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[2011] ZALCJHB 26
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MEC Housing and Local Government (Limpopo Province) v General Public Services Sectoral Bargaining Council and Others (JR1985/2006) [2011] ZALCJHB 26; [2011] 8 BLLR 742 (LC) (10 February 2011)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD IN JOHANNESBURG
CASE NO:
JR1985/2006
In the matter between:
MEMBER OF THE
EXECUTIVE COUNCIL
DEPARTMENT OF HOUSING
AND LOCAL
GOVERNMENT
LIMPOPO PROVINCE
….....................................
Applicant
and
GENERAL PUBLIC SERVICE
SECTORAL
BARGAINING
COUNCIL (GPSSBC)
….............................
1
st
R
espondent
DENGA
MULIMA
…...........................................................
2
nd
R
espondent
MATSHIDISO
JOHN MABALA
…........................................
3
rd
respondent
TSHINYALANE
ERIC RAMALAMU
…................................
4
th
respondent
PANAN
JOSEPH KEKANA
…............................................
5
th
Respondent
JUDGMENT
Molahlehi
J
Introduction
This is an application
to dismiss the review application filed under case number
JR1985/2006 on the ground of undue delay in its
prosecution. I will
in this judgement refer to the parties as cited in the review
application.
The review application
arose from an award which was issued by the second respondent (the
arbitrator) in terms of which it was
found that the dismissal of the
respondents to have been unfair and ordered that they be
re-employed.
The respondents were
prior to their dismissals charged with misconduct related to fraud
and acts of dishonesty. They were all
found guilty and dismissed.
After an unsuccessful internal appeal against the decision of the
disciplinary chairperson, the respondents
referred an unfair
dismissal dispute to the first respondent. The respondents were all
charged with acts of dishonesty related
to the alleged defrauding of
the applicant.
As indicated earlier the
arbitrator acting under the auspices of the first respondent issued
an arbitration award in terms of
which he found the dismissal of the
respondents to have been unfair and ordered that they should be
re-employed. It is apparent
from the reading of the arbitration
award that the arbitrator found the respondents guilty as charged
but found that the dismissal
was “unjustifiably too severe.”
The reasons for the
delay
The State Attorney,
representing the applicant attributes the delay to the company
responsible for transcribing the record of
the arbitration proceeds.
The deponent to the applicant’s answering affidavit says that
he followed up with the Sneller
Verbatim, the company that was
commissioned to transcribe the tape recording of the arbitration
proceedings. Sneller Verbatim
informed him that the business had
been sold as a going concern to Lom Business Solutions and they were
no longer transcribing
tapes for the bargaining council.
Mr Lategen, the deponent
to the answering affidavit says that he thereafter arranged to have
the 29 tape cassettes sent to Lom
Business Solutions for
transcription
Legal principles and
evaluation
It
has been
held
in a number of cases that depending on the circumstances of a given
case, 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 Metal Workers of South Africa obo Nkuna & others v
v
Wilson
Drills-Bore
(
Pty
)
Ltd
t/a A & General Electrical
[2007]
JOL 19686(LC)
;
Mothibeli
v
Western
Vaal Metropolitan
Substructure
[2000]
1 BLLR 85
(LC);
NUMSA
& others v AS Transmissions & Steerings
(
Pty
)
Ltd
[1999]
12 BLLR 1237
(LAC) and
Molala
v
Minister
of Law & Order & another
1993 (1) SA 673
(W). The basis for this approach can be found in
Sishuba
v National Commissioner of SAPS
(2007) 10 BLLR 988
(LC)
,
where in dealing with this principle the court had the following to
say:
“
Inordinate
delays in litigating protract the disputes, damage the interests of
justice and prolong the uncertainty of those affected.
”
In considering whether
or not to dismiss an application due to the delay in its prosecution
the court takes into account factors
such as, the extent of the
delay, the reasonableness of the explanation thereof, the prejudice
to be suffered if the application
is or is not dismissed for that
reason.
In
Sishuba,
the
court summarised the approach to be adopted in dealing with whether
a matter should be dismissed for undue delay in its prosecution
as
follows:
“
The
focal point in considering whether to grant the order barring the
applicant, 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
applicant be barred from proceeding further with the review
application.”
There
is also clear authority that the court will exercise its discretion
to dismiss an application due to unreasonable delay
only in
exceptional cases. See
Autopax
Passenger Services (Pty) Ltd v Transnet Bargaining Council &
others
(2006)
27 ILJ 2574 (LC),
Buzuidenhout
v Johnston NO & others
[2006]
12 BLLR 1131
(LC)
and
Karan
Beef Feedlot & another v Randall
(2009)
30 ILJ 2937 (LC).
In the present instance
the applicant contends that it is not necessary to file the complete
record because it is seeking to review
the arbitration award on a
very limited ground of challenging the finding that the sanction of
dismissal was inappropriate despite
having found the respondent
guilty of misconduct related to dishonesty. It was further submitted
on behalf of the applicant that
the application can be determined on
the basis of the portion of the record that has already been filed.
In this respect the
respondent is correct because rule 7(6) of the
Rules of the court provides:
“
The
applicant must furnish the registrar and each of the other parties
with a copy of the record or portion of the record, as the
case may
be, and a copy of the reasons filed by the person or body
”
It was further argued
that the respondent has good prospects of succeeding if its case is
allowed to proceed on review. The prospects
of success have to be
assessed in the context that the applicants were charged and found
guilty of acts involving dishonesty.
The respondent were charged and
found guilty of conniving in defrauding the applicant by effecting
unauthorised payments. The
payments were effected on the basis of
backdating payments for promotion.
The arbitrator found
that the third respondent to have breached the rule and that he had
no authority to perform the transaction
he initiated. The arbitrator
further found that the third respondent was aware that he needed
authorisation before he could initiate
the transaction as he did.
The arbitrator rejected the version of the third respondent on the
basis that it was untruthful and
riddled with contradictions.
As concerning the fourth
and the fifth respondents the arbitrator found that their complaints
regarding their alleged non payment
for their promotion to have been
driven by greed and did not care to check on the lawfulness of
receiving the money as they did.
After the analysis of
the evidence which was presented by the witnesses of the respective
parties the arbitrator found the respondents
to have been guilty as
charged but found the dismissal in the circumstance to have been too
harsh. It was for this reason that
the arbitrator found the
dismissal to have been unfair.
In the light of the
above, whilst accepting that the delay was unreasonable, I am of the
view that there are good prospects of
the applicant succeeding when
the main review application is considered and for that reason alone
the respondents’ application
stands to fail. As concerning
costs I am of the view that it would not be fair to allow them to
follow the results.
In the premises the
application to have the review application dismissed due
unreasonable delay is struck off the roll with no
order as to costs.
Molahlehi J
Judge of the Labour Court
Date of hearing: 3
February 2011
Date of judgment: 10
February 2011.
Representation:
For the applicant: Mr SM
Shaba -instructed by State Attorney
For the respondents:
Counsel did not sign register -instructed by Crafford Attorneys.
7