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[2010] ZALCJHB 336
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NACBAWU and Others v Spingbox (Pty) t/a Summit Associated Industries (J2367/06) [2010] ZALCJHB 336 (1 October 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
Reportable
Case
No: J2367/06
In
the matter between:
NACBAWU
1
st
A
pplicant
GM
DIKGALE &
OTHERS
2
nd
Applicant
And
SPRINGBOX
BOX (PTY) LTD t/a
SUMMIT
ASSOCIATED
INDUSTRIES
Respondent
JUDGMENT
Molahlehi J
Introduction
[1]
The applicant who is the respondent in the main application, seek and
order to have the application for the declaratory order
by the
applicants in the main application, and respondent in this
application dismissed by reason of delay in prosecution of the
matter
to finality.
[2]
The applicants in the main application sought a declaratory order on
the following terms:
“
1.1 That it be
declared that:
1.1.1.
Respondent imposed a lockout as defined in the Labour
Relations Act 66 of 1995 (“the LRA95”) upon the
individual applicants
as from 2 October 2006 until a date to be
determined by this Court (“the lockout”).
1.1.2.
That the lockout does not comply with the provisions of
Chapter 4 of the LRA95.
1.2 That
Respondent be interdicted and restrained from:
1.2.1. imposing the
lockout on the individual applicants.
1.2.2. Employing
replacement labour as envisages by section 76 of the LRA95 for as
long as the lockout prevails.
12.3. dismissing
the individual applicants pending the outcome of this application.
1.3
That Respondent be directed to:
1.3.1. allow the
individual to return to work,
alternatively,
to
remunerate the individual applicants as from the date of the order in
return for tendering of their services as long as their
employment
contracts with Respondent prevail.
1.3.2. pay Applicants’
legal costs in this application on the attorney and client scale.
1.4. that
the late delivery of the confirmatory affidavits of the individual
applicants be condoned.
1.5. that
Applicants be granted such further and/or alternative relief as this
court deem fit.”
[3]
The applicants have also applied for condonation for the late filing
of the heads of argument. For ease of reference the first
applicant
will hereinafter be referred to as the “union”, the
second applicants as “employees” and the
respondents as
the “employer.”
[4]
The dispute between the parties in this matter arose because of a
deadlock in the wage negotiations which the parties embarked
upon
during July 2005. The employer had refused to meet the 12% wage
increase demand by the union. On the 27
th
July 2005,
employer referred a dispute to the CCMA concerning an allegation of
refusal to negotiate by the union. In that referral
the employer
summarized the dispute as follows:
“
the company
proposed possible options to unlock the impasse to this date union
has not responded to the company’s proposal.”
[5]
The dispute was conciliated on the 29
th
July 2005, at the
CCMA. At the proceedings the employer offered a wage increase of 1.5%
with effect from 1
st
July 2005 and a further increase of
2% with effect from 1
st
January 2006. The matter could not
be finalized on that day and the parties agreed to postpone the
matter to 5
th
August 2006.
[6]
A further conciliation meeting was held on the 29
th
August
2005. The parties having again failed to reach a compromise, the
conciliating commissioner issued a certificate of outcome
in which it
is indicated that the dispute concerned “
refusal to
bargain.”
[7]
The union, made its referral of a dispute on the 8
th
August 2005, to the CCMA. The dispute was described in the referral
forms as concerning “mutual interest.” The conciliation
hearing of that dispute was scheduled for a hearing on 2
nd
September 2005. At that conciliation meeting the parties agreed to
extend the period of the conciliation to give themselves enough
time
to seek a negotiated settlement of dispute. The conciliation was
postponed to 30
th
September 2005.
[8]
The parties again failed to reach a consensus at the conciliation
meeting of the 30
th
September 2005. The commissioner then
issued a certificate of outcome indicating that the dispute between
the parties remained
unresolved. And on the 10
th
October
2005, the union gave the employer a notice of intention to embark on
a protected industrial action in terms of s 64 (1)
(b) of the Labour
Relations Act 66 of 1995 (the LRA). Later on the same day the
employer issued the employees with a notice of
intention to lock them
out in terms of s 64 (1) (b) of the LRA. Both industrial actions
commenced on the 13
th
October 2005.
