the fact that:
- a further period of 120 days, considerably in excess of the period
provided for in the rules of the industrial court, elapsed
before
the respondent’s statement of case was filed in the court
a
quo
;
- despite the appellant’s response thereto - which in the first
place took the point
in
limine
that the respondent
should be non-suited by reason of the late referral of the dispute
to the industrial court - having been filed
on 8 August 1997, the
application for condonation was only filed on 4 March 1998, i.e.,
two days before the date of hearing.
These delays, which enjoyed no explanation in the papers, were, so
counsel contended, additional relevant considerations militating
against the court granting the respondent the indulgence of
condonation.
[11] Counsel’s submissions had considerable merit. At the end of
the day, however, I am, for the reasons that follow, not persuaded
that they should prevail.
[12] I agree that the delay of forty-three days was not
insubstantial. I consider, however, that it is not properly to be
categorised
as having been so inordinate that by itself it merits
the refusal of condonation.
[13] I agree further that the charge of lack of particularity in the
respects contended for by counsel was validly levelled. However,
in
my judgment sight should not be lost of the following
considerations:
(1) It may be safely assumed from the contents of the record that
the respondent is an unsophisticated man who knew nought of the
requirements of the rules of the industrial court; he was
accordingly fully justified in leaving the matter in the hands of
his
attorneys;
he did give his attorneys timeous instructions.
(2) It is cause for comment that, as may be inferred from the
papers, the respondent let more than two months go by after the

termination of the conciliation board proceedings before he was in
contact with his attorneys as to the progress of the matter;
the
effect thereof is in my view not to be overstated, however, and does
not justify the respondent’s being tarred with the
brush of a lack
of diligence sufficient to non-suit him;
(5) Some support for counsel’s reliance on the absence of an
affidavit from Mr Mdledle and of an indication that attempts to
secure same did not meet with success, is to be found in the
decision of this court in
Glansbeek v JDG Trading (Pty) Ltd
[1998] 3 BLLR 223
(LAC). In that case the applicant had engaged the
services of a labour consultant (Mr Daniels). At issue was,
inter alia
, condonation for the defective and late filing of a
notice of appeal and leave to lead further evidence on appeal. The
applicant
sought to lay the blame in respect of the notice of appeal
and the failure to lead the evidence in question in the court
a
quo
at the door of Daniels. It was held that the applicant
ought, firstly, to have secured an affidavit from Daniels (to
support the
averment that it was he who had been negligent) or,
alternatively, to have stated that unsuccessful attempts had been
made to secure
such an affidavit (which would have supported an
inference that Daniels had been negligent) and, secondly, to have
explained why
in the first place he saw fit to engage the services
of Daniels. The present case is, however, to be distinguished.
Firstly,
it cannot legitimately be required of a litigant to explain
why he consulted a particular firm of attorneys; he can surely
accept
that the attorneys are proficient in the branch of the law
involved, unless they indicate the contrary to him. In the present

case, the respondent’s erstwhile attorneys did, albeit indirectly,
indicate to him that labour law was not their forte (the statement
that Mr Shangase was an expert in that field refers), but they did
so only after the date for referring the dispute to the industrial
court had come and gone. Secondly, the referral of the dispute to
the industrial court would have been a relatively simple matter;
the
failure of Mr Mdledle to attend thereto in the circumstances
justified the inference of ineptitude on his part or a negligent
lack of diligence or both.
(4) The present is accordingly not a case where the respondent was
personally at fault; and this is not a proper case where the
litigant must be made to bear the results of his representative’s
negligence.
[14] The respondent’s further delay in filing his statement of
case is a relevant consideration. However, the rules make
provision,
where there has been such a delay, for the opposing party
to apply for an order compelling the filing of the statement of
case.
That the appellant in this matter did not see fit to do. In
the circumstances the delay in question is of little assistance to
it.
[15] As to the delay in bringing the application for condonation, it
is true that this Court, in common with the other courts of
this
country, has adopted the approach that an application for
condonation should be filed as soon as the need to seek same arises.
This Court has also required a failure to do so to be explained.
In casu
there was both a substantial delay and a failure to
explain same. That does not, however, have the inevitable result
that condonation
must be refused. Delay in bringing an application
for condonation and a failure to explain same are considerations to
be put into
the melting pot. It need hardly be stated, however,
that these issues do not, and cannot, bear the same importance as
the delay
for which condonation is sought and the explanation
therefor.
[16] Mr VAN NIEKERK sought to stress that a refusal of condonation
in this matter would not leave the respondent remediless. It
would
be open to him to seek appropriate redress from his erstwhile
attorneys. That may be so, but this condonation cannot found
a
refusal of condonation where it should otherwise be granted.
[17] I place on record that despite the form of the discussion of
the various relevant considerations set out above, my approach
has
not been a piecemeal one; I have had regard to a conspectus of the
cumulative effect of all the circumstances.
[18] Applying a value judgment as to what would be fair to both
sides I have come to the conclusion that condonation was properly
granted by the industrial court in this case. Certainly, I have not
been persuaded that the decision of the court
a quo
was
wrong.
[19] The appeal is accordingly dismissed with costs.
___________
KROON JA
I agree
_____________
NGCOBO AJP
I agree
______________
CONRADIE JA
Appearances:
Appearing for the appellant
: G.O. VAN NIEKERK instructed by
Syfret Godlonton-Fuller Moore Inc.
Appearing for the respondent:
S. KHANYILE of Mathe &
Zondo
Date of Hearing
: 24 February 1999
Date of Judgment
: 09 March 1999
This judgment is available on the Internet at the following website:
http//www.law.wits.ac.za/labourcrt.