Newton v West Park Spar (JA84/99) [2002] ZALAC 36 (20 December 2002)

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[2002] ZALAC 36
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Newton v West Park Spar (JA84/99) [2002] ZALAC 36; [2002] 8 BLLR 689 (LAC) (20 December 2002)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
Case
no: JA 84/99
In the
matter between:
JAMES
WILLIAM HENRY NEWTON
APPLICANT
(Respondent
on appeal)
and
WEST
PARK SPAR
RESPONDENT
(Appellant
on appeal)
___________________________________________________________________________
JUDGMENT
___________________________________________________________________________
COMRIE
AJA:
This application arises from the
dismissal of the present applicant from the employ of the present
respondent in 1996. An application
for a determination in terms of
s. 46 (9) of Act 28 of 1956 was set down for trial on 6 January
1999. It appears that on that date
the case proceeded in the absence
of the respondent and its representative. The presiding officer
reserved judgment and on 8 January
1999 made a written determination
that the applicant’s dismissal constituted an unfair labour
practice. The respondent was ordered
to pay compensation.
The respondent moved for
rescission of the aforegoing default determination. The application,
which was opposed, came before a member
of the Industrial Court,
Adv. T. M. Dannhauser. On 26 August 1999 he refused rescission, and
made no order as to costs. The respondent
appealed to this Court.
Various delays occurred in the
preparation of the appeal record. Eventually, the only problem which
remained was the following.
The hearing before Adv. Dannhauser, on
31 May 1999, was recorded; the relevant magnetic tape recording of
the proceedings could
allegedly not be found; on this basis the
parties’ attorneys were agreed that Adv. Dannhauser be approached
to compile a minute
of the notes which he took on that day.
Questions were raised about who would fund this exercise and whether
it was proper for
the respondent’s attorney to approach the
presiding officer. In the result he was not approached and the
appeal has languished.
Early in 2002 the present
applicant (respondent in the appeal) launched the present notice of
motion in which he prayed for an order:
“
1. Declaring that the appeal in
this matter is deemed to have lapsed.
Alternatively the Respondent is
ordered to take such steps as may be directed by the above
Honourable Court in order to prosecute
the appeal within a time
period to be prescribed by the above Honourable Court.
Further alternatively,
requesting the Registrar to set the appeal down for hearing on the
record that is available on the date
of this order.
Costs of suit.”
The basis for the application is
that the respondent (appellant in the appeal) has tarried too long in
the prosecution of the appeal
and that the applicant wants finality.
The application is opposed. Part
of the respondent’s case, to be found in the opposing affidavit
and in the correspondence, is
this: that although no sworn evidence
was adduced at the hearing on 31 May 1999, statements from the bar
were made in relation
to the absence of the respondent and its
representative from the trial on 6 January 1999. The respondent
believes that these statements
from the bar will have a bearing on
the outcome of the appeal.
There is also before us an
application, dated 2 May 2002, for an order in terms of rule 5 (17)
of the rules of this Court extending
the period within which the
appeal record is to be lodged. Technically this application is
directed to the Judge President in chambers,
but I record that he
has no objection to us disposing of it. See too rule 12.
The parties do not appear to have
heeded the warning implicit in
Department of Justice v
Hartzenberg
2002 (1) SA 103
(LAC),
namely that Adv. Dannhauser’s
bench notes for 31 May 1999 may no longer be extant. We put this
question to counsel when the matter
was called, but no one had asked
him. The matter stood down for enquiry to be made. Adv. Dannhauser’s
reply, we were informed
by counsel, was that any such bench notes
had long since been destroyed.
According to the judgement in
Xaba v Portnet Ltd (2000) 21 (ILJ) 1739
(LAC)
there is
no time limit for the filing of the record in an appeal from the
Industrial Court. That does not mean, however, that an
appellant,
whose duty it is to have the appeal record prepared and lodged, can
take as long as he or she likes. On the contrary,
reasonable
expedition is to be expected. The fact of the matter is that, save
in respect of 31 May 1999, the record of the appeal
is complete and
can be lodged and the appeal can be heard. With regard to 31 May
that deficiency, if such it be, cannot be cured.
Labour Appeal Court rule 5 (12)
(h) provides that the record of oral argument shall be omitted from
the appeal record unless such
argument affects the merits of the
appeal. We are not able to determine on the limited papers before us
what bearing, if any, the
oral argument may have on the outcome of
the appeal. That is a matter for this Court to decide when it hears
the appeal. I may
perhaps point out that
Hartzenberg’s
case,
supra, is distinguishable because in that case most of the sworn
evidence was irretrievably lost. Nonetheless we know, from
his
supplementary heads of argument, that Mr
Le Roux
, for the
respondent/appellant, will seek to persuade the Court that the
statements from the bar were “ in the nature ......
of
testimony”. I express no view on that proposition.
Counsel were in agreement, in Mr.
Le Roux’s
case reluctantly, that the proper order to be
made in the circumstances which have emerged, would be an order in
terms of prayer
3 of the notice of motion, namely directing the
Registrar to set down the appeal for hearing on so much of the
record as is presently
available. Implicit in this is that no order
would be required in respect of the respondent’s application in
terms of rule 5
(17). I think, however, that as a precaution the
respondent should be directed to file the appeal record by a fixed
date, failing
which the appeal will be deemed to have lapsed.
I turn to the costs of the two
applications which are before us. While it was a reasonable step for
the applicant to bring this
matter to a head by way of the notice of
motion, nothing precluded his advisers from putting the obvious
question to Adv. Dannhauser.
A timeous enquiry and answer should
have enabled the applicant to force the respondent’s hand, should
have avoided the need
for an application, and should have enabled
the appeal to be heard by now. For this reason I am not inclined to
award the applicant
its costs. On the other hand the duty to prepare
and lodge the record rested on the respondent as appellant, and this
included
the duty adequately to confront such difficulties as
presented themselves. It too failed. I am accordingly not in favour
of ordering
that the costs under review should be costs in the
appeal. If the respondent wins the appeal, such an order would mean
that the
applicant would have to pay the costs now under
consideration, which would not be fair. It seems to me therefore
that the proper
order
is to make no order as to costs.
I propose an order in the
following terms:
The respondent is ordered to
lodge the record of the appeal (without a transcript or other note
in respect of 31 May 1999) with
the Registrar of this Court by not
later than 31 May 2002, failing which the appeal will be deemed to
have lapsed;
Upon timeous receipt of the
aforegoing record of appeal, the Registrar is directed to set the
appeal down for hearing;
No order is made on the
respondent’s application for an extension of time dated 2 May
2002;
No order for costs is made in
respect of either the applicant’s notice of motion or the
respondent’s application for an extension
of time.
__________________
R.G.
Comrie
Acting
Judge of Appeal
I agree.
_________________
C.R.
Nicholson
Judge of
Appeal
I agree.
________________
M.T.R.
Mogoeng
Judge of
Appeal
Appearance:
For the
Applicant: Adv. C. Bredenkamp
Instructed
by: Roux Inc, Pretoria
Respondent: Adv.
M Le Roux
Instructed
by: Kobus Cronje Attorneys, Pretoria
Date of
Hearing: 7 May 2002
Date of
Judgement: 20 December 2002