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[2013] ZALAC 18
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Shaikh v South African Post Office Ltd and Others (DA 4/09) [2013] ZALAC 18 (19 July 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR APPEAL COURT OF SOUTH
AFRICA, DURBAN
JUDGMENT
Reportable
Case No. DA 4/09
In the matter between:
MOHAMED
ISHACK SHAIKH
.........................................................................
Appellant
and
THE
SOUTH AFRICAN POST OFFICE LIMITED
..............................
First
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
......................................................................
Second
Respondent
COMMISSIONER
P GOVINDSAMY
..................................................
Third
Respondent
Heard:
12 November 2012
Delivered:
19
July 2013
Summary: Appeal: Dismissal for
misconduct – Considerably long delay in both filing notice of
appeal and delivering appeal
record – No sufficient cause shown
for non-compliance with Rules and Court order – Condonation
refused and appeal not
reinstated – Accordingly, appeal
dismissed.
Coram: Tlaletsi JA et Ndlovu JA et
Landman AJA
___________________________________________________________________
JUDGMENT
___________________________________________________________________
NDLOVU, JA
Introduction
[1] This appeal is against the
judgment of the Labour Court (D Pillay J) which was handed down on 19
November 2008, in terms of
which the Court
a
quo
reviewed and set aside
the arbitration award issued by the third respondent (“the
commissioner”) on 30 March 2006, whereby
the commissioner found
that the dismissal of the appellant was ‘unfair’ and
ordered, amongst others, that he be reinstated
‘on the same
terms and conditions prior to his dismissal by no later than 2 May
2006.’
[2] Leave to appeal against the
judgment was refused by the Court
a
quo
on 2 April 2009.
However, the appellant successfully petitioned this Court which, on
25 June 2009, granted him leave to appeal against
the said judgment.
[3] In granting leave to appeal, the
Court ordered the appellant, in terms of rule 4(9)of the Labour
Appeal Court Rules, to deliver
the appeal record within 60 days of
the date of the order.
1
The
appellant was, by virtue of rule 5(1),further required to file his
notice of appeal within 15 days from the date of the order
granting
him leave to appeal.
[4] Having failed to file the notice
of appeal and to deliver the appeal record as respectively required,
the appellant filed three
consecutive applications for condonation of
his non-compliance with the prescribed time frames in that regard.
These condonation
applications, as well as the appeal on merits, were
opposed only by the first respondent, the South African Post Office
Limited
(“SAPO”).
Factual background
[5] During or about 1972, the
appellant was employed by SAPO and he gradually climbed up the
promotion ladder till he reached the
position of the cluster
postmaster stationed at Pietermaritzburg. Besides heading the
Pietermaritzburg main post office, he also
had oversight control over
subsidiary or branch post offices falling under his cluster, which
included Cumberwood, Luxmi, Willowton
and Cascades.
[6] On 18 July 2004, the appellant was
served with a notice to attend a disciplinary enquiry, having been
charged with two counts
of misconduct involving alleged incidents of
sexual harassment in the workplace, against two female contract
employees. The disciplinary
hearing ran its course and culminated in
the appellant being convicted as charged on both counts. On 14
October 2004, he was served
with a notice terminating his employment
with SAPO. He felt he was unfairly dismissed and thus referred a
dispute to the first
respondent (“the CCMA”) for
conciliation. When that process failed, the matter was referred to
arbitration and presided
over by the commissioner.
[7] As stated
already, on 30 March 2006, the commissioner issued the award in
favour of the appellant. This was after a lengthy
arbitration
hearing, consisting of at least some 12 witnesses for SAPO and three
for the appellant, including himself. In terms
of the award, the
commissioner declared and ordered as follows:
2
‘
1.
The Applicant’s dismissal is unfair.
2.
The Respondent is ordered to pay the Applicant back pay in the sum of
R120 303-96 by not later than 30
th
April 2006.
3.
The Respondent is ordered to reinstate the Applicant on the same
terms and conditions prior to his dismissal by no later than
2
nd
May 2006.
4.
The Applicant is directed to report for duty at the Pietermaritzburg
Post Office on 2
nd
May 2006.
5.
There is no order as to costs.’
[8] SAPO was not
satisfied with the commissioner’s finding and referred the
matter to the Labour Court for review, in terms
of section 145 of the
Labour Relations Act.
3
The review
application was opposed by the appellant. After hearing argument, the
Court
a
quo
handed
down its judgment in terms of which it ordered as follows: ‘The
application for review is granted with costs.’
The effect of
this order was that the dismissal of the appellant was declared to be
fair and set aside the other ancillary relief
granted to the
appellant by virtue of the commissioner’s award. It is against
this judgment and order that the appellant
now appeals to this Court.
[9]
It
is common cause that the appellant did not file the notice of appeal
and did not deliver the appeal record, as required of him.
Hence,
he filed three consecutive condonationapplications accompanied by
supporting affidavits, in the following manner:
9.1. The first application filed on 8
July 2009, in respect of the late filing of the notice of appeal.
