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[2017] ZALAC 41
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National Union of Metalworkers of South Africa (NUMSA) and Others v Paint and Ladders (Pty) Ltd and Another (JA74/16) [2017] ZALAC 41; (2017) 38 ILJ 2285 (LAC); [2017] 11 BLLR 1105 (LAC) (28 June 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA 74/16
In the matter between:
NATIONAL UNION OF
METALWORKERS
OF SOUTH AFRICA
(NUMSA)
First Appellant
RAMOREI AND 16
OTHERS
Second and Further appellants
and
PAINT & LADDERS
(PTY) LTD
First Respondent
SUPERMOVE TRADING
(PTY) LTD
Second Respondent
Heard:
18 May 2017
Delivered:
28 June 2017
Summary:
In
the application in terms of Rule 11 for the dismissal of the
appellants’ statement of claim for want of timeous and diligent
prosecution - The Labour Court finding - the appellants’
explanation of the 15 year delay in the prosecution of the claim
inexcusable and resultantly - dismissing the statement of claim.
On appeal - the Labour
Appeal Court – finding that the slovenly fashion in which the
appellants went about prosecuting their
alleged unfair dismissal
dispute deserved to be censured - finding that the Labour Court
properly exercised its discretion in dismissing
the appellants’ claim.
The
decision of the Labour Court confirmed -The appeal dismissed with
costs.
Coram: Tlaletsi AJP,
Landman JA and Phatshoane AJA
JUDGMENT
PHATSHOANE AJA
[1]
This is an appeal against the whole of the judgment and the order of
the Labour Court (per Whitcher J) upholding the application
in terms
of Rule 11
[1]
by Paint &
Ladders (Pty) Ltd, the first respondent, for the dismissal of the
appellants’ statement of claim filed under
Case No: J4106/00
for want of timeous and diligent prosecution. The appeal is with
leave of that Court.
[2]
Almost 17 years ago, on 23 October 2000, the National Union of
Metalworkers of South Africa (NUMSA) on behalf of Ms Colleen
Ramorei
and 16 other employees, the appellants,
[2]
served and filed a statement of claim with the Labour Court. The
claim is predicated on the alleged unfair dismissal of the individual
appellants from the services of Paint & Ladders, their employer,
on account of its operational requirements. On 04 December
2000,
Paint & Ladders filed its statement of response to the claim. The
minutes of the pre-trial conference were filed on 26
November 2003,
almost three years later. On 24 May 2004, the matter was set down for
trial but was postponed
sine
die
in consequence of an agreement between the parties following an
application for a postponement by Paint & Ladders.
[3] Subsequent to the
postponement of 24 May 2004, the matter laid dormant until on 06
August 2010 when Molahlehi J, in chambers,
certified that the dispute
between the parties was trial ready. In April 2015, some 11 years
later calculated from the date the
dispute was referred to the Labour
Court for adjudication, the Court
mero motu
issued the Notice
of set down of the trial for 03 August 2015.
[4] On 03 August 2015,
the morning of the trial, Paint & Ladders served on the
appellants a Notice of Motion in terms of Rule
11 in which it sought
an order that the appellants’ claim be dismissed in consequence
of their failure to expeditiously and/or
diligently prosecute same.
Coetzee AJ adjourned the proceedings to the following day, 04 August
2015, to afford the appellants
the opportunity to file their
answering papers. On the scheduled day, the Court postponed the
matter
sine die
and ordered Paint & Ladders to once more
serve and file its Rule 11 application within 10 days of the order if
it elected to
proceed with the application to dismiss the appellants’
claim.
[5] The 10-day period
within which Paint & Ladders ought to have filed its Rule 11
application lapsed on 18 August 2015. The
time-frame stipulated in
the Court order was not adhered to but the application was served and
filed on 25 August 2015, five days
late. At that stage, no
application had been made to condone the late filing thereof. Paint &
Ladders states that it was unaware
that its application was late
because it erroneously diarised the service and filing of the
application for “the incorrect
week”. It says that upon
perusal of the appellants’ answering affidavit, it became
apparent to it that its application
was late. It therefore sought, in
its replying affidavit, condonation on the basis that the delay was
minimal and its prospects
of success propitious.
