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[2010] ZALCJHB 70
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Fihla v Nonke Petroleum (Pty) Ltd, In Re: Nonke Petroleum (Pty) Ltd v National Bargaining Council for the Road Freight Industry and Others (JR299/08) [2010] ZALCJHB 70 (14 April 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO JR 299/08
In
the Rule 11 application between:
BOBBY
FAZI
FIHLA APPLICANT
and
NONKE
PETROLEUM (PTY)
LTD RESPONDENT
In
re the review application between:
NONKE
PETROLEUM (PTY) LTD
APPLICANT
and
NATIONAL
BARGAINING COUNCIL
FOR
THE ROAD FREIGH INDUSTRY
1
ST
RESPONDENT
BARRY
JAMMY
2
ND
RESPONDENT
BOBBY
FAZI
FIHLA 3
RD
RESPONDENT
JUDGMENT
AC
BASSON, J
[1]
On 13 August 2009, this Court gave the following order:
1. The
application for condonation for the late filing of the answering
affidavit in the Rule 11 Application to
dismiss, is dismissed.
2. The
respondent’s review application under case number JR299/08 is
dismissed.
3. The
arbitration award under case number D142/jhb/6085/07 is made an order
of court in terms of
section 158(1)(g)
of the
Labour Relations Act 66
of 1995
.
4. The
respondent in this application is ordered to comply with the
arbitration award within seven days from the
date of this order.
5. The
respondent is ordered to pay the applicant’s costs in opposing
the review application as well as
the costs of the present
application on an attorney client scale.
[2]
This was a
Rule 11
application in terms of which Mr. Fihla (the
applicant in this application and the respondent in the review
application –
hereinafter referred to as “the applicant”)
applied for the dismissal of the review application that was filed on
19
February 2008.
The
rule 11
application to dismiss
[3]
The applicant filed the application to dismiss the review application
on 6 February 2009
on the grounds of the lack of prospects of success
in the review application; the excessive and unreasonable delay by
the respondent
in prosecuting its review and the (two) condonation
applications; and the respondent’s failure to attend to the
reconstruction
of the record of the proceedings. The applicant also
sought an order making the award an order of court in terms of
section 158(1)(c)
of the LRA.
[4]
Nonke Petroleum (the respondent in the
Rule 11
application and the
applicant in the review application – hereinafter referred to
as “the respondent”) filed
an application to review and
set aside the award by the second respondent (hereinafter referred to
as “the arbitrator”)
in terms of which it was found that
the dismissal of the applicant was substantively unfair. The
arbitrator reinstated the respondent
retrospectively in his former
employment.
[5]
The award is dated 16 September 2007. The review application was only
filed on 19 February
2008. The review application is therefore almost
four months late. The review application contains a very brief and in
all respects
an extremely unsatisfactory explanation for the delay.
The blame for the delay is placed squarely on the attorneys of the
respondent.
There is also no explanation for the delay between 19
November and 30 November 2007. (I will return to the condonation
application
contained in the review application hereinbelow.)
[6]
On 26 February 2008 the applicant delivered his Notice of Intention
to Oppose. On 10 March
2008 the 1
st
Respondent in the
review application (the Bargaining Council) delivered its Notice of
Compliance in terms of the Rules. On 3 April
2008 the applicant’s
attorneys addressed a letter to the respondent’s attorneys
enquiring from them whether they had
uplifted the record from the
Registrar. The respondent delivered an incomplete record of the
arbitration proceedings consisting
of the award and other documents
of the bargaining council relating to the matter. The record did not
contain the transcript of
the arbitration proceedings sought to be
reviewed. On 19 May 2008 the applicant’s attorneys wrote to the
respondent’s
attorneys pointing out that the record was
incomplete. No response was received. On 2 June 2008 the applicant’s
attorney
phoned the respondent’s attorneys. The discussions are
recorded in a letter dated 3 June 2008. On 28 June 2008 the
applicant’s
attorneys again wrote a reminder letter to the
respondent’s attorneys. A period of two months elapsed without
any word from
the respondent’s attorneys. On 4 September 2008
the applicant’s attorney’s addressed a letter to the
respondent’s
attorneys advising them that the applicant
intended to proceed with the present application. On 9 September 2009
a response was
finally received from the respondent’s
attorneys. The letter merely records that the writer has been out of
the office attending
to matters of a personal and private nature. The
letter also records that the arbitrator has been requested to hand
over his written
notes. After this letter, until the date of
this application (6 February 2009) - which is almost 5 months after
the aforementioned
letter from the respondent’s attorneys - the
applicant received no feedback whatsoever, not even a letter from the
respondent’s
attorneys regarding their endeavors to reconstruct
the record. It is important also to point out that no attempts have
been made
by the respondent’s attorneys to seek to compel the
arbitrator to deliver his handwritten notice.
