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[2006] ZALAC 12
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Fountas v Brolaz Projects (Pty) Ltd and Others (JA36/03) [2006] ZALAC 12 (17 May 2006)
19
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case No JA36/03
In the matter between
Peter Fountas
Appellant
and
Brolaz Projects (Pty) Limited
1
st
Respondent
Commission for Conciliation,
Mediation and Arbitration
2
nd
Respondent
Tucker, RJ N.O.
3
rd
Respondent
JUDGMENT
NKABINDE AJA
Introduction
[1] The appellant, a former employee of the first
respondent, appeals to this Court against a decision of the Labour
Court in terms
of which that Court reviewed and set aside a certain
arbitration award. That arbitration award had been issued by the
third respondent
in a dispute between the appellant and the first
respondent about whether or not the first respondent had dismissed
the appellant
and, if so, whether or not such dismissal had been
fair. The third respondent is a commissioner of the Commission for
Conciliation,
Mediation and Arbitration (
“the CCMA”)
which is the second respondent. The arbitration award was to the
effect that the appellant had been dismissed and that his dismissal
had been substantively fair but procedurally unfair. In terms of that
award the first respondent had been ordered to pay the appellant
certain compensation.
Proceedings in the Labour Court
[2] The first respondent was aggrieved by the award and
brought an application before the Labour Court to have that award
reviewed
and set aside. The first respondent’s review
application in the Labour Court was successful. That part of the
award which
related to procedural fairness was set aside and it was
remitted to the CCMA to enable the CCMA to reconsider it. With the
leave
of the Court a quo, the appellant now appeals to this Court
against the order of the Labour Court.
The appeal
[3] There are three procedural issues that need to be
considered before the merits of the appeal can be considered if they
have
to be considered at all. The first is the application for the
condonation of the appellant’s failure to deliver his heads
of
argument timeously. The second is the first respondent’s
application for the condonation of its failure to deliver its
heads
of argument timeously. The third is the incompleteness of the record
of the arbitration proceedings pursuant to which the
arbitration
award which was the subject of the review proceedings in the Court a
quo was issued. I shall deal with each in turn.
The appellant’s failure to deliver his heads
of argument timeously.
[4] Rule 9 of the Rules of this Court provides:
“(1) The appellant must deliver a copy of the heads of argument
not later than 15 days before the hearing
or not later than any
earlier date determined by the Judge President;
The respondent must deliver a copy of the heads of argument not
later than 10 days before the hearing
or not later than any
earlier date that may be determined by the Judge President…”.
(Emphasis added).
[5] On 29 December 2003 the Registrar of this Court sent
a direction issued by the Judge President to the parties’
attorneys
of record regarding the delivery of heads of argument. The
directive read as follows:
“
1. By direction of the Judge President of
the Labour Appeal Court, the parties in the above appeal are required
to deliver their
Heads of Argument as directed below:
the appellant is required to deliver to the Registrar and the
respondent or its representatives its/his/her Heads of Argument
on
or before the 31
st
of January 2004.
the respondent is required to deliver to the Registrar and the
appellants or its representatives its Heads of Argument on or
before
the 20
th
of February 2004.
The parties’ attention is specifically drawn to the provisions
of Rule 9 of the Labour Appeal Court…..
The parties are hereby notified that failure to comply with the
Judge President’s direction in 1 and 2 above may result
in
this appeal not being set down for hearing next term.
…”.
[6] The appellant failed to deliver his heads of
argument on or before 31 January 2004 as directed by the Judge
President. He only
delivered them on 28 June 2004. That was a delay
of about five months. He ought to have simultaneously delivered an
application
for the condonation of such failure. He did not do so.
Indeed, by the time of the hearing of this appeal the appellant had
not
as yet delivered the application for the condonation of the late
delivery of his heads of argument.
[7] The explanation advanced by the appellant’s
Counsel from the bar when the Court raised this issue was that the
appellant’s
attorney of record had understood the last
paragraph of the Judge President’s direction to mean that the
only consequence
of a failure to attend to the timeous delivery of
the appellant’s heads of argument would
‘be not
setting the matter down in the next term’.
He explained
that he was also under a mistaken belief that, since the relevant
Rule of this Court afforded him time until 15 days
prior to the
hearing of the appeal to file the appellant’s heads of
argument, he was not obliged to apply for condonation
in respect
thereof. Of course, this understanding was wrong and completely
unjustified. On the day of the hearing of the appeal
this Court
ordered the appellant to deliver an application for condonation after
the hearing of argument.
