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[2010] ZALCJHB 345
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Enviroserv Waste Management (Pty) Ltd v Sogiba and Others (J1043/09) [2010] ZALCJHB 345 (26 October 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD AT
JOHANNESBURG
CASE
NO: J1043/09
In
the matter between:
ENVIROSERV
WASTE MANAGEMENT (PTY)
LTD
Applicant
and
THOBILE
SOGIBA AND OTHERS
1st Respondent
THE
SOUTH AFRICAN TRANSPORT & ALLIED
WORKERS UNION
(SATAWU)
2nd Respondent
JUDGMENT
FRANCIS
J
Introduction
1.
The applicant brought an application to dismiss an application filed
by Thobile Sogiba and others (the respondents) in April
2002 under
case number J1222/02, on the grounds that the respondents did not
prosecute their application expeditiously. The
application was
opposed by the respondents who filed a counter application that the
material facts in dispute in case number J1222/02
be referred to oral
evidence.
The background
facts
2.
The respondents were employed by the applicant. They are for
convenience sake called the respondents. At the time
of their
employment they were members of the second respondent, the South
African Transport and Allied Workers Union (SATAWU).
During
March 2001 they were suspended by the applicant for alleged instances
of misconduct. On 20 March 2001 after several
meetings were
held between the applicant and representatives of SATAWU, they
entered a written agreement in terms of which they
agreed to a
voluntary termination of the contracts of employment of the
respondents, subject to the condition that they would receive
severance packages as if they had been retrenched by the applicant.
On or about 31 March 2001 and in terms of the agreement
the applicant
duly paid all outstanding monies, including the agreed packages to
the respondents. They acknowledged receipt
of such monies in
writing.
3.
In April 2002 the respondents brought an application under case
number J1222/02 for an order to set aside the aforesaid agreement
on
the basis that it was null and void and for compensation. They
contended that SATAWU’s shop stewards were forced
into
accepting a retrenchment and that the agreement was signed without
them being consulted. An answering affidavit was
filed by the
applicant on 7 May 2002. The matter was enrolled for a hearing
on 29 May 2003. The presiding judge in
his chambers indicated
to the representative of the parties that there was according to him
a material dispute of fact that could
only be determined after the
hearing of oral evidence. The parties agreed thereafter that
the application filed under J1222/02
be postponed
sine
die
to allow the respondents to prepare
and submit a statement of claim. It was also agreed that the
parties would meet to consider
the issues to be determined by this
Court and that the respondents would be responsible for arranging
such a meeting.
4.
The J1222/02 application was set down for a hearing on 9 September
2003 in the opposed motion roll. The respondents did
not file a
statement of claim and to arrange a meeting with the applicant as
undertaken. Heads of arguments were filed by
the applicant
during August 2003 and raised the existence of a material dispute of
fact regarding the circumstances under which
the agreement was
signed, which necessitated the institution of action proceedings
rather than motion proceedings alternatively
a referral for oral
evidence. The matter was again postponed
sine
die
, due to the existence of a material
dispute of fact. The respondents were ordered to pay the wasted
costs. A bill of
costs was taxed in an amount of R11 551.38.
It was served on the respondents attorneys. The amount has to
date not
been paid. The first respondent thereafter appointed
new attorneys, Baker Mohamed Siritzky. The J1222/02 was again
enrolled for a hearing on the opposed motion roll on 22 January
2004. After the applicant’s attorney had contacted the
respondents’ attorney the matter was removed from the roll and
it was agreed that the matter should proceed by action proceedings.
The matter was removed from the roll and costs were reserved.
5.
During 2005 the respondents approached WESUSA a registered trade
union to seek legal assistance on what further steps to take
in the
matter. In June 2002 WESUSA advised the respondents to file an
application under case number J1216/06 against SATAWU.
In the
J1222/02 SATAWU was not cited as a party. In August 2006 SATAWU
filed a notice to oppose but did not file an answering
affidavit.
The J1216/06 application was enrolled on the unopposed roll of 6 June
2006. The presiding judge indicated
that the respondents should
consider joining the applicant as a party to the proceedings.
WESUSA advised the respondents
to seek the assistance of an attorney
for the joinder application. The respondents approached their
current attorney for
assistance during February 2008. A joinder
application was served on the applicant on 26 March 2008.
The application
was not opposed. The applicant filed an
opposing affidavit and answering affidavit on 9 May 2008. The
applicant had
raised several points
in
limine
including
lis
pendens,
the outstanding costs, undue
delay in prosecuting the second application and a material dispute of
fact. The respondents did
not file a replying affidavit.
6.
In a letter dated 15 December 2008 the respondents’ current
attorneys advised the applicant’s attorneys that he was
not
going to continue with the J1216/06 and would be pursuing case
J1222/02 and that the parties would attempt to agree on the
further
conduct of the matter by way of having relevant disputed matter
referred to oral evidence. The applicant’s
attorneys
advised the respondents’ attorney in a letter dated 3 March
2009 that they were not amenable to the suggestions
and that an
application to dismiss would be brought. The respondents on the
same day advised the applicant’s attorneys
that he was
instructed to proceed with the J1222/02 application.
7.
On 21 May 2009 the applicant brought the dismissal application.
The respondents opposed the application and filed a counter
application for an order that the material facts in dispute be
referred to oral evidence.
Analysis of the
facts and arguments raised
8.