[7]
In the present case various issues must be considered in making a
final decision. (i) The
first is that the respondent has, for months,
failed to take any positive steps in either securing the handwritten
notes of the
arbitrator or in reconstructing the record. It is
patently clear from the facts as set out above that the respondent’s
attorneys
simply ignored the numerous requests from the applicant’s
attorneys. The last latter from the respondent’s attorneys
is
also silent as to when the bargaining council was approached for the
written notes. No follow up letters were written to the
applicant’s
attorneys to update the applicant in respect of any progress made in
securing the handwritten notes. For a period
of almost five months
the respondent’s attorneys simply ignored the applicant’s
attorneys whilst being fully aware
of the urgency of the matter. (ii)
The second consideration is the fact that the review application was
also filed late. Although
it is not strictly necessary in light of my
findings to even evaluate the founding affidavit in the review
application, it is,
in my view, necessary to make a few observations
about the condonation application contained in the founding affidavit
as it impacts
on the prospects of success of the review application.
Parties who approach this Court with a condonation application should
always
be mindful of the fact that they are seeking an indulgence
from this Court for their non-compliance with the Rules. As such
their
application for condonation should address the various factors
as set out in
Melane v Santam Insurance Co Ltd,
1962 (4) SA 531
(A) at 532C-F.
In terms of this decision, the Court has a
discretion, which is to be exercised judicially after taking into
account all the facts
before it, to grant or to refuse the
application for condonation. The relevant factors that the Court will
take into account are:
(a) the degree of lateness, (b) the
explanation for the lateness, (c) prospects of success or
bona
fide
defense in the main case; (d) the importance of the case,
(e) the respondent’s interest in the finality of the case, (f)
the convenience of the court; and (g) avoidance of unnecessary delays
in the administration of justice. See
Foster v Stewart Scott
Inc (1997) 18 ILJ 367 (LAC).
The application for condonation
should also be made as soon as it becomes aware of the lateness of
its case. There are also limits
beyond which this Court will condone
the negligence of a party’s legal representative. See
Hardrodt
(SA) (Pty) Ltd v Behardien & Others
(2002) 23 ILJ 1229 (LAC).
The application for condonation contained in the review application
only addresses the explanation for
the delay very briefly. It does
not, as pointed out, explain the delay between 19 – 30 November
2007. Moreover, the condonation
application does not even address the
degree of lateness, the prospects of success, the importance of the
case, the respondent’s
interest in the finality of the case and
the convenience of the court. As far as the condonation application
is concerned, I am
of the view that the respondent has no prospects
of succeeding with that application
[8]
As far as the prospects of success of the review are concerned (if
the condonation application
is granted), I am in agreement with the
submission on behalf of the applicant that the respondent also has no
prospects of success.
The test for review is now firmly established
namely whether or not the decision of the arbitrator is one that a
reasonable decision
maker could not reach (see
Sidumo &
Another v Rustenburg Platinum Mines Ltd & Others
(2007) 28
ILJ 2405 (CC).)
[9]
It appears from the arbitration award that the respondent, during the
arbitration of 10
December 2008, did not call any witnesses to
discharge the onus resting upon it to prove the substantive fairness
of the dismissal
of the applicant. The two witnesses who had
firsthand knowledge of the alleged misconduct had left the employ of
the respondent
and were not prepared to testify on behalf of the
respondent. As a result the respondent could not present any evidence
on the
substantive fairness of the applicant’s dismissal. The
arbitrator accordingly held that the respondent had presented no
evidence
and in consequence established no case for the applicant to
meet.
[10]
It is trite, and was also so pointed out by the arbitrator, that an
arbitration is a hearing
de novo
and that the record of the
disciplinary hearing cannot be used as evidence against the employee.
