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[2008] ZALCJHB 13
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Simelane v Fidelity Springbok Security Services (Pty) Ltd and Others (JR1494/05) [2008] ZALCJHB 13 (1 July 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD AT
JOHANNESBURG
CASE
NO: JR1494/05
In
the matter between:
MADODA
COLLEN
SIMELANE Applicant
and
FIDELITY
SPRINGBOK SECURITY
SERVICES
(PTY) LTD
First
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION Second
Respondent
COMMISSIONER NICOLE
JOHNSTON N.O. Third
Respondent
JUDGMENT
FRANCIS
J
1.
This is an application to dismiss the first respondent’s review
application
on the grounds of defectiveness, excessive and
unreasonable delay in prosecuting the review application.
2.
The application was opposed by the first respondent.
3.
The applicant was employed by the first respondent. After he
was dismissed
on 24 March 2004, he referred an unfair dismissal
dispute to the second respondent (the CCMA) for conciliation and
arbitration.
The third respondent (the commissioner) in an
award dated 22 October 2004 found that the applicant’s
dismissal was substantively
unfair. She ordered the first
respondent to reinstate the applicant within 14 days of the award
without any loss of remuneration
and benefits from date of his
dismissal with back pay.
4.
On 29 July 2005 some eight months after the award was served on the
first respondent,
it filed an application to review the said award in
terms of section 145 of the Labour Relations Act 66 of 1995 (the
Act).
5.
On 26 September 2007 the applicant’s attorney enquired from the
first respondent
about the status of the review application.
The first respondent’s attorneys responded on 1 October 2007
advising that
they were still waiting for the transcribed record from
the transcribers. The applicant instructed his attorney on 15
October
2007 to proceed with an application to dismiss the first
respondent’s review application. This was communicated on
the same day to the first respondent’s attorneys.
6.
On 17 October 2007 the first respondent stated in a letter that the
tapes were
misplaced by the transcribers and that the application to
dismiss would be opposed.
7.
The application to dismiss the review application was filed on 4
January 2008.
The applicant contends that the review
application is defective and there is no condonation application for
the late filing of
the review application. It was further
contended that this Court has the requisite power to protect and
control its own proceedings
and to grant orders which would further
the administration of justice, including an order dismissing
proceedings already instituted
due to
inter
alia
delay or want of prosecution
amounting to an abuse of the Court’s process. The review
application was not prosecuted
with the degree of diligence required
from a litigant. The delay in prosecuting the review
application was so excessive and
unreasonable with the result that
the review application stands to be dismissed.
8.
The applicant contended further that there is no application for
condonation
for the late filing of the review application. The
review application is defective in that it does not comply with the
Rules
of this Court. Rule 7A(2)(c) states that a review
application must be supported by affidavit setting out the factual
and
legal grounds upon which an applicant relies to have the decision
or proceedings corrected or set aside. The first respondent
had
to specify the grounds of review relied upon and to specify the facts
constituting the grounds of review relied upon.
In paragraph 6
of the founding affidavit in the review application, bald and
unsubstantiated allegations are made. The review
application
was filed on 29 July 2005 which was almost three years. The
Rules of this Court lay down the procedures to be
followed by the
parties prosecuting disputes before this Court.
Such rules are there to ensure that disputes
are dealt with speedily
and expeditiously, and are brought to finality as soon as possible.
This is in line with the object
of the Act which is to facilitate
effective resolution of labour disputes. The provisions of Rule
7A(5), (6) and (8) have
not been adhered to. The doctrine of
vigilantibus non dormientibus lex
subvenit
(the law assists those who are
vigilant) has been accepted by our Courts and has developed into a
principle of our law. Such
doctrine is apposite in the context
of the present matter. The party who has caused an excessive
and unreasonable delay in
the prosecution of the matter should not
enjoy the protection of this Court. The first respondent has no
serious intention
of having the review application heard before this
Court with the hope that the matter would die a natural death.
The review
application was merely launched as a stratagem to
frustrate the receipt of his compensation award. The review
application
should be dismissed.
9.
The first respondent contended that when it filed the review
application it was
not in possession of the record and that once it
would be available it would amend and supplement its papers in terms
of section
7A(8) of the Rules of this Court. It is now in
possession of the record after considerable effort. It had
received
the record in May 2007 whereafter it delivered the record to
the transcribers to be transcribed. On receipt of the letter
from the applicant’s attorneys on 26 September 2007, their
attorneys immediately ascertained what was happening in their
file
and the record sent to the transcribers which had not been received
from the transcribers. They sent a letter to the
transcribers
and received a response on the same day requesting additional
information. They responded to the letter.
After this
they continued to examine the court file to see if the record had
been placed there by mistake but could not locate
it. After the
December 2007 recess they proceeded to look for the information
wherein they located the delivery note, which
indicated that the
record was delivered to the transcribers on 15 May 2007. They
sent the delivery note with a letter.
The transcribers
responded and said that they had the record and that they could
collect it. They proceeded to file an amendment
in terms of the
Rules and the application for condonation was filed on 28 January
2008.
10.
This is an application brought in terms of Rule 11 of the Rules of
this Court to dismiss
the first respondent’s review application
filed on 29 July 2005. The application for condonation was
filed on 28 January
2008. The first respondent had obtained the
record from the CCMA in May 2007 and requested the transcribers to
transcribe
it in May 2007. Nothing happened until September
2007 when the applicant’s attorney made enquiries about the
review
application. The application to dismiss was filed with
this Court on 4 January 2008.
11.
There has been some lengthy delay in prosecuting the review
application. Nothing happened
between 29 July 2005 to May 2007
which is a period of 22 months. No explanation has been given
by the first respondent why
it took no steps to prosecute the review
application. It is also not clear why the applicant did
not put the first
respondent on terms about the lack of progress in
this matter. He did so only in October 2007. His
enquiries had the
necessary. All that now remains to happen in
this matter is for the registrar to set the matter down for a
hearing.
12.
Both parties were to some degree not vigilant in ensuring that the
matter was prosecuted.
The applicant could have applied much
earlier to make the award an order of court. He could have
brought the application
to dismiss much earlier. The first
respondent, as applicant in the review application should shoulder
the main blame in this
matter.
13.
I have decided not to dismiss the review application since only a
court date needs to be
given by the registrar. The date could
not be given due to this application. It is of course
unacceptable that the
applicant has not been reinstated in terms of
the award. Since there is no limit on reinstatement, the
applicant should he
succeed in opposing the review application, will
be reinstated and will receive all his back pay and benefits in terms
of his award
from date of his dismissal. This will amount to
some 4-year back pay.
14.
I do not deem it necessary to deal with the prospects of success of
the condonation and
review application. The review court will
make a pronouncement on it.
15.
The application to dismiss stands to be dismissed. I do not
believe that costs should
follow the result. This is a matter
where the first respondent should pay the costs of the application as
a mark of this
court’s displeasure about how it has dealt with
this matter.
16.
In the circumstances I make the following order:
16.1
The application to dismiss the review application is dismissed.
16.2
The first respondent is to pay the costs of the application.
___________________
FRANCIS
J
JUDGE
OF THE LABOUR COURT OF SOUTH AFRICA
FOR
THE APPLICANT
:
ATTORNEY P VOYI
FOR
FIRST RESPONDENT
: M VAN
AS INSTRUCTED BY BLAKE BESTER INC
DATE
OF HEARING
:
26 JUNE
2008
DATE OF
JUDGMENT
: 1 JULY
2008