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[2010] ZALCCT 22
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Khan v Cadbury South Africa (Pty) Ltd (C965/2008) [2010] ZALCCT 22 (17 November 2010)
Reportable
Of
interest to other judges
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
C
ase
no: C 965/2008
In
the matter between:
ABOOBAKER
NAZIR
KHAN
Applicant
and
CADBURY
SOUTH AFRICA (PTY)
LTD
Respondent
JUDGMENT
STEENKAMP
J:
Introduction
[1]
The applicant has applied for condonation
for the late filing of his statement of case. It was filed more than
a year after his
dismissal. He lays the blame squarely at the door of
his former attorneys, Africa & Associates, whose handling of his
case
has been characterised by gross ineptitude and negligence.
The applicable principles
[2]
The
most succinct exposition of the principles applicable to condonation
remains that of the then Appellate Division in
Melane
v Santam Insurance Co Ltd.
[1]
The
court summarised the principles as follows:
“
In
deciding whether sufficient cause has been shown, the basic principle
is that the court has a discretion, to be exercised judicially
upon
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success, and the importance of the case. Ordinarily these
facts are
interrelated: they are not individually decisive, but that would be a
piecemeal approach incompatible with a true discretion,
save of
course that if there are no prospects of success there would be no
point in granting condonation .Any attempt to formulate
a rule of
thumb would only serve to harden the arteries of what should be a
flexible discretion. What is needed is an objective
conspectus
of all the facts. Thus a slight delay
and a good explanation may help to compensate for prospects of
success that are not strong.
Or the importance of the issue and
strong prospects of success may tend to compensate for a long delay.
And the respondent's interest
in finality must not be overlooked."
[3]
These
principles have consistently been applied by this court in dealing
with condonation applications.
[2]
[4]
In
NUM
v Council for Mineral Technology
[3]
the
Labour Appeal Court restated the principle that:
"… Without a
reasonable and acceptable explanation for the delay the prospects of
success are immaterial…"
[5]
If
you applicant's explanation is unsatisfactory and unacceptable it is
unnecessary to consider the arguments relating to the applicant’s
prospects of success.
[4]
Extent of the delay
[6]
The
applicant was dismissed for operational requirements on 31 December
2007. He referred an unfair dismissal dispute to the CCMA
on 7
January 2008. It was conciliated without success and the commissioner
issued a certificate of outcome on 30 January 2008.
In terms of s
191(11) (a) of the Labour Relations Act
[5]
the applicant had to refer the dispute to this court within 90 days.
Instead, he did so almost one year later, on 8 January 2009.
The
referral is thus more than eight months out of time. To say that it
is an excessive delay is to state the obvious.
[7]
An excessive delay requires an
extraordinarily good explanation.
Explanation for the delay
[8]
The applicant blames the delay exclusively
on the incompetence, ineptitude and gross negligence of his former
attorneys, Africa
and associates, and more specifically attorney
Heleine Potgieter.
[9]
The applicant had a legal insurance policy
with a company known as LegalWise. Shortly after the CCMA had
issued a certificate
of non resolution, on 5 February 2008, he
contacted LegalWise to obtain legal representation. He was told that
his policy had lapsed
and that he would have to renew his membership
before they could assist him. He did so, and his policy was
reinstituted with effect
from 27 February 2008.
[10]
On 21 March 2008 LegalWise referred the
applicant to Africa & associates. He consulted with Heleine
Potgieter on 8 April 2008
– still well within the 90 day
referral period – and instructed her to refer this matter to
the Labour Court. Unfortunately
for the applicant, Ms Potgieter
seemed to have no commitment to adhering to the provisions of the LRA
or the rules of this court.
[11]
Almost
two months later, "on or about" 30 May 2008, Potgieter
phoned him and told him that she was "unwell".
Remarkably,
almost two months after he had instructed her, she was "still
busy drafting my statement of case". On 30
May 2008
[6]
,
after he had received her phone call, the applicant also sent
Potgieter an e-mail stating the following:
"How’s
the flu, hope you get better soon. We need to get stuck into Cadbury
and give them a hard time. I look forward
to the application and will
definitely keep in touch. Please call me if you need any other info
documents which might not be in
this sect that you are already."
[12]
It is perhaps noteworthy that the applicant
refers to “the application”. His referral to court was on
the grounds of
an unfair dismissal based on operational requirements,
and thus not an “application”. It is tempting to surmise
that
he already knew by 30 May 2008 that “an application”
for condonation was in the offing. But there is no such direct
evidence before me.
[13]
In July 2008 the applicant fell ill and was
"bedridden on numerous occasions". He did not hear from
Potgieter in the period
from 30 May to 14 October 2008 – a
period of some four and a half months. According to the applicant, he
telephoned the offices
of Africa & associates during August and
September 2008 but he could not get hold of Potgieter. He gives no
further details,
nor did he – or Africa & associates –
follow anything up in writing over this extensive period.
[14]
On
13 October 2008, inexplicably and seemingly out of the blue,
Potgieter sent the applicant a text message (sms) in the following
terms: "Dear mr Khan. i will not be in office 2day.i have a
matter in Bellville 2morrow at 3.can we meet at 5 2morrow in Boston
somewhere?”