[6] To demonstrate that
it stood to suffer prejudice, occasioned by the inordinate delay,
Paint & Ladders maintain that during
the retrenchment process it
was represented by its National Operations Manager, Mr Johan
Conradie. He is no longer in its employ
and had reported to Mr Neels
Potgieter, Paint & Ladders’ General Manager and its
deponent, that he had very little recollection
of the matter and
would have to be subpoenaed should his attendance be required. A
certain Mr C Khoza of Henry Holland and Associates
was a facilitator
during the retrenchment exercise. Mr Potgieter says that Mr Khoza’s
whereabouts are unknown.
[7] By quirk of
coincidence, on the same day in which the Rule 11 application was
filed by Paint & Ladders, 25 August 2015,
the appellants had also
filed a Notice of enrolment of their claim for trial. In an effort to
demonstrate that they were not remiss
in prosecuting their claim
timeously the appellants state that around September 2010 they
approached the Labour Court with a request
that they be allocated a
trial date. They claim that the registrar informed them that their
file was mislaid and would be allocated
a trial date once it was
found. They also apportioned blame for the delay to Paint &
Ladders and contended that the company
ought to have facilitated the
finalisation of the case by setting it down for trial or placed them
on terms to bring their claim
to conclusion.
[8] The Rule 11
application to dismiss the appellants’ claim came before
Whitcher J on 30 November 2015. At that stage, the
claim spanned some
15 years since it was launched with the Labour Court for
adjudication. Having succinctly dealt with the parties’
arguments the Court
a quo
found that the appellants took ages
to prosecute each stage of the litigation and took no further steps
to facilitate that their
matter be set down for trial. The Court
found the argument by the appellants preposterous and their conduct
inexcusable.
[9] The Court
a quo
was further of the view, regard being had to the 15 years’
delay, that even with the aid of the pleadings and minutes of
the
retrenchment process the witnesses’ memories would be
unreliable. It remarked that:
‘
(T)here
comes a point in time where, on account of the effluxion of time,
excuses and explanation for delays become irrelevant and
a party
loses its right to continue to litigate because the case becomes
obsolete and the quality of litigation inevitably compromised.
In my
view this situation has arisen in this case.’
[10] The Court
a quo
concluded that Paint & Ladders made out a case for the dismissal
of the appellants’ statement of claim. As adumbrated
earlier,
it granted the Rule 11 application and made no order as to costs.
[11] The grounds of
appeal boiled down to this. The Court
a quo
erred:
11.1 In
disregarding that the appellants were ready to proceed with the trial
on 24 May 2004 when the matter was
postponed
sine die
at the
behest of Paint & Ladders;
11.2 In
not finding that Paint & Ladders failed to comply with the order
of Coetzee AJ to deliver its Rule
11 application within 10 days. The
opportunity afforded to Paint & Ladders, so it was contended, had
lapsed and therefore its
application ought not to have been
entertained;
11.3 In
not finding that Coetzee AJ erred in granting leave to Paint &
Ladders to bring a Rule 11 application
which was not before him at
the time. This opportunity, it was argued, had the effect of
disregarding the order by Molahlehi J
to the effect that the matter
was ripe for trial;
11.4 In
taking judicial notice, without admissible evidence, that the
memories of Paint & Ladders’ witnesses
had become
unreliable with the passage of time. It was contended that the Court
a quo
inadvertently substituted assumptions for judicial
assessment;
11.5 In
not rejecting Paint & Ladders evidence of its inability to locate
Mr Khoza. It was contended that
the Court ought to have found that
Paint & Ladders failed to demonstrate the significance of Mr
Khoza’s evidence;
11.6
Insofar as it deviated from authoritative jurisprudence by imputing
blame for the delay solely on the appellants
and not considering
Paint & Ladders’ contribution to the delay.
