Rademan v Containerlink (DA5/00) [2001] ZALAC 15 (1 January 2001)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2001
>>
[2001] ZALAC 15
|

|

Rademan v Containerlink (DA5/00) [2001] ZALAC 15 (1 January 2001)

IN THE LABOUR APPEAL COURT OF
SOUTH AFRICA
HELD AT
DURBAN
CASE NO : PA5\00
IN THE MATTER BETWEEN :
JACOBS ABRAHAM JACOBS RADEMAN
APPELLANT
and
CONTAINERLINK
RESPONDENT
JUDGMENT
COMRIE
A.J.A:
This is an appeal against the
judgment of
Revelas
J
in
the Labour Court
refusing
condonation of the late institution of proceedings. Leave to
appeal was granted by the Court
a
quo.
The background to the matter
is as follows. The appellant was employed by the respondent
at Port Elizabeth in a
managerial capacity. During July
1999 the respondent informed the appellant that, for operational
reasons, his services
would be terminated with effect from 31 August
1999. Aggrieved at his dismissal, the appellant referred the
matter to the
Commission for Conciliation and Arbitration
(“the
CCMA”
).
Conciliation proved unsuccessful, and a certificate of outcome
to that effect was issued on 29 September 1999.
The
appellant’s next correct step would have been to refer the
dispute to the Labour Court. See
s.191(5)
(b) (ii) of the
Labour
Relations Act 66 of 1995
. He had 90 days from 29 September
within which to do so. See
s .191(11)
(a). Instead,
however, the appellant referred the dispute to
arbitration. He states that he did so on the advice
of an
articled clerk employed by the firm of attorneys which he
consulted and whom he mistook for an admitted attorney.
This wrong
step caused the first delay, as the arbitration only
came up for hearing on 1 March 2000. On
that occasion
the respondent successfully objected to the commissioner’s
jurisdiction.
The appellant then consulted
an official of the Labour Court at Port Elizabeth who
turned out to be an interpreter.
The appellant was advised
that he had 90 days within which to institute
proceedings. The advice was half right
: 90 days was the correct
period, but it ran from 29 September 1999 and not from 1
March 2000. Indeed, the period had
long expired by 1 March.
4. No application for
condonation was brought at that stage. The reason appears to
be that the appellant was not aware
of the need to bring such
application.
5.
Believing
that he had 90 days from 1 March, the appellant accepted temporary
work on fishing vessels and was at sea for
lengthy
periods, up to two weeks at a time. Meanwhile, he consulted other
attorneys who on 8 June 2000 filed and served his
statement of
case. ( I point out,
en passant,
that
this was a few days out of time on the advice
received from the
interpreter). On 22 June 2000 the respondent filed its statement
of response in which the point was
taken that the claim
was out of time. This precipitated the application for condonation,
which was opposed.
The application was launched on 7
July. The period from 1 March to early June, represents the second
delay.
6. In her judgment
Revelas
J
pointed out
that a period in excess of seven months had elapsed from
late November 1999 (by when the claim should
have been
commenced ) to early July 2000 (when the application for condonation
was launched). She referred to the matters
which should
properly be taken into account when weighing up“good
cause” in terms of
s.191
(11)(b).
Melane
v Santam Insurance Co Ltd
1962
(4) 551(A).
She
described the degree of lateness as “severe” and cited
Chemical
Workers Industrial Union v Darmag Industries (Pty) Ltd
[1999]8
BLLR 754 (LC)
where a delay of nearly seven months was not condoned by
the same Judge. She said that the
Labour Relations Act
contemplated
the expeditious resolution of disputes. She pointed
out further that even from 1 March the appellant had not
expedited
matters. She concluded :
“
In my view, the degree of
lateness of the referral is such
that it cannot be outweighed
by the explanation given
by the
applicant”.
It has to be remembered that the
Court
a quo
exercised a discretion. We, as
a Court of appeal, are not at
liberty to interfere unless we are satisfied that
the discretion was not exercised
judicially, even though we might have decided the matter
differently at first instance.
8. The learned Judge correctly
set out the matters which
Melane’s
case
,
supra, required her to take into account: the degree of
lateness, the explanation for the delay, the prospects of

