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[2018] ZALAC 54
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Transport and Allied Workers Union of South Africa v Algoa Bus Company (PTY) Limited South African Transport and Allied Workers Union and Others (PA 14/17) [2018] ZALAC 54; [2019] 3 BLLR 262 (LAC); (2019) 40 ILJ 827 (LAC) (12 December 2018)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, PORT ELIZABETH
Reportable
Case no: PA14/17
In the matter between:
TRANSPORT AND ALLIED
WORKERS UNION
OF SOUTH
AFRICA
Appellant
and
ALGOA BUS COMPANY
(PTY) LIMITED
First Respondent
SOUTH AFRICAN
TRANSPORT AND ALLIED
WORKERS
UNION
Second Respondent
TRANSPORT ACTION,
RETAIL, AND GENERAL
WORKERS
UNION
Third Respondent
Heard:
28 August 2018
Delivered:
12 December 2018
Summary: Condonation
for the late filing of the notice of appeal and reinstatement of
appeal – union contending that financial
constraints limited
its ability to brief counsel who will accept its payment condition –
court held that an explanation based
on the lack of funds will not
automatically result in the granting of condonation and that
explanation for the delay wholly unsatisfactory
as union not
providing financial statement proving its financial distress.
Application for the reinstatement of the appeal dismissed
and matter
struck from the roll.
Coram: Phatshoane
ADJP, Sutherland JA and Kathree-Setiloane AJA
___________________________________________________________________
JUDGMENT
KATHREE-SETILOANE
AJA
[1]
This
is an
appeal against the judgment and order of the Labour Court (Lallie J)
refusing an application for condonation for the late
filing of an
application for rescission against a default judgment handed down by
Cele J on 31 October 2014. Cele J ordered the
appellant, Transport
and Allied Workers Union of South Africa (“TAWUSA”),
South African Transport and Allied Workers
Union (“SATAWU”)
and Transport Action and Retail and General Workers Union (“THOR”)
as well their members
to pay damages in the amount of R10 350 000,000
to the first respondent, Algoa Bus Company(Pty) Ltd (“ABC”),
arising from an unprotected strike.
[2]
ABC
issued warrants of execution against SATAWU, TAWUSA, and THOR on 4
March 2015. They were, however, stayed in separate proceedings
by
SATAWU in Port Elizabeth and by TAWUSA in Johannesburg on
26
and
27
March
2015,
respectively.
The warrants were stayed pending the outcome of an appeal against the
default
judgment
by SATAWU and an application for rescission of the default judgment
by TAWUSA.
[3]
SATAWU
did not pursue its appeal within the time frames set by the Labour
Relations Act, 66 of 1995 (“Act”) and the
Labour Court
Rules (“Rules”). Nor did TAWUSA pursue its recission
application within these timeframes. They accordingly
sought
condonation from the Labour Court. On 20 April 2016, the Labour Court
dismissed their applications for condonation and consequently
SATAWU’s application for leave to appeal and TAWUSA’s
rescission application.
[4]
On
or about 21 April 2017, the Labour Court granted TAWUSA leave to
appeal against its refusal to condone the late filing of the
rescission application. TAWUSA did not prosecute the appeal
timeously, and the matter was considered withdrawn and archived in
terms of the Rules. During this time ABC instructed the sheriff to
attach TAWUSA’s bank account since there was no legal
process
filed by TAWUSA to suspend the damages judgment.
[5]
On
3 October 2017, TAWUSA filed its notice of appeal and accompanying
application for condonation. It then filed and delivered the
appeal
record on 24 November 2017. The record was filed and served four and
a half months out of time. On 13 December 2017, TAWUSA
filed an
application for reinstatement of the appeal together with a
condonation application for the delay in filing the record.
TAWUSA
must accordingly persuade this Court to condone the late filing of
the record and reinstate the appeal.
[6]
On
22 September 2011, ABC’s employees, who were members of TAWUSA,
took unprotected strike action. (“
the
September strike
”).
They also took strike action from 20 October until 10 November 2011
(“
the
October strike
”).