11.7 By
failing to take cognisance that the Court file was lost for a
considerable period of time which delayed
the set down of the trial.
[12]
It is apparent
ex
facie
the judgment of the Court
a
quo
that it did not deal with Paint & Ladders’ application for
condonation of the late filing of its Rule 11 application
which, as
already alluded to, was one week late. However, I am in serious doubt
that
the judgment of the Court
a
quo
would have been any different even if it had expressed itself on the
application as the delay was insignificant. In light of the
Court’s
findings and conclusion on the merits of the application, Paint &
Ladders had good prospects of success. The degree
of lateness
was relatively negligible and the explanation therefor plausible. I
am unpersuaded that Paint & Ladders’
opportunity
to be heard lapsed by reason of its failure to file its application
within 10 days as ordered by Coetzee AJ.
The
argument that the order by Coetzee AJ
had
the effect of disregarding the order by Molahlehi J to the effect
that the matter was ripe for trial is misconceived. This Court
held
in
Windybrow
Theatre v Maphela and Others
[3]
that
t
he
Labour Court does have an inherent power to protect and regulate its
processes which, in my view, includes calling upon the parties
to
account for the wanton delays in the finalisation of their claims.
On
a conspectus of all these considerations, I am of the view that the
late filing of the Rule 11 application should have been and
is hereby
condoned.
[13]
The general drift of the appellants’ argument is that the Court
a
quo
did not consider the Labour Court’s authoritative jurisprudence
when dismissing their claim. They contended that the principle
established through case law was that the aggrieved party ought to
place the dilatory party on terms to issue the Notice of enrolment
prior to moving an application to dismiss a claim. Mr Lengane, for
the appellants, in support of his argument, referred to
Karan
t/a Karan Beef Feedlot and Another v Randall
[4]
which concerned the dismissal of the statement of claim on the basis
of an unreasonable delay in pursuing a claim. In that case,
subsequent to the closing of the pleadings, there had been a delay of
approximately two years and three months in delivering the
pre-trial
minutes.
Van
Niekerk J pronounced that R
ule
6 of the Rules for the Conduct of Proceedings before the Labour Court
established a model of case management in terms of
which cases
referred to the Labour Court, at least after the conclusion of a
pre-trial conference or the lapse of the period allocated
for a
pre-trial conference, are to be managed by a judge rather than the
registrar, the parties, or their representatives. The
Court further
held that the clear intention was to ensure that judges assumed
control of matters at an early stage, and that
they actively
managed cases to ensure that they were expeditiously and efficiently
dealt with during the pre-trial phase and beyond.
Van Niekerk J
further held
[5]
:
‘
[14]
In summary: despite the fact that the rules of this court make no
specific provision for an application to dismiss a claim
on account
of the delay in its prosecution, the court has a discretion to grant
an order to dismiss a claim on account of an unreasonable
delay in
pursuing it. In the exercise of its discretion, the court ought to
consider three factors:
•
the
length of the delay;
•
the
explanation for the delay; and
•
the
effect of the delay on the other party and the prejudice that that
party will suffer should the claim not be dismissed.
This is subject
to the consideration that an application to dismiss is a drastic
remedy, and should not be granted unless the dilatory
party has been
placed on terms, and when appropriate, after any further steps as may
have been available to the aggrieved party
to bring the matter to
finality have been taken. Theoretically, in the case of referrals to
this court in terms of Rule 6,
matters ought never to get to this
point - unlike the rules of other courts, the Labour Court Rules
contemplate a system of active
case management by a judge in the
pretrial phase. Properly applied, Rule 6 ought to ensure that tardy
parties and representatives
are held to account, and that matters are
prepared and enrolled for trial without delay.’
[14]
The view expressed by Van Niekerk J in
Karan
Beef Feedlot
(supra)
was echoed in
Member
of the Executive Council, Department of Sport, Recreation, Arts
& Culture, Eastern Cape v General Public Service
Sectoral
Bargaining Council and Others
[6]
where
Prinsloo AJ held that an application to dismiss a review application
is a drastic remedy and should not be granted unless
the dilatory
party has been placed on terms, and where appropriate, after any
further steps as may have been available to the aggrieved
party to
bring the matter to finality, have been taken.
