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[2010] ZALCJHB 78
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Van Tonder v Minister of Labour and Others (J269/08) [2010] ZALCJHB 78 (23 December 2010)
NOT REPORTABLE
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO.J269/08
In
the matter between
J
J VAN TONDER
Applicant
and
THE
MINISTER OF LABOUR
First
Respondent
THE
DEPARTMENT OF
LABOUR
Second
Respondent
THE
DISTRICT GENERAL OF THE
DEPARTMENT
OF LABOUR
Third
Respondent
JUDGMENT
BHOOLA
J:
Introduction
[1]
This is an application in terms of Rule 11 of the Rules for the
Conduct of Proceedings in the Labour Court (“the Rules”),
for an order dismissing the review instituted by the first respondent
as well as an order in terms of section 158(1)(c) of the
Labour
Relations Act 66 of 1995 (“the LRA”), making the
arbitration award of the arbitrator dated 24 October 2007 (under
case
number PSGA1453-0-06/07) an order of this court.
[2]
The application is opposed by first and second respondents (“the
respondents”).
Factual
Background
[3]
The applicant was dismissed on 12 March 2007 from his employment as
an official of the second respondent. He referred a dispute
based on
his unfair dismissal to arbitration under the jurisdiction of the
General Public Service Sectoral Bargaining Council (“the
Bargaining Council”). An award was issued on 24 October 2007
ordering the respondents to reinstate him.
[4]
The applicant was informed when he tendered his services to the
second respondent (“the Department”) on 5 November
2007
that the respondents were seeking a review of the arbitration award.
[5]
On 12 February 2008 the applicant served and filed his application in
terms of section 158(1)(c) to make the award an order
of court. The
respondents filed a notice of opposition on 14 March 2008. However,
the notice was not accompanied by an opposing
affidavit .The State
Attorney filed correspondence stating that the opposing affidavit as
well as the review application would
be filed “
in due
course”.
[6]
On or about 14 March 2008 and in response to the s 158(1)(c)
application the Bargaining Council filed the record of the
arbitration
with the Registrar. The applicant reminded the
respondents on 18 June 2008 that the record was available. The
respondents however
only became aware of this on 4 September 2008.
[7]
On 12 May 2008 the respondents’ brought a review application.
This was more than six months after the award and only after
being
requested by the applicant to proceed with the review and after he
had filed his s 158(1)(c) application. Although the notice
of motion
did not set out any relief sought in respect of condonation, the
founding affidavit of Ms Roqoza set out a detailed explanation
for
the delay, which related mainly to the lack of capacity and resources
in the Department.
[8]
The s 158(1)(c) application was enrolled for hearing on 4 September
2008. The court ordered that it be heard together
with the
review and set a time table for the filing of further pleadings
process. It is common cause that the first respondent
did not comply
with the court order.
Delay
in prosecution of the review
[9]
After 4 September 2008 the parties engaged in correspondence
regarding the record. On 23 September the respondents’
attorneys
advised the applicant that the record would only be
available by 15 October 2008 and proposed alternative dates for
progressing
the matter contrary to the order of 4 September. On 2
October 2008 the applicant’s attorneys suggested that the
matter is
being willfully delayed and made a counter-proposal to the
dates suggested. No reply was forthcoming. The applicant’s
attorneys
send further correspondence on 15, 21 and 31 October 2008
as well as making various telephonic attempts to contact the State
Attorney.
The State Attorney alleges that a reply had in fact been
sent on 14 October explaining the delay with the record and rejecting
the counter proposal regarding the amended time periods for filing
further pleadings. This letter appears to only have been received
by
the applicant on 6 November 2008.
[10]
On 10 November 2008 the applicant was informed that the record had
been filed on 13 October 2008. This notification followed
more
than a month after the actual filing.
[11]
On 17 December 2008 the first respondent filed a notice in terms of
Rule 7A seeking an order to the effect that the applicant
should
assist with reconstructing the record as well as an order that
“
condonation be granted for the late filing of this
affidavit as well as the founding affidavit.
This was followed by
a Supplementary Founding Affidavit in terms of Rule 7A(8)(a) which
the respondents sought to substitute for
the founding affidavit of Ms
Roqoza who had since left the Department. The respondents submitted
that the reference to Rule 7A(8)(a)
had been an error in that the
Supplementary Founding affidavit was in fact a pleading in the review
application. In this affidavit
the numerous delays are explained but
once again there is no notice of application in which condonation is
sought.