[8] The appellant’s condonation application was
subsequently delivered on 2 March 2005. The respondent did not oppose
the
application. The appellant’s attorney, Mr SH Van den Berg
of Willem Van Rensburg Attorneys, deposed to the founding affidavit
in support of the application for the condonation of the late
delivery of the heads of argument. He explained that the delay in
delivery the appellant’s heads of argument had been due to the
fact that his offices had been closed over the festive season
when
the Judge President’s direction was delivered on 29 December
2003.
[9] Mr Van den Berg explained further that the notice
came to his attention during mid-January 2004 when his office
re-opened in
the New Year. According to Van den Berg the appellant
was out of funds to prosecute the appeal at the time. Mr Van den Berg
stated
that he had decided to accommodate the appellant when he
realized that good prospects of success existed on appeal. Mr Van den
Berg explained that, as there was no financial cover to instruct
Counsel to draw the heads of argument, he prepared the heads of
argument himself. He explained that drawing the heads of argument
himself was a novel experience. He said that he had to research
the
legal issues and make sure that the submissions on appeal were
presented with utmost clarity. He said that that took time.
[10] Mr Van den Berg stated that he mistakenly believed
that there was no urgency in filing the appellant’s heads of
argument
because the only consequence of failing to deliver them
within the time specified in the Judge President’s direction
would
be that the appeal would not be set down for hearing in the
following term. As stated above he only delivered the heads of
argument
on 28 of June 2004. He explained further that it was not
until the afternoon of Monday, 28 of February 2005, that counsel, who
was briefed on 27 February 2005 to argue the appeal, informed him
that the appellant’s heads of argument had not been delivered
timeously in terms of the Judge President’s direction and that
a condonation application for such late delivery of heads
of argument
should therefore have been filed.
[11] Mr Van den Berg explained that it was impossible at
that time to prepare an application for condonation to present to
this
Court at the hearing of the appeal on 1 March 2005 due to the
fact the telephone lines and computers in his office had been damaged
by a lightning. He proffered an apology for his ignorance of the law
and the inconvenience which such ignorance might have caused
to the
Court. As to the prospects of success he simply stated that
reasonable prospects of success existed.
[12] The explanation advanced by the appellant’s
attorney for the late delivery of the heads of argument clearly shows
that
the attorney concerned had not read the provisions of Rule 9(1).
Had he done so, he would have been aware of the alternative in
that
sub-rule and the fact that the directive in the Registrar’s
notice was in line with the empowering provisions in the
Rule. The
remissness on the part of the attorney concerned is most
disconcerting because it was his duty, as the appellant’s
legal
representative, to establish the relevant rules and procedures
applicable when he accepted instructions from the appellant.
His
explanation is so lacking as to influence this Court to consider a
strict sanction. Had the employer been prejudiced by the
delay and
had it also not been equally dilatory in delivering its heads of
argument, serious consideration would have had to be
given to the
possibility of this Court making an order of costs
de bonis
propriis
against the appellant’s attorney.
[13] The appellant’s attorney’s conduct in
the handling of the matter of the appellant’s heads of argument
and
the condonation application leaves much to be desired. It is
trite that a practitioner is required to take the necessary steps to
familiarise himself with the rules of each court in which he has a
matter to handle on behalf of a client. The appellant’s
attorney breached this duty in this matter. However, the application
for condonation was not opposed and, it seems to me that,
the
appellant’s prospects of success on the merits are reasonable.
In the light of this the appellant’s application
for the late
delivery of his heads of argument should be condoned. It is hereby
condoned.
The first respondent’s failure to
deliver its heads of argument timeously.
[14] In terms of the Judge President’s direction,
the first respondent had been required to deliver its heads of
argument
on 20 February 2004 which was a period of 20 days from the
date when the appellant was to have delivered his. The first
respondent
failed to comply with the Judge President’s
direction in this regard. The first respondent’s heads of
argument were
filed on 20 October 2004, a period of approximately
eight months outside the prescribed period and over three months
after the
appellant had delivered his heads of argument. This was
after the appellant had delivered his own heads of argument on 28
June
2004.
[15] The first respondent’s application for the
condonation of the late delivery of its heads of argument was
delivered on
1 November 2004. The appellant did not oppose it. The
explanation for the delay, set out in the affidavit of the first
respondent’s
attorney of record, Mr Erasmus, was that the first
respondent had instructed him to close the file provisionally when
the appellant’s
heads of argument were not forthcoming. The
appellant had apparently advised the first respondent’s
attorneys on 14 January
2004 that his heads of argument were being
prepared. Mr Erasmus explained that, after the appellant had
delivered his heads of
argument on 28 June 2004, he had briefed
Counsel to draw the first respondent’s heads of argument. He
stated that Counsel
furnished the heads of argument at the beginning
of October 2004. Mr Erasmus stated further that no prejudice had been
caused to
the appellant by the delay in the delivery of the heads of
argument.