[7]
ABC
instituted Labour Court proceedings in which it claimed damages
arising from the unprotected strike action as against SATAWU,
TAWUSA
and THOR and their members in their individual capacities (“
the
main claim
”).
The summons was served on TAWUSA on 13 September 2012 at its
provincial office in Port Elizabeth. On 31 October 2014,
the Labour
Court (Cele J) handed down default judgment against the three unions
and their respective members.
[8]
Central
to TAWUSA’s explanation for the delay in prosecuting the appeal
is that it was facing financial challenges. It says
that during 2017,
it was in arrears with the payment of legal fees to more than one
firm of attorneys including its current attorneys
of record and some
advocates. During July 2017, both TAWUSA and its current attorneys of
record, Lennon Moleele and Partners (“Lennon
Moleele”),
were sued by a Johannesburg advocate for the payment of just under R2
million of arrear fees dating back to July
2014. Summary judgment was
sought against them but on 20 October 2017, the application was
refused.TAWUSA alleges that as a result
of this action, Lennon
Moleele were only prepared to brief counsel who was familiar with
TAWUSA’s precarious financial circumstances
and was willing to
accept the brief on condition that they would not sue them for
outstanding fees.
[9]
The
Labour Court faxed its judgment in the application for leave to
appeal to TAWUSA on 21 April 2017, but TAWUSA did not receive
notice
of it until 19 September 2017. On 20 September 2017, Mr GSB Lennon of
Lennon Moleele (“Mr Lennon”) requested
Mrs Moyo (“Ms
Moyo”) of his Port Elizabeth correspondents, Pumeza Bono Inc
(“Pumeza Bono”), to draw the
court file to ascertain why
TAWUSA was not notified of the leave to appeal judgment. Ms Moyo went
to the Labour Court on 20 September
2017, but could not access the
court file because the Labour Court was in the process of moving to
the High Court building in Port
Elizabeth.
[10]
On
26 September 2017, Ms Moyo visited the Labour Court again to
ascertain whether the move was completed. Although it was not, she
managed to obtain a copy of the leave to appeal judgment from the
Registrar. Ms Moyo furnished Mr Lennon with a facsimile transmission
report from the Registrar indicating that the leave to appeal
judgment was faxed by the Registrar to 086 536 6192 on 21 April
2017. Mr Lennon believed this to be the correct facsimile number of
Pumeza Bono and had used it on all his pleadings. However,
upon
further investigation, it transpired that the facsimile number was
not correct. That notwithstanding, TAWUSA says that Mr
Lennon had
always received correspondence and notices from the Labour Court in
Port Elizabeth through Pumeza Bono.
[11]
Unable
to ascertain when the court file could be accessed, Mr Lennon decided
to file the notice of appeal and the application for
condonation for
its late filing ahead of the record of appeal. After the leave to
appeal judgment came to his attention, Mr Mankge
together with Mr
Lennon discussed the matter with Mr F. Wilke, who practised at the
Johannesburg Bar (“
Mr
Wilke
”).
Mr Wilke had argued the condonation application in the Labour Court.
TAWUSA owed Mr Wilke a substantial amount for long
overdue fees, but
because Mr Mangke knew Mr Wilke for about 25 years, he was prepared
to settle the notice of appeal and accompanying
condonation
application for its late filing on the terms required by Lennon
Moleele. The notice of appeal and application for condonation
was
filed on 3 October 2017.
[12]
During
Lennon’s telephonic interaction with Ms Moyo, she had flatly
refused to incur any further disbursements on behalf of
TAWUSA
because of long overdue fees. In the circumstances, Mr Lennon was not
in a position to request her to obtain a copy of the
court file and
send it to him. On 13 October 2017, Mr Lennon requested ABC’s
attorneys, Joubert Galpin Searle, to furnish
him with certain
documents that were missing from his file. They responded on 13
October indicating that they would endeavour to
extract the required
documents and advise Mr Lennon of the copying charges in due course.
