About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2015
>>
[2015] ZALAC 19
|
|
Rabothata v Others v MEIBC and Others (JA40/2010) [2015] ZALAC 19 (3 June 2015)
INTHE
LABOUR APPEAL COURT OF SOUTH AFRICA,
JOHANNESBURG
Case no: JA40/2010
DATE: 03 JUNE 2015
Not Reportable
In
the matter between:
SAMUEL
RABOTHATA &
OTHERS
..................................................................................
Appellants
And
MEIBC
...........................................................................................................................
First
Respondent
J M GAYLARD,
NO
.................................................................................................
Second
Respondent
INTERCABLES (PTY)
LIMITED
...........................................................................
Third
Respondent
Heard:
05 March 2015
Delivered:
03 June 2015
Summary: Reinstatement of appeal – employees failing to file
notice of appeal and record of appeal timeously – employees
obtaining second case number two years later after obtaining first
case number – employees relying on second case number
and
misleading the court – employees’ misrepresentation
detrimental to their case- employees failing to provide acceptable
explanation for the excessive delay – application for
reinstatement of appeal dismissed.
CORAM:
Waglay JP, Landman JA, and Mngqibisa-Thusi AJA
JUDGMENT
MNGQIBISA-THUSI AJA
Introduction
[1]
This is an appeal against the Judgment of
the Labour Court (Molahlehi J) in terms of which, the Labour Court
dismissed the appellants’
application to review and set aside
the decision of the second respondent. The second respondent had
found that the referral by
the appellants of their dispute for
arbitration was defective.
[2]
Before dealing with the merit of the
appeal, this Court needs to deal with the appellants’
application to reinstate the appeal
and to condone the late filing of
their notice of appeal. The third respondent opposes the application
and the appeal. Hereinafter
the third respondent will be referred to
as the respondent.
Background
[3]
Up and until 25 January 2007, the
appellants were in the employ of Intercables (Pty) Limited
(“Intercables”). Subsequent
to disciplinary hearings,
Intercables dismissed the appellants for their involvement during
December 2006 in an unprotected strike.
At the time when the
appellants were dismissed, they were represented by National Union of
Metalworkers of South Africa (“NUMSA”).
NUMSA represented
the appellants both during the disciplinary proceedings and in the
internal appeal process. NUMSA referred an
unfair dismissal dispute
to the Metal Industry Bargaining Council (“MEIBC”) under
case number MEGA 14950. Later the
United Peoples Union of South
Africa (“UPUSA”) also referred the same dispute under
case number MEGA 15038 to MEIBC.
On 13 March 2007, a day before the
arbitration hearing was to be held under the auspices of the Centre
for Dispute Resolution Council
of the MEIBC (“CDR”),
NUMSA withdrew as the appellants’ representative.
[4]
At the arbitration, the appellants were
represented by UPUSA. Intercables raised as a point
in
limine
to the fact that since the
appellants were represented by NUMSA at the time the dispute arose
and during the disciplinary proceedings,
in terms of clause 17 of the
CDR, the appellants could not be represented by UPUSA
[1]
.
The commissioner (“second respondent”) upheld the point
in limine
and made a ruling that the appellants’ referral was defective
and dismissed the matter.
[5]
The appellants lodged a review application
in the Labour Court seeking the review and setting aside of the
second respondent’s
decision. The Labour Court dismissed the
application on the ground that the irregularity complained of was not
reviewable. On 17
July 2009, the Labour Court granted the appellants
leave to appeal its decision dismissing the review application.
[6]
The appellants filed a notice of appeal on
02 July 2010 under case number JA 40/2010, that is, 11 months out of
time.
[2]
Subsequent thereto, there was no progress made in the prosecution of
the appeal in that the appellants did not file the record
within the
prescribed time limits.
[3]
The record was supposed to have been lodged on or before 28 September
2009. On 13 September 2011, the registrar of this Court informed
the
appellants’ then attorneys of record, Maserumule Attorneys,
that the appeal in case number JA 40/2010 was deemed to be
withdrawn
in terms of Rule 5 (17).