[16] Mr Erasmus did not say when exactly Counsel was
briefed to prepare the first respondent’s heads of argument and
why it
had taken almost three months for the first respondent’s
heads of argument to be delivered, particularly when the appellant’s
heads of argument had been delivered on 28 June 2004. Mr Erasmus said
nothing about the prospects of success of the first respondent’s
defence.
[17] In the first respondent’s favour, it must be
said that it would have been difficult for it to prepare its heads of
argument
prior to the appellant delivering his because he would not
know what case the appellant sought to argue on appeal. That accounts
for the delay from 20 February 2004 to 28 June 2004 when the
appellant delivered his heads of argument. With regard to the period
from 28 June 2004 to 20 October 2004 all first respondent’s
attorney has said is simply that he briefed the first respondent’s
Counsel to prepare the heads of argument and these were received back
by him at the beginning of October 2004. He did not state
exactly
when he briefed Counsel nor did he explain why, having received the
heads of argument from Counsel at the beginning of
October 2004, he
waited for about three weeks thereafter before he delivered them to
the Registrar.
[18] The first respondent’s attorney chose not to
take this Court into his confidence. The first respondent’s
attorney’s
conduct in this regard is completely inexcusable.
The first respondent seems not to have been at fault in regard to the
delay but
its attorney clearly is. It does not appear to me that this
is one of those cases where the attorney’s unacceptable conduct
should be visited upon the party he represents. Accordingly, for this
reason, the fact that the application was not opposed and
the fact
that the appellant cannot himself claim any prejudice and despite the
fact that such conduct did occasion the Court some
inconvenience, I
am prepared to condone the late delivery of the first respondent’s
heads of argument. It is hereby condoned.
The incomplete record of the arbitration
proceedings
[19] The record of the arbitration proceedings sought to
be reviewed which was delivered by the first respondent in the Court
a
quo was incomplete. Substantial relevant evidence was not included
apparently because the first respondent’s attorneys or
their
Johannesburg correspondent did not locate certain tapes containing
such evidence. The first respondent’s Johannesburg
correspondent was Mr Charl Riaan du Plessis. He delivered his own
affidavit as well as an affidavit by his messenger in regard
to what
was done to try and locate the tapes.
[20] In his affidavit Mr du Plessis stated that the
audio cassettes relating to the hearing of the merits of the dispute
in the
arbitration were missing. He said that on 23 October 2002 he
“
attended the Registrar of the Labour Court and found
that the record was filed by the CCMA, together with the first
mentioned audio
cassettes, but was unable to find any additional
audio cassettes.” He said that “(t)he relevant personnel
of the Registrar
were also unable to trace the additional cassettes.”
He stated that he also
“
attended personnel of
Sneller Verbatim Transcribers, who hold offices in the Labour Court
Building and who apparently transcribed
the first mentioned audio
cassettes but was unable to locate the additional audio cassettes.”
It seems that this was still on 23 October 2002. He says that on the
same day he also tried to obtain page 88 of the record filed
by the
CCMA but was unable to find it.
[21] Mr du Plessis also states that on 5 November he
“again attended the offices of the
Registrar”
of the Labour Court but was
once again unable to locate the missing audio cassettes or page 88 of
the record. He says he thereafter
instructed his messenger to attempt
to locate page 88 of the record and the missing audio cassettes at
the CCMA. He says that his
messenger told him, and the messenger
confirms this, on or about 8 November 2002 that
“she
had been by (sic) informed by the personnel at the CCMA that the
entire record and all audio cassettes had been sent
to the Labour
Court and that no copy of the record or page 88 or any further audio
cassettes are in possession (sic) of the CCMA”.
He concluded his affidavit with a submission that “
the
missing audio cassettes and the missing page 88 of the record cannot
reasonably be located or found.”
[22] The appellant did not deliver any answering
affidavit in support of his opposition of the review application. He
delivered
only a notice of opposition. He had probably planned to
deliver an answering affidavit after the delivery of the record by
the
first respondent. It was probably because the record that was
delivered was not complete that he did not deliver an answering
affidavit.