If the review application is perused,
it appears that the only ground
for the review is the respondent’s argument that the
disciplinary hearing “
was also applicable in determining
whether the dismissal on 17
th
January 2007,
as written warnings are also applicable in the sentence a person
received.”
I have already indicated, and it is also
clear from the founding affidavit in the review application, that the
two witnesses
who testified at the disciplinary hearing were not
longer willing to testify at the arbitration. The only person who
could testify
was Mr. De Villiers who was the chairperson of the
disciplinary hearing. De Villiers also represented the respondent at
the arbitration
hearing in his capacity as an official of the Road
Freight Employers Association. He could not give direct evidence
about the events
that lead to the dismissal of the applicant with the
result that the respondent was not able to present evidence about the
substantive
fairness of the dismissal.
[11]
Furthermore, the arbitrator was correct in pointing out to the
respondent that the record of the disciplinary
hearing (except where
the parties explicitly agree that it may be used as evidence in the
subsequent hearing) cannot be used as
evidence against an employee.
By failing to call two crucial witnesses the respondent had failed to
establish a case before the
arbitrator. The conclusion reached by the
arbitrator is therefore not one that no reasonable decision-maker
could reach.
The
application for condonation for the late filing of the answering
affidavit in the
Rule 11
application
[12]
To make matters worse for the respondent, it also failed to deliver
its answering affidavit in the
Rule 11
application. The
Rule 11
application was filed on 6 February 2009. The Notice of Motion
clearly states that the respondent must file an answering affidavit
within ten days from the date of service of the application. On the
first date of the hearing of the
Rule 11
application (18 March 2009),
my learned brother Van Niekerk J postponed the matter and ordered the
respondent to file a condonation
application for the late filing of
the answering affidavit by 1 April 2009.
[13]
At the outset it should be pointed out that the application for
condonation makes no attempt to address the
pertinent issues that
must be addressed in condonation applications (see paragraph [7]
supra). The explanation for the delay is
also, with respect,
disingenuous. The respondent avers that it was not able to answer to
the
Rule 11
application because it did not have the transcript of the
arbitration proceedings. The respondent then proceeds to explain that
it had made 16 telephone calls to the bargaining council to request
the handwritten notes and that it was only established on the
2
nd
of March that the handwritten notes did not exist. I am in agreement
with the submission that the handwritten notes of the arbitrator
has
no bearing on the application to dismiss. The written notes may have
a bearing on the review application. No reason whatsoever
is tendered
to this Court (apart from this flimsy explanation) why the respondent
could not file its answering affidavit.
[14]
Furthermore, the answering affidavit was due in November 2009 but was
only served on 12 March 2009. The answering
affidavit was further
served without an accompanying application for condonation. I have
already indicated that it is trite that
a litigant must file an
application for condonation as soon as it becomes aware of the fact
that such an application is necessary.
The respondent does not aver
that it was not aware of the fact that it was necessary to file such
an application and this Court
can only accept that this is but
another flagrant disregard of the Rules of this Court. In fact, the
respondent was given ample
notification that the answering affidavit
was overdue. The respondent was also reminded on 2 February 2009 in a
letter dated 9
December 2009 that its opposing papers were overdue.
The respondent was also advised that the applicant intended
approaching this
Court on an unopposed basis. Despite these letters,
the respondent again did nothing. The justification that the
respondent needed
the handwritten notes to answer to the
Rule 11
application was also never previously raised or brought to the
attention of the applicant’s attorneys. It is only in the
condonation application that this issue is raised for the first time.
[15]
I accordingly have no hesitation to dismiss the application for
condonation for the late filing of the answering
affidavit in the
Rule 11
application.