[7]
They
consulted at the applicant’s home the next day, 14 October
2008. At that stage, Potgieter told him that she had not
yet referred
his matter to the Labour Court and as a result “a condonation
application needed to be launched” as the
time period for
referring the matter to the Labour Court had lapsed. He instructed
her to “do the necessary”.
[15]
Potgieter, however, did no such thing.
Inexplicably, there is no written follow-up by the applicant. I pause
to note that the applicant
is not an uneducated man. He was employed
in a middle management position. He holds a National Diploma in
Chemical Engineering
from ML Sultan Technikon. (For some reason he
also notes on his
curriculum vitae
that he had enrolled for a B Sc degree but did not complete it). He
used email to correspond with his attorneys, the CCMA and LegalWise.
It beggars belief that he would not see any need to chase his
attorneys up in writing over the course of the previous seven months
– bar the one email on 30 May 2008 - or the subsequent months
after the eventual consultation with Potgieter on 14 October
2008, by
which time he was well aware that he was out of time and that he
needed to apply for condonation. He alleges that he followed
up
telephonically. Eventually, after another two months had passed, he
requested LegalWise on 11 December 2008 to appoint another
attorney
to assist him. This they did on 12 December 2008 by referring him to
his current attorneys, Parker attorneys.
[16]
The applicant consulted with Parker
attorneys on 15 December 2008. In his affidavit, he says that this
was “the first time”
that he was made aware of the
relevant time periods for the filing of a referral. This does not
tally with his earlier averment
that Potgieter had told him two
months earlier, on 14 October 2008, that he would have to apply for
condonation.
[17]
Despite
the fact that the applicant and Parker attorneys must by now have
known that he was hopelessly out of time, they waited
another two
weeks before delivering the application for condonation on 2 January
2009.
[8]
Attorneys’
negligence: the legal principles
[18]
Our courts have repeatedly held that there
is a limit beyond which a litigant cannot escape the result of his or
her attorney’s
lack of diligence.
[19]
This
court deals with applications for condonation on an almost daily
basis. In some instances, the delays are occasioned by unrepresented
litigants. But all too often, their attorneys are to blame. It may be
necessary to remind litigants and their attorneys of the
words of
Steyn CJ in
Saloojee
& another v Minister of Community Development
[9]
more than 45 years ago:
"In
Regal v
African Superslate (Pty) Ltd
1962 (3) SA 18
(AD) ... this court
came to the conclusion that the delay was due entirely to neglect of
the applicant’s attorney, and held
that the attorney’s
neglect should not, in the circumstances of the case, debar the
applicant, who was himself in no way
to blame, from relief. I should
point out, however, that it has not at any time been held that
condonation will not in any circumstances
be withheld if the blame
lies with the attorney.
There is a limit beyond which a litigant
cannot escape the result is of his attorney’s lack of diligence
or the insufficiency
of the explanation tendered
. To hold
otherwise might have a disastrous effect upon the observance of the
rules of this court. Considerations
ad misericordiam
should
not be allowed to become an invitation to laxity. In fact this court
has lately been burdened with an undue and increasing
number of
applications for condonation in which the failure to comply with the
rules of this court was due to neglect on the part
of the attorney.
The attorney, after all, is the representative the litigant has
chosen for himself, and there is little reason
why, in regard to
condonation of a failure to comply with a rule of court, the litigant
should be absolved from the normal consequences
of such a
relationship, no matter what the circumstances of the failure are.…
A litigant, moreover, who knows, as the applicants
did, that the
prescribed period has elapsed and that an application for condonation
is necessary, is not entitled to hand over
the matter to his attorney
and then wash his hands of it. If, as here, the stage is reached
where it must become obvious also to
a layman that there is a
protracted delay, he cannot sit passively by, without so much as
directing any reminder or enquiry to
his attorney… and expect
to be exonerated of all blame; and if, as here, the explanation
offered to this court is patently
insufficient, he cannot be heard to
claim that the insufficiency should be overlooked merely because he
has left the matter entirely
in the hands of his attorney. If he
relies upon the ineptitude or remissness of his attorney, he should
at least explain that none
of it is to be imputed to himself. That
has not been done in this case. In these circumstances I would find
it difficult to justify
condonation unless there are strong prospects
of success."
[20]
Unfortunately this court is still being
burdened with an undue number of applications for condonation in
which the failure to comply
with the rules of this court was due to
neglect on the part of the attorney.
[21]
The
Labour Appeal Court had the following to say in
Superb
Meat Supplies cc v Maritz:
[10]
"It has never been
the law that invariably a litigant will be excused if the blame lies
with the attorney. To hold otherwise
I have a disastrous effect on
the observance of the rules of this court and set a dangerous
precedent. It would invite or encourage
laxity on the part of
practitioners."
[22]
And
in
A
Hardrodt (SA) (Pty) Ltd v Behardien & others
[11]
the Labour Appeal Court reinforced this view in circumstances in
which an applicant sought to explain the delay of some four and
a
half months by determining that:
"The catalogue of
events reveals negligence, incompetence and gross dilatoriness by the
appellant's legal representatives.