[13]
In
the meantime, Mr Lennon requested Mr Tiso of TAWUSA Provincial Office
in Port Elizabeth to visit the Labour Court and make copies
of the
contents of the court file. The court file became available on 17
October 2017. TAWUSA furnished Mr Lennon with a copy of
the court
file on 25 October 2017.
[14]
The
record comprising 481 pages was prepared under the supervision of Mr
Lennon by 7 November 2017. However, Mr Lennon was not prepared
to
incur further disbursements on TAWUSA’s behalf by making the
required number of copies of the record at his own expense.
Mr Mankge
then arranged for him to make the copies at the Bargaining Council.
[15]
Mr
Lennon
visited the office of the Bargaining Council on 8 November 2017 to
make the copies, but the person appointed to assist him
was not
available. Mr Lennon returned to his office with the record and made
arrangements with Mr Mankge to attend to the copying
and binding of
the record. On 14 November 2017, copies of the record were forwarded
to Ms Moyo in Port Elizabeth.
[16]
When
the appeal record was ready to be filed in the Labour Court, Mr
Lennon approached Mr Wilke to prepare the application for the
reinstatement of the appeal. Advocate Wilke was not available and
advised Mr Lennon to brief other counsel, but promised to contact
Mr
Lennon should he become available. Mr Lennon was unable to find
counsel (to prepare a reinstatement application) who was amenable
to
not suing his firm in the event of non-payment by TAWUSA.
[17]
Mr
Lennon fell ill on 21 November 2017, consulted a medical doctor the
following day and was admitted for emergency surgery on 23
November
2017. He was only discharged from hospital on 27 November 2017. Mr
Lennon returned to work on 4 December 2017. His attempts
to find
suitable counsel were, therefore, interrupted by his absence from
work. He, however, managed to arrange for the record
to be filed on
24 November 2017, despite being on sick leave.
[18]
On
the afternoon of Friday 8 December 2017, Mr Wilke became available to
accept the brief to draft the reinstatement application
and advised
Mr Lennon of this. Mr Lennon then briefed Mr Wilke to prepare the
application for condonation for the late filing of
the record and
reinstatement of the appeal.
Application for
Reinstatement of the Appeal
[19]
Rule
5(8) of the Rules of the Labour Appeal Court provides that the record
must be delivered within 60 days of the date of the order
granting
leave to appeal. Rule 5(17) provides that if an appellant fails to
lodge the record within the prescribed period, the
appellant shall be
deemed to have withdrawn the appeal unless the respondent or the
Judge President, on proper application, has
consented to an
extension. TAWUSA did not seek an extension from ABC nor did it make
application to the Judge President. The appeal
was therefore regarded
as withdrawn, and could only be reinstated by order of the Labour
Appeal Court in terms of a substantive
application for reinstatement.
[20]
In
United
Plant Hire v Hills
[1]
the Appellate Division, in considering the factors that a court will
look at in an application for reinstatement of a lapsed appeal
stated
(at 720F-G) that:
‘
It
is well settled that, in considering the application for condonation,
the court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and that in essence it is a question
of fairness to both sides. In this enquiry, considerations
may
include the degree of non-compliance with the rules, the explanation
therefor, the prospects of success on appeal, the importance
of the
case, the respondent’s interests in the finality of the
judgment, the convenience of the court and the avoidance of
unnecessary delay in the administration of justice. The list is not
exhaustive. These factors are not individually decisive
but are
interrelated and must be weighed one against the other; thus a slight
delay and a good explanation may be held to compensate
for prospects
of success which are not strong.’
[21]
According
to the records of the Registrar, the leave to appeal judgment was
sent to TAWUSA on 21 April 2017. It was faxed to Mr
Lennon’s
correspondents on a facsimile number that Mr Lennon used on all his
pleadings – and believed to be correct.
There is, however, no
explanation why on this particular occasion the facsimile
number was incorrect when Mr Lennon had “always
in the past”
received correspondence and notices from the Labour Court through
Pumeza Bono Inc on this facsimile number.