[4]
Five months after receipt of the letter from the registrar, in
February 2012, the appellants obtained a legal opinion. The opinion
dated 16 February 2012, prepared by an attorney, Mr Sandile Mabaso
(“Mr Mabaso”), makes reference to the registrar’s
letter of 13 September 2011 and advises what the appellants are
required to do to persue the appeal.
[7]
The appellants appear to have done nothing
for a period of 9 months after obtaining the legal opinion. On 13
November 2012, the
appellants filed a second notice of appeal under a
new case number, JA 60/2012, that is, after the letter issued by the
registrar
indicating that the appeal under case number JA 40/2010 was
deemed to have been withdrawn. On service of the notice of appeal
under
the new case number the respondent filed a notice of objection
in which it was pointed out to the appellants that it was incompetent
for them to file a second notice of appeal under a new case number.
[8]
Without responding to the respondent’s
objection the appellants applied to have their appeal reinstated and
heard by this
Court. In the founding affidavit in support of the
application the appellant made reference and attached the legal
opinion referred
to earlier.
[9]
An application for reinstatement is similar
to an application for condonation. The court in granting condonation,
has a discretion
that is to be exercised judiciously, taking into
consideration all the facts before it. In doing so, it must take into
account
(i) the degree of lateness or non-compliance; (ii) the
explanation thereof; (iii) the prospects of success; (iv) the
importance
of the case; (v) the respondent’s interest in the
finality of the matter.
[5]
[10]
It is apparent that the contents of the
notice of appeal with case number JA 40/2010 are copied in the second
notice of appeal with
case number JA 60/2012. In the founding
affidavit, the deponent alleges that the case number for the appeal
was obtained in 2012
and the notice of appeal was filed in November
2012. This clearly referred to the new case number, 60/2012. Counsel
for the appellants
could not explain why the pervious case number was
abandoned. It is clear that this was an attempt at misleading this
Court as
to the age of the appeal.
[11]
The appellants have attempted to mislead
this Court by obtaining a second case number two years after it had
already obtained a
case number for their appeal. I am of the view
that based solely on this misrepresentation, this application should
be dismissed.
[12]
Dealing with the delay itself, it appears
from the founding affidavit and from submissions made by counsel for
the appellants that,
the delay in filing the notice of appeal and the
record was because several successive legal representatives were
given instructions
to pursue the appeal and they had not done so.
According to counsel, the appellants experienced problems raising
funds to pay the
attorneys’ fees or to pay a deposit as UPUSA
appeared to have abandoned them. They added that after they had
raised and paid
the deposit, the relevant UPUSA representative failed
to attend scheduled consultations with the lawyers, leading to the
lawyers
withdrawing as their legal representatives. Counsel for the
appellants submitted that the appellants were lay people who have
been
let down by their union and lawyers and that it was not through
the fault of the appellants that the appeal was not prosecuted with
the necessary diligence. Counsel urged this Court to be sympathetic
to the appellants’ need to have their day in court. In
NUM
v Council for Mineral Technology,
[6]
this Court held that “courts have traditionally demonstrated
their reluctance to penalise a litigant on account of the conduct
of
its legal representative but have emphasised that there is a limit
beyond which an applicant cannot escape the results of his
representatives lack of diligence or the insufficiency of the
explanation tendered.”
[7]
Even though this Court may have sympathy in the way in which the
union and the appellants’ legal representatives have dealt
with
this matter, the appellants have not given any particulars as
to what they did during the time delays experienced in
this matter in
pursuing their legal representatives.
[8]
[13]
It is the respondent’s contention
that, taking into account the time it took the appellants to
prosecute the appeal, the delay
is excessive and the appellants have
not given a proper and full explanation for non-compliance with the
Rules of this Court. Furthermore,
the respondent contends amongst
other things that the application should be dismissed in view of the
misrepresentation committed
on behalf of the appellants when a new
case number was obtained to fraudulently represent that it was a 2012
appeal when it was
a 2010 appeal.
