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[2008] ZALCJHB 61
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Popcru obo Sifuba v Commissioner of the South African Police Services and Others (JR137/2003) [2008] ZALCJHB 61 (5 December 2008)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE NO. JR 137/2003
REPORTABLE
In the matter between:
POPCRU
o.b.o. JOSEPH SIFUBA
Applicant
and
COMMISSIONER
OF THE SOUTH AFRICAN
POLICE
SERVICES
1
st
Respondent
PLAATJIES,
SAM N.O
2
nd
Respondent
THE
PUBLIC SERVICE CO-ORDINATING
BARGAINING
COUNCIL
3
rd
Respondent
THE
SAFETY AND SECURITY SECTORAL
BARGAINING
COUNCIL
4
th
Respondent
JUDGMENT
BY:
C.J. MUSI, AJ
DELIVERED
ON:
05 December 2008
Introduction
[1]
This is an
opposed application wherein the applicant seeks
relief to the following effect:
1.
That the review application instituted by the first respondent, the
Commissioner of the South African
Police Services (the commissioner)
be dismissed;
2.
that the arbitration award made, under the auspices of the Public
Service Central Bargaining Council
(PSCBC) case number PSCBC 53 dated
8 November 2002, in favour of the applicant, be made an order of
court;
3.
alternatively, directing the commissioner to comply with the
direction in terms of rule 7A (2)(a)
and / or (b) of the Rules of
this Court within 14 days of the order;
4.
directing the commissioner to pay the costs of this application.
CONDONATION
[2] The application was
brought in terms of Rule 11 of this court’s rules. It was
delivered on 19 December 2007.
The respondents were given 10
days within which to deliver a notice of opposition and an answering
affidavit, if any of them intended
opposing the matter. Only
the commissioner opposed the application. The opposing affidavit was
only delivered on 27 February
2008. The applicant opposed the
commissioner’s application for condonation in relation to the
late filing of the opposing
affidavit.
[3] In the application
for condonation on behalf of the commissioner it was pointed out that
the applicant’s founding affidavit
was signed and sworn to on
14 November 2007 (the date stamp of the commissioner of oaths is 14
December 2007). The Notice
of Motion was only signed and
delivered on 19 December 2007. The commissioner contended that
the application was deliberately
launched in the middle of the
holiday period, when many people were on leave.
[4] Enquiries in relation
to the matter had to wait until after the holiday season. The
office of the State Attorney had to
find out who is responsible for
this matter. The person who initially dealt with this matter
assistant commissioner L J Pienaar
was transferred and no longer
involved in the matter. Because the matter was old and
forgotten, numerous enquiries had to
be made. The necessary
approval had to be obtained to appoint the same counsel who initially
worked on this matter.
A mandate to appoint counsel was only
obtained at the end of January 2008. After counsel was
appointed the first available
date for a consultation with him and
his junior was on 13 February 2008. On behalf of the
commissioner it was pointed out
that there was no prejudice to any
party. It was also pointed out that this matter is of great
importance to the South African
Police Services (SAPS), the applicant
and Sifuba. There are a great number of police officials who
were affected by the White
Commission of Enquiry’s ruling and
they will be directly affected by and interested in the outcome of
this matter.
An order in the applicants favour will create a
precedent with disastrous financial implications for the SAPS.
[5] Mr van der Riet (SC)
on behalf of the applicant argued that condonation should not be
granted because the first respondent briefed
counsel at the end of
January 2008 and it took one month to file the answering affidavit.
[6] Mr Tokota (SC) on
behalf of the first respondent argued that there is no reply to the
first respondent’s contentions in
relation to condonation.
He also argued that Rule 11 does not prescribe a period in which
papers should be filed and that
the applicant has no right to
prescribe the times in a Rule 11 application because it is not an
urgent application.
[7] Rule 11 of this
Court’s rules reads as follows:
“
(1)
The following applications must be brought on notice,supported by
affidavit:
(a)
Interlocutory applications;
(b)
other applications incidental to, or pending, proceedings referred to
in these rules that are not specifically
provided for in the rules;
and
(c)
any other applications for directions that may be sought from the
court.
(2)
The requirement in subrule (1) that affidavits must be filed does not
apply to applications that deal only with procedural aspects.
(3)
If a situation for which these rules do not provide arises in
proceedings
or contemplated proceedings, the court may adopt any
procedure that it deems appropriate in the circumstances.
(4)
In the exercise of its powers and in the performance of its
functions,
or in any incidental matter, the court may act in a manner
that it considers expedient in the circumstances to achieve the
objects
of the Act.”
[8] Mr van der Riet
argued that the 10 days is a reasonable period. In terms of
rule 7 (4) (b) a notice of opposition and
an answering affidavit must
be delivered within 10 days from date of service of the application
on the respondent. Although
rule 11 does not provide for time
periods the applicant was not remiss in giving the respondent 10 days
within which to file an
answering affidavit. It is common practice to
require a respondent to file an answering affidavit within a
specified time. Uncertainty
will prevail if no time limits are
given. The 10 days is, in any event, a reasonable period.
[9] That, however, is not
the end of the matter. I must now consider whether condonation
should be granted for the late filing
of the answering affidavit.
The answering affidavit was supposed to be delivered on 7 January
2008. It was only delivered
on 27 February 2008. It is 37
days late. The notice of opposition was delivered on 18 January
2008 – 9 days late.
[10]
The basic principles applicable in the exercise of a discretion to
grant or refuse an application for condonation was enunciated
in the
well known and oft quoted case of
Melane
v Santam Insurance Co. Ltd
1962 (4)
SA 531
(A) at 532 B – E. I do not deem it necessary to
repeat it in this judgment.
[11] The 37 day delay is
indeed significant. The applicants reminded the first
respondent on 16 January 2008 that he had to
deliver his notice of
opposition and answering affidavit. The first respondent gives
an explanation for the delay which is
in the circumstances of this
matter reasonable. This matter was indeed an old and complex
matter and it was a sensible thing
to endeavour to appoint the same
counsel who initially dealt with the matter. The delay was
caused by the internal processes
to get the necessary authorization
rather than a deliberate or negligent disregard of the matter.
Although the delay between
13 February 2008 and 27 February 2008 was
not explained no prejudice to the applicant could be shown. The
applicant only
made a bold assertion that it is being prejudiced
without pointing out how it is being prejudiced. The
commissioner on the
other hand pointed out that the SAPS would be
prejudiced because there are numerous other similar matters awaiting
the outcome
of this case. This case will set a precedent.
A decision not to grant condonation will have serious financial
implications,
running into millions of rands, for the SAPS. The
matter is of considerable importance to the applicant, Sifuba and the
SAPS.
I am also of the view that the first respondent has
excellent prospects of success in this matter. The application
for condonation
should in the circumstances be granted.
FACTS
[12] Joseph Sifuba
(Sifuba) a member of the applicant and on whose behalf this
application is brought is a member of the SAPS. Before
being
transferred to the SAPS he was a member of the Transkei Police Force.
[13] Prior to 1994, the
police departments and forces of the former Transkei, Bophuthatswana,
Venda and Ciskei Governments (TBVC
states) functioned independently
from the South African Police Force, as the SAPS was then called.
The different police departments
employed their own personnel and
carried out their own responsibilities (financial and otherwise)
under their respective laws and
rules.
[14]
Members of the Transkei Police Force were generally promoted in terms
of Force Order General
No 2 of 1992, but
could also be promoted by way of special orders.
[15] On 1 May 1993 Sifuba
was promoted from the rank of sergeant to the rank of warrant officer
in terms of Special Force Order
No 1B of 1993.
[16] After the
amalgamation of the various police forces in South Africa in 1994,
Force Order General No 2 of 1992 of the Transkei
Police Force was
rendered redundant by paragraph 3 of the Force Order General No 3 of
1995 of the new SAPS. Sifuba was promoted
to the rank of
Lieutenant on 1 May 1994, in terms of the latter Force Order.
[17] The amalgamation of
the different police departments did not happen seamlessly. Due
to irregularities and disparities
in some of the remuneration
packages of some police officers a review and re-evaluation of the
remuneration packages of police
officers of the former TBVC states
was done. Parallel to this process a Commission of Enquiry
under the chairmanship of the
Honourable Mr Acting Justice Jules
Browde was established. The Honourable Mr Justice White was
later appointed as chairman
of the Commission. The Commission
became commonly known as the White Commission. This Commission
was to investigate
irregularities in the public services of the
former TBVC states, including the promotion of police officers in the
Transkei Police
Force. Although the Commissions Act 8 of 1947
was made applicable to the above mentioned commission it was
established in
terms of section 236 (6) of the Interim Constitution
of the Republic of South Africa 200 of 1993 (the Interim
Constitution).
Section 236 (6) of the Interim Constitution
reads as follows:
“
(6)
Notwithstanding the provisions of this section, the conclusion or
amendment of a contract, the appointment or promotion,
or the award
of a term or condition of service or other benefit, which occurred or
may occur between 27 April 1993 and 30 September
1994 in respect of
any person referred to in subsection (2), or any class of such
persons, may, at the instance of a Minister or
a member of the
Executive Council of a province, within one year of the commencement
of this Constitution be reviewed by a commission
appointed by the
President and presided over by a judge, and if not proper or
justifiable in the circumstances of the case, the
commission may
reverse or alter the contract, appointment, promotion or award.”
The
commission had the power to reverse or alter an employment contract,
an appointment, a promotion or an award made in respect
of,
inter
alia
, any police officer in the former
Transkei, including Sifuba.
[18] The White Commission
held various hearings, each of which was identified by a specific
number. In respect of Sifuba the
Commission found that his
promotion was regular. The Commission however found, during
hearing 100 that some benefits that
Sifuba received were irregular
and that it should be set aside. The findings of hearing 100
held at Umtata on 28 and 29 October
1997 and 24 to 26 March 1998 were
sent to Sifuba by letter dated 27 July 1998. In the letter, the
White Commission informed
Sifuba that, with regard to his position,
it found as follows:
“
In
all the circumstances it is our finding that:
(a)
any benefit which any of the Respondents received pursuant to the
implementation of the
1 : 1 Rule, is an irregular benefit and fall to
be set aside.
(b)
any benefit which any of the Respondents received in consequent of
the non implementation
of Regulation 18 (13) of the Transkei Police
Regulations, is an irregular benefit and fall to be set aside.
Respondent No 20
: S.J.
Sifuba.”
[19]
On 15 March 2000 Sifuba was informed by the commissioner that the
findings of the White Commission means that he was overpaid
for the
period 1 May 1993 to 29 February 2000. Sifuba was informed that
he owed the SAPS R25 668.00 and that the money will
be recovered in
monthly instalments of R1070.00. He was also given 21 days,
within which to make representations before the
debt was deducted
from his salary. His salary scale was also reduced.
Sifuba was dissatisfied with the state of affairs.
[20]
He referred the dispute to the Safety and Security Sectoral
Bargaining Council (the SSSBC). The SSSBC ruled that it lacked
jurisdiction to adjudicate the dispute. Sifuba then referred
the dispute to the Public Service Co-ordinating Bargaining Council
(the PSCBC). On 8 November 2002 the second respondent acting
under the auspices of the PSCBC issued an award:
“
1.
that the non – payment of the applicant Mr JS Sifuba on salary
scale constituted
an unfair labour practice.
2.
that the applicant Mr JS Sifuba be granted the relief sought as per
terms of
the request i.e. payment of salary arrears for ±
21 months as stated supra.”
[21]
On 31 January 2003 the commissioner filed an application to review
and set aside the award of the second respondent.
[22]
From 28 May 2003 Sifuba lodged grievances with the commissioner with
regard to this matter, to no avail. On 11 October
2007,
following a number of correspondences between the parties the
commissioner informed Sifuba that the grievance has been finalised
because the matter was arbitrated and an award issued. Sifuba
was advised to seek external remedies because the internal
remedies
were exhausted.
[23]
Meanwhile, in relation to the review application the commissioner
informed the applicant on 12 March 2007 that they have not
yet
received the record of the arbitration proceedings and that they
intend launching an application to compel the PSCBC to file
the said
record.
[24]
On 14 May 2007 the applicant wrote to the commissioner pointing out
that the review application was launched more than four
years ago.
The commissioner was requested to inform the applicants of any steps
that were taken to further prosecute the review
application. On
15 June 2007 the commissioner informed the applicant that they are
battling to get the record of proceedings
and that the PSCBC advised
that they have filed it on 10 February 2003. On 10 September
2007 the applicant again enquired
what steps, if any, have been taken
to prosecute the review application. The commissioner did not respond
to this letter. It appears
that the record has been irretrievably
lost.
[25]
The applicant alleges that the review application was brought solely
to prejudice the applicant. The commissioner denies
that the
application was brought with an ulterior motive. He points out
that because of a high turnover of staff in the office
of the State
Attorney as well as in the SAPS and also the restructuring of the
SAPS the review application did not receive attention.
He also
points out that the applicant and/or Sifuba did not act with any
alacrity and allowed the matter to prescribe.
ISSUES
[26]
The commissioner opposes this application on various grounds.
Firstly, he argued that Sifuba’s right to enforce the
arbitration award has prescribed. Secondly, that the arbitration
award is so flawed that it is incapable of implementation and should
therefore not be made an order of court. Thirdly, that it is void or
voidable and should therefore not be made an order of court.
Lastly
if the arbitration award is made an order of court the SAPS would be
faced with a dilemma in that there would be two final
and binding,
but irreconcilable, orders viz this court’s order and the White
Commission’s order.
[27]
The applicant argued that a review application practically stays the
enforcement of an arbitration award. They further argued
that
prescription was interrupted by the subjection of the dispute to
arbitration and pending finalization of the review application,
such
interruption did not cease. In relation to the award itself, the
applicant argued that the arbitral award should stand even
if it is
vague or wrong. It was pointed out that the court has the power
to vary an arbitral award in order to make it enforceable.
LAW
[28]
Before dealing with the specific sections of the Prescription Act 68
of 1969 (the
Prescription Act), I
pause to mention the philosophy and
policy considerations underlying extinctive prescription.
Prescription legislation is
primarily passed for the benefit of
debtors or defendants. In our common law prescription was a way
to punish a negligent
plaintiff.
Meintjies
NO v Administrasieraad van Sentraal – TVL
1980
(1) SA 283
(T) at 293 F – G. In
Oliff
v Minnie
1953 (1) SA 1
(AD) at 4 G
– H van den Heever JA described the common law legislative
motives as follows:
“
Since
the Emperors began to legislate in regard to prescription they
repeatedly stressed two legislative motives: the supinity (desidea)
of a plaintiff who does not enforce his rights, who should therefore
blame himself and the difficulty felt by the defendants who
have to
repel ancient claims.”
[29]
The aim is therefore to compel a plaintiff to prosecute a claim
expeditiously within a specific time failing which to run the
risk of
having the claim declared unenforceable. Prescription therefore
operates in favour of a defendant and protects a
defendant from stale
claims. Prescription also creates legal certainty and finality
in the relationship between creditor
and debtor after the lapse of a
period of time. See
Loubser MM:
Extinctive Prescription Juta & Co. LTD
1996
at 22.
[30]
One of the objectives of the Labour Relations Act 66 of 1995 (the
Act) is to promote the effective resolution of labour disputes.
See section 1(d)(iv) of the Act. This entails the expeditious
resolution of labour disputes. In
National
Education Health and Allied Workers Union v UCT
2003
(3) SA 1
(CC) at paragraph 31 the Constitutional Court recognised
this principle and said the following in this regard:
“
By
their nature labour disputes must be resolved expeditiously and be
brought to finality so that the parties can organise their
affairs
accordingly. They affect our economy and labour peace. It
is in the public interest that labour disputes be
resolved speedily…”
30.1.
The relevant provisions of the
Prescription Act
are
as follows.
Section 10
(1) provides that:
“
(i)
Subject to the provisions of this Chapter and of Chapter iv, a debt
shall be extinguished by prescription after the lapse of
the period
which in terms of the relevant law applies in respect of the
prescription of such debt…”
30.2
In terms of
section 11
(d) of the
Prescription Act this
kind
of debt’s prescription period is three years.
30.3 In terms of
section 12
(1) prescription shall commence to run as soon as the debt
is due.
30.4
Section 12(3)
provides that:
“
A
debt shall not be deemed to be due until the creditor has knowledge
of the identity of the debtor and of the facts from which
the debt
arises: Provided that a creditor shall be deemed to have such
knowledge if he could have acquired it by exercising reasonable
care.”
30.5
Section 15(1)
provides that:
“
The
running of prescription shall, subject to the provisions of
subsection (2), be interrupted by the service on the debtor of any
process whereby the creditor claims payment of the debt…”
30.6
Section 15(b)
provides that:
“
For
the purposes of this section, “process” includes a
petition, an notice of motion, a rule nisi, a pleading in
reconvention,
a third party notice referred to in any rule of court,
and any document whereby legal proceedings are commenced.”
30.7
Section 17
provides that:
30.8
“
(1) A court shall no of its own
motion take notice of prescription. (2) A party to litigation who
involves prescription shall do
so in the relevant document filed of
record in the proceedings: Provided that a court may allow
prescription to be raised
at any stage of the proceedings.”
APPLICATION OF LAW
[31]
In this matter it is not in dispute that the applicant and / or
Sifuba had knowledge of the fact that they could enforce the
arbitral
award against the commissioner by making it an order of court.
It is also clear that the commissioner took the prescription
point
timeously in his answering affidavit in this matter as well as in his
founding papers in the review application.
[32]
The debt in issue in this matter is the debt that flows from the
arbitration award. A valid arbitration award, like a
court
judgment in certain circumstances, is regarded as a novation of the
former debt on which the award was granted and the arbitration
award
itself constitutes the new debt. The former debt is converted
in a debt that is due by virtue of the valid arbitration
award.
New rights, duties and obligations are created by a valid arbitration
award. If an arbitrator’s award
is not made an order of
Court it will prescribe after four years. See
section 13
(f) and (i) read with
section 11
(d) of the
Prescription Act.
On
the other hand, a party’s right to enforce the award by way
of application to have it made an order of court prescribes within
three years of the publication of the award.
Cape Town
Municipality v Allie NO
1981 (2) SA 1
(C) at 4 F – H.
Trust Bank of Africa Ltd v Dhooma
1970 (3) SA 304
(N)
at 308,
Swadif (Pty) Ltd v Dyke NO
1978 (1) SA 928
at
944 E – F.
Primavera Construction SA v Government;
North West province
2003 (3) SA 579
(BPD) at paragraphs 13
and 14. If the arbitration agreement provides between the
parties that the arbitrator’s award
shall have the status of a
judgment of a court the prescription period applicable to a judgment
debt shall apply in such a case.
See
Blaas v Athanassion
1991 (1) SA 723
(W) at 725 H –J.
[33]
There is no agreement in this matter that the arbitrator’s
award should have the status of a judgment of a court.