[23] The deponent to the founding affidavit of the
review application, Mr Bradley Michael Ferraris, deposed to an
affidavit that
was prepared in the light of Mr du Plessis’
affidavit about the record. He stated in paragraph 3 thereof that it
had transpired
that, although “
the First
Respondent (i.e the Commission for Conciliation, Mediation and
Arbitration in the Court a quo) lodged the tape recording
of the
proceedings under review with the Registrar of this Honourable Court,
upon
the transcription thereof, it [had]
transpired that not all tapes had been so lodged, as only the point
in limine heard on 6 February
2001 and 8 March 2001 was transcribed.
The tapes for the arbitration hearing heard on 5 March 2002, 11 April
2002 and 25 April
2002 could not be found.” Mr Ferraris went on
to state that, “(a)fter making enquiries in this regard, the
First Respondent
advised the applicant that it does not have any
other tapes in its possession… In the result the
transcription, …,
is incomplete in the respect stated above.”
[24] Mr Ferraris stated that he had been advised by his
attorney that
“an attempt was made to reconstruct the
record by including all documentation available in the matter which
record is attached
marked 286 – 509.”
He
went on to make the point that the first respondent was prejudiced by
the non-production of the tapes. He submitted in the last
sentence of
the affidavit that
“the matter be referred back to
the CCMA for a de novo arbitration.”
[25] Mr Ferraris also deposed to a supplementary
affidavit that is said to have been delivered in terms of Rule
7A(8)(a) of the
Rules of the Labour Court. In that affidavit Mr
Ferraris stated that he did not intend to supplement the first
respondent’s
founding affidavit in order to add to the first
respondent’s grounds of review. He also said that he did not
intend to amend
or vary the first respondent’s notice of motion
save that, given the incomplete record of the arbitration proceedings
under
review, he was asking that the Labour Court should remit the
matter to the CCMA for a fresh hearing before a commissioner other
than the commissioner who had dealt with it before.
[26] It would seem that, when the matter came before
Pauw AJ in the Labour Court, Counsel for the first respondent first
sought
to have the review application dealt with as an unopposed
matter on the basis that the appellant had failed to file an
answering
affidavit even though he had filed a notice of opposition.
The Court a quo refused to deal with the matter on that basis. In my
view the Court a quo was correct in this regard.
[27] Counsel for the first respondent seems to have
thereafter asked the Court a quo to set the award aside on the basis
of the
absence of a complete record of the arbitration proceedings.
The Court a quo refused to do so but proceeded to deal with the
merits
of the review application despite the fact that the record of
the proceedings sought to be reviewed was incomplete. The Court a
quo
approached the merits of the review application on the basis that, in
the absence of the record, it was bound by all factual
findings made
by the commissioner,
“even more so than
a judge on appeal.”
[28] The Court a quo then proceeded to deal with the
merits of the review application and concluded that the
commissioner’s
finding that the appellant’s dismissal was
procedurally unfair was unjustifiable in relation to the reasons
given for it.
It set the award aside and made an order remitting it
to the commissioner to reconsider the procedural fairness of the
dismissal
and compensation. No order was made as to costs.
[29] The first ground upon which the appellant relied on
appeal to seek that the decision of the Court a quo should be set
aside
was that the Court a quo erred in entertaining the first
respondent’s review application in circumstances where the
record
of the arbitration proceedings was incomplete. It is clear
from the affidavits relating to the record delivered on behalf of the
first respondent as well as the first respondent’s
supplementary affidavit that the missing parts of the record were
material.
That is why even the first respondent stated in the
supplementary affidavit that the matter should be remitted to the
CCMA to be
heard afresh.
[30] The Court a quo concluded that the commissioner’s
finding on procedural fairness was unjustifiable. However, the
appellant
would have been entitled to argue that, although the
commissioner had found that the dismissal was substantively fair, it
was,
in his submission, substantively unfair with the result that, if
the Court upheld his contention, it could refuse to set the award
of
compensation aside on that basis. In the absence of the record of
such evidence, the Court a quo would not have been able to
properly
consider such a contention.
[31] In my view there can be no doubt that the Court a
quo should not have proceeded to consider the merits of the review
application
in this matter when there was material evidence missing
in the record. What the Court a quo was required to have done was to
consider
whether the first respondent as the applicant in the review
application had taken all reasonable steps to search for such
evidence
and or to reconstruct the record. If the first respondent
had taken all reasonable steps to either find the missing evidence or
to reconstruct the record and these had been to no avail, it could
then have had to deal with the question of what should be done.
If,
however, it was of the view that the first respondent had not taken
all reasonable steps that it could and should have taken,
it would
have had to choose one of two options.