9.2. The second application filed on
16 November 2010, in respect of the late delivery of the appeal
record, which was found to
be incomplete and deficient and had to be
withdrawn by the appellant.
9.3. The third application filed on 23
March 2012, in respect of the late delivery of the complete appeal
record.
The grounds of appeal
[10] The appellant’s grounds of
appeal can be briefly summarised as follows:
10.1.
The
Court
a
quo
erred
in failing to apply the appropriate standard and test laid down
in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
4
in
respect of judicial review of CCMA awards.
10.2.
The
Court
a
quo
erred
in going beyond the proper limits of a review court, more
particularly by proceeding to examine the evidence, determine what
her own conclusion would have been on that evidence, and then, in
effect to reason that, because she would have arrived at a different
conclusion, the decision of the commissioner must necessarily be one
that a reasonable decision maker could not reach.
10.3.
The
Court
a
quo
erred
in adopting an entirely improper approach to the matter, more
particularly by dealing with the matter as though it was an
appeal
and not a review.
The issues
[11] The following issues arise from
the papers:
11.1. For preliminary consideration,
whether the appellant’s non-compliance with the Court order
dated 25 June 2009 and the
relevant Court rules, relating to the
filing of the notice of appeal and the delivery of the appeal record,
should be condoned
and the appeal reinstated.
11.2. If condonation is granted and
the appeal reinstated, then whether the appellant’s dismissal
was fair.
11.3. If unfair, what appropriate
remedy the appellant is entitled to.
[12] For the sake of averting a
piecemeal entertainment of the matter, the Court allowed counsel to
proceed and present their arguments
on both the issue of condonation
and the merits of the appeal. Indeed, the Court received extensive
submissions from counsel on
both issues. Evidently, however, if the
Court finds against the appellant in relation to condonation
applications that will mark
the end of the matter and the appeal
will, in that event, fall to be dismissed.
The appellant’s applications
for condonation of non-compliance with the Court order of 25 June
2009 and the Rules of the Court
[13] As stated
already, this is an issue which warrants preliminary consideration by
the Court. Rule 12(1)provides that ‘[t]he
Court may, for
sufficient cause shown, excuse the parties from compliance with any
of these rules’.
5
This provision
offers a clear indication that the Court is conferred with a
discretionary power in determining whether or not to
grant an
application for condonation of non-compliance with the rules.
6
I now proceed to
consider the issue of condonation.
[14] Rule 5(17) sets out the procedure
to be followed by an appellant who fails to deliver the appeal record
timeously in order
to avert the inevitable consequence of having the
appeal being deemed withdrawn. The rule provides as follows:
‘
(17)
If the appellant fails to lodge the record within the prescribed
period, the appellant will be deemed to have withdrawn the
appeal,
unless the appellant has within that period applied to the respondent
or the respondent’s representative for consent
to an extension
of time and consent has been given. If consent is refused the
appellant may, after delivery to the respondent of
the notice of
motion supported by affidavit, apply to the Judge President in
chambers for an extension of time. The application
must be
accompanied by proof of service on all other parties. Any party
wishing to oppose the grant of an extension of time may
deliver an
answering affidavit within 10 days of service on such party of a copy
of the application.’
[15] The following facts are common
cause:
15.1. Leave to appeal was granted, on
petition, by this Court on 25 June 2009.
15.2. The notice of appeal was due for
filing by 16 July 2009, being 15 days of 25 June 2009.
15.3. The notice of appeal was filed
on 8 July 2010 – some 12 months late.
15.4. The appeal record was due for
delivery by 18 September 2009, being 60 days of 25 June 2009.
15.5. The incomplete appeal record was
filed on 16 November 2010.
15.6. The complete appeal record was
filed on 23 March 2012 – some 2 years 6 months late.
15.7. The appellant or his legal
representative was not granted consent, by SAPO or its legal
representative,for an extension of
time to deliver the appeal record,
nor did the appellant apply to the Judge President for such extension
of time.
15.8. In the circumstances, the appeal
was deemed to have been withdrawn (by the appellant) or to have
lapsed.
[16] Mr Schumann, who appeared for the
appellant, submitted that it was not only through the negligence of
the attorneys (which
was apparent from the appellant’s
affidavits) that such a considerable delay was caused in prosecuting
this appeal but it
was also clear that the financial circumstances of
the appellant played a significant role in that regard.
[17] Counsel also implored us to take
notice of the fact that the preparation of an appeal record was an
extremely complex exercise,
in that it is required to be done in a
specific format which entailed, among other things, a specific method
of cross-referencing.
As a result, most attorneys did not even want
to engage in that task, but simply referred it to certain firms of
experts who specialised
in the preparation of the appeal records for
this Court.