[22]
In
the absence of a proper explanation for this state of affairs, the
Court must accept that Mr Lennon was notified of the judgment
on 21
April 2017. In the circumstances TAWUSA filed its notice of appeal
almost 96 days late and the appeal record approximately
four months
late with no application for condonation and reinstatement of the
appeal. The Court takes note that at least a month
of this delay was
occasioned by the move of the Labour Court to the High Court premises
in Port Elizabeth. TAWUSA was, as a result,
only able to uplift the
record in mid-October 2017 from the Registrar. Save for this,
TAWUSA’s explanation for not filing
an application for
condonation and reinstatement of the appeal is essentially that it
could not find suitable counsel to draft
the application on the
payment terms required by Lennon Moleele, and the unavailability of
Mr Wilke until 8 December 2017.
[23]
An
explanation based on the lack of funds will not automatically result
in the granting of condonation. That explanation would require
assessment in the context of the facts of a particular case. In the
current matter, TAWUSA has averred that it lacked funds to
brief
counsel timeously, but it has not disclosed its financial status to
this Court. The Court also notes that TAWUSA had funds
to file a
notice of appeal and an application for condonation for its late
filing, as well as an application to stay the warrants
of execution
which were struck off the roll by the Labour Court on 19 December
2017. These applications were misguided, as the
proper course would
have been for TAWUSA to use those funds to apply for reinstatement.
But the reinstatement application was only
filed on 13 December 2017,
some weeks after TAWUSA was advised by ABC to bring a reinstatement
application.
[24]
Significantly,
in this regard, on 3 October 2017 ABC had received TAWUSA’s
notice of appeal and application for condonation.
On 9 October 2017,
ABC’s attorneys advised TAWUSA of the need to apply, in terms
of the Rules of this Court, for the re-enrolment
of the appeal and
condonation for the late filing of the record. Despite this caution,
TAWUSA responded by saying that it intended
to pursue the route it
had chosen. By then, the filing of the notice of appeal was already
96 days late, and no record had been
filed. Hence the appeal had
lapsed.
[25]
Although
TAWUSA did nothing further to prosecute the appeal, ABC filed a
notice of opposition. In response, TAWUSA simply delivered
the appeal
record on 24 November 2017. Only on 13 December 2017, the day before
it unsuccessfully sought a further stay of execution
in the Labour
Court (14 December 2017), did TAWUSA bring its application for the
reinstatement of the appeal.
[26]
In
the absence of proper disclosure of its financial status, I find
TAWUSA’s explanation for the delay in filing the record
and the
reinstatement application unsatisfactory.
Prospects of success in
the Appeal
The
explanation
for
the delay
[27]
In
the light of TAWUSA’s unsatisfactory explanation for the delay
in filing its condonation and reinstatement application,
it is
necessary to consider whether it has strong prospects of success in
the appeal. As you will recall, the appeal lies against
the Labour
Court’s refusal to grant condonation for the late filing of
TAWUSA’s rescission application, which was four
months out of
time. In
Melane
v Santam Insurance,
[2]
the Appellate Division articulated the test for condonation as
follows:
‘
The
basic principle is that the court has a discretion, to be exercised
judicially upon a consideration of all the facts, as in
essence it is
a matter of fairness to both sides. Among the facts usually
relevant are the degree of lateness, the explanation
therefor, the
prospects of success, and the importance of the case. Ordinarily
these factors are interrelated: they are not
individually
decisive, for that would be a piece-meal approach incompatible with
the true discretion, save of course if there are
no prospects of
success, there would be no point in granting condonation …
What is needed is an objective conspectus of
all the facts.
Thus, a slight delay and a good explanation may help to compensate
for prospects of success which are not
strong. On the
importance of the issue and strong prospects of success may tend to
compensate for a long delay and respondent’s
interest in
finality must not be overlooked. …’
In
NUM
v Council for Mineral Technology,
[3]
the
Labour Court endorsed
Melane
as
follows:
‘
There
is a further principle which is applied, and that is without a
reasonable and acceptable explanation for the delay, the prospects
of
success are immaterial, and without prospects of success no matter
how good the explanation for the delay, an explanation for
condonation should be refused.”