[32] The one would be to dismiss the application on the
basis that the first respondent had had ample opportunity to take
those
steps and had no acceptable explanation for not having done so.
This is not an option that the Court a quo could have taken lightly
because it would have shut the door in the face of the first
respondent who would not have been able to have set aside an
arbitration
award that may well not have deserved to stand. However,
it is a decision that a Court may take in an appropriate case.
[33] The other option that the Court a quo could take
would have been to postpone the review application or to strike it
off the
roll to enable the first respondent or all parties to take
such steps as might not have been taken earlier to search for the
missing
evidence or to reconstruct the record. The latter option is
one that a Court will usually adopt unless it is dealing with a case
where considerations of fair play between the parties, finality of
litigation and others demand that the application be dismissed
without the consideration of the merits. This would occur where, for
example, the matter had dragged on for a long time and the
relevant
party had had ample opportunity to reconstruct the record but had,
for no acceptable reason, failed to do so.
[34] In this matter the first respondent does not appear
to have approached the Director of the CCMA for his intervention in
locating
the missing tapes. It does not say who it is at the CCMA
that it dealt with. It might have dealt with some junior staff
members
who might not have been able to deal with the matter
properly. If approached, the Director would probably have been able
to deal
with this matter appropriately or to assign the task to a
senior and responsible official of the CCMA. In this regard the first
respondent did not file any affidavits deposed to by someone from the
CCMA. Someone at the CCMA must be able to say that he or
she is the
one who dealt with the tapes in this matter, when he dealt with the
tapes and whether he or she delivered those tapes
to the Registrar of
the Labour Court and when he did so. He might have also been able to
say who in the office of the Registrar
of the Labour Court received
the tapes. In turn such staff member from the office of the Registrar
or the Registrar could depose
to an affidavit and explain how the
tapes could have got missing once they were in the Registrar’s
custody.
[35] The first respondent did not file any affidavit
deposed to by someone in the Registrar’s office who could say
whether
that office did receive tapes from the CCMA in this case,
what tapes it received, when they were received, what he or she did
with
them thereafter and how they could have got lost if they had
been delivered to the Registrar’s office. Furthermore, the
first
respondent did not approach the appellant or his attorneys to
ask them to help reconstruct the evidence contained in the missing
tapes. If its attorneys had done so, the reconstruction might well
have been done successfully.
[36] In the light of all of the above it seems clear
that the first respondent did not take all reasonable steps to find
the missing
tapes or to have the record reconstructed.
What should the Court a quo
have done?
[37] In my view the Court a quo should have struck the
matter off the roll and ordered the first respondent to pay the
appellant’s
costs. This is also what the appellant seems to
have expected the Court a quo to have done. I do not think that the
dismissal of
the review application would have accorded with
considerations of fairness between the parties. If the matter is
struck off the
roll, the parties will still get a chance to do
whatever is necessary in order to later argue the matter after all
attempts have
been made to find the missing evidence or reconstruct
it. If the application was dismissed, that would have been the end of
the
first respondent’s attempts to have the award set aside. In
cases such as
Department of Justice v Hartzenberg
2002 (1) SA
103
(LAC); (2001) 22 ILJ 1806 (LAC), JDG Trading (Pty)Ltd t/a Russels
v Witcher NO & others (2001) 22 ILJ 648 (LAC) and Lifecare
Special Health Services (Pty)Ltd t/a Ekuhlengeni Care Centre v
Commission for Conciliation, Mediation and Arbitration & others
(2003) 24 ILJ 931 (LAC)
this Court has previously dealt
with situations where in an appeal or review application the record
was incomplete or had been
lost. It seems to me that the approach
adopted herein as to what should happen when the Labour Court is
faced with a review application
that has no record or has only part
of the record, is similar to the approach adopted in Lifecare, supra,
at 935J (par 15) to 937
(par 20).
[38] In conclusion I am of the view that the Court a quo
erred in proceeding to deal with the merits of the review application
when
the record was incomplete. It should have struck the matter off
the roll.
[39] In the premises I make the following order:
1. The appeal is upheld with costs.
2. The order of the Court a quo is hereby set aside and
replaced with the following one:-
“The application is struck off the roll with
costs.”
Nkabinde AJA
I agree.
Zondo JP
I agree.
Mlambo AJA
Appearances:
For the appellant : Adv MA Lennox
Instructed by : Willem Van Rensburg Attorenys
For the respondent : Adv. L Charoux
Instructed by : Erasmus Attorneys
Date of judgment : 17 May 2006