[18] In alleviating any potential
prejudice which SAPO might suffer as a result of the long delay, Mr
Schumann submitted that, in
the event of the appeal succeeding, the
appellant was willing to make a tender to forfeit any back-pay that
he may otherwise be
entitled to. In other words, the Court may make
an order to the effect that any back-pay for the period commencing
from the moment
the appeal record should have been delivered to the
time when it was actually delivered, must be excluded from the
computation
of any arrear salary due to the appellant. Mr
Schumannsubmitted that at the end of the day the Court had a
discretion on the issue
of condonation and that such discretion was
to be exercised in a manner which ensured that justice was done. He
further contended
that, notwithstanding the clearly negligent conduct
of the appellant’s erstwhile attorneys, this was a matter which
warranted
to be heard on the merits.
[19] Mr MyburghSC, appearing for
SAPO,pointed out, however, that it was significant to bear in mind
that at all times the appellant
was legally represented by attorneys
and sometimes even advocates. He argued that the primary objectives
of the LRA was to ensure
an effective and expeditious resolution of
labour disputes and, for this reason, it had to be more difficult to
get condonation
in labour law than in civil law, in individual
dismissals such as in the present case. He submitted that there was
no explanation
whatsoever given for such egregious delay. Therefore,
condonation should be refused and the appeal dismissed on this ground
alone.
Analysis and evaluation
[20] Indeed, an
application for condonation of non-compliance with the rules is not
just a formality or merely something for the
taking. A full and
detailed account of the causes of the delay and the effect thereof
must be furnished by an applicant.
7
The more serious the consequences of non-compliance, the more
difficult it will be for the party seeking condonation to have his
or
her application granted.
8
[21] Therefore, a
party seeking condonation must, firstly, tender an explanation for
the delay in order for the Court to understand
fully how the
non-compliance occurred; and secondly, show that the explanation so
tendered is
bona fide
and
not unfounded.
9
However,
more importantly, when the failure to comply with the rules has been
flagrant and gross, condonation will not be granted,
regardless of
the prospects of success on the merits of the case of the party
seeking condonation.
10
[22] It is trite
that the primary objective of the LRA is to ensure that labour
disputes are effectively and expeditiously resolved,
11
particularly
those involving individual dismissals, such as the present case. This
objective is not only in the interests of the
dismissed employee but
also in the interests of the employer. Just like the employee, the
employer is entitled to have finality
in the dispute. Either party is
always likely to suffer prejudice if the finalisation of the dispute
is unduly and unjustifiably
delayed. Indeed, in conformity with the
primary objective of the LRA aforesaid, rule 5(17) makes it clear
that if the appeal record
is not filed within 60 days the appeal is
deemed to have been withdrawn by the appellant, or in synonymous
terms, it is deemed
to have lapsed.
[23] The element
of effectiveness and expeditiousness in the resolution of labour
disputes is also manifest not only at the appellate
level but is
clear from the inceptive stages of the resolution process. The LRA
provides that the referral of a dismissal dispute
to the CCMA or
relevant bargaining council, as the case may be, must be made within
30 days of the date of the dismissal, or if
it is a later date,
within 30 days of the employer making a final decision to dismiss or
uphold the dismissal.
12
An
attempt at conciliation must be undertaken forthwith and the
conciliation process must not take longer than 30 days to conclude,
since the date of referral of the dispute. If the CCMA or the
bargaining council certifies that the dispute remains unresolved,
or
if the dispute remains unresolved after the 30 day period has
expired, the dispute may then, at the instance of the employee,
be
referred to the CCMA or the bargaining council, for arbitration;
13
or to the
Labour Court for adjudication;
14
depending
on the nature of the reasons for the dismissal, as alleged by the
employee.
[24] Once the
arbitration process is set in motion, the LRA further stipulates that
‘[t]he commissioner may conduct the arbitration
in a manner
that the commissioner considers appropriate in order to determine the
dispute fairly and
quickly
,
but must deal with the substantial merits of the dispute with the
minimum of legal formalities.’
15
(My
emphasis)Any party who feels aggrieved by the conduct of the
arbitration proceedings may, within six weeks of receipt of the
award, apply to the Labour Court to review and set aside the award
concerned.
16
In
Queenstown
Fuel Distributors CC v Labuschagne NO and Others(supra)
,
the issue was whether the Labour Court had jurisdiction to deal with
an application for review, where the application was submitted
outside of the prescribed time limit of six weeks. In recognising the
Legislature’s intention to have the labour disputes,
involving
individual dismissals, resolved expeditiously, this Court stated:
17
‘
By
adopting a policy of strict scrutiny of condonation applications in
individual dismissal cases I think that the Labour Court
would give
effect to the intention of the legislature to swiftly resolve
individual dismissal disputes by means of a restricted
procedure, and
to the desirable goal of making a successful contender, after the
lapse of six weeks, feel secure in his award.’
[25] On the
basis of the aforementioned considerations, there needs, in my view,
to be a differentiation in approach between condonation
applications
under labour law (the LRA), on the one hand, and undercivil law, on
the other, in that it should generally be more
difficult to obtain
the indulgence of condonationunder the former, especially in disputes
involving individual dismissals (not
excluding mass dismissals in
appropriate cases), than under the latter. In other words,
condonation applications under the LRA
need to be subjected to a
strict judicial scrutiny test. Of course, every case will be
determined on its own facts. As stated earlier,
I reiterate, an
application for condonation must not be a mere formality or something
for the taking. In appropriate instances,
such as the present, where
there has been a considerably long and egregious delay in
non-compliance with the rules, condonation
should not be
grantedlightly. Therefore, whilst the Court has the discretionary
power in relation to a condonation application,
in such matters, the
discretion should, in my view, be exercised less generously.