[28]
In
dismissing the condonation application for the late filing of the
rescission application, the Labour Court reasoned as follows:
‘
The
first respondent argued that the 65-day delay which the third
respondent acknowledged is excessive although its true extent
is even
more. Whether the third respondent was required to have brought
its application within 15 days of becoming aware
of the judgment or
within a reasonable time 65 days is excessive in the circumstances of
this matter. I accept the first respondent’s
argument that the
explanation proffered by the third respondent that the delay was due
to logistical and financial constraints
is unreasonable. The third
respondent had an obligation to explain the full extent of the delay.
It did not. It omitted essential
dates and left portions of the delay
unaccounted for. The third respondent’s difficulty to
provide a reasonable explanation
for the delay is consistent with the
first respondent’s version that the third respondent filed the
application on 17 March
2015 having been jolted into action by
receiving the writ of execution on 13 March 2015. The absence
of a reasonable explanation
for the inordinate delay constitutes
sufficient grounds for the refusal of a condonation application.’
[29]
TAWUSA
ascribes the delay in launching its rescission application to the
fact that the default judgment was brought to the attention
of its
main office in Johannesburg during November 2014, when a journalist
sought comment from Mr Mankge. A copy of the judgment
was obtained,
and Mr Wilke was briefed. He was, however, based in Johannesburg and
TAWUSA had insufficient funds in their account
to enable him to
travel to Port Elizabeth to consult with witnesses. Mr Wilke,
therefore, prepared a document that contained an
overview of
applicable legal principles as well as a merger of the allegations
contained in the founding and answering affidavits.
This document was
forwarded to potential witnesses in Johannesburg, Durban and Port
Elizabeth but the responses provided insufficient
particulars.
[30]
In
January 2015, TAWUSA was placed in funds to bring counsel to Port
Elizabeth for extensive consultations with potential witnesses.
Mr
Wilke consulted with the witnesses from 21 January 2015 until
Saturday 24 January 2015. Due to prior commitments, Mr Wilke was
unable to commence work on the preparation of this application during
the week of 26 to 30 January 2015. On 13 February 2015, he
forwarded
a draft affidavit to TAWUSA for perusal and comment by witnesses in
Johannesburg, Durban and Port Elizabeth. Some 10
days later on 26
February 2015, counsel was furnished with the outstanding information
and advised of the necessary amendments
to the affidavit.
[31]
Counsel
furnished his instructing attorney with the amended founding
affidavit on 27 February 2015. However, certain documents and
details
about TAWUSA’s financial position remained outstanding.
Subsequent searches for these documents came to naught. The
unavailability of these documents as well as certain witnesses, in
particular, the intended deponent to the affidavit, Mr Dyante,
caused
further delays. In the light of Mr Dyante not being found, the
founding affidavit had to be amended.
[32]
On
Friday 13 March 2015, Mr Wilke was advised of a writ of execution
that was served upon TAWUSA’s banker, Standard Bank,
and was
furnished with a copy of the writ on Monday, 16 March 2015. Counsel
finalised the affidavit on the same day and forwarded
it to Mr Lennon
and to his Port Elizabeth correspondent.
[33]
Quite
apart from the fact that the contents of the founding affidavit that
purport to explain the delay in filing the rescission
application are
hearsay, the remainder of the explanation is unconvincing and lacking
in particularly. For instance, when exactly
in November 2013 did the
(unnamed) journalist allegedly inform Mr Mangke, at TAWUSA’s
head office in Johannesburg, of the
default judgment is not made
clear in the explanation. Assuming that this was early in November,
TAWUSA does not explain why it
took nearly a month to obtain a copy
of the judgment and the court file. It is furthermore improbable that
either Mr Mankge or
other TAWUSA officials or shop stewards would not
have heard of the default judgment from SATAWU shop stewards, against
whom the
order also operated.