[15]
Mr
Lengale also referred to
Cassimjee
v Minister of Finance (Cassimjee)
[7]
to buttress his argument that the Court
a
quo
had no proper regard to the
dicta
of the very precedents it relied on in dismissing the appellants’
statement of claim.
Cassimjee
concerned
an
appeal
against the decision of a High Court to dismiss an action for
want of prosecution. In that case, 32 years had
passed between
the date of the institution of the action and the delivery of the
judgment appealed against. Included in this was
a period of some 20
years that elapsed during which no steps were taken by either
party to advance the action.
The
dismissal of the appellant's action was sought on the ground that it
had been dormant for an extended period and that to permit
its
revival would give rise to irremediable prejudice amounting to an
abuse of the process of Court. The Supreme Court of
Appeal (SCA)
held that the High Court has the inherent power, both at common law
and in terms of the Constitution of the Republic
of South Africa (s
173), to regulate its own process. This includes the right to prevent
an abuse of its process in the form of
frivolous or vexatious
litigation. It further held that an inordinate or unreasonable delay
in prosecuting an action may constitute
an abuse of process and
warrant the dismissal of an action. In exercising a discretion to
dismiss an action for want of prosecution,
the SCA laid down the
principles as follows
[8]
:
‘
[11]
There are no hard-and-fast rules as to the manner in which the
discretion to dismiss an action for want of prosecution is to
be
exercised. But the following requirements have been recognised.
First, there should be a delay in the prosecution of the
action;
second, the delay must be inexcusable; and, third, the defendant must
be seriously prejudiced thereby. Ultimately, the
enquiry will involve
a close and careful examination of all the relevant circumstances,
including the period of the delay, the
reasons therefor and the
prejudice, if any, caused to the defendant. There may be instances in
which the delay is relatively slight
but serious prejudice is caused
to the defendant, and in other cases the delay may be inordinate but
prejudice to the defendant
is slight. The court should also have
regard to the reasons, if any, for the defendant's inactivity and
failure to avail itself
of remedies which it might reasonably have
been expected to use in order to bring the action expeditiously to
trial.
[12] An approach
that commends itself is that postulated by Salmon LJ in the English
case of
Allen v Sir Alfred McAlpine & Sons Ltd
;
Bostik
v Bermondsey and Southwark Group Hospital Management Committee;
Sternberg v Hammond
[1968] 1 All ER 543
(CA), where the
following was stated at 561
e
–
h
:
'A defendant may
apply to have an action dismissed for want of prosecution
either
(a)
because of the plaintiff's failure to
comply with the Rules of the Supreme Court or
(b)
under
the court's inherent jurisdiction. In my view it matters not
whether the application comes under limb
(a)
or
(b)
,
the same principles apply. They are as follows: In order for such an
application to succeed, the defendant must show:
(i)
hat
there has been inordinate delay. It would be highly undesirable and
indeed impossible to attempt to lay down a tariff —
so many
years or more on one side of the line and a lesser period on the
other. What is or is not inordinate delay must depend
on the facts of
each particular case. These vary infinitely from case to case, but it
should not be too difficult to recognise
inordinate delay when it
occurs.
(ii)
that
this inordinate delay is inexcusable. As a rule, until a credible
excuse is made out, the natural inference would be that it
is
inexcusable.
(iii)
that
the defendants are likely to be seriously prejudiced by the delay.
This may be prejudice at the trial of issues between themselves
and
the plaintiff, or between each other, or between themselves and the
third parties. In addition to any inference that may properly
be
drawn from the delay itself; prejudice can sometimes be directly
proved. As a rule, the longer the delay, the greater the likelihood
of serious prejudice at the trial.'
[16]
As correctly argued by Mr Lengane,
Rule
6(5) to (8) contemplates a system of judicial case-flow management by
a judge in respect of matters referred to the Labour
Court for trial.
