About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2011
>>
[2011] ZALCJHB 129
|
|
Chep South Africa (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR1205/07) [2011] ZALCJHB 129 (17 February 2011)
IN THE LABOUR
COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Case No: JR1205/07
CHEP
SOUTH AFRICA (PTY) LTD
................................................
Appellant
And
COMMISSIONER
FOR CONCILIATION
.........................
First
Respondent
MEDIATION
AND ARBITRATION
S TOLI
N.O.
.........................................................................
Second
Respondent
MPHO
GIVEN RATHELELE
.....................................................
Third
Respondent
JUDGMENT
Molahlehi
J
Introduction
[1]
The applicant who is the third respondent in the main review
application seeks an order dismissing the review application filed
by
the applicant on the 11 September 2008, on the grounds of undue delay
in its prosecution.
[2] The
review application arose from the arbitration award issued by the
second respondent (the commissioner) in terms of which
he found the
dismissal of the employee to have been unfair and ordered his
reinstatement.
[3] The
employee who was employed as a dispatch controller prior to his
dismissal was charged and dismissed for distributing through
an
e-mail the speech of the former president of South Africa Mr PW Botha
to other employees. The applicant was charged with an
offence
concerning:
“disregard of company department rules/ regulations by
forwarding an E-Mail of a racist manner to other members of Chep
staff and Client’s staff.”
[4] The
relevant policy for which the employee was accused of breaching reads
as follows:
“Any Chep activity on the Internet (including sending,
forwarding or receiving E-Mail messages or maintaining a presence
on
Chep’s web-site) must be conducted in accordance with existing
Chep policies and any applicable laws and regulations,
and Chep’s
own standard for compliance relating to content, disclosure and
supervisory approvals, as well as standards for
corperate identity
and appropriate business conduct.”
[5] The policy document goes further to prohibit;
“The accessing, displaying, downloading, transmitting or
forwarding of obscene, racist, sexist or offensive material. The
sending of general interest E-Mails not related to Chep to large
groups ie political, religious, slandering, appeals for charity,
health warnings, etc.”
[6]
Apparently, one of the respondent’s customers complained, that
the e-mail in question was offensive and contained material
of
racist, and or political and sensitive nature.
[7] After
his dismissal the employee referred a dispute concerning an alleged
unfair dismissal dispute to the CCMA. The commissioner
found the
dismissal to have been substantively unfair and ordered the
respondent to reinstate the applicant including payment of
arrear
salary of the employee.
[8] The respondent contends in its founding affidavit in
the review application that the commissioner committed a gross
irregularity
in reasoning that:
“The contents of the E-Mail will always be subjective in that
readers of any articles would likely have different interpretations
or comprehensions as to what is acceptable and the distributions of
any statements by a Head of State whether such was made by
an
apartheid leader or not is irrelevant in that such statements are
part of our history and are already been made in the public
domain.
Such are not offensive.”
[9]
The respondent further contends that the commissioner failed to apply
his mind to the actual contents of the e-mail. In this
respect the
respondent contended that the contents of the e-mail were clearly an
offensive publication.
[10]
The other contention of the respondent is that the commissioner
exceeded his powers by concluding that for a statement to be
inappropriate it needs to have been declared obscene or unwanted by
the Court of Law or Human Rights Commission. The respondent
says that
the award is also illogical and irrational if regard is had to the
contents of the e-mail which contains language and
material which
contains ethnic, slurs and racial comments forbidden by its policy.
[11] The
complaint that the respondent delayed in prosecuting its review
application has to be assessed in the context where the
arbitration
award was issued on the 1
st
February 2007 and the review application was instituted
on the 31
st
May
2007. It also has to be assessed in the context of what happened
thereafter.
[12] After
receiving the notice of motion the CCMA as required by law filed on
the 6
th
June 2007
its notice in terms of rule 7 of the Rules of the Court. The first
respondent served the record of the arbitration proceedings
on the
applicants’ attorneys on the 29
th
August 2007.
[13] The
employee says that on the 12
th
September 2007 when he consulted his attorney he
realized that the transcript of the arbitration hearing did not
represent what
was said at the arbitration hearing. The employee then
requested the tapes so that he could have them transcribed by his
transcriber
and for the purpose of determining whether or not the
transcript furnished by the respondent did correctly represent what
transpired
at the arbitration hearing. Because the respondent’s
attorneys did not respond to the applicant’s request to let him
have the tapes he sought to retrieve the same from the CCMA files to
no avail.
[14] On
the 31
st
July 2008
the first respondent filed its notice indicating that it stood by its
notice of motion and on the 21
st
August the applicant served and filed the answering
affidavit which was followed by a reply by the respondent on the 29
th
August 2008.
[15] The
employee contends that the applicant did nothing since the 29
th
August 2008 till to date in terms of ensuring progress
of its review application.
[16] About
a year later, on the 29
th
July
2009 the employee’s attorneys addressed a letter to the
respondent’s attorneys informing them that since the respondent
did not pursue the matter they were intending to apply to have the
matter dismissed. The respondents attorney responded by indicating
that they were still interested in pursuing the matter.