[34]
TAWUSA
states that it took the whole of December to obtain comments from
unidentified “
potential
witnesses
”
due to its lack of funds to send counsel to Port Elizabeth to consult
with witnesses. Which witnesses TAWUSA’s counsel
finally
consulted during his visit to Port Elizabeth, in late January 2015,
are not identified in its founding affidavit.
[35]
Mr
S.B
Mkosi, the deponent to the founding affidavit in the condonation
application, refers in his explanation to some outstanding
documents
but does not explain their relevance. Nor do they appear to have any
bearing on TAWUSA’s financial position as
claimed, and nor have
they been delivered as promised. Instead of obtaining the annual
financial statement for the period in question,
TAWUSA obtained an
income statement and a trial balance. The relevance of these
documents is not explained yet a country-wide search
was made for
them.
[36]
I
also have difficulty comprehending how a draft affidavit was prepared
on the assumption that it could be deposed to by a Mr Dyante,
who had
suddenly disappeared. Even more astonishing is that it took counsel
between November 2014 and March 2015 to prepare a founding
affidavit.
TAWUSA’s legal representatives would have been aware of the
rule that a defaulting party must seek condonation
as soon as the
need becomes apparent. It seems to me that TAWUSA was finally jolted
into action when it received a writ of execution
on 13 March 2015.
The timing could not have been coincidental and must be viewed
against the background of TAWUSA’s supine
reaction to the main
application which led to the default judgment.
[37]
I
am not convinced that logistical and financial constraints made it
impossible for TAWUSA to bring the condonation application
sooner.
Such constraints are not an adequate basis for delay beyond the point
where a litigant becomes aware of its default.
[38]
The
Labour Court’s conclusion that TAWUSA did not provide a
satisfactory explanation for the delay is, therefore, beyond
question. This Court has repeatedly held that where the explanation
for a delay is weak in a condonation application, it is unnecessary
to consider the prospects of success.
[4]
Thus, given the absence of a satisfactory explanation for the delay,
it was unnecessary for the Labour Court to consider the prospects
of
success of the rescission application.
Prospects of success
in the Rescission Application
[39]
I
will, nevertheless, examine the prospects of success of the
condonation application because it is central to whether TAWUSA has
prospects of success in the appeal. The appeal lies against the
Labour Court’s refusal of the condonation application for
TAWUSA’s delay in filing its rescission application. Hence, its
prospects of success in the recission application need to
be assessed
as well.
[40]
TAWUSA
seeks rescission under Rule 16A(1)(b) of the Rules of the Labour
Court, which provides that the Labour Court may rescind
any order or
judgment granted in the absence of a party. It is trite law that a
party relying on this provision is required to
show good cause and a
bona
fide
defence.
[41]
TAWUSA
seeks rescission on specified grounds. The first is that default
judgment was erroneously sought in the absence of the individual
judgment debtors who are not also recipient shop-stewards as they
were not properly notified of the proceeding that gave rise to
the
default judgment. Mr Mkosi, the deponent to the founding affidavit in
the rescission application, purports to speak for the
individual
judgment debtors but provides no proof of authority to act on their
behalf. Crucially, however, he admits to receiving
a copy of the
notice of the application as did the other named shop-stewards.
[42]
Shop-stewards
act as representatives of the unions and are impliedly authorised to
act as agents on their behalf. Service on the
shop-steward is
generally considered service on the union. Service was furthermore
properly effected on every one of the respondents.
Notably, Mr Mkosi
does not allege that any of the cited respondents were not made aware
of the main application.
[43]
The
second defence raised by TAWUSA is that the default judgment was
erroneously sought in TAWUSA’s absence as the founding
affidavit does not disclose a cause of action against TAWUSA. The
cause of action appears clearly from the founding affidavit in
the
default application: it is the participation by three unions and
their members in an unprotected strike which caused ABC loss.
This
also appears clearly from the founding affidavit in the main
application.