However, c
ase-flow
management does not divest the
dominus
litis
of its responsibility to ensure speedy finalisation of its case. A
litigant cannot remain supine and allow years to go by in the
hope
that the Court would in the unknown future date put its matter
through judicial case-flow management. The fact that the appellants
were ready for trial 2004 is no excuse for a period of a
decade-and-a-half of inertia which followed thereafter. There is a
dearth
of explanation of what the parties did between 2004 when the
trial was postponed to April 2015 when the Court decided, on its own
accord, to set the matter down for trial. The exception is the
appellants’ unsubstantiated claim that in September 2010,
upon
an enquiry at the registrar’s office, they were informed that
the file had been misplaced. They do not say who had attended
the
Court and neither did they attach any formal Notice of enrolment.
They also did not detail any steps they took to trace the
file; what
enquiries (if any) they directed to the Registrar in a quest to
obtain her assistance; or whether they at any stage
attempted to
compile a duplicate file. There is no semblance of a credible excuse
proffered for the delay.
[17]
What can be observed from the long line of decisions in the Labour
Court on applications for dismissal of the claims for want
of timeous
prosecution is that although t
he
rules of the Labour Court make no specific provision for an
application to dismiss when a party fails diligently to pursue
a
claim referred to it for adjudication, the court has recognised and
adopted the rule based on the maxim
vigilantibus
non dormientibus lex subveniunt.
In
terms of this maxim, a party may in certain circumstances be debarred
from obtaining the relief to which that party would have
been
entitled to on account of an undue delay in prosecuting its
claim because: Firstly, an unreasonable delay may cause prejudice
to
the other parties. Secondly, it is both desirable and important that
finality be reached within a reasonable time in respect
of judicial
administrative decisions.
[9]
[18]
An aggrieved party’s conduct is a factor to be taken into
account in the exercise of the discretion whether to dismiss
a
statement of claim. In
National
Construction Building & Allied Workers Union & others
v Springbok Box (Pty) Ltd t/a Summit Associated
Industries,
[10]
Molahlehi
J correctly held, in my view, that t
he
contribution to the delay by the party seeking to have the matter
dismissed for delay in prosecution must be objectively assessed
with
a view to evaluating the extent to which the inaction of the
applicant contributed towards the excessiveness or otherwise
of the
delay. The inaction has to be weighed against the objective facts
that may point towards loss of interest in pursuing the
matter by the
party opposing such an application. It may well be that the facts and
the circumstances objectively point to a case
where the dilatory
party can be said to have abandoned or lost interest in the matter.
[19]
There had been in this case no reaction from Paint & Ladders to
put the appellants on terms to expedite finalisation of
their claim
up until 03 August 2015, the morning of the trial, when it suddenly
brought the application to dismiss the appellants’
claim. Its
conduct is therefore not above reproach. However, it is clear that in
the situations such as the present, where the
delay spans some 15
years, Paint & Ladders’ conduct ought not to be viewed in
isolation
from
the appellants’ failure to expeditiously prosecute their
claim.
[11]
In
Cassimjee,
(supra) reference was made to the following seminal
dictum
in
Allen
v Sir Alfred McAlpine & Sons Ltd
;
Bostik
v Bermondsey and Southwark Group Hospital Management Committee;
Sternberg v Hammond
[1968]
1 All ER 543
(CA) by Diplock LJ (at 556c – g):
'Since
the power to dismiss an action for want of prosecution is only
exercisable on the application of the defendant his previous
conduct
in the action is always relevant. So far as he himself has been
responsible for any unnecessary delay, he obviously cannot
rely on
it. Moreover, if after the plaintiff has been guilty of unreasonable
delay the defendant so conducts himself as to induce
the plaintiff to
incur further costs in the reasonable belief that the defendant
intends to exercise his right to proceed to trial
notwithstanding the
plaintiff's delay, he cannot obtain dismissal of the action unless
the plaintiff has thereafter been guilty
of further unreasonable
delay. For the reasons already mentioned, however, mere non-activity
on the part of the defendant where
no procedural step on his part is
called for by the rules of court is not to be regarded as conduct
capable of inducing the plaintiff
reasonably to believe that the
defendant intends to exercise his right to proceed to trial. It must
be remembered, however, that
the evils of delay are cumulative, and
even where there is active conduct by the defendant which would debar
him from obtaining
dismissal of the action for excessive delay by the
plaintiff anterior to that conduct, the anterior delay will not be
irrelevant
if the plaintiff is subsequently guilty of further
unreasonable delay.