[17] As
concerning the reason for the delay the respondent disputes that it
is to be blamed for it. The respondent contends that
it did
everything which was required of it and the matter had progressed to
the stage where the pleadings were closed. It had also
in preparation
to prepare the matter for a hearing had prepared and indexed the
file. This is confirmed in a letter dated 29 July
2009 wherein in
response to the letter from the employee’s attorney the
respondent’s attorneys stated that court file
had been indexed.
[18] The
respondent further contends that once the pleadings were closed it
had to wait for the directive from the Registrar as
to the next step.
[19] On 26
May 2010 the applicant addressed a letter to the Registrar requesting
that the matter be set down urgently.
[20]
The approach to follow in dealing with an application to dismiss a
review application due to unreasonable delay was reaffirmed
in the
recent unpublished case of
Member
of the Executive: Department of Housing and Local Government Limpopo
Province v General Public Service Sectoral Bargaining
Council case
number JR 1985/2006
.
In that case the court summarized the principles to be applied in
considering whether or not to dismiss an application due to
unreasonable delay in its prosecution as follows:
“7 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
Wilson Drills-N Bore
(Pty) Ltd T/A A & General Electrical – unreported case
number J268/98; Mothibeli v
v
Western Vaal
Metropolitan
Substructure
[2000]
1 BLLR 85
[2000]
1 BLLR 85
(LC);
NUMSA & others v AS Transmissions & Steerings (Pty) Ltd
[1999]
12 BLLR 1237
[1999]
12 BLLR 1237
(LAC)
and
Molala
v
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.”
[21]
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.
[22] In
Sishuba
(supra), 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.”
[23] 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), Bezuidenhout v Johnston
NO &
others
[2006]
12 BLLR 1131 (LC)
[2006]
12 BLLR 1131 (LC)
[2006]
12 BLLR 1131 (LC)
[2006]
12 BLLR 1131 (LC)
and
Karan
t/a Beef Feedlot & another v Randall (2009) 30 ILJ 2937 (LC)
.”
Evaluation
[24] In my
view justice and fairness would not prevail if the respondent was to
be denied the opportunity to have application to
review the
arbitration award due to the time it has taken to finalize the matter
for the reasons set out below
[25]
Firstly on the facts and the circumstances of this case I seen no
reason why the applicant should also not be blamed for failing
to
take further steps to have the matter heard as soon as possible. In
my view as soon as the pleadings were closed nothing stopped
the
applicant from approaching the registrar and requested to have the
matter set down for a hearing. This is what was envisaged
by Van
Niekerk J in
Karen Beef(
supra)
when he said:
“
This is not to say that a respondent party is
entitled to lie in wait, intending to ambush the applicant once a
period of delay
becomes sufficiently protracted to justify the filing
of an application to dismiss.
[26]
This is also in line with what this court said in
Sishuba(supra)
when it held that:
“Whist there is
indeed a practice well-known in this court that a matter will be set
down only once the applicant has filed
the heads of argument, there
is no rule governing this practice. There, is however, in my view, no
reason why an employee faced
with a delay on the part of the
applicant cannot file heads of argument prior to that of the of the
employer, and thereby activate
the process of the registrar setting
the matter down. I also see no reason why the employee did not, in
the circumstances of this
case, place the employer on terms and
caledl upon him to file his heads of argument before bringing this
application.”
[27]
Returning to the facts of this case, in September the employee
complained about the quality of the transcription of the record.
He
then requested that the tapes be made available to him so that he
could verify the accuracy of what was transcribed from them.
In this
respect the employee did nothing when both the CCMA and the
respondent failed to respond to his request. There is also
no
indication as to which portion of the record was not properly
transcribed and why the reconstruction of the record was not
considered if the record indeed did not reflect what transpired at
the arbitration hearing.
[28] The
employee never reverted back to the respondent to say what his stand
was about the alleged defective record. If he believed
that the tapes
were with the respondent of the CCMA for that matter he could have
instituted proceedings to compel them to produce
the record. The
other thing which the employee could have done was to have indicated
to the respondent that the record was defective
and placed them on
terms. Of course he would have had to indicate in what respect the
record was defective. The complaint about
the transcript and the
indication that the employee needed to verify its accuracy,
contributed to the delay.
[29] I
guess the principles that arises from the facts of this case is that
the application to dismiss cannot be sustained where
the
respondent(applicant in the dismissal application) introduces a
factor that has a bearing on the speedy resolution of the matter
and
then later turns around to blame the other party for the delay.
[30] The
pleadings in this matter closed during August 2008, when the
respondent filed its replying affidavit. After that the applicant
could have approached the registrar and requested that the matter be
set down for a hearing. It has also to be noted that the respondent
did at some stage request the registrar to have the matter set down
for a hearing.
[31] As
indicated earlier it would not be just and fair to dismiss the
respondent’s review on the basis of the delay in its
prosecution. However, I do not belief that it would be fair to allow
the costs to follow the results.
[32] In
the premises the applicant’s application to dismiss the
respondent’s review application is dismissed with no
order as
to costs.
_______________
Molahlehi
J
Judge of the labour
court of south africa
Date of Hearing: 16 September 2010
Date of Judgment : 17 February 2011
Appearances
:
For the
applicant: Mr Noveni Kubayi from Noveni Eddy Kubayi Incorporated
For the
respondent: Irvin Lawrence from Edward Nathan Sonnenbergs
7