It is difficult to see how that
constitutes a good cause condonation with convincing reasons as laid
down in the
Queenstown Fuel Distributors CC
case."
[23]
It
will serve little purpose to list all the cases in which this court
has followed these principles. But it is significant that
the court
has accepted the judgments which hold that if the attorney displays
‘gross ineptitude’ the court ‘cannot
extend any
indulgence’ to the applicant.
[12]
In
Van
Dyk v Autonet (a division of Transnet Ltd)
[13]
Waglay
J
[14]
, in applying that
principle, ordered the applicant's erstwhile attorneys to pay the
respondent’s costs
de
bonis propriis
even though they were no longer acting for the applicant.
[24]
Finally,
in
Queenstown
Fuel Distributors cc v Labuschagne NO
[15]
,
Conradie JA noted the following about condonation in individual
dismissal disputes:
"By adopting a
policy of strict scrutiny of condonation applications in individual
dismissal cases I think that the Labour
Court could give effect to
the intention of the legislator to swiftly resolve individual
dismissal disputes by means of a restricted
procedure…"
[25]
Applying these principles to the current
case, it is clear that the applicant's erstwhile attorneys were not
only grossly negligent
but also grossly inept. The applicant was also
less than diligent in pursuing his case. This is one of those cases
where the limit
has been reached beyond which the applicant cannot
escape the results of his attorneys’ lack of diligence or the
insufficiency
of the explanation tendered.
Prospects of success
[26]
Coupled
with the extent of the delay and the unacceptable explanation
therefor, the prospects of success are largely immaterial.
[16]
I will nevertheless consider it briefly.
[27]
The applicant was dismissed for operational
requirements. The respondent has explained the commercial rationale
for the dismissal.
Although the applicant has complained about
certain alleged shortcomings in the consultation process, the
respondent has, at least
on the papers before me, set out sufficient
details of a consultation process in terms of section 189 of the LRA
to made out a
case that it has reasonable prospects of success in
defending a case on the merits at trial stage.
[28]
In the absence of oral argument, it is not
possible to come to an entirely satisfactory conclusion on the
relative prospects of
success. However, weighed against the extensive
delay and the applicant's entirely inadequate explanation therefor,
the applicant’s
prospects of success at trial are not
sufficient for him to be granted condonation.
Costs
[29]
The applicant has been badly served by his
erstwhile attorneys. In law and fairness, I do not consider it fair
to saddle him with
further costs. Had he still been represented by
Africa and associates, I would have considered a costs order
de
bonis propriis
against them. However,
since they are no longer on record, I am hesitant to do so. The
applicant is not entirely without a remedy.
He has a cause of action
against his erstwhile attorneys who have displayed gross ineptitude
and gross negligence in their failure
to pursue this matter
timeously.
Order
[30]
The application for condonation is
dismissed.
[31]
There is no order as to costs.
_______________________
STEENKAMP
J
Date
of hearing:
16 November 2010
Date
of judgment:
17
November 2010
For
the applicants:
Adv
Michael Garces
Instructed
by:
Parker attorneys
For
the respondent:
Mr
Grant Marinus
Instructed
by:
Werksmans
incorporating Jan S de Villiers
[1]
1962 (4) SA 531 (A) 532 B-F
[2]
As some of the many reported examples of the daily applications for
condonation that clog the rolls of this court, see
Rustenburg
Platinum Mines Ltd v CCMA & others
(1998)
19
ILJ
327
(LC) 333A-B;
Mashegoane
v University of the North
[2007] ZALC 53
;
[1998]
1 BLLR 73
(LC);
Kotze
v Mathlaba & others
[1999]
6 BLLR 552
(LC);
NUM
v Council for Mineral Technology
[1999] 3 BLLR 209
(LAC) para [10].
[3]
[1999] 2 BLLR 209 (LAC)
[4]
Chetty
v Law Society, Transvaal
1985
(2) SA 756
(A) 768 B-C;
Superb
Meat Supplies cc v Maritz
(2003) 25
ILJ
96 (LAC)
[5]
Act 66 of 1995 (the LRA)
[6]
The applicant says in his affidavit that he sent the email “on
or about” 30 May 2008. It is clear from the email
itself that
he sent it on 30 May 2008.
[7]
Spelling and punctuation as in the original.
[8]
In this regard it must be borne in mind that there are no
dies
non
in
the Labour Court.
[9]
1965 (2) SA 135 (A) 141 B-H
[10]
(2004) 25
ILJ
96
(LAC)
[11]
(2002) 23
ILJ
1229
(LAC) para [14] (per Nicholson JA); followed in
Arnott
v Kunene Solutions & Services (Pty) Ltd
(2002)
23
ILJ
1367 (LC).
[12]
Waverley
Blankets Ltd v Ndima & others
(1999)
20
ILJ
2564
(LAC).
[13]
(2000) 21
ILJ
2489
(LC)
[14]
As he then was (now Waglay DJP)
[15]
2000 (21)
ILJ
166
(LAC) 174 H-I
[16]
NUM v
Council for Mineral Technology
[1999]
3 BLLR 209
(LAC) of