The
question will then be whether as a result of the whole of the
unnecessary delay on the part of the plaintiff since the issue
of the
writ, there is a substantial risk that a fair trial of the issues in
the litigation will not be possible
.'
(My own emphasis)
[20]
In the end, it all comes down to the question of whether, in light of
the delay, there would be a fair trial of the issues
in this case.
Put differently, whether on account of the delay there would be any
prejudice to the parties which would impede the
fair determination of
the issues.
[21]
The statutory obligation in respect of expeditious resolution of
labour disputes exists for a good reason:
Any
delay undermines the primary object of the
Labour Relations Act,
66 of 1995
.
As illustrated in
Toyota
SA Motors (Pty) Ltd v Commission for Conciliation, Mediation &
Arbitration and Others,
[12]
failure to prosecute timeously labour disputes is detrimental not
only to the workers who may be without a source of income pending
the
resolution of the dispute but, ultimately, also to an employer who
may have to reinstate workers after many years. See also
Colett
v Commission for Conciliation, Mediation & Arbitration and Others
(2014)
35 ILJ 1948 (LAC);
CUSA
v Tao Ying Metal Industries and Others
[2008] ZACC 15
;
2009
(2) SA 204
(CC) at 223 para 63.
[22]
In
Mohlomi
v Minister of Defence,
[13]
the Constitutional Court observed:
‘
[11] Rules
that limit the time during which litigation may be launched are
common in our legal system as well as many others.
Inordinate
delays in litigating damage the interests of justice. They protract
the disputes over the rights and obligations
sought to be
enforced, prolonging the uncertainty of all concerned about their
affairs. Nor in the end is it always possible to
adjudicate
satisfactorily on cases that have gone stale. By then witnesses may
no longer be available to testify. The memories
of ones whose
testimony can still be obtained may have faded and become unreliable.
Documentary evidence may have disappeared.
Such rules prevent procrastination and those harmful consequences of
it. They thus serve a purpose to which no exception in principle
can
cogently be taken.’ (My own emphasis)
[23] It can hardly be
argued that Paint & Ladders would not suffer prejudice due to the
lack of timeous and diligent prosecution
of the claim. As matters
currently stand its deponent says it had not been able to locate one
of its witnesses while the other
witness is no longer in its employ
and had allegedly reported that his memory or recollection of the
facts or events has faded.
The appellants’ contention to the
contrary about Paint & Ladders’ witnesses is without
substance. Mr Lengane also
sought to argue that the Court
a quo
erred in not considering that Paint & Ladders, when it sought a
postponement of the trial in 2004, submitted that a certain
Mr Roy
Fouche was its key witness whereas in its founding papers it
submitted that Mr Conradie was the principal witness. He contended
that Paint & Ladders proffered no explanation why Mr Fouche could
not be called to testify. No basis for this argument was
established
by the appellants in their papers serving before us, save for
counsel’s submission in the heads of argument.
The Court
a
quo’s
conclusion that the fair determination of the issues,
in this case, will be severely compromised cannot be faulted. To my
mind,
the interest of justice will not be served.
[24]
The appellants have a right of access to justice as contemplated in s
34 of the Constitution of the Republic of South Africa.
