Sacca (Pty) Ltd v Thipe K.M. and others (JA65/98) [1999] ZALAC 12 (1 August 1999)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
1999
>>
[1999] ZALAC 12
|

|

SACCA (Pty) Ltd v Thipe and Another (JA65/98) [1999] ZALAC 12; [1999] 12 BLLR 1241 (LAC); (1999) 20 ILJ 2845 (LAC) (1 August 1999)

IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO JA65 / 98
In the matter between:-
SACCA (PTY) LTD
Appellant
and
THIPE K.M.
First Respondent
MALULEKE
Second Respondent
___________________________________________________________________________
JUDGMENT
___________________________________________________________________________
MOGOENG AJA
[1] This is an appeal against the order of the Industrial Court which
effectively condoned the Respondent’s late filing of a statement
of
case.
[2] There are essentially two issues which fall for consideration,
namely whether or not:
(a) the ruling which allowed the application to be proceeded with
is a pure or simple interlocutory order, which is not appealable;
and
(b) the Respondents’ filing of a statement of case some three
years of the referral of the dispute to the Industrial Court

requires no condonation or is condonable, even in the absence of an
application for condonation, simply because the appellant did
not
bar the Respondents after the expiry of the
dies.
[3] Logic dictates that I deal with the first issue first. The
reason being that an affirmative answer to question (a) would render
any further discussion of question (b) unnecessary since it would
dispose of the entire appeal.
The Appealability of Interlocutory Orders
[4] For the purpose of this judgment, it is not necessary to deal
with the meaning and nature of interlocutory orders. I am called
upon to decide whether this order is appealable or not.
[5] There can be no doubt that the decision to allow the Respondents
to proceed on the merits, notwithstanding the late filing
of the
statement of case was an order in the ordinary sense of the word
which, if wrong, could be corrected on appeal. The real
question is
whether it can be corrected forthwith and independently of the
outcome of the main proceedings or whether the Appellant
is
constrained to await the outcome of the main proceedings before the
decision can be attacked as one of the grounds of appeal
in which
event the decision of the Industrial Court under consideration would
be a pure or simple interlocutory order or ruling.
[6] “ The question which is generally asked ... is whether the
particular decision is appealable. Usually what is being asked
relates not to whether the decision is capable of being corrected by
an appeal court, but rather to the appropriate time for doing
so. In
effect the question is whether the particular decision can be placed
before a court of appeal in isolation, and before the
proceedings
have run their full course.” ( Nugent J
Liberty Life
Association of South Africa ltd v Niselow (1996) 17 ILJ 673 )(LAC)
at 676H
).
[7] In determining the nature and effect of a judicial
pronouncement, not merely the form of the order must be considered
but
also, and predominantly, its effect. (See
South African Motor
Industry Employers’ Association v South African Bank of Athens ltd
1980 (3) SA 91
(A) at 96H
).
[8] A judgment or order is a decision which, as a general principle,
has three attributes;
firstly
, the decision must be final in effect and not
susceptible of alteration by the court of first instance;
secondly
, it must be definitive of the rights of the parties;
thirdly
, it must have the effect of disposing of at least a
substantial portion of the relief claimed in the main proceedings.
(See
Zweni v Minister of Law and Order
1993 (1) SA 523
(A) at
532J-533A; Van Streepen & Germs (pty) ltd v Transvaal
Provintial Administration
1987 (4) SA 569
(A) at 586I-587B.)
[9] It follows, therefore, that unless an interlocutory order has a
final and definitive effect on the main action it is not a
judgment
or order. It amounts to a simple interlocutory order which is not
appealable. (See
South African Druggists ltd v Beecham Group P/C
1987 (4) SA 876
(T) at 880B-C
, a Full Bench decision which was
cited with approval in
Zweni
above). Simple
interlocutory orders were equated with rulings in
Sistag
Maschinen Fabriek AG and Another v Insamor (Pty) Ltd
1989 (1) SA
406
(T) at 408D-F
. I endorse the view that their nature and
effect is essentially the same.
[10] The courts have made a subtle shift from a strict adherence to
the abovementioned requirements and adopted a more pragmatic
and
flexible approach to a situation where a party seeks to appeal
against some preliminary or interlocutory decision which is
made by
a court before it has arrived at a final conclusion on the merits of
the dispute between the parties. Harms AJA had the
following to say
in
Zweni supra at 531J-532A:
“
The emphasis is now rather
on whether an appeal will necessarily lead to a more expeditious and
cost-effective final determination
of the main dispute between the
parties and, as such, will decisively contribute to its final
resolution.”
[11] Having referred to this passage Mahomed
CJ
captured the essence of the less rigid and modern approach
in the following terms in
Beinash v Wixley 1997 (3) 721(SCA) at
730D-F:
“
What the court does is to
have regard to all the relevant factors impacting on this issue. It
asks whether the decision sought to
be corrected would,
if
decided in a particular way
,
be decisive of the case as a whole or a substantial portion of the
relief claimed, or whether such a decision anticipates an issue
to
be dealt
with in the
main
proceedings. The
objective is to ascertain what course would best ‘bring about the
just and expeditious decision of the major
substantive dispute
between the parties’
(
Pretoria Garrison Industries v
Danish Variety Products (Pty) Ltd
1948 (1) SA 839
(A) at 868; Van
Streepen & Germs supra at 585E-J
).” (emphasis supplied)
[12] The effect of the foregoing approach in the circumstances of
the present case would be as follows:
Firstly
, the order ‘condoning’ the failure of the
Respondents to file the statement of case in time is for the purpose
of the main
proceedings, dead and buried. No evidence would be led
which could have a direct or indirect bearing on that order, no
opportunity
exists for argument to be presented on it, and it is
therefore final in effect and not susceptible to alteration by the
Industrial
Court.
Secondly
, if the decision sought to be corrected was decided
in favour of the Appellant, thereby refusing ‘condonation’, that
order
would certainly have been definitive of the rights of the
parties. That is precisely what the effect of the order of this
court
would be should the appeal be upheld.
Thirdly
, had ‘condonation’ been refused or should this
appeal succeed, such an order would necessarily lead to a more
expeditious and
cost effective final determination of the entire
dispute between the parties. The Appellant would get the same relief
as in the
main proceedings namely the dismissal of the application.
[13] Accordingly, the granting of ‘condonation’ in this matter
was the question at issue which was open to be decided in the
ordinary course of the main proceedings. That order practically put
an end to the issue in question immediately it was made and
it did
not leave the issue open until final judgment.
[14] I am therefore satisfied that an order granting ‘condonation’
of the late filing of a statement of case is in nature and
effect an
appealable interlocutory order. In
Era Bricks (Pty) Ltd v
Building Construction and Allied Workers Union and Others (25
March 1997 case no NH 11/2/12964
)
,
Myburgh
JP
decided that the granting of condonation is appealable. Kroon JA
adopted the same approach in
Gilbey Distillers & Vintners v
Mandla Shinga (9 March 1999 case No DA 14/98)
[15] This court is, therefore, at liberty to entertain the appeal
against the order made by the court
a quo.
Does failure to act in terms of Rule 29 (4) and (5) render
condonation unnecessary
?
[16] The order sought to be corrected in this appeal is very much in
the nature of an order granting condonation for the late filing
of a
statement of case. No condonation was sought by the Respondents in
the court
a quo
.
[17] The relevant facts of this case are that the Respondents were
dismissed by the Appellant on 5 February 1993. The dismissal
was
upheld by the chairman of the appeal hearing on 22 April 1993.
[18] On 29 June 1993 the Respondents referred the dispute, arising
from their dismissal, to the Industrial Court in terms of s
46(9) of
the Labour Relations Act 28 of 1956 (“the Act”).
[19] Pursuant thereto, the Registrar of the Industrial Court wrote a
letter dated 16 July 1993 to the Respondents, advising them
of the
case number allocated to their case and the other matters which
required their attention.
[20] As a result of this advice, the Respondents delivered a further
referral to the Industrial Court which was received on 18
August
1993. That was the end of the correspondence from the Respondents to
the Registrar of the Industrial Court.
[21] On 11 August 1995 one of the Industrial Court’s presiding
officers decided that the file relating to the foregoing application
be closed and that it be placed in the archives as the matter had
become ‘stale and inactive for too long and therefore aborted
by
court’.
[22] It was not until 28 February 1997 that Respondents served and
filed their application in terms of Rule 29(1) of the rules
of the
Industrial Court.
[23] Appellant filed its reply on 11 March 1997 in which it, inter
alia, objected to the matter being heard on the basis that