[12]
The further delays in prosecuting the review are explained in
Supplementary Founding Affidavit
inter alia
as follows :
(a)
The
transmittal of the record to the Registrar only came to the attention
of the first respondent’s attorneys of record (“the
State
Attorney”) when the matter was enrolled on 4 September 2008 as
it was filed as a result of the Bargaining Council being
cited as a
party to the section 158(1)(c) application;
(b)
On
the same day the record was uplifted and sent for transcription. In
addition, the parties agreed to certain timeframes for the
expeditious prosecution of the review. This included obtaining a
transcript of the record on or before 25 September 2008 and filing
a
supplementary affidavit on 14 October 2008. This agreement was duly
made an order of court;
(c)
Thereafter various attempts were made to obtain the record
from the transcribers without success and correspondence between the
parties ensued. The transcriber’s certificate lists the
numerous problems encountered during the transcription and the record
was finally only ready on 19 October 2008 and made available to the
State Attorney on 29 October 2008. It was collected and served
on the
applicant on 30 October 2008. The first respondent’s
supplementary affidavit would then have been due within 10 days
of
receipt thereof i.e. on 14 November 2008.
(d)
Thereafter it transpired that the documentary evidence
submitted to the arbitration did not form part of the record and the
State
Attorney sought assistance from the applicant in this regard.
Despite several requests no assistance was forthcoming from the
applicant
or his legal representatives.
[13]
Despite these allegations, as at 5 January 2009 the applicant
informed the respondents that the record had not been filed with
the
Registrar, and suggested that the State Attorney meets with the
applicant’s advisor for the purposes of reconstructing
the
bundle of documents comprising part of the record. In a reply
dated 8 January 2009 the State Attorney denied that it
is in willful
default and stated that numerous enquiries had been made from the
transcribers in regard to the availability of the
record without
success.
[14]
The respondents’ filed a Rule 7A notice on 17 December 2008
which was allegedly only received by the applicant’s
attorneys
on 6 January 2009 since it did not contain a reference number and was
sent to the wrong office of the applicant’s
attorneys.
[15]
On 19 January 2009 the applicant informed the respondents that it had
attempted to uplift a copy of the record from the Registrar
without
success. After further correspondence and telephone calls (that
appear to have been ignored by the respondents’
attorneys) the
applicant finally obtained a copy of the record from the respondents
on 22 January 2009. However, since the documentary
bundles were
missing the applicant invited the respondents to meet for purposes of
preparing a complete record. This request appears
to have been made
on 12 February, 20 February and 20 March 2009. No response
appears to have been forthcoming. Thereafter
the respondents were
notified of the applicant’s intention to bring this Rule 11
application. Still no response was forthcoming.
[16]
On 27 May 2009 the applicant served its Rule 11 application in which
it also sought ancillary relief compelling the respondents
to meet
for the purposes of preparing a complete record. The parties met on
14 July 2009 when agreement was reached as to steps
to secure the
expeditious resolution of the dispute. It was agreed
, inter alia,
that the documentary bundles required to complete the record would be
copied by the applicant’s attorney for the respondents
at their
cost; that a Rule 7A(8)(a) notice would be filed by the respondents
on or before 7 August 2009 and that thereafter the
time periods in
Rule 7A would apply. A dispute then ensued about copying costs and
delivery of the documentary bundles necessitating
further
correspondence in July 2009. It would appear that the respondents
took more than ten days to collect the documentary bundles
after
being informed that they were ready.
[17]
On 11 September 2009 the respondents filed a further Supplementary
Founding Affidavit in terms of Rule 7A(8)(a), seeking that
this be
substituted for all previous affidavits. This affidavit was
filed more than a month later than was agreed between
the parties but
again no condonation was sought nor was any good cause shown
otherwise for the delay.
[18]
Given the fact that the parties had by this stage made progress with
reconstructing the documentary bundles this relief was
no longer
necessary and the applicant filed an amended Rule 11
application on 21 September 2009. On 14 October 2009, seven
day’s
out of the ten day period required for notice of opposition the
respondents’ noted their opposition. However,
yet again the
notice of opposition was not accompanied by an opposing affidavit and
this only followed more than a month later
on 18 November 2009. Once
again the respondents’ did not apply for condonation for the
late filing and in these circumstances
the applicant submitted that
there was no opposition to the Rule 11 application before the court.