[26] In the affidavit (deposed to on 7
July 2010) supporting his application for condonation in relation to
the filing of the notice
of appeal, the appellant acknowledged the
considerable lateness thereof. As stated, the notice of appeal was
due to have been filed
on 16 July 2009, but it was only filed on 8
July 2010 – some 12 months late.
[27] The appellant
referred to a list of different attorneys whom he said he had
instructed or approached in connection with this
case, including the
following: Attorneys Cajee Setsubi Chetty Inc.; Bhamjee Attorneys;
Tomlinson Mnguni James Inc.; Attorney Navy
Green Thompson;Shanta
Reddy Attorneys; Farrell & Associates and Brett Purdon
Attorneys.He detailed a variety of reasons why
he withdrew from each
attorneys’ firmand instructed another –the reasons mostly
being some sort of discontentment on
his part with the manner in
which the attorneys concerned handled the prosecution process of this
appeal. Consequently, as he put
it, ‘[t]he litigation to date
has thus taken a severe toll on me, emotionally, physically and,
probably most importantly,
financially.’
18
[28] Significantly, however, the
appellant went on and averred as follows (underlined for emphasis):
‘
At
this stage I pause to mention that all the while I was aware that the
appeal record had to be delivered by a certain date, being
a date
falling sixty (60) days after the petition was granted
,
but I was not aware at this stage that a “Notice of Appeal”
was to be lodged within fifteen (15) days of the same
order. I only
became aware of that fact much later as will be described below.
Accordingly my notion of “lodging an appeal”
was the same
as delivering the appeal record. With respect, until my present
attorneys (Farrell & Associates) were instructed,
no attorney I
consulted advised me to the contrary.”
19
(Underlined
for emphasis)
[29] Concerning the
delivery of the appeal record, the appellant initially stated:
20
‘
I
reasonably expect that the appeal record will be delivered within the
next three (3) weeks of the filing of this (notice of) appeal
and I
respectfully pray that I be permitted to supplement this affidavit
insofar as I must explain any further delays in the delivery
of the
appeal record which extend beyond that which I reasonably anticipate
at this stage.’
[30] However, in
the same affidavit, the appellant started to mention other logistical
problems and financial hardship on his part
which, I think, seemed to
blur the ‘reasonable expectation’ that he is talking
about in the quotation I have referred
to in the preceding paragraph.
He sought to draw attention to the fact that the transcription of the
arbitration proceedings comprised
16 volumes and a total of some 1591
pages of evidential material. He continued as follows.
21
‘
The
quotations in respect of the work to be carried out in compiling the
record of appeal induced a sense of great shock and despondency
in
me. At that stage it seemed to me that those costs would prevent me
from carrying this matter forward. I certainly did not have
the funds
available to me and I would have to borrow money in order to further
progress this matter. I was caused to debate how
I could take this
matter further forward.…’
[31] In his second
condonation application (filed on 16 November 2010) pertaining to the
delivery of the appeal record, the appellant
acknowledged that the
record ought to have been delivered on or before 18 September 2009
and that it was then
“
almost
13 months (or 273 court days) late”.
22
However, he
purported to confirm that “the appeal record has been served
and filed simultaneously with this application in
accordance with
Rule 17 of the Rules for the Conduct of Proceedings in the Labour
Appeal Court”.
23
[32] It is apparent from the papers
that, as a result of a letter dated 7 February 2011 issued by the
attorneys for SAPO in which
they pointed out what they regarded as
shortcomings and deficiencies in the appeal record delivered by the
appellant on 16 November
2010, the appellant, on the advice of his
then attorneys of record, withdrew the said record and, hence, sought
further indulgence
to be condoned in his late delivery of the fresh
and complete appeal record.
[33] The appellant
sought to place the blame squarely on his then attorney of record
whom he had thought would attend to correcting
the shortcomings and
deficiencies in the record, which turned out that the attorney did
not do.
24
He
alleged he tried to contact the attorney at least 45 times from his
two landline telephones and three times from his mobile phone
25
but without any
meaningful success.
[34] It is, indeed,
significant to note that the appellant was at all times represented
by attorneys who were fully aware that the
time had run out for the
appellant in terms of compliance with the Court order and the rules.
They were also fully aware of the
potential disastrous consequences
of such non-compliance. However, it is also noteworthy that the
appellant acknowledged in his
affidavit that all along ‘[he]was
aware that the appeal record had to be delivered by a certain date,
being a date falling
sixty (60) days after the petition was
granted’
;
26
and
that‘[his] understanding then, was that, since the appeal
record was inevitably going to be late, condonartion must be
sought
in advance from the Labour Appeal Court as [he] had become accustomed
to these ‘condonation applications’ during
all of the
prior proceedings in the Court a quo
.’
27
In
other words, there wasno question of ignorance on his part in that
regard. Despite his awareness, he continued dilly-dallying,
chopping
and changing the attorneys, until he had finally dealt with at least
seven firms of attorneys over the same matter.
[35] I further
observe that, despite the appellant having referred to a number of
persons (mainly attorneys) in his explanation
for the delay, not a
single one of those people deposed to an affidavit confirming the
appellant’s averments. In an attempt
to respond to that
anomalous omission, the appellant had only this to say: ‘My
previous attorneys were obviously not in a
position to provide
confirmatory affidavits to my affidavit and thereby rendering their
professionalism open to criticism’.
28
In my view, this is
a feeble and lame excuse which cannot be accepted. If the appellant’s
reasons for the delay were
bona
fide
and
not unfounded,
29
it would reasonably
be expected that he would obtain a confirmatory affidavit from at
least one of the attorneys that he referred
to.In the circumstances,
it seems to me that the most plausible or probable explanation
30
for this omission
is that the appellant was aware that none of the attorneys concerned
would confirm his averments, which then further
demonstrates a lack
of
bona
fides
on
the appellant’s part.
[36] The
appellant’s first attorney of record, Mr Praveen Thejpal, of
the firm Attorneys Cajee Setsubi Chetty Inc., had in
turn briefed
advocate Peter Blomkamp to advise and represent the appellant with
regard to the appeal. The appellant testified that
Mr Thejpal served
him well throughout the arbitration proceedings and in the review
proceedings in the Court
a
quo.
However,
notwithstanding such commendable service, certain problems arose
between Mr Thejpal and the appellant, regarding the preparation
of
the appeal record.
[37] According to
the appellant, ‘[t]he magnitude of the task at hand in bringing
the appeal caused our working relationship
some distress. In
particular, we were at loggerheads over whether the appeal record
should consist of the full transcript of the
arbitration proceedings
and all bundles of documents presented at the arbitration
proceedings, or whether it should consist only
of the particular
pages and documents upon which I would rely in an appeal.’
31
Consequently, on 4
September 2009,he addressed a letter to Mr Thejpal terminating his
mandate to act for him.He then instructed
Mr Yunus Bhamjee of Bhamjee
Attorneys thenceforth to act for him.
[38] However, he
was soon thereafter at loggerheads with Mr Bhamjee after the latter
allegedly failed to attend properly to the
issue of requesting the
extension of time from SAPO’s attorneys, to deliver the appeal
record. Anyway, the real reason why
the appellant left his previous
attorney, Mr Thejpal, remains unclear, to say the least. I say so
because when he became disgruntled
with Mr Bhamjee the appellant, on
21 October 2009, reverted to Mr Thejpal who, strangely I would
consider, wrote a letter ‘as
a gesture of goodwill’to Mr
Bhamjee expressing concern in the apparent lack of progress in the
prosecution of the appeal
32
.
In that letter, Mr Thejpal actually referred to the appellant as his
(Thejpal’s) own client, which was factually incorrect.
[39] Indeed, in virtually every
respect, the tone of Mr Thejpal’s letter is as though he was
the appellant’s attorney
and addressing the attorney for the
other side. In this regard, I refer to the following passages in the
letter:
‘
3
… He (the appellant) is informed by you that the record will
be compiled as required by the Labour Appeal Court and that
an
Application for Condonation will be lodged simultaneously with the
record.
Client
asked
me whether this is permissible and I told him that I have no idea
whether this is permissible and that I do not know the rules
in this
regard and I will have to check with Counsel. Please make the
necessary enquiries in this regard and reassure
client
that
everything is in order as the anxiety is mounting and
client
has
not been with an income for several years.
4.
It would be appreciated if you could make the necessary enquiries
regarding the future conduct of the matter and what is permissible
and then discuss this fully with
client
and also telephone the
writer to explain the above and I will also reassure the
client
based on the information received from you.’
(Emphasised).
[40] Then, if the appellant continued
to utilise the services of Mr Thejpal, as he obviously did, and the
latter continued to refer
to the appellant as ‘client’,
then it is difficult, and even curious,to understandwhy the appellant
terminated Mr Thejpal’s
mandate, in the first place. I have
serious doubt that Mr Thejpal continued to assist him on a free of
charge basis. It would seem,
therefore, that there was a period when
the appellant was being simultaneously ‘represented’ by
three legal professionals,
namely, informally by Mr Thejpal and
formally by Mr Bhamjee and Advocate Blomkamp. This fact and the fact
that the appellant was
legally represented all the time, since the
arbitration proceedings, make it difficult to accept any purported
excuse of an alleged
dire financial straits on his part, as being a
contributory factor in the cause of delay in delivering the appeal
record.
[41] In any event,
it is somewhat disingenuous of the appellant to mention (as part of
the reason for the delay) the fact that the
transcript of the
arbitration proceedings comprised16 volumes and a total of some 1591
pages of evidential material, as if he was
totally financially
responsible for the transcription of the arbitration record. It is
common cause that most, if not the whole,
of that record had already
been previously transcribed at the instance of SAPO for the purpose
of the review proceedings before
the Court
a
quo
.
This averment by SAPO was never seriously challenged by the appellant
but he merely raised a bare and bald denial in a manner
that was
conspicuously evasive and disingenuous.
33
[42] Indeed, it is
deducible from SAPO’s attorneys’ letter dated 7 February
2011 that the incomplete record lodged by
the appellant on 16
November 2010 (together with the second condonation application) was
basically the same record which SAPO had
delivered with its review
application in the Court
a
quo
.
There was hardly anything to be added to that record by the
appellant. In fact, the record so lodged was not only incomplete but
it also lacked compliance with the specific guidelines relating to
the preparation of appeal records for this Court.
[43] Consequently, it is difficult to
comprehend why the complete record could not be delivered by the due
date (i.e. 18 September
2009), in the first place, if it was already
in the possession of the appellant’s erstwhile attorneys. It
was, therefore,
even more bizarre and outrageous that when the record
was delivered on 16 November 2010 (14 months later) it was still an
incomplete
record. I also observe that the notice of application
accompanying the incomplete record is dated 4 November 2010, yet the
papers
were filed with the registrar only on 16 November 2010 –
about two weeks later.In virtually everything, the appellant or his
erstwhile legal team appeared to be completely unconcerned about
compliance with the rules and the Court order of 25 June 2009.
It is
further noted that, despite clear opposition to the granting of
condonation,the appellant’s heads of argument filed
on 18 May
2012 completely ignored that issue, and only dealt with the merits.
[44] Of further
significance, there is no explanation why or how the appellant’s
erstwhile attorneys failed (1) to obtain
consent for an extension of
time from SAPO to lodge the appeal record outside of the prescribed
time limit, or (2) to apply to
the Judge President in chambers for
such extension of time.
34
There
was simply no explanation whatsoever why the appellant or his
erstwhile attorneys failed to do all these things.
[45] The
appellant’s own handwritten letter dated 20 November 2009
addressed to the Judge President and purporting to apply
for
condonation is,indeed, an interesting and curious inclusion in the
papers.
35
It was date-stamped
at Cumberwood post office, which coincidentally was one of the
smaller post offices under the cluster control
of the appellant.
36
As
SAPO correctly responded, it wasstrange why a copy of the alleged
letter was not forwarded to its (SAPO’s) attorneys of
record.
37
The
appellant’s lame explanation of ignorance (despite being
legally represented) for this omission is not acceptable.
[46] It was also a
strange unlucky coincidence for the appellant that an official named
“Peggy” whom he allegedly dealt
with at the Labour Appeal
Court happened to have resignedjust at the time when the appellant
would have presumably sought her assistance
to confirm,in an
affidavit, her dealings with the appellant. In any event, the
appellant does not allege that he made any attempts
to trace the
whereabouts of the said “Peggy” even after she had
resigned. In my view, the appellant’s allegations,
in this
regard, arouses further curiosity about his candidness and
bona
fides
.
It seems to me, on the preponderance of probability,
38
that the whole
story about the alleged letter and, probably evenabout “Peggy”,
is only a convenient coverup by the appellant,aimed
at hoodwinking
this Court towards believing that he was earnestly concerned about
the issues of extension of time and condonation.
I am satisfied that
he was not.
[47] In their
letter of 7 February 2011, SAPO’s attorneys pointed out several
specific material shortcomings and deficiencies
in the record filed
by the appellant on 16 November 2010 and, in conclusion, urged the
appellant’s erstwhile attorneys as
follows:
‘
2.
In the premises, we propose as follows:
2.1.
You immediately withdraw the appeal record and Mr Shaikh’s
heads of argument (drafted with reference to an incomplete
record),
with wasted costs being reserved;
2.2.
you compile a fresh appeal record, which should include the evidence
of all the witnesses who testified before the CCMA and
all of the
documents referred to in evidence before the CCMA, and include the
necessary cross-referencing referred to in para 4
above;
2.3.
you deliver the fresh appeal record and the necessary application for
the reinstatement of the appeal/condonation within one
month; and
2.4.
the registrar then be requested to issue a fresh directive regarding
the filing of heads of argument.
3.
We await to hear from you as a matter of
urgency
.’
[48] Despite the
apparent kind gesture and assistance from SAPO’s attorneys in
their letter, quoted above, it took another
13 months for the
appellant’s attorneys of record to lodge the complete record on
23 March 2012. There is patently no explanation
why it took such a
long time to do so.
[49] On his own admission, the
appellant was aware that the prescribed period within which to file
the notice of appeal and to deliver
the appeal record had expired and
that it was necessary to file an application for condonation.
However, he effectively sat back
and did nothing about it but,
instead, kept on chopping and changing the attorneys.
[50] I am also not convinced that the
blame should be laid entirely at the door of his erstwhile attorneys
for the whole delay and
lack of progress in the prosecution of the
appeal. It seems to me, based on his random and indiscriminate
chopping and changing
of attorneys, that the appellant was also
personally to blame for his fate.As alluded to above, the shortage of
funds was not such
a serious problem for him as he now wants to have
us believe.
[51] In any event,
even if there was some degree of negligence of duty on the part of
any of his erstwhile attorneys, this is, in
my view, a typical case
where the shifting of blame to an attorney cannot serve to absolve a
litigant who, in a precarious moment,
such as this one,
decidedknowingly to sit back passively behind the defence shield of a
patently nonchalant and lackadaisical performance
of his erstwhile
attorneys. After all, in
Saloojee
and Another v Minister of Community Development,
39
the
Appellate Division
stated
as
follows:
‘
This
Court has on a number of occasions demonstrated its reluctance to
penalise a litigant on account of the conduct of his attorney.…
I should point out, however, that it has not at any time been held
that condonation will not in any circumstances be withheld if
the
blame lies with the attorney.There is a limit beyond which a litigant
cannot escape the results of his attorney's lack of diligence
or the
insufficiency of the explanation tendered. To hold otherwise might
have a disastrous effect upon the observance of the Rules
of this
Court. Considerations
ad
misericordiam
should
not be allowed to become an invitation to laxity. In fact this Court
has lately been burdened with an undue and increasing
number of
applications for condonation in which the failure to comply with the
Rules of this Court was due to neglect on the part
of the attorney.
The attorney, after all, is the representative whom the litigant has
chosen for himself, and there is little reason
why, in regard to
condonation of a failure to comply with a Rule of Court, the litigant
should be absolved from the normal consequences
of such a
relationship, no matter what the circumstances of the failure are.
(Cf.
Hepworths
Ltd v Thornloe and Clarkson Ltd.
,
1922 T.P.D. 336
;
Kingsborough
Town Council v Thirlwell and Another
,
1957
(4) SA 533
(N)
).A litigant, moreover, who knows, as the
applicants did, that the prescribed period has elapsed and that an
application for condonation
is necessary, is not entitled to hand
over the matter to his attorney and then wash his hands of it. If, as
here, the stage is
reached where it must become obvious also to a
layman that there is a protracted delay, he cannot sit passively by,
without so
much as directing any reminder or enquiry to his attorney
(cf.
Regal
v African Superslate (Pty.) Ltd., supra
at
p. 23
i.f.)
and
expect to be exonerated of all blame; and if, as here, the
explanation offered to this Court is patently insufficient, he cannot
be heard to claim that the insufficiency should be overlooked merely
because he has left the matter entirely in the hands of his
attorney.
If he relies upon the ineptitude or remissness of his own attorney,
he should at least explain that none of it is to
be imputed to
himself.’
40
[52] The appellant
did not only grossly and flagrantly flout the rules of this Court,
but he also deliberately and knowingly disregarded
the Court order of
25 June 2009. In my view, i
t is about
time that litigants, such as the appellant, learnt a lesson to obey
the orders and rules of the Court; and that failure
to do so, without
sufficient and just cause would potentially attract serious and
unpleasant consequences for their default. In
the present instance,
it seems to me, even if the Court were to be lenient and condone the
appellant’s late filing of the
notice of appeal but the
virtually completely unexplained and unashamed egregious delay in the
delivery of the appeal record is
something not to be tolerated.
[53] The
appellant sought to tender that, in the event of the appeal
succeeding, he may, upon reinstatement,
forfeit
any back-pay that he may otherwise be entitled to. In that regard, it
was submitted, the Court may make an order to the
effect that any
back-pay for the period commencing from the time the record should
have been delivered to the time when it was
actually delivered, must
be excluded from the computation of any arrear salary due to the
appellant. However, since
the appeal has
not succeeded, it follows that appellant’s tender in this
regard becomes irrelevant and falls away.
[54] In conclusion,
t
he appellant has failed to show
sufficient cause why his non-compliance
with
the rules and the Court order
of 25 June
2009 should be condoned.
Indeed, his
failure in that regard was gross and flagrant and, as stated in
Darries and Ferreira,
above,
condonation should not be allowed, regardless of the prospects
of success on the merits of the appellant’s case in the appeal.
On this basis,
the appeal cannot be reinstated.
Consequently, there is no appeal properly before us.
In the
event, the
appeal falls to be dismissed on this
ground alone. There is, therefore,
no need to deal with the
merits of the appeal.
[55] Given the
fact that the appellant lost his job and was without income for
several years, and further that he apparently incurred
huge expenses
and costs, particularly in the form of legal fees, it seems to me
just and equitable that he should not be burdened
with further costs
of the appeal. In my view, therefore, there should be no order as to
costs of the appeal.
The order
[56] In the
result, the following order is made:
1. The appeal is
dismissed.
2. There is no
order as to costs of the appeal.
_________________________
Ndlovu JA
Tlaletsi JA and
Landman AJA concur in the judgment of Ndlovu JA
Appearances
:
For the
appellant: Advocate
PN
Schumann
Instructed by:
Brett Purdon Attorneys, Durban
For the first
respondent: AdvocateAT Myburgh SC
Instructed by:
Glyn Marais Inc, Sandton
1
The
60 day period is also in line with the time frame prescribed for
this purpose under rule 5(8).
