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[2011] ZALCJHB 244
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Goldfields Mining South Africa (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (J 516/11) [2011] ZALCJHB 244 (10 November 2011)
REPUBLIC OF SOUTH AFRICA
Not reportable
the labour court of South Africa, JOHANNESBURG
judgment
c
ase
no
:
j516/11
In
the matter between:
GOLDFIELDS
MINING SOUTH AFRICA
(ptY)
LIMITED Applicant
and
Commission
for conciliation
mediation
and arbItration First Respondent
xaba,
t.c Second Respondent
Date of hearing
:
9 November 2011
Date of judgment
:
10 November 2011
judgment
SAVAGE
AJ
Introduction
This is an unopposed application to dismiss the second respondent’s
unfair dismissal dispute currently pending before the
first
respondent (“CCMA”) under case number GAJB 18406/05.
The facts
The second respondent, Mr Xaba, was dismissed on 22 October 2004
after having been found guilty of falsifying medical records.
He
referred an unfair dismissal dispute to the CCMA. His dismissal was
found to be procedurally and substantively unfair. The
arbitration
award was reviewed and set aside on 5 June 2007 and the dispute
referred back to the CCMA for a hearing de novo.
On 14 June 2007 the
order of the review court was served on the CCMA by the applicant.
On 14 March 2011 Mr Xaba served the order
on the CCMA and on 22
March 2011 the applicant received a notice of set down of the
arbitration to be held in the matter on 12
April 2011. The applicant
brought the current application to dismiss the dispute as a
consequence of which the arbitration hearing
did not proceed on the
date scheduled.
On 24 March 2011 the applicant’s attorney wrote to Mr Xaba
requesting him to withdraw the dispute failing which an application
would be made to this Court for an order dismissing the dispute on
account of his unreasonable delay in prosecuting the matter.
No
response to this request was received from Mr Xaba.
From the papers it is clear that there have been no steps taken by
Mr Xaba from 14 June 2007 until 14 March 2011 to have his
unfair
dismissal dispute set down by the CCMA and there has been no
explanation for his failure in this regard. Prior to the
set down of
the arbitration in March 2011, the applicant claims that it laboured
under the belief that Mr Xaba had abandoned
his claim in that almost
four years had elapsed since the date of the court order and seven
years since his dismissal.
In its founding papers the applicant contends that Mr Xaba’s
prospects of success in the arbitration are poor in that he
had
conceded that it was his handwriting on certain forged documents,
with no explanation as to why this was and that he was
directly
implicated by other employees in the forgery. Furthermore, the
applicant’s only witness in the matter, Mr P J
Snyman, is now
deceased and a copy of his death certificate was attached to the
founding affidavit.
Applicable legal principles
The purpose of the LRA
“..to promote – … the
effective resolution of labour disputes
”
1
necessitates that disputes reach finality within a reasonable time,
or “fairly and quickly”,
2
without having “gone stale”
3
due to the unavailability of witnesses or evidence or as a result
of undue delay. Parties are therefore required to proceed
with
expedition in prosecuting claims under the LRA and may be debarred
from obtaining relief to which that party may have been
entitled
because of an unjustifiable delay in prosecuting the claim.
4
This Court has the power to make an order which has the effect of
putting to an end to litigation between the parties,
5
whether arising before this Court or before the CCMA. The Court
therefore holds a discretion as to whether to permit litigation
to
continue where there has been a lapse of time or lack of expedition
in the conduct of a matter.
6
I
n the exercise of its discretion,
Van
Niekerk J in
Karan t/a Karan Beef Feedlot & another v
Randall
7
concluded that
it should consider three
factors: the length of the delay, the explanation for the delay; and
the effect of the delay on the
other party and the prejudice that
that party will suffer should the claim not be dismissed.
Furthermore:
“…(
A)n application
to dismiss is a drastic remedy, and should not be granted unless the
dilatory party has been placed on terms, and
when appropriate, after
any further steps as may have been available to the aggrieved party
to bring the matter to finality have
been taken
”
Evaluation
On 14 June 2007 the order of this Court in the review application
made earlier was served on the CCMA by the applicant. For
almost
four years from date of service of this order, the CCMA did not set
the matter down for arbitration, nor does it appear
that Mr Xaba
took any steps to have the arbitration set down by the CCMA. This is
evident from the fact that the dispute was
not set down for hearing
by the CCMA. In failing to act in this regard, Mr Xaba did not
proceed with the necessary expedition
that could reasonably be
expected of him in prosecuting his unfair dismissal claim.
