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[2011] ZALCCT 28
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FAWU and Others v Country Bird (C 371/06) [2011] ZALCCT 28; (2012) 33 ILJ 865 (LC) (8 November 2011)
REPUBLIC OF SOUTH AFRICA
Reportable
Of
interest to other judges
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
case
no: C 371/06
In the matter between:
FAWU
….....................................................................................
First
applicant
Anna TSHINITSHI and 23 others
…......................
Second to
25
th
applicants
and
COUNTRY
BIRD
…........................................................................
Respondent
Heard
:
7 November 2011
Delivered
:
8 November 2011
Summary:
Points
in limine:
Prescription –
jurisdiction – condonation.
judgment
STEENKAMP J
Introduction
This matter has been set down for trial from 7 to 9 November 2011.
It concerns the dismissal of 24 members of FAWU, the first
applicant, for participation in an unprotected strike. The strike
dates back to January 2006, almost 6 years ago. The delay in
getting
to trial becomes pertinent in the context of a number of points
in
limine
raised by the respondent ("the company ").
Preliminary points.
On 27 October 2011 – just more than a week before the matter
was set down for trial – the company delivered an application
in terms of rule 11. It prayed for the dismissal of the union's
1
claim on four grounds:
the union’s claim has prescribed; alternatively
the union’s excessive delay in the prosecution of claim is
severely prejudicial to the applicant;
this court does not have jurisdiction to entertain the claims of
the second to fifth applicants who were dismissed for being
absent
from duty without permission;
the union’s statement of claim is late, and it only brought a
condonation application five years after filing it.
I shall deal with each of these points in turn.
Prescription
The employees were dismissed on 30 January 2006, five years and nine
months ago. The union referred an unfair dismissal dispute
to the
CCMA on 22 February 2006, within the 30 day period prescribed by
section 191(1)(b)(i) of the LRA.
2
Conciliation was unsuccessful and, on 26 May 2006, the CCMA issued a
certificate to that effect. The union delivered its statement
of
claim to the company on 7 August 2006. The company delivered its
response on 22 August 2006. However, the union only filed
its
statement of claim at the Labour Court on 29 August 2006. That was
about three days outside of the time period prescribed
by section
191(11)(a) of the LRA. I will deal with that aspect under the
heading of condonation.
The company's first complaint, though, is that the claim has
prescribed. For this submission, it appears that Ms
Cheroux
relies on the provisions of s 11(d) of the Prescription Act.
3
In terms of that section, a debt is extinguished by prescription
after three years.
4
In
Mpanzama v
Fidelity Guards Holdings (Pty) Ltd
5
this court held that the Prescription Act applies to disputes
arising from the LRA – in that case, section 143 read with
section
158(1)(c) of the Labour Relations Act.
Whatever
the rationale may be for the doctrine of prescription or the
limitation of actions, the court held, the Labour Relations
Act
compels the effective resolution of disputes (
section
1(d)(iv)
of the
Labour Relations Act). This implies that labour disputes must be
resolved or finalised expeditiously. For this reason
too, it would
not be inconsistent to apply the Prescription Act to sections 143
and 158(1)(c) of the Labour Relations Act.
In coming to that conclusion, Pillay J applied the provisions of s
11(d) of the Prescription Act. I agree with that reasoning.
What Ms
Cheroux
seems to have overlooked, though, are the
provisions of s 15 of the Prescription Act. In terms of that
section, the running of
prescription is interrupted “...by the
service on the debtor of any process whereby the creditor claims
payment of the
debt.” And “process” is defined to
include –
“
...a
notice of motion, a rule
nisi
... and any document whereby legal proceedings are commenced.”
The phrase “any document whereby legal proceedings are
commenced” must surely include the delivery of a statement
of
claim in terms of rule 6 (read with s 191) of the LRA. And a claim
for reinstatement or compensation in terms of the LRA must
also be
envisaged under the meaning of a “debt” in the
Prescription Act. As Prof Max Loubser
6
has pointed out, the term ‘debt’ has a wide and general
meaning and the three year prescription period in terms of
s 11(d)
of the Prescription Act applies to any liability of whatsoever kind,
whether contractual, delictual or otherwise. Therefore,
by referring
the matter to the Labour Court and delivering a statement of claim
in terms of rule 6, extinctive prescription of
the union’s
claim was clearly interrupted in my view.