[9]
About a week after the commencement of the strike the employer
obtained an interdict from the Labour Court interdicting the
violent
conduct on the part of the employee. That interim order was
discharged on the 23
rd
November 2005.
[10]
Two months after the interim order was discharged the employer
obtained another interim order from the High Court interdicting
and
restraining the union and the employees from committing certain acts
of violence.
[11]
The South African Police Services booked a meeting between the
parties on the 17
th
January 2006, in an attempt to have
the parties resolve their differences. At that meeting the employer’s
proposal that employees
who were on strike should be retrenched was
rejected by the union.
[12]
On the 4
th
April 2006, the union believing that certain of
its members were dismissed by the employer for participating in the
industrial
action filed an unfair dismissal case in the Labour Court
seeking their reinstatement. The employer denied having dismissed any
of the union’s members. However, in the application for an
interdict in the High Court the employer alleged that certain
of the
employees’ contract which were fixed term contracts had at that
stage expired by virtue of the effluxion of time.
To the contrary the
employees contended that their contract could not have expired
because there was a legitimate expectation that
they would be
renewed.
[13]
The parties then held several meetings where the issue of wages was
discussed. At none of these meetings did the union modified
their
demand of 12% wage increase across the board. The employer still
rejected that demand and proposed that the employees should
accept a
reduced rate of payment of R7.50 per hour. At that stage the lower
rate of payment was apparently, R16.00 per hour.
[14]
The employees say that the issue of the reduction of the hourly rate
payment as was proposed by the employer and rejected by
the union as
was never referred to conciliation.
[15]
On the 21
st
September 2006, the union in a letter
addressed to the employer indicated that they had terminated their
strike as of that date.
The employer replied to that letter and
indicated that the strike could not be resolved pending the outcome
of the matter which
had been referred to the Labour Court and that
they could not offer their services in the face of the High Court
interdict. Despite
the position taken by the employer, the employees
tendered their services to the employer on the 2
nd
October
2006. The employees were refused access to the workplace by a manager
of the employer.
[16]
It would seem that in an attempt to resolve or bring to an end the
stalemate brought about by the referral of the matter to
the Labour
Court, the union withdrew their claim in the Labour Court on the 4
th
October 2006. Thereafter, the employees on a number occasions sought
to tender their services to the respondent but were at all
times
refused access to the workplace by the employer. In the meantime the
employer employed replacement labour to perform the
work of the
employees who had been locked out of the workplace.
[17]
The union contended that the employer has not uplifted the lockout
even though the issue that gave rise to the dispute was
resolved by
virtue of the union uplifting the strike action and offering to
return to work.
[18]
The union further contended that the conduct of the employer was
unlawful because it was in breach of 64 (2) of the LRA, in
that no
advisory award had been obtained on the basis of the dispute raised
by the employer. The dispute of the employer concerned
the
allegation, as mentioned earlier, that the union was refusing to
bargain.
[19]
The union further contended that the employer was in breach of the
provisions of s 76 (1) of the LRA in that the employer continued
the
use of replacement of applicants whilst they were locked out.
Unreasonable
delay rule
[20]
As stated above the union has brought an application for the late
filing of their heads of argument. The essence of the explanation
for
the late filing of the heads of argument is that the delay was
occasioned by lack of funds to pay for their legal representatives
in
particular the counsel who has over the years done their legal
matters and at that stage there was still outstanding payment
to him.
[21]
As concerning the delay in prosecuting the present claim the union in
their supplementary heads of argument which they submitted
after
being directed by the court to address the issue of the reasons for
the delay, start by referring to the decision in
Solidarity v
Eskom (2008) 29 ILJ 1450 (LAC)
.
In that judgment Zondo
JP as he was then at paragraph [14] says the following:
“
[14]
T
he
first one is right, the second one not. In my view the answer to the
respondent's second 'special plea' is that the 'unreasonable
delay'
rule does not apply in this case. Firstly, this is not a review
application, and the rule applies to reviews only. Secondly,
such
rule does not apply to a case that is subject to a statutory limit in
terms of the period within which it should be instituted.