Until
the arbitrator’s award is made an order of court the
applicant’s right to enforce the award therefore prescribes
within three years of the publication of the award.
[34]
The applicant however contents that a review application practically
suspends the legal force of an arbitration award.
This is a
practice of convenience. The court will in most cases for
reasons of convenience and expedience postpone an application
to make
an arbitration award an order of court if there is a pending review
application. This practice should not however
be exalted to a
rule or a legal impediment to prescription. In recognising this
practice, Grogan AJ said the following in
Professional
Security Enforcement v Namusi
[1999]
6 BLLR 610
(LC) at paragraph 10:
“
Neither
the Act not the common law lays down a hard-and-fast rule that an
application to have an award (or any judicial order) made
an order of
court must be dismissed or conditionally postponed if the person
against whom it is to be made has applied for its
rescission or
review. This Court has, however, adopted the practice of
postponing applications brought under section 158
(1)(c) if the
respondent has filed an application for review.
[35]
There is no legal provision that provides for the automatic
suspension of the enforceability of an arbitration award by an
application for review. Both section 145 (3) of the Act and
section 33
(3) of the
Arbitration Act 42 of 1965
provides that a
court may, if it considers that the circumstances so require, stay
the enforcement of the award pending its decision
on the review of an
award. The mere fact that a review application is pending is
not a bar to making an award an order of
Court. See
National
Education Health & Allied Workers Union on behalf of Vermeulen v
Director-General: Department of Labour
(2005)
26 ILJ 911 (LC) at paragraph [23];
Ntshangase
v Speciality Metals CC
(1998) 19
ILJ 584 (LC) paragraph [14].
[36]
In exercising its discretion under section 145 (3) of the Act the
court must do so judicially after taking into consideration
all the
relevant factors. A stay of the enforcement of the award or a
postponement of the application does not follow as
of right.
The court will look at factors such as the tardiness, if any, of the
party applying for the postponement of the
enforcement, the balance
of convenience, the prospects of success of the review application,
the policy of the Act, the interest
of the administration of justice
and the general tenets of fairness. See
National
Education Health & Allied Workers Union on behalf of Vermeulen
supra
at page 919
I to J. In practice the court would then look at
inter
alia,
the factors mentioned above
before it exercises its discretion in favour of postponing the
enforceability of an award until the
finalisation of a review
application. As said above the practice is not a legal rule and
no impediment to an application
to make an award an order of court.
The applicants’ contention is without substance.
[37]
Mr van der Riet also argued that Sifuba’s answering affidavit,
in the review application, dated 20 February 2003 interrupted
prescription because it contained an application to make the award
and order of court. The relevant portion of the answering
affidavit that Mr van der Riet referred me to reads as follows:
“
The
second respondent apply from the honourable court to endorse the
award.
The award by the first
respondent should be implemented with effect from 2000-03-01 up to
2001-11-01.”
[38]
Mr Tokota argued that the answering affidavit was never served on the
commissioner. Mr van der Riet sought and was granted
leave to
prove, if prove could be found, that the answering affidavit was
indeed served on the commissioner during 2003.
On 14 July 2008
Sifuba filed an affidavit wherein he states that he faxed the
answering affidavit to the State attorney on 24 February
2003.
The fax transmission report has faded and is illegible. In
addition he states that he sent his answering affidavit
by courier to
the State Attorney. On the other hand Mr Mpyane, from the State
Attorney’s offices also deposed to an
affidavit wherein he
states that all processes that are served on the State Attorney’s
office are entered into a register.
He has perused the
registers and records kept in the office of the State Attorney and
could find no record of service of Sifuba’s
answering
affidavit.
[39]
In terms of section 6 (1)(b) extinctive prescription shall be
interrupted by service on the debtor of any process whereby action
is
instituted. Action is defined in the
Prescription Act as
any
legal proceedings of a civil nature brought in a competent court in
the Union for the enforcement of a right.