The
delays and condonation
[19]
Has good cause for the delays been shown notwithstanding the absence
of a formal condonation application ? The respondents
submitted
that they were not able to comply with the 4 September court order in
that the record was only completed on 19 October
2008 and received by
them on 30 October. They then requested (on 6 November 2008) that the
applicant meets with them for the purposes
of reconstruction.
However, as they were in default of the 4 September order they filed
a Supplementary Founding Affidavit in terms
of Rule 7A(8)(a) in
December 2008 in which they sought condonation as well as an order
compelling the applicant to meet with them
in order to reconstruct
the record. Thereafter the record was finally completed and on 11
September 2009 they filed the Further
Supplementary Affidavit in
terms of Rule 7A(8), and on 7 November 2009 a Supplementary Opposing
Affidavit to the Rule 11 amended
notice of motion. They
submitted that in the absence of any opposition to the review
application this court was obliged to
treat it as unopposed. The
submission in essence is that although no formal notice of
application seeking condonation was
filed condonation should be
granted for the reasons set out in the Supplementary Founding
Affidavit, Further Supplementary Affidavit
and Supplementary Opposing
Affidavit (‘the latter affidavits”).
[20]
However, even if I am to have regard to whether good cause as
required by Rule 12 (3) has been shown in the latter affidavits
in
line with an approach that prefers substance over form, the fact that
the respondents have in so many instances failed to comply
with the
Rules of this court is disconcerting. Furthermore, only the most
scant references are made in the latter affidavits to
grounds for
condonation. Although an explanation for the delay in instituting the
review appears from the affidavit of Ms Roqoza,
which refers mainly
to lack of resources and capacity in the Department, this cannot be
considered to be relevant to condonation
as her affidavit has been
replaced by the (erroneously named) Supplementary Founding Affidavit
in terms of Rule 7A(8)(a). The allegations
made in the latter
affidavits do not in my view meet the requirements for condonation
set out in
National Union of Metalworkers of South Africa and
others v Crisburd (Pty) Ltd
(2008) 29 ILJ 694 (LC) para [5]
–[9].
[21]
The explanation for many of the delays (for instance the time
taken to collect the documentary bundles, the two month
delay in
filing the review, the regular delays in filing affidavits, for
example) is simply non-existent nor is any attempt made
to explain
the delays occasioned as a result of the lack of courtesy in replying
to correspondence or returning telephone calls.
This implies a rather
complacent attitude to compliance with the Rules and procedures of
this court, as well as an acrimonious
attitude to litigation that is
not conducive to labour dispute resolution. The failure to comply
with the Rules for proceedings
in this court can hardly be
countenanced from an entity that is the custodian of legislation that
has at its core the expeditious
resolution of labour disputes.
Although the delay in bringing the review application in itself is
not unreasonable the tardiness
and obstructiveness that prevailed in
the prosecution of the review are unacceptable. It took more than a
year for a semblance
of progress to be made with finalising the
record and making it available to the applicant. There is by no means
an exculpatory
explanation for these delays and in these
circumstances it would be competent to dispose of the matter on the
basis that no application
for condonation for the late filing of the
review, or late opposition to the section 158(1) (c) application, nor
the late filing
of the latter affidavits is properly before me. This
would in itself justify the granting of relief.
[22]
However, even if it might be competent to dismiss the Rule 11
application and consider the merits of the review, more than
three
years after the award reinstating the applicant the record is
incomplete and the review is not ripe for hearing. In any event,
I
agree with the applicant that unless and until the respondents obtain
condonation for the late filing of every pleading or notice
in this
matter there cannot be said to be a review properly pending before
this Court.
[23]
It has been accepted by the Labour Appeal Court that in certain
circumstances the conduct of the respondents and the lengthy
delay in
prosecuting the review should result in the drastic remedy barring
their cause of action. In
Sacca (Pty) Ltd v Thipe & another
(1999) 20 ILJ 2845 (LAC) at paras [37] and [38] Conradie JA held, in
the absence of a failure to comply with a time-limit imposed
by a
rule of court, that an applicant “
should put before the
court an explanation of why the delay of three years and four months
in producing a notice of application,
a period which prima facie
appeared to be outrageously long, should not in truth, and having
regard to their circumstances, be
regarded as so long that it
deprived them of the right to proceed…
.”. Conradie
JA stated that what was required was for the applicant to show “
an
exculpatory explanation which might have made the long delay less
open to censure”.