[44]
TAWUSA’s
involvement in the September strike is manifest from the involvement
of Mr Mkosi (chief shop steward) and its alternative
shop-steward in
a meeting during that strike. They were specifically requested
together with the representatives of the other two
unions to report
back to their members. They were also handed a copy of the
unprotected strike notice, dated 22 September 2011,
which ABC issued
on that day.
[45]
Relating
to the October strike, all three unions including TAWUSA’s
representatives were issued with a communication on 20
October 2011,
that “the unprotected strike action has far-reaching
consequences and that their members must resume work immediately,
failing which ABC would have no choice but to bring an urgent
application interdicting the strike action.” The shop stewards
(including those of TAWUSA) persisted in their refusal to engage at
any level with management and did not attempt to persuade their
members to return to work.
[46]
TAWUSA’s
shop stewards were also involved in the discussions concerning ABC’s
proposed sale of the business that purportedly
triggered the strike.
TAWUSA’s members and its shop-stewards, in particular, Mr
Mkosi, supported the demand that led to the
strike. Mr Mkosi, in
fact, signed the strike demand. When TAWUSA’s members refused
to resume duties, none of the three unions
including TAWUSA gave ABC
any indication of their willingness to procure the return to work of
their members.
[47]
The
proposition advanced during argument that TAWUSA was not obliged to
take steps to ensure the return of its members to work because
there
was no bargaining relationship between ABC and TAWUSA, during the
period of the two strikes, is factually and legally untenable.
This
is because there is no requirement that a union must have a formal
bargaining relationship with an employer before it assumes
responsibility for controlling members employed by that employer.
[48]
TAWUSA
contended that the default judgment was erroneously sought in the
absence of the individual judgment debtors, as the founding
affidavit
disclosed no cause of action against them in relation to the
September strike. There is no merit in this argument as
the founding
affidavit in the main application makes it clear that the further
respondents were all engaged in unprotected strike
action that caused
ABC loss.
[49]
TAWUSA
sought to argue that due to an administrative oversight at its office
in Port Elizabeth, the summons was lost and its head
office in
Johannesburg was not informed about the damages claim against it.
What happened to the summons on receipt by TAWUSA’s
Port
Elizabeth office can hardly be described as mere “administrative
oversight. What is clear is that its employee (Ms Mzembe)
in its Port
Elizabeth received the application papers on 13 September 2012, and
acknowledged receipt by signing for it. She could,
however, not say
with certainty what happened to them after she had placed them on her
desk. On TAWUSA’s version, the failure
to forward the
application papers, to its office in Johannesburg was the result of
the inexcusable negligence of officials in its
Port Elizabeth office.
What this equates to, is administrative ineptitude. Administrative
ineptitude can hardly, in my view, demonstrate
“
good
cause
.”
[50]
TAWUSA’s
members embarked on two unprotected strikes in close succession over
spurious demands that could and should have
been resolved by lawful
means or abandoned. They then defied the Labour Court’s order
to return to work for several days.
Moreover, nowhere in its
rescission application does TAWUSA challenge the finding that the
strike caused ABC, a non-profit organisation
performing a vital
public service, damages of more than R10 million.
[51]
TAWUSA
claims that it did not instigate or support the September and October
strikes and its members were not willing participants.
It claims that
it made numerous attempts to discourage its members from
participating in the September 2011 and October 2011 strikes.
This
defence is unsupported by any factual allegations.
[52]
Lastly,
TAWUSA’s defence that the relief granted is incompetent because
it does not specify what portion of the damages awarded,
the three
respondent unions are liable for. The relief granted here by the
Labour Court was the alternate relief sought by ABC
in its notice of
motion. The judgment is for R10 million plus interest. It is clearly
understood from their joint and several liability
that each of the
three unions is liable for a 33.3% share of the damages awarded. In
any event, if there is any issue that arises
from the nature of the
order, that must surely be dealt with at the execution stage and not
at the recission stage.
[53]
All
in all, the application for rescission was aimed solely at staying
off the inevitable. It is no coincidence that it was made
at around
the same time that its bank account was attached. Had that not
occurred, the application would never have been brought
as TAWUSA
would have continued to labour under the ill-conceived view that ABC
was not serious about recovering some of the losses
caused by the
strike.