However, that
right is subject to the limitation permitted in s 36 of the
Constitution. In
Beinash
and Another v Ernst & Young and Others,
[14]
the
Court held:
‘
[
17]
The right of access to courts protected under s 34 is of cardinal
importance for the adjudication of justiciable disputes. When
regard
is had to the nature of the right in terms of s 36(1)
(a)
,
there can surely be no dispute that the right of access to court is
by nature a right that requires active protection. However,
a
restriction of access in the case of a vexatious litigant is in
fact indispensable to protect and secure the right of access
for
those with meritorious disputes. Indeed, as the respondents argued,
the Court is under a constitutional duty to protect
bona fide
litigants, the processes of the Courts and the administration of
justice against vexatious proceedings’
(footnotes
omitted).
[25] The slovenly fashion
in which the appellants went about prosecuting their alleged unfair
dismissal is deserving of censure.
The court
a quo
was right
in having nonsuited them. I am satisfied that Whitcher J
properly
exercised her discretion to dismiss the appellants’ claim for
want of timeous prosecution thereof.
The upshot of all this is
that the appeal must fail.
[26] The requirements of
law and fairness dictate that costs should follow the result of this
appeal. Resultantly I make the following
order.
Order
1.
The
appeal is dismissed with costs.
_________________________
MV Phatshoane
Acting Judge of the
Labour Appeal Court
Tlaletsi AJP and Landman
AJA concur in the judgment of Phatshoane AJA
APPEARANCES:
FOR THE APPELLANTS:
Adv K Lengane
Instructed by Phungo
Incorporated
FOR THE FIRST RESPONDENT:
Adv AJ
Nel
Instructed
by Eric Bryer Attorneys
[1]
Rule 11 sets out the procedure for
interlocutory application and procedures not specifically provided
for in other Rules for the
conduct of proceedings before the Labour
Court. It provides in part that interlocutory applications,
applications incidental to, or
pending, proceedings referred to in those Rules that are not
specifically provided for in the Rules
must be brought on notice and
supported by an affidavit.
[2]
Ms Ramorei’s full particulars,
as well as the particulars of the 16 other appellants, cited as the
second and further appellants
do not appear from the records of this
appeal. I had the liberty to peruse through the records of the
statement of claim they
filed on 30 October 2000 at the Labour Court
under Case No J4106/2000 to establish their identity. They were not
identified in
the statement of claim. On 22 June 2004, almost four
years following the filing of the statement of claim, separate
affidavits
of 12 of the appellants were filed in respect of the
relief they sought. They identify themselves as follows in these
affidavits:
Colleen Ramorei; Ruth Ntala; Piet Sebelebele; John
Molantoa; Charles Kekana; Jacob Madubye; Adam Modiba; Monica
Mashilo; Lefie
Mabowa; Lucky Maisela; Lefty Shaku; and DS Mathebula
[3]
(2016)
37 ILJ 2641 (LAC) at 2645 para 11.
[4]
(2009)
30 ILJ 2937 (LC).
[5]
At 2943-2944 para
14.
[6]
(2015)
36 ILJ 2893 (LC) at 2899 para 27.
[7]
Cassimjee
v Minister of Finance
2014 (3) SA 198 (SCA).
[8]
At 201-202 paras 11 and 12.
[9]
See in this regard
Sishuba
v National Commissioner of the SA Police Service
(2007) 28
ILJ
2073
(LC);
Karan
t/a Karan Beef Feedlot and Another v Randall
(2009)
30
ILJ
2937
(LC);
BP
Southern Africa (Pty) Ltd v National Bargaining Council for the
Chemical Industry and Others
(2010)
31
ILJ
1337
(LC)
;
National
Education Health & Allied Workers Union on behalf of Leduka v
National Research Foundation
(2017) 38 ILJ 430 (LC).
[10]
(2011)
32 ILJ 689 (LC)
at
695-696 para 28.
[11]
See
Cassimjee
v Minister of Finance
ibid
at 204 para 21,
[12]
(2016)
37 ILJ 313 (CC) at 316 para 1.
[13]
[1996] ZACC 20
;
1997
(1) SA 124
(CC)
at
129-130 para 11.
[14]
1999
(2) SA 116
(CC)
at
123 para 17.