2
Of
course, t
he parties, in terms of the award, were
as designated at the arbitration hearing. The ‘Applicant’
is now the appellant
and the ‘Respondent’ is now
referred to as SAPO.
3
Act
66 of 1995
4
(2007)
ILJ 2405 (CC) at para 110.
5
See
also rule 27(3) of the Uniform Rules
6
Melane
v Santam Insurance Co Ltd
1962 (4) SA 531
(A) at 532C-F;
See also
Chopra v Sparks Cinemas (Pty) Ltd and Another
1973
(2) SA 353
(D) at 357A-B;
Gumede v Road Accident Fund
2007
(6) SA 304
(C) at 307D-E.
7
Uitenhage
Transitional Local Council v South African Revenue Service
2004
(1) SA 292
(SCA) at para 6.
8
Du
Plooy v Anwes Motors (Edms) Bpk
1983 (4) SA 212
(O) at 217C.
9
Ibid
at 218B. See also
Colyn v Tiger Food Industries Ltd t/a Meadow
Feed Mills (Cape)
2003 (6) SA 1
(SCA) at para 11.
10
See
Darries v Sheriff, Magistrates’ Court, Wynberg and Another
1998 (3) SA 34
(SCA) at 41D. See also
Ferreira v Ntshingila
1990 (4) SA 271
(A).
11
Queenstown
Fuel Distributors CC v Labuschagne N.O. and Others
[2000] 1 BLLR
45
(LAC) at para 25.
12
Section
191(1)(b)(i).
13
Section
191(5)(a).
14
Section
191(5)(b).
15
Section
138(1).
16
Section
145(1).
17
Ibid
at para 25.
18
Founding
affidavit in re: First Application, at 14 para 22.
19
Founding
affidavit in re: First Application, at 16, para 31.
20
Founding
Affidavit in re: First Application, at 11, para 14. As stated, the
notice of appeal was filed on 8 July 2010. Therefore,
the three
weeks period referred to was to be calculated from that date.
21
Founding
Affidavit in re: First Application, at 26, para 53.
22
Founding
affidavit in re: Second Application, at 142, para 29.
23
Founding
Affidavit in re: Second Application, at 143, para 31.
24
Founding
Affidavit in re: Third Application, at 182 paras 31.
25
Founding
Affidavit in re: Third Application, at 182, paras 33, 34 and 35.
26
Founding
Affidavit in re First Application, at 16, para 31.
27
Founding
Affidavit in re First Application, at 17, para 34.
28
Replyi
ng
Affidavit, at 107, para 8.
29
See
DuPlooy
(
supra
) at 218B.
30
See
Cooper and Another NNO v Merchant Trade Finance Ltd
2001 (3)
SA 1009
(SCA) at para 7
31
Founding
Affidavit in re: First Application, at 15, para 27.
32
Mr
Thejpal’s letter is a
t pages 57 and 58 of
the indexed papers.
33
In
its answering affidavit SAPO alleged, in clear terms as follows:
‘
4.
… For the purposes of the review, the respondent [SAPO] had
transcribed the record of the proceedings before the CCMA,
and had
collated and organised that record for the purpose of the review
hearing. It had been indexed, paginated and the exhibits
appropriately ordered for the purpose of that hearing. All that was
required by the applicant (appellant ?) was to bring the
form of
that record into compliance with the Rules of Court pertaining to
the appeal. This was neither onerous nor time consuming
and ought to
have been concluded well within the 60 day period that the applicant
(appellant ?) had from the date of the granting
of leave to appeal,
being 25 June 2009. The applicant failed to do so, and failed
further, when he was aware of his default,
to apply for the
necessary condonation.’
In response thereto, the
appellant simply stated the following, in his replying affidavit:
‘
AD
PARAGRAPH 4
11. The allegations
herein are denied.
12. I submit that the
process to compile the appeal record is not as simplistic as alleged
by the First Respondent’s attorney
considering that I am a
lay-person who is not of a legal mind or background.
13.
I confirm that I have adequately set out the reasons for my delay in
the affidavit in support of my condonation application.
34
In
terms of rule 5(17) of the LRA.
35
Founding
Affidavit in re: First Application, at p18 para 37;
Annexure
“F”, at 59 of the indexed papers.
36
See
para 5 above.
37
In
its answering affidavit,
SAPO responded as
follows:
’
25.1
The Respondent has no knowledge of the allegations in this
paragraph, does not admit same and put(s) the Appellant to the
proof
there. It is strange that a copy of this alleged letter was not
copied to the Respondent’s attorney of record.
25.2 The allegations in
respect of “Peggy” of the Labour Appeal Court
constitutes hearsay evidence and is accordingly
inadmissible.’
38
See
Cooper and Another NNO,
above
n 31.
39
1965
(2) SA 135
(A).
40
Ibid
at 140H to 141H.