Respondent waited for too long before the notice of application
itself was filed. It subsequently advised the Respondents to file
an
application for condonation, explaining the delay. The Respondents
refused to do so.
[24] At the time of the hearing, the Appellant took the point in
limine it had been threatening to take. In response, the Respondents
submitted that the application was referred to the Industrial Court
in time and that it was only the filing of the application
which was
late. The essence of the Respondents’ contention was that Rule 29
(4) entitled the Appellant to bar the Respondents.
Appellant failed
to utilise this remedy and was therefore estopped from trying to
prevent them from prosecuting their application.
The court
a quo
ruled in favour of Respondents for this very reason.
[25] Unlike Rule 29 (1), Rule 10 of the Magistrates’ Court Rules
creates a sanction for failure to prosecute an action. Be that
as it
may, the principle which applies to a defendant/ respondent’s
failure to compel compliance and take further related steps
in terms
of the Rules is the same. The significance or effect of a failure to
bar a plaintiff/ applicant was dealt with by Smalberger
JA in
Manyasha v Minister of Law and Order
[1998] ZASCA 112
;
1999 (2) SA 179
(SCA) at
187A-B
in the following self- explanatory terms :
“
The fact that a defendant
who has entered an appearance to defend and requested further
particulars, or filed a plea, can utilise
the Rules to compel a
plaintiff to respond and take further steps in the prosecution of
the action does not alter the plaintiff’s
position. It may suit a
defendant, for tactical or other reasons, simply to sit back and do
nothing. But the Rule is not designed
to penalise a defendant for
inaction or a failure to take steps and bring a matter to finality.”
[26] Section 46(9) stipulates the time limit within which an
Industrial Council or a Conciliation Board should attempt to settle
a dispute. Rule 29(1) takes it a step further by making provision
for the time limit within which an applicant must deliver a notice
of application which has come to be known as a statement of case. On
the other hand Rule 29(4) sets out the punitive measures at
a
respondent’s disposal in the event of an applicant failing to
deliver a statement of case as indicated by Rule 29(1). I think
it
was in the same spirit that the President of the Industrial Court
issued Practice Note 5/1994 which provides, inter alia, that
‘
matters which have remained dormant for an unreasonable length of
time will be regarded as closed and the files dispatched
to the
archives’.
[27] The question then arises as to what purpose these provisions
were intended to serve in the first place? There can be no doubt
that the Rules of any court, which constitute the procedural
machinery of the courts, are intended to expedite the business of
the courts, (
Hudson v Hudson & Another
1927 AD 259
at 267;
Viljoen v Federated Trusts ltd
1971 (1) SA 750
(O) at 754D -E; LF
Boshoff Investments (Pty) Ltd v Cape Town Municipality (2) SA 481
(NM) at 491D - E; SOS Kinderdorf International
v Effie Lentin
Architects
1993 (2) SA 481
(NM) at 491D-E )
. Consequently, they
must be interpreted and applied in a spirit that will enhance and
facilitate the work of the courts and enable
the litigants to
resolve their disputes in as speedy and inexpensive a manner as
possible (
Ncoweni v Bezuidenhout
1927 CPD 130
; SOS Kinderdorf
supra at 491D - F
;
Herbstein & Van Winsen,
The
Civil Practice of the Supreme Court of South Africa, 4th ed. (Juta)
at 33
).
[28] Rule 29(1) does not create an obligation to file a statement of
case within the specified time limit. However, an applicant
is
obliged to file it within a reasonable time. The period of fourteen
days is sufficiently brief to serve as a meaningful indication
of
what should be regarded as a reasonable time within which to file a
statement of case. Coupled with the remedial measures at
a
respondent’s disposal, Rule 29 as a whole goes a long way to
underline the urgency which must characterise the resolution of
labour disputes. After all, the Industrial Court was established
primarily to facilitate a speedy resolution of labour disputes.
I
think that one of the primary purposes of Rule 29 is to penalise a
supine applicant. A subsidiary or complimentary purpose may
be to
bring about finality, both administratively and otherwise, to
matters where applications are referred to the Industrial Court
but
nothing done to actively pursue them. Sub-rules (4) and (5) make it
clear that such inactivity as in this case is worthy of
censure.
(See
Manyasha supra at 186H - I
).
[29] The Appellant was not only courteous enough to warn the
Respondents, well in advance, that it intended to take a point in
limine regarding their delay, but it also advised the Respondents to
apply for condonation and explain away their delay, so as
to protect
their own interests. They spurned the opportunity on the basis that
condonation was not required since the Appellant
did not bar them as
provided for in Rule 29 (4).
[30] The Respondents’ failure to file their statement of case in
time or within a reasonable time and their consequent remissness
to
prosecute their application as well as the refusal to explain the
delay makes it very difficult to understand why they were
granted
the indulgence. A delay of three years four months is by all
standards grossly unreasonable. The import of Rule 29 (4)
and (5)
has been misconstrued. The failure of the Appellant to bar the
Respondent, and thereafter to apply that the application
be
dismissed, did not render the provisions of Rule 29 (1), directory
though they may be, inconsequential. It did not excuse the
Respondents’ failure to actively pursue their application. I am
satisfied that the point in limine should have been upheld.
[31] The Respondents’ power of attorney was filed late. An
application for condonation was made. The explanation furnished for
the delay is satisfactory. Condonation is therefore granted.
[32] Accordingly I make the following order;
The appeal is
upheld with costs.
The order in
the court
a quo
is set aside and is replaced with the
following order:
“(i) The point in limine is upheld.
(ii) The application is dismissed due to an undue and unfair delay
in the prosecution thereof.
(iii) No order as to costs.”
Application for condonation of the late filing of the power of
attorney is granted and the Respondents are ordered to pay the
costs occasioned by it.
_________________
MOGOENG AJA