It is common cause that the respondents were members of SATAWU which
has a recognition agreement with the applicant. The
respondents
were suspended in 2001. An agreement was concluded between
SATAWU and the applicant in terms of which the respondents
were paid
severance pay and certain moneys due to them. The agreement was
signed by a union organiser and shop stewards and
the employees who
name were listed on a list. The offer and acceptance were made
in full and final settlement of all claims
of the listed employees
against the applicant arising from their employment with the
applicant, the termination thereof and/or
otherwise. The
respondents acknowledged receipt of the payment and were paid.
9.
The first application was filed in 2002 which is more than eight
years ago. The respondents were made aware of the existence
of
a material dispute of fact on 29 May 2003. They had undertaken
to refer the dispute to oral evidence. The respondents
enrolled
the main application on the motion roll on two further occasions.
Several years have passed before the second application
again on
motion was filed. The respondents being faced with material
dispute of facts, should have filed a statement of claim,
as agreed
between the parties on 29 May 2003. They have failed to do so.
It is clear from the facts of this case that
no further prosecution
of the first application has been taken for more than six years since
January 2004. The respondents
have failed to prosecute the
first application in an expeditious and diligent manner as is
expected of litigants involved in labour
disputes.
10.
The respondents’ conduct falls short of what is expected from
litigants involved in labour litigation. Legislative
policy
favours the expeditious resolution of labour disputes and it cannot
be expected that the applicant should suffer any further
because of
the delays caused by their stubborn approach and failure to bring the
matter before Court in a proper fashion.
The applicant has been
drawn into lengthy and costly litigation with little or no prospects
of recovery of any legal costs.
The taxed bill of costs is
still outstanding and the respondents have not made any tender
towards the applicant’s costs occasioned
by the opposition to
the second application. The applicant’s contention that
it will suffer severe prejudice should
the matter be allowed to
proceed to oral evidence or trial at this late stage was not
challenged. Barry Miles who was on
behalf of the applicant
involved in negotiations leading up to the agreement sought to be set
aside, moved to Qatar during or about
2004 and it will be difficult,
if not impossible to obtain his evidence relating to the
circumstances under which the agreement
was entered into. All
the positions previously occupied by the respondents have also been
filled a long time ago and it will
be extremely prejudicial for the
applicant should it be expected to reinstate them at this late stage.
11.
There is no evidence before this Court that the first respondents’
representatives were intimidated into signing the written
agreement.
SATAWU on 8 June 2001 confirmed that the respondents were consulted
before entering into the agreement.
SATAWU advised the
applicant that it had been properly mandated by the respondents to
enter into the agreement. The respondents
were members of
SATAWU and the applicant was entitled to negotiate with it during the
conclusion of the agreement. The respondents
accepted the benefits
flowing from the agreement and are estopped from raising the alleged
unenforcability of the agreement.
There is no tender for
restitution of the benefits received by them under the agreement.
They were not retrenched in terms
of section 189 but the applicant
entered into an agreement with SATAWU in terms of which there was a
voluntary termination of their
services.
12.
This Court has been subjected to harsh criticisms by the higher
courts about delays in matters referred to this Court.
Some of
the criticisms are unwarranted since the delays lie squarely on the
doors of litigants as this case clearly demonstrates.
The
respondents have issued an application under case number J1222/02
which was set down for a hearing on 29 May 2003. It
was pointed
out by this Court that the matter should be referred to oral evidence
and the parties agreed to do so. The matter
was not referred to
oral evidence and was instead enrolled for a hearing on 9 September
2003. It did not proceed but was
again enrolled on 22 January
2004 but was removed. In June 2002 the respondents were
assisted by WESUSA and issued a new
application under case number
J1216/0s this time only against SATAWU. It was enrolled for a
hearing on 6 June 2006 and the
Court indicated that the applicant
should have been joined. The matter was postponed
sine
die
and the applicant was duly joined
as a party to the proceedings. In December 2008 the
respondents’ current attorneys
of record said that they were
not going to proceed with the J1216/06 but the J1222/02 application
would be referred to oral evidence.
The respondents were
notified by the applicant’s attorneys that an application to
dismiss the J1222/02 application
would be brought. There is
simply no plausible explanation given why the dispute under case
number J1222/02 was since May
2003 not referred to oral evidence.
13.
The respondents were afforded more than sufficient time and
opportunity to bring the matter before Court in a proper fashion
and
fairness dictates that they should not be allowed to waste valuable
time and resources any further. It is important that
finality
be reached and to allow the respondents to request a referral to oral
evidence or trial at this stage will not serve the
interest of
justice.
14.
The application sought by the applicant stands to be granted.
It follows that the respondents counter claim stands to
be dismissed.
15.
I do not believe that this is a matter where costs should follow the
result.
16. In the circumstances
I make the following order:
16.1
The application brought under case number J1222/02 is dismissed.
16.3
The individuals cited as applicants in the applications brought under
case number J1222/02 and J1216/06
are barred from instituting any
further proceedings against the applicant relating to or in
connection with the settlement agreement
entered into between the
parties on 20 March 2001.
16.4
There is no order as to costs.
________________________
FRANCIS
J
JUDGE
OF THE LABOUR COURT OF SOUTH AFRICA
FOR
THE APPLICANT
: BESTER
& RHOODE ATTORNEYS
FOR SECOND
RESPONDENTS
:
ATTORNEY J D VERSTER
DATE OF
JUDGMENT
: 26
OCTOBER 2010