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[2010] ZALCJHB 44
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Moraka v National Bargaining Council for the Chemical Industry and Others (JR853/06) [2010] ZALCJHB 44 (29 September 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE
NO JR 853/06
In
the matter between
M
M
MORAKA 1st
Applicant
and
NATIONAL
BARGAINING COUNCIL FOR
1st
Respondent
THE
CHEMICAL INDUSTRY
ZARINA
WALELE
(N.O.) 2nd
Respondent
AFROX
MEDISPEED 3rd
Respondent
JUDGMENT
LAGRANGE,
J
Background
1.The
applicant in the main review application seeks condonation for the
late filing of his founding affidavit and notice of motion
in a
review application. He was dismissed on 20 May 2005. He
referred a claim of unfair dismissal to the first respondent.
On 30
March 2006 the second respondent issued an award dismissing his
claim.
2.
On 29 May 2006 he then filed a review application to set aside the
award. This was done a couple of weeks after the expiry of
the six
week deadline for doing so. In turn, the respondent filed a notice of
intention to oppose the application on 1 June 2006.
3.
By 6 June 2006, the bargaining council had dispatched the record of
proceedings to the registrar of this court, under Rule 7A(2)(b)
of
the Labour Court rules. It was only on 26 January 2007 that the
applicant eventually filed a copy of the transcript with
the court.
Until the hearing of this matter, there was no proof the record had
also been served on the third respondent, Afrox.
At court the
applicant’s legal representative handed up a filing sheet,
dated 29 January 2007, which indicated that the transcript
appears to
have been served directly on the third respondent, instead of its
attorneys of record. Whatever was apparently
served on the
third respondent directly never reached Afrox’s attorneys.
4.
On 12 December 2008, nearly two years after the applicant had filed
the transcript with the court and apparently delivered it
to Afrox,
he filed a supplementary affidavit confirming that he stood by his
notice of motion and founding affidavit. It was only
in mid-December
2009 that his attorneys enquired if Afrox’s attorneys of record
were still representing it. There is no record
of any correspondence
about the matter between December 2008 and this letter of enquiry in
December 2009.
5.
Another attorney at Afrox’s attorneys of record had taken over
the matter. She confirmed that the firm remained on record.
The new
attorney also raised the perceived lack of activity in the matter on
the part of the applicant since the record was dispatched
to the
bargaining council in June 2006, and warned that if no explanation
was received by 15 February 2010, instructions would
be taken from
Afrox whether or not to proceed with an application to dismiss the
review proceedings.
6.
The applicant’s attorneys confirmed that he was proceeding with
the application and advised Afrox’s attorneys to
check the
court file in which all the documents could be found. He could simply
have confirmed the steps taken and sent a copy
of the supposed
service of the transcript on Afrox but was clearly not going to
assist in shedding light on the issue. His reply
said nothing about
what the applicant had done since the bargaining council had
dispatched the record to the registrar of the court.
When Afrox’s
attorneys inspected the court file they found the court’s copy
of the transcript in the file, but no notice
by the applicant in
terms of Rule 7A(8). They advised the applicant’s attorney of
what they had found. Seemingly by way of
reply, the applicant filed
another notice in terms of Rule 7A(8)(b) on 4 March 2010.
7.
On 12 May 2010, Afrox filed its notice of intention to dismiss the
review application which the applicant opposed. In his
answering affidavit the applicant asserts for the first time that the
transcripts were served on Afrox on 29 January 2007, but
did not
attach any proof of this service to his affidavit.
8.
Since the start of proceedings, the applicant had been represented by
the Johannesburg Justice Centre. In its notice of opposition,
in June
2006, Afrox had made it clear that it had appointed its current
attorneys of record to represent it in the matter and that
all
service of documentation and process in the matter should be served
on its attorneys. With the exception of serving the record,
the
applicant’s attorneys sent every other document or item of
correspondence to Afrox’s attorneys of record. Although
the
attorney handling the matter for the third respondent left the
attorney’s firm in June 2009, Afrox’s attorneys
of
record never changed in the course of the litigation.
9.
In summary, the applicant’s representatives appear to have
ignored using the address of Afrox’s attorneys of record
when
serving the transcript, whereas in all other respects they had
communicated with them and served process at their address.
No
explanation for this important anomaly is provided by the applicant’s
representatives. Once a party has elected an address
for service and
properly notified the opposing party of that address, it is entitled
to assume that any service will be effected
at that address and
nowhere else. The applicant’s representatives ought to
have realized that delivering a transcript
to the company without
even indicating a responsible person to whom it should be sent, or
without mentioning the attorneys it should
be forwarded to, could
well result in it not reaching the persons designated by Afrox to
deal with the matter, namely its attorneys
of record.
10.
Quite apart from the improper service of the record, the applicant
only filed his first supplementary affidavit in December
2008, just
under two years later. It must be noted that this did not expand on
the grounds of review but merely confirmed the contents
of the
founding affidavit, so there is no obvious reason why this could not
have been filed in February 2007.
11.
On 12 May 2010, the applicant filed an application to dismiss the
review proceedings under Rule 11 of the Labour Court rules.
Only the Rule 11 application was set down for hearing but, of
necessity, the applicant’s condonation application also has
to
be dealt with.
12.
It will be useful to deal with the condonation application first as
it only addresses the brief delay in launching the initial
application on 29 May 2006. In short the applicant does not
provide as chronology of the steps he took but pleads that he
was
unable to afford legal assistance in launching an application and it
appears it took the best part of April to obtain legal
aid to pay for
legal advice. The advice he obtained was discouraging of his
prospects of success, and it was only after obtaining
a second legal
opinion that the matter proceeded. Although this explanation is not
detailed when dealing with dates and times,
it seems plausible that
it could have led to some delays in initiating proceedings.
Weak though the prospects are, I am willing
to condone the delay in
launching the review application.
13.
However, the condonation application only addresses a relatively
short period of delay which pales into almost complete insignificance
beside the applicant’s much greater delay in prosecuting the
review further. After filing the founding affidavit at the end
of May
2006, and even though the record was made available soon afterwards
in early June 2006, the applicant took six months to
file the
transcript of the proceedings with the court by the end of January
2007. without serving it on Afrox’s attorneys
of record. No
explanation is provided by the applicant for the six month delay.
Even if there might have been an acceptable reason
for this delay and
even if he had assumed that the record had been properly served on
Afrox, it was only in December 2008, nearly
two years later, that the
applicant filed his supplementary affidavit. Moreover, that affidavit
added nothing to the grounds of
review set out in the founding
affidavit of May 2006, and there is no reason why it could not have
been filed soon after the transcript
of roughly 200 pages was
obtained.
14.
In terms of rule 7A(8) of the labour court rules, a supplementary
affidavit and any amended notice of motion, must be
filed
within 10 court days of the registrar making the record
available. This period expired in February 2008 and the applicant
never sought condonation for his failure to comply with the rule, nor
has he even tendered any explanation for the delay in course
of his
reply to Afrox’s application to dismiss the review application.
This is not a case in which the party prosecuting
the matter
has been a bit slow but nonetheless consistent in pursuing the
matter: it is a case where the matter has effectively
been allowed to
die, and is then resuscitated again as and when it suited the
applicant or his representatives.
Legal
principles
15.
The relevant principles governing this court’s treatment of
ongoing delays in conducting review proceedings have
been set
out by Molahlehi J in the case of
Sishuba v National
Commissioner of the SA Police Service
(2007) 28
ILJ
2073 (LC)
, in which he stated:
“
[8]
The issue of delays in prosecuting disputes in the Labour Court has
become an issue of concern and judges have expressed
their concern
at a trend that seems to have emerged in this regard. The trend seems
to be developing into a practice or a
norm in cases involving reviews
of arbitration awards.
[9]
While there is no rule that specifically addresses the issue of
delays in prosecuting a case by
an applicant, there are
decisions of both this court and other courts which have held that
depending on the circumstances of a
given case, the administration of
justice may dictate that if an applicant party unduly delays
prosecuting its claim, and fails
to provide acceptable reasons for
the delay, the penalty may be that of dismissing the claim. See
National Union of Metalworkers
of SA on behalf of Nkuna & others
v Wilson Drills-Bore (Pty) Ltd t/a A & G Electrical - unreported
case no J268/98.* See
Mothibi v Western Vaal Metropolitan
Substructure
[2000] 1 BLLR 85
(LC) and NUMSA & others v AS
Transmissions & Steerings (Pty) Ltd (2000) 21 ILJ 327 (LAC);
[1999] 12 BLLR 1237
(LAC) and Molala v Minister of Law G
& Order & another
1993 (1) SA 673
(T).
[10]
Inordinate delays in litigating protract disputes, damage the
interests of justice and prolong the uncertainty
of those affected.
The consequences that may follow if an applicant fails diligently to
pursue its claim are dealt with in the
case of Bezuidenhout v
Johnston NO & others H (2006) 27 ILJ 2337 (LC), where
Stratford AJA in Pathescope Union
of SA Ltd v Mallinick
1927 AD 305
is quoted as having said:
'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
court went further to say:
'Where there has been
undue delay in seeking relief, the court will not grant it when in
its opinion it would be inequitable to
do so after the lapse of time
constituting the delay. And in forming an opinion as to the justice
of granting the relief
in face of the delay, the court can rest
its refusal upon potential prejudice, and that prejudice need not be
to the defendant
in the action but to third parties.'
[11] The
policy consideration that informs this approach was considered in
Mohlomi v Minister of Defence
[1996] ZACC 20
;
1997 (1) SA 124
(CC) at 129H-130A,
wherein Didcott J said:
'Nor in the end is it
always possible to adjudicate satisfactorily on cases that have gone
stale. By then witnesses may no longer
be available to testify. The
memories of ones whose testimony can still be obtained may have faded
and become unreliable. Documentary
evidence may have disappeared.'
[12] There
are two principal reasons why the court should have the power to
dismiss a claim at the instance of an aggrieved
party who has been
guilty of unreasonable delay. The two reasons are cited in the case
of Radebe v Government of the Republic of
SA & others
1995 (3) SA
787
(N), as follows:
'The first is that
unreasonable delay may cause prejudice to other parties. Harnaker v
Minister of the Interior
1965 (1) SA 372
(C) at 380D; Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit Kaapstad
1978 (1) SA 13
(A) at
41. The second reason is that it is both desirable and important that
finality should be reached within a reasonable time
in respect of
judicial and administrative decisions. Sampson v SA Railways and
Habour
1933 CPD 335
at 338; the Wolgroeiers' case at 41D-E; cf
Kingsborough Town Council v Thirlwell and Another
1957 (4) SA 533
(N)
at 538.'
[13] The
impact of delay in prosecuting cases was analysed and looked at in a
much more critical manner by Flemming
DJP, as he then was, in Molala
v Minister of Law & Order & another
1993 (1) SA 673
(T).
After assessing the approaches adopted by the various divisions of
the High Court, the court found that in the Transvaal the
approach
followed was the one set out in the case of Bernstein v Bernstein
1948 (2) SA 205
(W) where the court held that 'it is in the
discretion of the Court to allow proceedings to continue where there
has been this
lapse of time'. The court further agreed with the case
of Kuiper & others v Benson
1984 (1) SA 474
(W), where it was
held that the court has 'an inherent power to control its own
proceedings and that accordingly the court
should assess
whether the plaintiff is guilty of an abuse of process'.
[14] With
regard to the approach adopted in Kuiper's case, the court found that
because proving abuse of court process
would be difficult, such an
order would be a rarity. It would appear that the other divisions
also accepted that the court had
an inherent discretion whether or
not to allow the party guilty of delay to continue with its dispute
but that such discretion
was to be exercised sparingly.
[15] In
assessing the overall approach of how our system deals with delays,
the court in Molala's case at 679D-F said:
'I should not refer to
''system' but to the total lack in our system of attention to the
effective counteracting of slackness. Our
system leaves the defendant
with three poor choices. One is to incur the costs of applications,
perhaps not recoverable from the
other party, in order to forge ahead
with litigation started by a plaintiff who to all outward appearances
shows clear signs of
lack of interest in the whole business. The
second alternative is to hope that the surrounding facts will develop
sufficient cogency
to enable him to convince the Court in a formal
application, often also at the defendant's expense, that the
plaintiff is abusing
the Court process to an extent which warrants
dismissal of the action.'
[16] The
focal point in considering whether to grant the order barring the
employer, in this case, from proceeding further
with the review
application is the issue of justice and fairness to both parties. The
question that then arises is whether the
interest of the
administration of justice in this instance dictates that the employer
be barred from proceeding further with the
review application.”
[1]
16.
Van Niekerk J, in the case of
BP Southern Africa (Pty)
Ltd v National Bargaining Council for the Chemical Industry &
Others
(2010) 31 ILJ 1337 (LC)
cited the court’s
approach in
Sishuba
with approval, and added that:
“
From a policy
perspective, there are two principal reasons why the court should
have the power to dismiss a claim at the instance
of an aggrieved
party where the other has been guilty of unreasonable delay. In
Radebe v Government of the Republic of SA
1995 (3) SA 787
(N),
the court said the following:
'The first is that
unreasonable delay may cause prejudice to the other parties.... The
second reason is that it is both desirable
and important that
finality should be reached within a reasonable time in respect of
judicial administrative decisions....'
In
Molala v Minister of Law & Order & another
1993 (1) SA 673
(W), the High Court held that the approach to be followed was the one
set out in Bernstein v Bernstein
1948 (2) SA 205
(W), where it
was held that 'it is in the discretion of the Court to allow
proceedings to continue where there has been this lapse
of time'. The
court referred with approval to Kuiper & others v Benson
1984 (1) SA 474
(W), where it was held that the court has 'an
inherent power to control its own proceedings and that accordingly
the Court should
assess whether the Plaintiff is guilty of an abuse
of process'.“
[2]
17.
It is also important to make reference to the approach of the LAC in
Queenstown Fuel Distributors CC v Labuschagne NO & Others
(2000) 21 ILJ 166 (LAC)
. In that judgment the
court was considering whether the time limit of six weeks for
launching a review application in section
145(1)(a) of the Labour
Relations Act 66 of 1995 (‘the LRA’) was directory
or peremptory. After a careful
analysis of the approach of the
legislature to labour dispute resolution, Conradie JA concluded that
the provision was directory,
but that:
“
It follows,
however, from what I have said above, that condonation in the case of
disputes over individual dismissals will not readily
be granted. The
excuse for non-compliance would have to be compelling, the case for
attacking a defect in the proceedings would
have to be cogent and the
defect would have to be of a kind which would result in a miscarriage
of justice if it were allowed to
stand.”
[3]
18.
Added to
this, it is important to mention that one of the purposes of the LRA
is to promote the effective resolution of disputes.
[4]
A number of decisions of this court have confirmed that part of what
makes a dispute resolution effective is that it is expeditious.
[5]
There is thus a statutory policy imperative in addition to all the
common law precepts which effectively enjoins a party pursuing
its
rights under the LRA not to allow the prosecution of a matter to lose
momentum.
19.
I am
mindful of the fact that the time limit under consideration in this
instance is one contained in the rules of this court and
not laid
down in the LRA itself, unlike in the case of
Queenstown
Fuel Distributors
case,
where a statutory time limit was under deliberation.
[6]
Nonetheless, the rule that a supplementary affidavit must be filed
within 10 days of the record being made available is clearly
a
subsequent step in the process of prosecuting a review application,
which the LRA stipulates must start within 6 weeks of the
award being
issued. It would be completely anomalous if the policy dictates which
inform the determination of the statutory time
limit, had no
relevance when considering whether or not to condone later delays in
advancing a review application. The objects
of stipulating a six week
period for launching a review application can hardly be served if the
subsequent progress of the application
is marked by periods of
months, or even years, of inactivity which are readily indulged by
the court.
20.
A party defending itself against an application to dismiss a review
on account of undue delay is effectively asking the court
to condone
its dilatoriness and similar considerations which apply to the
evaluation of applications for condonation ought to be
relevant in
the evaluation of these applications. In this instance, the long
delay of nearly two years between the incorrect filing
of the
transcript and the filing of the supplementary affidavit which added
nothing to the merits of the review, is unexplained.
A significant
consideration in deciding whether or not to dismiss this review
application is the casual approach adopted to the
litigation by the
applicant which indicates that he viewed it as a matter that could be
returned to from time to time when he or
his representatives chose to
do so. Such long periods of inactivity cannot be reconciled
with the conduct of a party that
has a consistent interest in
pursuing a case and takes the necessary steps to do so without undue
delay.
21.
Thus, as far as the extent and unreasonableness of the delay are
concerned, the applicant’s conduct is found seriously
wanting
in both respects. It is not expressly articulated in
Sishuba’
s
case, but in considering whether it would be in the interests of
justice and fairness to dismiss the application, regard ought
to be
had to the merits of the review application. In setting out the
grounds of review in his founding affidavit, the applicant
did not
set out any factual basis for those grounds, but merely sets them out
in the form of conclusions. Examples of this are
the first two
grounds of review he mentions, namely:
“
2.1 The
Commissioner committed misconduct by making findings not justified on
the evidence;
2.2 Gravely misunderstood
evidence presented before her;…” (sic)
22.
The Labour Appeal Court has made it clear in the unreported case of
Comtech (Pty) Ltd v Commisioner Shaun Molony N.O. & Others
(Case no DA 12/05, dated 21 December 2007)
that it is not
sufficient for a party to simply relate conclusions of law in the
founding papers for a review application.
A party must set out
the factual grounds on which it seeks to base its review. While
it may be excusable in a founding affidavit
to state limited grounds
of review and in less detail, by the time an applicant has the record
of proceedings it must then make
up for the deficiencies in the
founding affidavit and set out the factual basis for its grounds of
review in full. When it came
to his supplementary affidavit, the
applicant did not supplement or amend the grounds of review set out
in the founding affidavit,
nor did he lay a factual foundation for
the grounds set out in the founding affidavit. On the approach of the
LAC in the
Comtech
case, no factual basis was provided for the
review application. It was only in his heads of argument that the
applicant for the
first time set out a factual basis for his claim.