success and the importance of the case. The judgment does
not indicate that she had any regard to the prospects
of
success or to the question of importance. The case was
undoubtedly important to both parties : the appellant’s
retrenchment,
if held to be unfair, had significant financial
implications. The prospects of success were addressed in the
statements
of case and response and also in the affidavits.
They were in dispute. It is not possible on the papers to
resolve
that dispute or to hold that the appellant’s prospects are
excellent. Equally, however, it
is not possible to hold that the appellant’s prospects are
poor or slender. It is not
that the appellant’s case on
the merits disclosed a glaring weakness or that the
respondent
adduced a deadly piece of
evidence. It is accordingly fair to conclude on the
papers that the appellant’s prospects
are reasonable.
9. Coming
to the appellant’s explanation for the delay, the
Court below said :
“
[6] The applicant’s
explanation for the late referral is that his
former attorney advised him
that the appropriate step was
to
refer the matter to arbitration before the CCMA. If that
were
the case it is surprising that it was not pointed out to
the
applicant at the arbitration hearing that his dispute should be
adjudicated and not arbitrated.
[7] The second reason advanced
by the applicant for the delay,
is his unfortunate reliance on
information provided to him
by a
Labour Court official regarding the time limits relevant to this
nature.
[8] It appears to me that the
applicant blames the delay on other persons rather than on himself
and gives no adequate
explanation why he did not
prosecute his dispute properly.”
In para [9] the learned Judge
dealt with the appellant’s failure to expedite
the matter
from 1 March onwards. At para [10], quoted earlier, she
concluded ;
“
[10] In my view, the
degree of lateness of the referral is
such that it cannot be
outweighed by the explanation given by the applicant”.
10. It appears to me from
paras [6]-[8], quoted above, that
Revelas
J
either rejected the appellant’s
explanation, or accepted it subject to
serious qualification. It was
this unacceptable, alternatively doubtful, explanation which
she weighed in para [10]
against the degree of
lateness. In my view she erred in adopting this approach.
There was no reason not to accept
the appellant’s explanation
for the first delay until 1 March. His affidavit reveals that he
continually enquired when a date
for the arbitration would be
assigned. There is nothing to gainsay the appellant’s statement
that in going to arbitration,
he
bona
fide
acted on
(wrong ) legal advice. The probabilities favour that explanation.
The absence of a confirmatory affidavit from
the articled
clerk or his principals is of no moment in the circumstances.
When the appellant was
told by the commissioner that he
was in the wrong forum, it was perfectly logical for
him to have gone to
the Labour Court itself
for advice
on how to pursue his claim. That the appellant contacted the Labour
Court, and was advised as above, was questioned
in the
respondent’s affidavit, but again there was no evidence
to controvert
the
appellant’s plausible statement.
11. It
may be a criticism of the appellant that after his
setback on
1 March, he failed to
expedite matters. On the other hand, he had a living to
earn and he had been led
to believe that he
had 90 days within which to proceed. Had the appellant
acted more promptly at
that stage, a month or two could
have been saved.
With
regard to the final month, from early June to early July,
the appellant was reliant on his new attorneys.
It
appears therefore that
all, or at
any rate most of the seven month delay was not attributable to the
fault of
the appellant.
12. It is evident from what I
have said that
the Court erred
in two fundamental respects: first, with regard to the explanation,
she put the wrong weight into the scale; second,
with regard to
prospects and importance, she put no weight in to the scale at
all. The scale was consequently out of balance
to such a degree
that, in my opinion, it must be concluded that the learned Judge
failed to exercise the discretion which was
entrusted to her. It
is accordingly open to this Court to interfere with the
decision of the Court below.
13. Prejudice
to the parties was debated before us. It does not
appear
from the papers when the
respondent realised that the appellant was
in the wrong forum. We do know
that the objection to the jurisdiction was first taken, without
prior warning, on 1 March.
However one looks at the
position, it seems to me that the respondent can have little
cause for complaint about
the first delay. Specific prejudice to
the respondent emanating from the whole period of the delay
(for example, the absence
of a material witness) was not raised in
the opposing affidavit. By contrast the potential prejudice to
the appellant is
manifest if condonation be refused . Moreover, he
expressly offered to “ forfeit that part of my claim affected
favourably by the
delay.” Compare
s.194.
14. Reasonable
expedition is no doubt laudable in all litigation,
and
the more so in labour
disputes. It is not, however, an end in itself
Circumstances arise where expedition must
yield to other
considerations, if justice is to be done. In my view the
present is such a case.
15.
Mr
Lawrence
,
who appeared for
the respondent ,
invoked
Kaefer
Insulation (Pty) Ltd v President of the Industrial Court and Others
[1998] 3
BLLR 230
(LAC), and
Darries
v Sheriff, Magistrate’s Court, Wynberg and Others
1998
(3) SA 34
(SCA) at 41 D-E
.
The latter case in particular is authority for the proposition that
a stage may be reached when the litigant has to bear the
consequences of the dilatoriness, incompetence or lack of diligence
displayed by his legal representatives, whatever the prospects
of
success may be. I am satisfied that the present appeal does not fall
in this category.
16. For the reasons set out
above, I am satisfied that this is a proper case in which to grant
condonation and that no cogent
reasons exist, in the
exercise of a discretion, for refusing it.
17. It
was accepted by both sides that the costs of the appeal should
follow
the result. As for the costs
at first instance, the appellant was well
out of
time and was seeking an indulgence. The respondent’s opposition,
although misplaced, was not
unreasonable. It appears to me that the appellant should pay the
respondent’s costs in that regard.
The order is as follows :
1 The appeal is upheld with
costs.
2 The order of the court
a
quo
is
set aside and replaced
by the following :
“
The application for
condonation is granted. The applicant is to pay the
respondent’s costs
of
opposition”.
_______________
R.G.
Comrie
Acting
Judge of Appeal
I agree
_________________
RMM Zondo
Judge
President
I agree
__________________
K. van
Dijkhorst
Acting
Judge of Appeal
For the
Appellant: Adv M Bingham
Instructed
by: Friedman Scheckter, Port Elizabeth
For the
Respondent: Mr I.B.Lawrence of Garlicke & Bousfield Inc.,
Durban.
Date of
argument: 12 June 2001
Date of
judgment:
For
the Appellant: Mr.Nieuwoudt
For the
third to fourth Respondent: Mr Steenkamp
Date of
Hearing: 22 May 2001
Date of
Judgement: