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2002
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[2002] ZALCJHB 34
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National Union of Metalworkers of South Africa and Others v Dorbyl and Another (J1724/99) [2002] ZALCJHB 34 (2 February 2002)
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IN THE LABOUR COURT OF SOUTH
AFRICA
BRAAMFONTEIN
CASE
NO
: J1724/99
2002-02-02
NOT
REPORTABLE
In
the matter between
NATIONAL
UNION OF METALWORKERS
OF
SOUTH
AFRICA
Applicant
LIST
OF INDIVIDUAL APPLICANTS
Second
to Further Applicants
And
DORBYL
LIMITED
First Respondent
CLIDET
453 (PTY)
LIMITED
Second Respondent
J
U D G M E N T
PILLAY
D, J
:
This
is an application for condonation of the applicant’s late
delivery of its statement of case. The reasons for the
delay
were firstly, that the applicant had difficulty obtaining a case
number from the registrar of the Labour Court. The
case number
was allocated after the expiry of the time for the delivery of the
statement of case. Secondly, the first applicant
union, NUMSA,
had internal difficulties with its staff. The official
originally dealing with the matter left the union.
Another
employee who was engaged on probation was found not to be suitable;
in the meantime he had mismanaged this matter to the
extent that
there were further delays. He assumed that the matter had been
referred to the applicant’s attorneys to
attend to. He
misread correspondence that had been filed, which led to this
assumption. In any event, the matter was
not referred to the
attorneys to file the statement of case. On his departure, the
regional secretary, Mr Mosepe, became
involved in the matter. He
realised that there had not been a statement of case filed and
attended to it. By that stage there was
a delay of some 10 months
after the statement of case fell due.
Thirdly,
there was a further delay from the time the statement of case was
filed and the application for condonation was made.
The
explanation for that delay was that the officials who dealt with the
matter within the union and who had left were unco-operative
and it
was difficult to get affidavits from them.
One
of the officials who did sign an affidavit also failed to provide an
address which suggests that there must be some support
for the
applicant’s submission that there were difficulties in getting
the former employees’ cooperation for the application
for
condonation.
In
any event, the application for condonation had to be brought within a
reasonable time. In the circumstances confronting
the
applicant, I found that the application for condonation was brought
within a reasonable time.
Returning
to the main application for condonation, the explanation for the
delay is in essence the ineptitude and organisational
difficulties of
the representative of the individual applicants. That
explanation is not too different from the explanation
tendered on
behalf of the respondent in its own application for condonation.
The one similarity is that both representatives
appear to have
misread communications. for instance, the attorney for the respondent
did not realise that heads of argument had
to be delivered. He
obviously did not read the notice of set down properly, which he
acknowledged having received.
The representative for the
applicants also did not read correspondence sufficiently carefully
and concluded that the matter had
been referred to the applicant’s
attorneys.
A
feature that favours the applicant’s substantially is that the
officials were at all times under the
bona
fide
but erroneous belief that the
matter was being attended to. There is no suggestion that their
conduct amounted to anything
more than negligence. However,
comparing the degree of care that one might expect of a junior
official of the union and an
attorney, a higher degree of care can
reasonably be expected of the attorney than of a junior official of
the union.
In
all of this, none of the applicants could be held personally
responsible for the delays. If they were under the impression
as they might reasonably have been that the matter was being attended
to, then it is not likely that they would have taken any
steps to
expedite the matter. It is not uncommon for labour matters to
take a considerable period of time and the delays
in this matter are
not unusual.
The
proposition that the union ought to have filed a statement of case
timeously, despite not having being issued in advance with
a case
number, has this difficulty: The evidence is that a senior official
had to confer with the registrar about a general problem
of not being
allocated case numbers. I cannot assume that the registrar would have
allocated a case number if the statement of
case was before her
without a case number on the day on which it was due. Without a case
number no further steps in the proceedings
could take place.
The respondent would not be able to file its statement of defence and
the matter would have to stand still
until a case number was
allocated.
In
the circumstances, I find that the explanation for the delay is
acceptable. The period of delay of 10 months is substantial;
however this court has granted condonation in circumstances where the
delay has been longer. When considering the period of delay,
the
court takes into account the explanation for it and the importance of
the case to the parties.
The
importance of the matter to the applicants is quite obvious; there
are 176 applicants. They have maintained an interest
in the
matter throughout. They reported regularly for feedback on
progress. There is no indication that they abandoned
the case
whatsoever. They are from a community where unemployment of 176
people could affect that community. In the
circumstances the
case is important.
I
also take into account the prospects of success. I am not
required to try the prospects of success on the pleadings.
However, I find that the applicant had set out sufficient facts which
if at the trial are found to be proved, could result in the
applicants’ success. Therefore, there are reasonable prospects
of success.
In
the circumstances,
the application for
condonation is granted with no order as to costs.
____________
Pillay
D, J
Date
of Editing: 16 June 2009
Appearances
On
behalf of the Applicant:
Mr van der Riet
instructed by Cheadle, Thompson and Haysom
On
behalf of the Respondent:
Mr Buirski instructed by Pienaar Swart Nkaisang
Inc