[14]
Although the appellants are asking for an
indulgence from this Court, it does not appear that they have taken
this Court into their
confidence. The appellants have failed to come
clean and explain that it was the failure of their representatives
and it was the
representatives who took it upon themselves to mislead
the court. Such failure which amounts to a misrepresentation cannot
be countenanced.
[15]
Also, and with regard to the time delay,
the appellants have not given an explanation with any particularity
as to why significant
periods lapsed during which no action was taken
to prosecute the appeal. There is furthermore no explanation as to
why the first
notice of appeal was filed 11 months late.
[16]
The record, which was due on 28 September
2009 in terms of Rule 5(8), was only filed on 27 September 2013, that
is, three years
after it became due. There is no acceptable
explanation given as to why the record was filed more than three
years late. The application
for reinstating the appeal should also
have been instituted as soon as the appellants became aware of the
need for it. Even if
one was to assume in favour of the appellants
that they might not have been expected to know that the application
was necessary
in February 2012, Mr Mabaso did advise them of the need
to so apply. The appellants have not given any explanation as to why
this
application was only instituted on 16 May 2014; more than two
years after the appellants became aware that in order to prosecute
their appeal they have to apply for its reinstatement.
[17]
I am of the view that the time lapses are
excessive. The appellants have displayed a total disregard of the
Rules of this Court.
Taking into account the purpose of the Labour
Relations Act
[9]
for the resolution of disputes expeditiously, and the fact that the
appellants have not taken this Court into their confidence
by
disclosing relevant information to enable this Court to decide
whether condonation should be granted, I am of the view that
this
application should fail.
[18]
In the absence of a reasonable and
acceptable explanation and in view of the excessive delay in
prosecuting the appeal and the taint
of misrepresentation, it is
unnecessary to have regard to the prospects of success on the
merits.
[10]
I am satisfied that the appellants have not shown sufficient cause to
reinstate the appeal.
[19]
The respondent has sought a punitive cost
order. However, bearing in mind the fact that the appellants are
probably unemployed,
have been abandoned by their union and must have
expended their own resources up to this stage, I am not inclined to
grant a cost
order against the appellants.
[20]
Accordingly the following order is made:
The appeal is dismissed
with no order as to costs.
Mngqibisa-Thusi
AJA
I agree
Waglay
JP
I agree
Landman JA
APPEARANCES:
FOR THE APPELLANT: Adv Zondi
Instructed
by Mhlungu Attorneys
FOR
THE THIRD RESPONDENT: Mr Snyman of Snyman Attorneys
[1]
Clause 17 of the DRC provides that at arbitration
a party may appear in person or be represented either by a legal
practitioner
or ‘by a member, official or office bearer of a
registered union that the party was a member of
at the time the dispute arose’.
[2]
In terms of Rule 5(1) of the Rules of this Court,
a notice of appeal must be filed within 15 days after leave to
appeal is granted.
[3]
In terms of Rule 5(8), the appellant is to
deliver the record within 60 days of the granting of leave to
appeal.
[4]
Rule 5(17) provides that in the event of the
appellant failing to lodge the record within the prescribed period
as set, the appellant
is deemed to have withdrawn the appeal unless
the appellant receives the consent of the respondent for an
extension of the of
time. If consent is not given, the appellant
must, on notice of motion accompanied by an affidavit, apply to the
Judge President
in chambers for such an extension, after serving the
application on the respondent.
[5]
Melane v Santam Insurance Company Limited
1962 (4) SA 531
(A) at 532 C-F;
Dial
Tech CC v Hudson and Another
(2007) 28
ILJ 1237 (LC).
[6]
[1999] 3 BLLR 209 (LAC).
[7]
At 211I-212A.
[8]
See also
Allround
Tooling (Pty) Ltd v NUMSA and Others
[1998]
8 BLLR 847
(LAC) at para 8.
[9]
66 of 1995.
[10]
In this regard see
Moila
v Shai NO
(2007) 28 ILJ 1028 (LAC) at
para 34;
NUM v Council for Mineral
Technology
[1999] 3 BLLR 209
(LAC) at
211G-H.