About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2011
>>
[2011] ZALAC 3
|
|
Steel and Another v Mathye and Others (J 5256/00) [2011] ZALAC 3 (22 March 2011)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASE
NO. J 5256/00
In the
matter between:
BALDWIN
STEEL
…................................................................................................
1
st
Applicant
BALDWIN
METAL LAND
….................................................................................
2
nd
Applicant
and
NUMSA
…...............................................................................................................
1
st
Respondent
J MATHYE AND 3 OTHERS
…..........................................................................
2
nd
Respondent
___________________________________________________________________________
JUDGMENT
___________________________________________________________________________
LAGRANGE J:
Introduction
This matter was
enrolled to consider an application for the late filing of the
respondent’s heads of argument in the first
applicant’s
application to dismiss their claim, and to consider the latter
application. In considering the condonation
of the late filing of
the respondent’s heads, it is necessary to consider the merits
of the first applicant’s application
to dismiss the
respondents’ referral of their unfair dismissal dispute as one
of the factors having a bearing on the condonation
application.
Accordingly, the merits of the first applicant’s application
for dismissal of the referral will be dealt with
first.
The chronology of events
The dispute
concerned the alleged unfair retrenchment of the four individual
respondents in the condonation application on 30
June 2000.Once the
initial steps in the matter had been taken, the history of this
matter is a chronicle of neglect. If the matter
had been properly
handled any adjudication of this dispute would ordinarily have taken
place by the end of 2001 or at least early
in 2002. An unfair
retrenchment dispute was referred to the Metal and Engineering
Bargaining Council and on 18 September 2000
the bargaining council
issued a certificate indicating that the dispute remained
unresolved.
On 8 November 2000,
a statement of case was lodged with the registrar of the Labour
court by NUMSA (‘the union’).
However, it appears that
the statement of case was not served on the first applicant (‘the
company’) before it was
lodged with the registrar. The
evidence shows that the company first became aware of the statement
of case when the union wrote
to it on 15 June 2001 asking for its
response and advising that it was considering setting the matter
down for default judgement.
The company immediately filed a notice
of intention to oppose the referral.
Despite this
initial quick response, it was only on 17 September 2001 that the
company filed its answering statement, which was
some 73 days after
it should have, assuming that it received the referral for the first
time on 15 June 2001. As with the referral
of the statement of case,
no condonation application was filed for the late referral of the
answering statement.
On 24 April 2002, a
pre-trial meeting was held between the parties at court, but the
minute was not finalised on that occasion.
The union sent a draft
pre-trial minute on the company. On 13 May 2002, the company
requested further details from the respondents
on a number of
questions before it could respond on the outstanding issues. It
appears that no response was ever received to
this letter. It was
only more than two years later on 24 August 2004 that the union sent
a further draft pre-trial minutes to
the company's attorneys. Over
this period, it appears that the same union official, Mr T Faku, was
dealing with the matter. In
response to this latest initiative, the
company indicated that it was reserving its rights to apply for
dismiss the referral
because the union had failed to pursue the
matter timeously. It also a reiterated that it had still not had a
response to its
previous request of May 2002 for further information
from the union and pointed out that the latest draft pre-trial
minute did
not differ substantially from the previous one. The
respondent repeated its request for a response on the outstanding
matters.
It appears that
nothing further was done by the union until it appointed attorneys
of record in the matter in November 2005, over
a year later. Despite
the appointment of attorneys to handle the matter, it was only eight
months later on 21 July 2006 that
a further draft pre-trial minutes
was filed. This minute differed materially from the one last filed
by the union in August 2004,
two years previously. The company
contends that even this third draft pre-trial minutes did not
address the outstanding queries
it had first raised in 2002. The
union’s attorneys were only first aware of the outstanding
queries when they received
the company's answering letter of 28
August 2006. Approximately six weeks later, on 12 October 2006, the
union's attorneys of
record wrote to the company's attorneys the
following:
"We refer to
our previous correspondence. The Numsa officials who dealt with the
matter are no longer in the employ of Numsa.
The workers themselves
are unable to assist with the completion of the pre-trial minute. We
are proceeding to take instructions
from a client with regard to
holding the pre-trial afresh and suggest that you do the same. We
will revert with our instructions".
In its answering
affidavits to the dismissal application, the union's attorneys
attributed the inability to finalise the pre-trial
minutes to the
fact that the officials who dealt with the pre-trial minutes had
also left Numsa before they could be finalised,
but no specific
details are provided as to when Mr Faku actually left, making it
difficult to understand how much of the delay
was attributable to
his absence. The company contends that this reason is insufficient
to explain the delay of over two years
in attempting to finalise the
pre-trial minutes.
The union submits
that it is improbable that the union did not serve a copy of the
referral on the respondent company, but there
is no evidence in the
form of an affidavit of service or even a fax confirmation slip
indicating that this was in fact the case.
In the circumstances, the
union should have filed a condonation application for the late
referral of statement of case.
Essentially what
has happened here is that the matter was neglected by the union
between May 2002 and August 2004, a period of
well over two years.
When the union did attempt to revive the matter in 2004, as soon as
the respondent repeated its previous
requests, the union did not
pursue the matter further until it appointed attorneys in November
2005, more than a year after its
last correspondence to the company.