23.
I am bound to follow the approach of the LAC in regard to the
assessment of the prospects of success and conclude that the
applicant failed to provide any factual basis for his grounds of
review in his founding papers. Accordingly, it is not
necessary,
on the basis of the
Comtech
approach, to consider
the merits of the case set out later, and for the first time, in the
applicant’s heads of argument.
Even so, I am satisfied
that a reading of the commissioner’s award and the record shows
that the commissioner did not act
unreasonably in concluding that the
applicant’s dismissal was substantively and procedurally
unfair.
24.
The essence of the case was that the applicant was dismissed for not
completing physical stock counts which he had more than
once been
instructed to perform. His defence was that he was not properly
trained and it was not part of his duties. The arbitrator
carefully
considered the evidence and concluded that performing physical stock
counts was part of the applicant’s duties
and the instructions
to him to conduct the same were reasonable. The arbitrator found that
the applicant had not provided an acceptable
explanation why he had
never previously raised with his employer his alleged inability, lack
of training, or that it was not part
of his duties to perform
physical stock counts. The arbitrator noted too the inadequacies of
the applicant’s own evidence
at the hearing and his failure to
put part of his defence to the employer’s witnesses. Further,
the arbitrator carefully
analysed the evidence of alleged procedural
unfairness before concluding that the dismissal was procedurally
unfair. On balance,
even if the grounds of review set out in
the applicant’s heads of argument had to be considered,
contrary to the approach
of the LAC in
Comtech
, I do not
believe that they demonstrate the applicant would have a reasonable
prospect of success if the review application were
to proceed.
25.
The applicant did point out that the confirmatory affidavit of Ms
Saunders in Afrox’s Rule 11 application had not been
signed. As
the material facts on which this matter is decided are largely not in
dispute I do not think that alters the result.
In any event, this
defect was cured when a signed affidavit was subsequently filed.
26.
In conclusion, whilst the late initial referral of the review
application at the end of May 2006 is condoned, the delays in
prosecuting the matter thereafter cannot be excused. For the
reasons set out above, I find that there are good grounds for
dismissing the applicant’s review application in this matter,
based on the extensive and repeated delays in the prosecution
of the
matter by the applicant, which he has not sought to explain.
Moreover, even if consideration is given to the merits of the
review
application there seems to be little reasonable prospect of it
succeeding. There is also nothing of special importance about
the
case, other than its obvious significance to the parties, which would
warrant allowing the matter to proceed further.
27.
On account of the applicant being a recipient of legal aid, no order
is made as to costs.
Order
28. In the light of the
aforegoing, it is ordered that:
28.1.
the late filing of the
review application on 26 May 2006 is condoned;
28.2.
the application to dismiss
the review application is granted, and
28.3.
no order is made as to
costs.
ROBERT
LAGRANGE
JUDGE
OF THE LABOUR COURT
Date
of hearing: 21 September 2010
Date
of Judgment: 29 September 2010
Appearances:
For
the Applicant: Mr Khonou instructed by the Johannesburg Justice
Centre
For
the Third Respondent: Mr Van As instructed by Webber Wentzel
Attorneys
[1]
At 2076-8. See also
[2]
At
2073,[10]
[3]
at 174, [24]
[4]
Section
1(d)(iv) of the LRA.
[5]
See for example,
Police
& Prisons Civil Rights Union obo Sifuba v Commissioner of the SA
Police Service & Others
(2009) 30 ILJ 1309 (LC)
at 1317,[30];
Equity
Aviation Service (Pty) Ltd v SA Transport & Allied Workers Union
& Others
(2009) 30 ILJ 2912 (LC)
at 2915, [14], and
Ruijgrok
v Foschini (Pty) Ltd & Another
(1999)
20 ILJ 1284 (LC)
at 1287,[17] to name but a few examples.
[6]
In this regard see
Lentsane
& Others v Human Sciences Research Council
(2002)
23 ILJ 1433 (LC)
at
1438,[14], in which Sutherland AJ, correctly in my view,
distinguished the approach to the time limit in the rules
of court
for filing an answering statement to a referral as a step in the
initial phase of litigation, from the approach adopted
in
Queenstown
Fuel Distributors
which was dealing with a statutory time limit
governing review proceedings in the context of a dispute already
having been determined.