There is one other aspect. Section 17 of the Prescription Act
specifies that prescription must be raised in the pleadings. In
this
case, the company did not raise the issue of prescription in its
response, delivered in terms of rule 6(3) on 22 August
2006. It was
raised for the first time on 27 October 2011, shortly before trial,
in an application brought in terms of rule 11.
Rule 11 reads as follows:
“
11. Interlocutory
applications and procedures not specifically provided for in other
rules.—
(1) The following
applications must be brought on notice, supported by affidavit:
(
a
) Interlocutory
applications;
(
b
) other applications
incidental to, or pending, proceedings referred to in these rules
that are not specifically provided for in
the rules; and
(
c
) any other
applications for directions that may be sought from the court.
(2) The requirements
in subrule (1) that affidavits must be filed does not apply to
applications that deal only with
procedural aspects.
(3) If a situation
for which these rules do not provide arises in proceedings or
contemplated proceedings, the court
may adopt any procedure that it
deems appropriate in the circumstances.
(4) In the exercise
of its powers and in the performance of its functions, or in any
incidental matter, the court may
act in a manner that it considers
expedient in the circumstances to achieve the objects of the Act.
The application to dismiss the union’s claim was brought in
terms of this rule. In considering its merits, I must act in
a
manner I consider expedient in the circumstances to achieve the
objects of the Act, including expeditious dispute resolution.
Section 17(2) of the Prescription Act provides that:
“
A
party to litigation who invokes prescription, shall do so in the
relevant document filed of record in the proceedings: Provided
that a
court may allow prescription to be raised at any stage of the
proceedings.”
In terms of s 17(2) of the Prescription Act read with rule 11(4) of
the Labour Court rules, I have considered it expedient to
allow the
question of prescription to be raised at this late stage. However,
it does not have any merit, given that prescription
was interrupted
by the delivery of the statement of claim.
Excessive delay
In the alternative, Ms
Cheroux
submitted that the union’s
claim should in any event be dismissed because of the excessive
delay from the time it delivered
its statement of claim – ie
August 2006 – until the matter now comes to trial in November
2011, five years later.
In the interim, she says, some of the
company’s witnesses have left its employ; some can no longer
be found; and in the
event that the union is successful in its claim
for retrospective reinstatement, it would have severe operational
and financial
consequences for the company.
At first blush, the company’s argument appears to have merit.
By analogy, the relevant principles governing this court's
treatment
of ongoing delays in conducting review proceedings have
been set out by Molahlehi J in the case of
Sishuba v National
Commissioner of the SA Police Service
7
in which he stated:
‘
The
issue of delays in prosecuting disputes in the Labour Court has
become an issue of concern and judges have expressed their concern
at
a trend that seems to have emerged in this regard. The trend seems to
be developing into a practice or a norm in cases involving
reviews of
arbitration awards.
While
there is no rule that specifically addresses the issue of delays in
prosecuting a case by an applicant, there are decisions
of both this
court and other courts which have held that depending on the
circumstances of a given case, the 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 Metalworkers of SA on behalf of Nkuna & others v Wilson
Drills-Bore (Pty) Ltd t/a A & G Electrical
[
(2007)
28 ILJ 2030 (LC)
].
See
Mothibi
v Western Vaal Metropolitan Substructure
[2000] 1 BLLR 85
(LC) and
NUMSA
& others v AS Transmissions & Steerings (Pty) Ltd
(2000)
21 ILJ 327 (LAC)
;
[1999] 12 BLLR 1237
(LAC) and
Molala
v Minister of Law & Order & another
1993
(1) SA 673
(T).
Inordinate
delays in litigating protract disputes, damage the interests of
justice and prolong the uncertainty of those affected.
The
consequences that may follow if an applicant fails diligently to
pursue its claim are dealt with in the case of
Bezuidenhout
v Johnston NO & others
(2006)
27 ILJ 2337 (LC)
,
where Stratford AJA in
Pathescope
Union of SA Ltd v Mallinick
1927
AD 305
is quoted as having said:
''That
a plaintiff may, in certain circumstances, be debarred from obtaining
relief to which he would ordinarily be entitled because
of
unjustifiable delay in seeking it is a doctrine well recognised in
English law and adopted in our own courts. It is an application
of
the maxim
vigilantibus
non dormientibus lex subveniunt
.''