Strategy
to delay
[24]
It is apparent from the facts that in addition to the inordinate
delays in prosecuting the review the fact that the review
was brought
more than six months after the arbitration award was issued and only
after the applicant had filed its application
in terms of section 158
(1)(c) could in itself be construed as a less than genuine intention
to proceed with the review. This is
a pattern of conduct on its part
of concerted attempts, the applicant submitted, of the intention to
frustrate him in seeking relief:
see
NEHAWU obo Vermeulen v
Director General : Department of Labour
[2005] 8 BLLR 840
(C).
The respondents however denied that they have adopted a policy to
review all awards or that the appointment of an incumbent
to the
applicant’s former position constituted a
per se
bar to
compliance with the award should it be confirmed on review. The
Department, it was submitted rather glibly, would simply
have to bear
the cost of employing two employees in the same position.
[25]
Whether or not there is any strategy to delay such matters, the
existence of which was denied by the respondents and which
is not
necessary for me to determine, it cannot be disputed that the
applicant has suffered prejudice arising from the first respondent’s
failure to date to comply with the award. The applicant alleges that
he has not earned any income since his dismissal and that
the
tardiness and litigious attitudes prevalent from the respondents has
frustrated him in his quest for finality in the dispute.
Moreover,
the appointment of a permanent incumbent to his disputed position
implies an intention on the part of the respondents’
not to
comply with any order in this regard. It cannot be disputed that the
manner in which the prosecution of the review has been
conducted has
been tardy, that no good cause has been shown for much of the delays,
and that the delays have compromised the objective
of expeditious
dispute resolution entrenched in the LRA. In this regard it was held
as follows in
Professional Security Enforcement v Namusi
[1999] 6 BLLR 610
(LC) at 614 :
“
The object of
expeditiously resolving labour disputes would certainly be
compromised were employers to be expected to act with impunity
to
ignore awards indefinitely without taking action under ss 144 or 145,
and then block the employee when he ultimately seeks to
have the
award enforced under s158(1)(c).”
Rule
11 application
[26]
It is clear from the facts that the respondents were dilatory in
prosecuting the review. It is trite that labour disputes must
be
resolved expeditiously. The Supreme Court of Appeal in
Associated Institutions Pension Fund v Van Zyl
2005 (2) SA 302
(SCA) recognized that an aggrieved party’s undue and
unreasonable delay in initiating review proceedings may cause
prejudice
to other parties to the proceedings and that in such cases,
a court should have the power to refuse to entertain the review. It
is clear that the applicant has been prejudiced by the unreasonable
and continuous delays in his enforcement of his right to
reinstatement
arising from the arbitration award.
[27]
Insofar as the respondents contend that the applicant is likewise
remiss in that it had not to date filed its opposition to
the review,
the applicant submits that the review cannot proceed if the record is
defective. In this regard it is trite that the
first respondent is
dominus litis
in the review and as such bears a duty not only
to file a record, but to file a complete record. In
NEHAWU obo
Vermeulen v Director-General: Department of Labour
(Supra),
Murphy AJ furthermore expressed the view that the
dominus litus
should act, and that in the context of its failure to do so, or to
offer a convincing explanation for its inertia leads justifiably
to
the conclusion that it has been unacceptably tardy in prosecuting the
case (at [27]). The court was there dealing with the employer’s
tardiness in proceeding with a review, and Murphy AJ held : “
The
applicants cannot be expected to bear the brunt of its tardiness,
especially when legislative policy favours the expeditious
resolution
of disputes”.
Although the conduct of the applicant and his
representatives (prior to appointment of his attorneys of record)
could also have
been more co-operative in various instances, this
does not detract from the fact that the respondents are
dominus
in the review and it is their conduct that must be met with the
ultimate sanction of barring of review. Indeed this is a
drastic remedy but would in the circumstances appear to me to be
justified.
[28]
Therefore, I make the following order:
The Rule 11 application
succeeds;
The arbitration award of
24 October 2007 is made an order of court in terms of section
158(1)(c) of the Act ;
The first and second
respondents are to pay the applicant’s costs.
_________________________________
BHOOLA
J
JUDGE
OF THE LABOUR COURT
DATE
OF HEARING: 2 November 2010
DATE
OF JUDGMENT: 23 December 2010
APPEARANCE:
For
the Applicant: Adv Raubenheimer instructed by Nelson Borman and
Partners
For
the First and Second Respondents: Adv L Pillay instructed by the
State Attorney, Pretoria