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[2009] ZALCJHB 93
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NEHAWU and Another v MEC for the Department of Public Works, Roads And Transport and Another (J2246/07) [2009] ZALCJHB 93 (22 November 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
NOT
REPORTABLE
CASE
NO: J2246/07
In
the matter between:
NEHAWU
1
ST
APPLICANT
MOTLALENTOA
SESILINYANA
2
ND
APPLICANT
and
THE
MEC FOR THE DEPARTMENT OF
PUBLIC
WORKS, ROADS AND TRANSPORT
1
ST
RESPONDENT
THE
DEPARTMENT OF WORKS, ROADS
AND
TRANSPORT 2
ND
RESPONDENT
JUDGMENT
Molahlehi
J
Introduction
[1]
The applicant seeks an order compelling the respondents to comply
with the order granted by Tshiqi AJ, as she then was, under
case
number JS 103/04, on the 18
th
October 2004 in terms of
which the settlement agreement between the parties was made an order
of Court. The applicant specifically
seeks to enforce the provisions
of paragraph 1.3 of the settlement agreement which deals with the
payment his
pro rata
leave pay.
[2]
The respondents have opposed the application and are on the other
hand seeking condonation for the late filing of their answering
papers. The reasons for the delay, which in my view need not be
repeated in this judgment, are set out in the respondents’
papers. Having read and considered the affidavit relating to the
condonation application, I am satisfied that the explanation
proffered by the respondents are acceptable and reasonable in that
they meet the guidelines set out in
Melane v Santam Insurance Co
Ltd
1962 (4) SA 531
(A) and PPWAWU and others v AF Dreyer and Co Ltd
[1999] 9 BLLR 1141
(LAC).
Background
facts
[3]
The background facts in this matter are generally common cause. The
second applicant who is a former employee of the first respondent
filed a statement of claim alleging that the first respondent had
unfairly dismissed him. That claim which was defended by the
respondents was set down for hearing on 18 October 2004. On the day
of the hearing, the parties concluded a settlement agreement
which
was then made an order of Court on 18
th
October 2004.
[4]
The issue in the present instance turns around the entitlement of the
applicant in relation to payment of
pro rata
leave. The
relevant parts of the agreement for the purpose of this agreement
reads as follows:
“
1.
The Respondent agrees to pay to the Applicants (sic) the following:
1.1
. . .
1.2
. . .
1.3
The first Applicant’s pro rata leave.”
[5]
The dispute that arose between the parties subsequent to the
settlement agreement being made an order of Court related to the
calculations on the pro rata leave due to be paid to the applicant.
In terms of the respondents’ calculation, it was reflected
that
the applicant’s leave days for the period 1
st
January 2000 to 31
st
December 2000, had been forfeited and
that the amount payable for his leave days from 1
st
January 2001 to 11
th
October 2001, was a total of 19.50
days.
[6]
The applicant through his erstwhile attorneys indicated to the
respondents that their calculation of his accrued leave was incorrect
and demanded that the calculation should take into account the period
when he was on suspension. The respondents on the other hand
contended that the applicant had forfeited his accrued leave because
he did not apply for such leave during his suspension.
[7]
The applicant argued that he could not have applied for leave whilst
on suspension because part of the conditions of the suspension
was
that he was prohibited from entering the premises of the respondents
without the written approval of the head of department.
The
point in limine
[8]
The respondents have in their opposition to the applicants claim
raised two points
in limine.
The first point relates to the
jurisdiction of this Court to entertain the matter and second to the
delay in launching these proceedings.
In my view the case of the
applicant turns around the second point
in limine
raised by
the respondents. It is for this reason that I do not deal with the
merits of the application.
[9]
The approach to adopt when dealing with the rule governing delays by
a litigant in prosecuting a claim was discussed in the
recent
unpublished judgment of this Court in the case of
Nedcor Bank
Limited v James George Harris and Others case number JR927/01.
In
that case the Court found that it is now well established that an
applicant who delays in the prosecution of his or her review
application could be bared from proceeding any further with the
application unless a satisfactory explanation is tendered for the
delay. In arriving at this conclusion the Court relied on the
authority of
Solidarity & Others v ESKOM Holdings Ltd (2008)
29 ILJ 1450 (LAC),
where the rule dealing with the issue of
unreasonable delay was discussed. In that case the Court quoted with
approval what was
said in
Associated Institutions Pension Fund &
others v Van Zyl & others
2005 (2) SA 302
(SCA),
as follows:
“
[46] It is a
longstanding rule that courts have the power, as part of their
inherent jurisdiction to regulate their own proceedings,
to refuse a
review application if the aggrieved party had been guilty of
unreasonable delay in initiating the proceedings. The
effect is that,
in a sense, delay would 'validate' the invalid administrative action
(See eg Oudekraal Estates (Pty) Ltd v City
of Cape Town & others
2004 (6) SA 222
(SCA) ([2004]
3 All SA 1)
at para [27]). The raison
d'étre of the rule is said to be twofold. First, the failure
to bring a review within a reasonable
time may cause prejudice to the
respondent. Secondly, there is a public interest element in the
finality of administrative decisions
and the exercise of
administrative functions (see eg Wolgroeiers Afslaers (Edms) Bpk
v Munisipaliteit van Kaapstad
1978 (1) SA 13
(A) at 41)
[10]
The rule requires consideration of two questions:
“
(a)
Was there an unreasonable delay?
(b) If so,
should the delay in all the circumstances be condoned? See
Wolgroeiers case and Setsokosane Busdiens (Edms)
Bpk v Voorsitter,
Nasionale Vervoerkommissie, en 'n ander
1986 (2) SA 57
(A)”
[11]
The rule seeks to address two policy issues – the first
concerns the prejudice that the aggrieved party may suffer as
a
result of the delay and the second is about the importance and the
need to reach finality within a reasonable time in the administration
of justice. See
Ivor Michael Karan t/a Karan Beef Feedlot v John
William Randal
unreported case number JS347/06,
Radebe v Government of the Republic of South Africa
1995 (3) SA
787
(N)
and
Sishuba v National Commissioner of the South
Africa Police Service (2007) 28 ILJ 2073 (LC).
[12]
It is trite that the Court has the power to grant an indulgence to
the defaulting party once good cause is shown for the unreasonable
delay. The authorities indicate that in assessing whether to grant
the indulgence the Court will take into account the prejudice
that
the other party may have suffered as a result of the delay in the
prosecution of the claim. See
Bezuidenhout v Johnston NO &
others (2006) 27 ILJ 2337 (LC).
[13]
In the present instance there is no doubt that the applicant has been
dilatory in the prosecution of its claim. The applicant
has not
tendered any explanation for the delay in enforcing the claim he
derived from the Court order made on 18
th
October 2004. It
should have been clear to the applicant at least by November 2005,
that there was a need to enforce the right
he accrued as a result of
the settlement agreement having been made an order of Court. The
applicant only filed his claim without
any explanation for the delay
on 27
th
February 2008. In my view the applicant’s
claim stands to be dismissed for this reason alone. I am however of
the view that
it would not be fair to allow the costs to follow the
results.
[14]
In the premises the following order is made:
(i)
The applicant’s claim is dismissed.
(ii)
There is no order as to costs.
_______________
Molahlehi
J
Date
of Hearing :
16
th
September 2009
Date
of Judgment :
22
nd
December 2009
Appearances
For
the Applicant :
Mr Thaanyane of Thaanyane Attorneys
For
the Respondent: Mr Gough of
the State Attorney-Bloemfontein