The
application to dismiss
[16]
This Court has an inherent discretion to dismiss review proceedings
on account of an undue delay in order
to prevent an abuse of its own
process. This principle is succinctly summarized in
Autopax
Passenger Services (Pty) Ltd v Transnet Bargaining Council &
Others
[2007] 1 BLLR 39
(LC) and
Pathescope Union of SA Ltd v Mallinik
1927 AD 292
where
the Court held as follows:
“
That a
plaintiff may, in certain circumstances, be debarred from obtaining
relief to which he would ordinarily be entitled because
of
unjustifiable delay in seeking it is a doctrine well recognised in
English law and adopted in our own courts. It is an application
of
the maxim vigilantibus non dormientibus lex subveniunt. The very
nature of the doctrine necessitates its being stated in general
terms. I take the following apt extract from the judgment in Lindsay
Petroleum Company v Hurd
(L.R. 5 P.C. 239)
quoted in the court below:
''The doctrine of
laches in courts of equity is not an arbitrary or a technical
doctrine. Where it would be practically unjust to
give a remedy,
either because the party has by his conduct done that which might
fairly be regarded as equivalent to a waiver of
it or where, by his
conduct and neglect he has, though perhaps not waiving that
remedy, yet put the other party in a position
in which it would not
be reasonable to place him if the remedy were afterwards to be
asserted, in either of these cases lapse of
time and delay are most
material. But, in every case if an argument against relief, which
otherwise would be just, is founded upon
mere delay, that delay
of course not amounting to a bar by any statute of limitations, the
validity of that defence must
be tried upon principles substantially
equitable.
Two circumstances always important in such cases
are the length of the delay and the nature of the acts done during
the interval,
which might affect either party and cause a balance of
justice or injustice in taking the one course or the other, so far as
relates
to the remedy....
From the nature of the inquiry,
it must always be a question of more or less depending upon the
degree of diligence which might
reasonably be required, and the
degree of change which has occurred, whether the balance of justice
or injustice is in favour of
granting the remedy or withholding it.
The determination of such a question must largely depend on the
turn of mind of those
who have to decide, and therefore be subject to
uncertainty, but that, I think, is inherent in the nature of the
enquiry.”
(Own emphasis)
[17]
The first question to be considered in exercising the discretion to
dismiss is whether there has been an
undue or
unreasonable
delay and secondly whether the delay should be condoned. It
will be an important factor to take into consideration whether
any
steps were taken that may indicate the seriousness or commitment of a
litigant in bringing his or her claim to finality. Once
it has been
found that the delay is unreasonable, the Court will then have to
exercise a discretion which must be exercised judicially
as to
whether or not the unreasonable delay should be condoned. In deciding
condonation, the Court will take into account various
factors such as
the explanation for the delay, prejudice to the parties, prospects of
the applicant succeeding in the review application
and the prospects
or lack of a meaningful consequence of the setting aside of the
award. These factors are not individually decisive
but must be
considered as a whole. Where the delay is excessive and the
explanation for the delay is inadequate, the Court may
well decide to
refuse condonation regardless of the prospects of success (see
Ferreia v Ntshingila
1990 (4) SA 271
(AD) at 281J –
282A). See also See
Saraiva Construction (Pty) Ltd v Zululand
Electrical & Engineering Wholesalers (Pty)
Ltd
1975 (1) SA
612
(D) at 614H – A:
“
It is clearly
necessary for the applicant to furnish an explanation of his default,
and if it to be of any assistance to the Court
in deciding whether
‘good cause’ has been shown the explanation must show how
and why the default occurred. If such
an explanation is furnished the
correct approach, I think is to consider all of the circumstances of
the case, including the explanation,
for the purpose of deciding
whether it is a proper case for the grant of relief. If it appears
that the default was willful or
was due to gross negligence on the
part of the applicant the Court may well decline, on that ground
alone, to grant the indulgence
sought.”
[18]
In deciding whether or not the delay is unreasonable, it must be
taken into account that the LRA is premised
on the principle of
speedy resolution of labour disputes.
[19]
There is no explanation for the unreasonable delay in duly
prosecuting the review application before this
Court. What is before
this Court are facts that point to the conclusion that the respondent
has adopted an apathetic approach in
not only prosecuting the review
application but also in defending the application to dismiss. The
only conclusion that this Court
can reach is that the respondent
unapologetically flaunted the Rules of this Court.
[20]
As a consequence of the aforegoing the arbitration award under case
number D142/jhb/6085/07 is made an order
of court in terms of
section
158(1)(g)
of the
Labour Relations Act 66 of 1995
. The respondent in
this application is ordered to comply with the arbitration award
within seven days from the date of this order.
[21]
The respondent is ordered to pay the applicant’s costs in
opposing the review application as well as
the costs of the present
application on an attorney client scale.
______________________________
AC
BASSON, J
DATE
OF JUDGMENT:
14 April 2010
ON
BEHALF OF THE APPLCANT
Ndumiso
P Voyi Attonreys
ON
BEHALF OF THE RESPONDENT
Saleem
Ebrahim Attorneys