In this
case the Prescription Act applies and the prescription period had not
even begun to run when the appellants instituted
court proceedings.
That being the case, it would be a contradiction in terms to hold
that the appellants had delayed unreasonably
in instituting the
application that they instituted in the Labour Court and, yet to also
say, as it has been said in respect of
the first special plea, that
the appellants' claim had not prescribed in terms of the Prescription
Act. To apply the 'unreasonable
delay' rule where the Prescription
Act applies would, it seems to me, amount to the court legislating
another prescription period
in addition to the one prescribed by the
Prescription Act. In my view there is no reason or justification in
law for that additional
prescription period and it can only serve to
sow confusion as to when the one period applies and when the other
does not apply.”
[22]
The distinction between this matter and
Solidarity
is that in that case the court was dealing with failure to
institute the matter in time. In this matter the court is dealing
with
failure to prosecute the matter timeously once the litigation
has been instituted.
[23]
After referring to the
Solidarity
matter, the union
then submits that in exercising its discretion as to whether or not
to dismiss a matter due to delay in its prosecution,
the court should
take into account as to who bears the primary responsibility to
enroll an application for hearing before the Court.
Unlike in the
High Court where the primary responsibility in terms of the rules in
motion proceedings rests with the applicant,
the rules in the Labour
Court do not require a party in motion proceedings to enroll matters
for hearing. The responsibility to
have the matter heard in the
Labour Court rests with the Registrar.
[24]
The applicant further argued that because in the present matter the
pleadings had closed within the prescribed time limit,
the
unreasonable delay rule should not be applied.
Evaluation
[25]
The unreasonable delay rule has received attention in a number of
judgments of the Labour Court. It has generally been accepted
that
where a litigant delays in the prosecution of his or her claim he or
she may be barred from obtaining the relief sought for
that reason.
[26]
In
Autopax Passenger Services (Pty) Ltd v Transnet
Bargaining Council & Others (2006) 27 ILJ 2574 (LC),
the
court in dealing with the issue of the unreasonable delay in the
prosecution of the matter had the following to say:
“
[10]
In Gopaul v Subbamah
2002 (6) SA 551
the approach adopted was one
where the court would weigh up the period of the delay and the
reasons therefore, on the one hand,
and the prejudice, if any, caused
to the defendant, on the other. In Sanford v Haley NO
2004 (3) SA 296
(C) a similar approach was adopted. The court held that the
'prerequisites for the exercise of such discretion are, first, that
there should be a delay in the prosecution of the action; secondly,
that the delay is inexcusable and, thirdly, that the [defendant]
is
seriously prejudiced by such delay'. It was further held that the
court will exercise its power to dismiss an action on account
of a
delay for want of prosecution only in exceptional circumstances
because the dismissal of an action seriously impacts on the
constitutional and common-law right of a plaintiff to have the
dispute adjudicated in a court of law by means of a fair trial.”
[27]
In
NAPTOSA &
Others v Minister of Education, Western Cape & others (2001) 22
ILJ 889 (C
) at 900 F, Conradie J is
quoted with approval
,
by
Zondo JP as he then was, in
Solidarity
as having said:
“
I
consider that the substantial delay in bringing these proceedings is
another reason for exercising our discretion against the
grant of a
declaratory order. It is well-established law that undue delay may be
taken into account in exercising a discretion
as to whether to grant
an interdict or a mandamus or to grant relief in review proceedings.
The declaratory order being as flexible
as it is, can be used to
obtain much the same relief as would be vouch safe by an interdict or
a mandamus. Whether it is not necessary
that a record of proceedings
be put before the court, a declaratory order could serve as a review.
A court, in exercising its discretion
whether to grant a declaratory
order should accordingly, in an appropriate case, weigh the same
considerations of “justice
or convenience” as it might do
in the case of an interdict or a review.”