Mr Xaba was not placed on terms by the applicant to have the matter
set down for arbitration, nor did the applicant take any
steps
itself to have the matter set down by the CCMA subsequent to it
having served the order of the review court on the CCMA.
As the
period of time that elapsed following the service of such order
extended into years, the applicant laboured under the
belief that Mr
Xaba had abandoned his claim. His conduct surely supported such
belief given that during this period nothing was
heard byt he
applicant from Mr Xaba or the CCMA relating to the matter.
Accordingly, the applicant’s belief that Mr Xaba
had elected
not to pursue his claim was not an unreasonable one given that it
was one supported by his own conduct. I am satisfied
that in the
circumstances of this matter, the applicant was not under any
obligation to hurry Mr Xaba’s case along
8
after it having served the order of the review court upon the CCMA,
or to place him on terms to prosecute the matter. This is
because
the applicant was not the party that had brought the claim of unfair
dismissal. Once the dispute was referred back to
the CCMA for a
hearing de novo and the applicant had served the order of the review
court on the CCMA, I find that the applicant’s
obligations
ended in relation to the set down of the matter. Thereafter, if the
applicant sought to pursue his unfair dismissal
claim with the CCMA
he should have taken the necessary steps to do so, including seeking
of the CCMA that the matter was timeously
set down for arbitration.
For the applicant to attend at the CCMA nearly four years after the
review application had been granted
to seek the set down of the
matter, with no proper explanation provided for this delay, was
unreasonable.
Given that this matter was unopposed, there has been no explanation
placed before this Court by Mr Xaba to explain the extensive
delay
which ensued until he sought the set down of the matter some four
years later. In spite of the fact that the CCMA clearly
failed to
act with the alacrity that was required of it to set the matter
down, Mr Xaba cannot hide behind the CCMA’s failing
in this
regard. I find that it is reasonable to have expected of Mr Xaba
that he take action to secure the set down of the matter.
He cannot
rely on the CCMA’s inaction to justify his own failure to act.
The period of delay is not one that can be easily overlooked by this
Court. Clearly, the effect of such an extensive delay which
is both
unexplained and is not of its own making, is prejudicial to the
applicant insofar as it is faced with the prospect of
having to
defend a dismissal now seven years old, with its primary witness now
deceased. The applicant was entitled to enjoy
the expeditious
resolution of this dispute. Mr Xaba’s failure to prosecute his
claim over an extended period of time, the
absence of any
explanation for such delay and the effect of such delay must result
in him being debarred from pursuing his unfair
dismissal claim and
obtaining any relief to which he may have been entitled in terms of
it. I am satisfied that the circumstances
of this case justify such
drastic a remedy.
Costs
The Court has a broad discretion in terms of section 162 of the LRA
to make an order for costs according to the requirements
of the law
and fairness. In exercising this discretion, I find that costs
should not be ordered against the second respondent
given that the
matter was unopposed.
Order
The dispute pending before the first respondent under case number
GAJB18406-05 is dismissed.
There is no order as to costs.
_______________________
K M Savage
Acting Judge
A
PPEARANCES
APPLICANT: L Giai-Coletti
Instructed by Webber Wentzel
SECOND RESPONDENT: No appearance
1
Section 1
2
Section 138(1)
3
Mohlomi v Minister of Defence 1997(1) SA 124 (CC)
at 129H-130A
4
Karan t/a Karan Beef Feedlot & another v Randall (2009) 30 ILJ
2937 (LC)
5
NUMSA & other v AS Transmissions &
Steerings (Pty) Ltd
[1999] 12 BLLR 1237
(LAC)
6
Bernstein v Bernstein 1948(2) SA 205 (W)
7
At para 14
8
NUMSA & other v AS Transmissions &
Steerings (Pty) Ltd
[1999] 12 BLLR 1237
(LAC) at para 6