[40]
The answering affidavit, in
casu
,
is not a process whereby an action was instituted. In this
matter a counter application would have sufficed as a process
whereby
action is instituted. An answering affidavit is not a
counter-application. If the applicant wanted to apply,
simultaneously with its opposition to the review application, to make
the arbitration award an order of court it should have launched
a
counter-application. Sifuba’s request in the answering
affidavit is not a counter-application.
[41]
The applicant could in any event also not prove that the answering
affidavit was served on the commissioner. None of
the required
ways of proving service in terms of
rule 4
(2) (a) – (e) of
this court’s rules were proved.
[42]
Loubsher
supra
at
124 states that:
“
Service
of process on the debtor must constitute a procedural step whereby
action is instituted to enforce a claim or right.
The
underlying reason why such service of process interrupts prescription
is that the creditor has formally and in a legally valid
manner
involved the debtor in court proceedings for the enforcement of the
claim.”
I
agree. It is clear that Mr van der Riet’s argument falls
to be rejected.
[43]
It was also argued that it would be inequitable to punish the
applicant by upholding a plea of prescription. It is not
only
an issue of punishment but also an issue of substantive law,
finality, certainty, protection of the debtor and the expeditious
prosecution and resolution of disputes. The
Prescription Act
does
not give the Court discretion. If the requirements for a
plea of prescription has been established by the party taking the
point then that party is entitled as a matter of right to have that
plea upheld. Although this court is a court of equity,
in my
view considerations of equity do not come into play when all the
requirements for a successful plea of prescription are established.
Extinctive prescription renders unenforceable a right by the lapse of
time. See
section 3(1)
of the
Prescription
Act
.
[44]
In any event, should my view of the matter be incorrect, Pillay J
correctly pointed out in
Mpanzama v
Fidelity Guards Holdings (Pty) Ltd
[2000]
12 BLLR 1459 (LC) at paragraphs [13] to [15] that equity is a double
edged sword. Pillay J puts it thus:
“
[13]
It was submitted that as a court of equity, the
Prescription Act
should
not be applied to oust the jurisdiction of the court and
thereby deny the applicant’s claim.
[14]
Equity must be applied even-handedly to both employer and employees.
The employee had three years to
execute his claim. The
respondent had persistently denied liability for the debt. The
respondent did not obstruct the
applicant in instituting proceedings.
[15] In the
circumstances, the Court cannot come to assistance of a sloppy
litigant. It would be inequitable to
the respondent if the
applicant is allowed to profit from his own inaction.”
RULING
[45]
The applicant in this matter did nothing to enforce the award between
October 2002 and 2007. There is no reason why the
plea of
prescription should not be upheld. This conclusion renders it
unnecessary to consider the alternative defences raised
by the
commissioner.
COSTS
[46]
The commissioner requested me to dismiss this application with costs,
including the costs occasioned by the employ of two counsel.
The applicant was also represented by senior counsel. Although
the commissioner is successful in his defence, considerations
of
equity militate against a costs order in the commissioner’s
favour. It is as a direct result of the commissioner’s
delay in prosecuting the review application that the applicant
endeavoured to enforce its rights. The commissioner is actually
benefiting from his tardiness. On the other hand, the applicant
is unsuccessful because of its tardiness. In my view,
it would
only be fair not to make any costs order in this matter.
ORDER
[47]
I accordingly make the following order:
1.
The late filing of the first respondent’s answering affidavit
is condoned.
2.
The application is dismissed.
3.
No order as to cost is made.
_______________
C.J.
MUSI, AJ
On
behalf of the Applicant:
Adv.
J.G. van der Riet (SC)
Instructed
by:
Cheadle
Thompson & Haysom
BRAAMFONTEIN
On
behalf of the third Respondent: Adv. R.
Tokota (SC) with
Adv.
F.M.M. Snyman
Instructed
by:
The
State Attorney
PRETORIA