[28]
The factors which the court will take into account
in considering whether or not to dismiss a matter due to unreasonable
delay in
its prosecution are the following:- the length of the delay;
the effect of the delay on the other party and the prejudice which
the other party will suffer if the matter is not dismissed for that
reason. The other factor which needs to be weighed together
with
these factors is the inaction or otherwise of the respondent in
ensuring that the matter is brought to finality. The defence
of a
party opposing an application for the dismissal of a claim on the
basis of unreasonable delay is quite often that the other
party in
not taking action to progress the matter to the next step also
contributed to the delay. In this regard often judgments
relied upon
are those of
Buzuidenhout v Johnston
NO & others
[2006] 12 BLLR 1131
(LC)
and
Karan
Beef Feedlot & Another v Randall (2009) 30 ILJ 2937 (LC).
I do not read those judgments as saying that the inaction of the
applicant in an application to dismiss a matter on the basis of
unreasonable delay is necessarily an absolute defence. The
contribution in the delay by the party seeking to have the matter
dismissed
for delay in prosecution must be objectively assessed with
the view of evaluating the extent to which the inaction of the
applicant
contributed towards the excessiveness or otherwise of the
delay. The inaction has to be weighed against the objective facts
that
may point towards loss of interest in pursuing the matter by the
party opposing such an application. It may well be that the facts
and
the circumstances objectively point to a case where the respondent
can be said to have abandoned or lost interest in the matter.
In that
instance I do not belief that it would be correct and fair to blame
the applicant for contributing to the delay due to
his or her
inaction.
[29]
In the present matter the explanation tendered by
the respondents relates only to the delay in filing the heads of
argument. The
respondent has not provided any explanation for the 29
(twenty nine) months delay in bringing this matter to finality. They
contend
that they were not responsible for setting the matter down
but that the person responsible for that was the Registrar.
[30]
The union is correct when it says that the rules
provide that it is the Registrar who has to set the matter down for a
hearing.
It was however incumbent on them as the
dominus
litis
to ensure that the Registrar does
enrol the matter for a hearing. In fact the general rule is that the
Registrar will only enrol
a matter once the heads of arguments have
been filed.
[31]
The pleadings in this matter were closed on the
31
st
January 2007. There is no evidence that the applicants have ever
since then requested the Registrar to have the matter set down
for a
hearing. It was incumbent on the union to ensure that the matter was
timeously brought to finality regard being had to the
fact that the
relief sought was in the form of a declarator. On the 21
st
July 2008, the Registrar called for the parties to file the heads of
argument. The union filed their heads of argument on the 2
nd
June 2009, a period of delay amounting to 11 (eleven) months. In this
respect having regard to the nature of the relief that the
union was
seeking it ought to have been reasonably clear to them that the delay
would result in the serious prejudice to the employer.
The
explanation for the delay in filing the heads of argument is wholly
unsatisfactory and should for that reason be rejected.
I also have
serious doubts about the prospects of success on the part of the
union and its members.
[32]
In my view the delay of 29 (twenty nine) months
before ensuring the matter was progressed further was an unreasonable
delay which
caused the respondent a significant prejudice. The issue
of the delay was brought to the attention of the union by the
employer
in its heads of argument. This in my view amount to the
employer having placed the union on terms in an effort to ensure that
the
matter is brought to finality within a reasonable time. In the
absence of an explanation as to why it took so long to bring the
matter to finality the delay on the part of the union and the
employees is regarded as being unreasonable and unacceptable.
[33]
I am therefore of the view that the applicants’
application for a declarator stands to be dismissed due to the
unreasonable
delay in its prosecution. I see no reason in law and
fairness why costs should not follow the result.
[34]
In the premises, the applicants’ claim is
dismissed with costs.
_______________
Molahlehi
J
Date
of Hearing :
4 March 2010
Date
of Judgment :
1
st
October 2010
Appearances
For
the Applicant :
Adv F J Wilke
Instructed
by :
Ramushu Mashile Twala
Inc
For
the Respondent: Adv R
Venter
Instructed
by :
Schoeman Bosch Inc