Even then, the seven month delay between the attorneys being
appointed and the filing of
a further draft pre-trial minute was
excessive. It would be reasonable to have expected that in
appointing attorneys to handle
the matter everyone concerned would
have appreciated the need to proceed rapidly to redeem the situation
if that was possible.
If the attorneys
were unable to obtain the necessary instructions from the union to
take the matter forward, it should not have
taken them so long to
realise that. Moreover, there is nothing to indicate that any
attempts were made to contact the previous
organisers who were
handling the matter for their assistance. It is true that the
company like the union was late in attending
to the pleadings, but
those periods of lateness pale into insignificance beside the
union’s delay in its sporadic attempts
to finalise the
pre-trial minute. Effectively, this is a matter which the union made
limited attempts to revive on three occasions.
The first was in
August 2004 after a hiatus of more than two years. This attempt at
resuscitation ended almost as soon as it
began. The second attempt,
at least to the extent that it represented some action taken by the
union to prosecute the matter
further, was when it appointed
attorneys to handle the matter in November 2005. The follow-through
on that step was slow, as
it was only several months later that
communications with the company were reopened with the submission of
a new pre-trial draft
minutes.
The limited and
cursory explanation offered for these long intervals of inactivity
is very unsatisfactory and essentially relies
exclusively on the
departure of union officials responsible for the matter. Over such a
long period of time, it is hardly surprising
that the matter might
have passed through the hands of different union officials. The
rotation of staff in a big organisation
is surely something to be
expected and provided for to ensure continuity in the organisation’s
work. There is also nothing
in the answering affidavits to explain
why the individual respondents appeared to have done nothing to
accelerate the pace of
the litigation.
I accept that the
union’s attorneys probably faced difficulties in attempting in
reconstructing events if there was no one
employed by the union who
could assist them, or if in adequate records of the matter existed.
However, in such circumstances,
if the union insisted on proceeding,
it should have been explained to the respondent at an earlier stage
that it was simply impossible
to address some of the queries it had
previously raised, and the union would have had to accept that they
would need to concede
their inability to deal with some of those
issues.
In August 2004, the
company clearly warned the union in August 2004 of the prospect of
an application to dismiss the referral,
but it was only in July 2006
that the respondents tried to take another step forward. It is true
that the application to dismiss
the referral was launched after the
union’s attorneys proposed yet another pre-trial meeting
without directly addressing
any of the long outstanding queries of
the company. However, in the circumstances where it was apparent
that the union’s
attorneys could not even get proper
instructions at that late stage, there was no reason to believe that
a further pre-trial
meeting was likely to address the issues which
concerned the company and take the matter forward. Given the history
of the matter
and the union’s attorneys’ clear inability
to take the matter forward for want of proper instructions, I do not
think
the timing of the application for dismissal was inappropriate.
It
is an exceptional remedy to dismiss an applicant’s claim on
account of long delays in prosecuting a matter referral,
but where
the circumstances justify it, it will be done.
1
In
general the courts, in considering whether or not to grant dismissal
of a matter due to unreasonable delay in prosecuting the
claim, take
the following factors into account: the length of the delay; the
explanation for the delay; and the effect of the
delay on the other
party and the prejudice that party will suffer should the claim not
be dismissed.
2
There is no
question that the successive delays in the faltering attempts to
advance the prosecution of the case are excessive.
Moreover, the
explanation for the delays is thin and lacking in detail, apart from
failing to explain why renewed attempts to
revive the matter were
not followed through. There is also no detail provided of any
attempts made by the individual union members
to stir the union to
action. By 2010, the prejudice to the company of having to defend a
case nearly a decade old is obvious.
I appreciate that the four
individual union members will suffer the prejudice of not having
their claim heard, but they must
share some of the responsibility
for not seeing that their matter was pursued diligently by the
union. Considering all these
factors holistically this is a case
which should be dismissed. In the result it is not necessary to
consider the condonation
application for the late filing of the
heads of argument.
On the question of
costs, the failure of both parties to file condonation applications
for their pleadings, disinclines me to
consider any award of costs
to either party for that stage of the proceedings. However, I do not
believe that this application
to dismiss the matter should have been
necessary and it seems just and equitable for the union to bear the
costs of this. No
award of costs is made for the late filing of the
heads of argument.
Order
The application to
dismiss the referral of this matter to the labour court is granted.
The first
respondent is ordered to pay the first applicant’s costs of
the dismissal application.
ROBERT LAGRANGE
JUDGE OF THE LABOUR
COURT
Date of hearing: 21
May 2010
Date of judgment: 22
March 2011
Appearances:
For the Applicant:
Ms M Chenia of Pienaar, Swart & Nkaiseng
For the Respondent:
B Bodhania instructed by Naidoo Attorneys
1
See,
for example,
Bezuidenhout v Johnston NO &
others
(2006) 27
ILJ
2337 (LC)
and
Sishuba v National Commissioner
of the SA Police Service
(2007)
28
ILJ
2073 (LC)
at
2076-2078 paras [9] - [16].
2
Karan
t/a Beef Feedlot & Another v Randall
(2009) 30
ILJ
2937
(LC)
at 2943-4 [14] and see also 2941, par [8].