[54]
TAWUSA
has failed to show that it has a
bona
fide
defence. Its members embarked on two unprotected strikes in close
succession over spurious demands that could and should have been
resolved by lawful means or abandoned - and for several days defied
an order of the Labour Court to resume work. For these reasons,
I am
not persuaded that TAWUSA has no prospects of success in its
rescission application.
Importance of the
Issue
[55]
TAWUSA
contends that the matter is of importance to it solely because it has
been held liable for a significant judgment debt. TAWUSA’s
case
appears to be somewhat overstated because, as made clear by ABC, it
sought and still seeks to recover only a portion of that
debt from
each of the three respondent unions. SATAWU has, in fact, agreed to
pay its share. The predicament in which TAWUSA finds
itself was,
however, due to its conduct during the strike and that of its
members.
[56]
TAWUSA’s
submits that the rescission application raises issues about the
liability of unions under section 68(2) of the Act,
and its meaning
and scope. The meaning of section 68(2) of the Act is plain in so far
as interdictory relief is concerned in terms
of section 68(1)(a) of
the Act. The Labour Court made an order interdicting the three unions
and its members from striking, but
they openly defied the order for
several days before ending the strike.
[57]
In
so far as the order of “just and equitable compensation”
in terms of section 68(1)(b) is concerned, the factors that
the
Labour Court was required to consider when fixing the amount of
compensation were dealt with in the main application. TAWUSA
and the
other judgments debtors had their opportunity to persuade the Labour
Court why they should not be ordered to compensate
ABC the full
amount of its loss. They lost the opportunity to do so, and TAWUSA
cannot do so now.
[58]
It
is manifest from the history of this matter that TAWUSA was only
jolted into action when ABC took steps to satisfy its judgment
debt.
The issuing of warrants of execution and the attachment of TAWUSA's
bank account was yet another step which jolted TAWUSA
into bringing a
reinstatement application.
Prejudice
[59]
TAWUSA
contends that ABC would have suffered no prejudice if the Labour
Court granted condonation for the late filing of the rescission
application because the judgment remains binding on SATAWU and THOR.
There is no merit in this contention. As contended for by
ABC, the
prejudice that it has suffered from TAWUSA’s late intervention
is self-evident. It waited for more than a year for
the satisfaction
of the judgment debt. TAWUSA caused a further year’s delay by
forcing ABC to defend an attempt to stay execution
against TAWUSA.
The appeal was lodged four years after the rescission application was
launched and six years after the default
judgment was granted. In my
view, ABC’s interests in finality far outweigh TAWUSA’s
interest in having the rescission
application determined.
[60]
For
all these reasons, I consider TAWUSA to have failed to demonstrate
that it has prospects of success in the appeal against the
Labour
Court’s dismissal of its condonation application. Accordingly,
its reinstatement application must fail.
Costs
[61]
I
consider this to be a matter where no costs order should be made.
Order
[62]
In
the result, I make the following order:
1.
The
application for condonation and reinstatement of the appeal is
dismissed.
2.
The
appeal is struck from the roll.
___________
Kathree-Setiloane
AJA
R.Sutherland
JA and M.V Phatsoane ADJP concur
APPEARANCES:
FOR THE
APPELLANT:
Mr Wilke
Instructed by Lennon
Moleele & Partners
FOR THE FIRST
RESPONDENT:
Mr G. Fourie SC
Instructed
by Joubert Galpin Searle
[1]
1976
(1) SA 717
(A),
[2]
Melane
v Santam Insurance Co. Limited
1962 (4) SA 531
(A) at 532C-F (
Melane)
.
[3]
NUM
v Council for Mineral Technology
(1999) 3 BLLR 209
(LAC) at 211G-I.
[4]
Moila
v Shai NO and Others
[2007]
3 BLLR 432
(LAC) at paras 34-37;
NUM
v Council for Mineral Technology
(1999)
3 BLLR 209
(LAC) at 211G-I.