The
court went further to say:
''Where
there has been undue delay in seeking relief, the court will not
grant it when in its opinion it would be inequitable to
do so after
the lapse of time constituting the delay. And in forming an opinion
as to the justice of granting the relief in face
of the delay, the
court can rest its refusal upon potential prejudice, and that
prejudice need not be to the defendant in the action
but to third
parties.''
The
policy consideration that informs this approach was considered in
Mohlomi
v Minister of Defence
[1996] ZACC 20
;
1997
(1) SA 124
(CC) at 129H-130A, wherein Didcott J said:
''Nor
in the end is it always possible to adjudicate satisfactorily on
cases that have gone stale. By then witnesses may no longer
be
available to testify. The memories of ones whose testimony can still
be obtained may have faded and become unreliable. Documentary
evidence may have disappeared.''
There
are two principal reasons why the court should have the power to
dismiss a claim at the instance of an aggrieved party who
has been
guilty of unreasonable delay. The two reasons are cited in the case
of
Radebe
v Government of the Republic of SA & others
1995
(3) SA 787
(N), as follows:
''The
first is that unreasonable delay may cause prejudice to other
parties.
Harnaker
v Minister of the Interior
1965
(1) SA 372
(C) at 380D;
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit Kaapstad
1978
(1) SA 13
(A) at 41. The second reason is that it is both desirable
and important that finality should be reached within a reasonable
time
in respect of judicial and administrative decisions.
Sampson
v SA
A
Railways
and Harbours
1933
CPD 335
at 338; the
Wolgroeiers'
case at 41D-E; cf
Kingsborough
Town Council v Thirlwell and Another
1957
(4) SA 533
(N) at 538.''
The
impact of delay in prosecuting cases was analysed and looked at in a
much more critical manner by Flemming DJP, as he then was,
in
Molala
v Minister of Law & Order & another
1993
(1) SA 673
(T). After
assessing
the approaches adopted by the various divisions of the High Court,
the court found that in the Transvaal the approach
followed was the
one set out in the case of
Bernstein
v Bernstein
1948
(2) SA 205
(W) where the court held that ''it is in the discretion of
the Court to allow proceedings to continue where there has been this
lapse of time''. The court further agreed with the case of
Kuiper
& others v Benson
1984
(1) SA 474
(W), where it was held that the court has ''an inherent
power to control its own proceedings and that accordingly the Court
should
assess whether the plaintiff is guilty of an abuse of
process''.
With
regard to the approach adopted in
Kuiper's
case, the court found that because proving abuse of court process
would be difficult, such an
order
would be a rarity. It would appear that the other divisions also
accepted that the court had an inherent discretion whether
or not to
allow the party guilty of delay to continue with its dispute but that
such discretion was to be exercised sparingly.
In
assessing the overall approach of how our system deals with delays,
the
court in
Molala's
case at 679D-F said:
''I
should not refer to 'system' but to the total lack in our system of
attention to the effective counteracting of slackness. Our
system
leaves the defendant with three poor choices. One is to incur the
costs of applications, perhaps not recoverable from the
other party,
in order to forge ahead with litigation started by a plaintiff who to
all outward appearances shows clear signs of
lack of interest in the
whole business. The second alternative is to hope that the
surrounding facts will develop sufficient cogency
to enable him to
convince the Court in a formal application, often also at the
defendant's expense, that the plaintiff is abusing
the Court process
to an extent which warrants dismissal of the action.''
The
focal point in considering whether to grant the order barring the
employer, 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 employer
be barred from proceeding further with the review application.'
In order to consider whether the union is to blame for the delay in
prosecuting this matter and bringing it to trial, I have
to consider
the steps it has taken since delivering its statement of claim in
August 2006. I will also consider the dicta of
Molahlehi J in
Springbok Box
8
.
In that case, he dismissed a trade union’s application for a
declaratory order in these circumstances:
“
The
pleadings in this matter were closed on 31 January 2007. There is no
evidence that the applicants have since then requested
the registrar
to have the matter set down for hearing. It was incumbent on the
union to ensure that the matter was timeously brought
to finality,
regard being had to the fact that the relief sought was in the form
of a declarator. On 21 July 2008, the registrar
called for the
parties to file heads of argument. The union filed its heads of
argument on 2 June 2009, a period of delay amounting
to 11 months. In
this respect having regard to the nature of the relief that the union
was seeking it ought to have been reasonably
clear to it that the
delay would result in serious prejudice to the employer.”
In the present case, the company delivered its response in terms of
rule 6(3) on 22 August 2006. The very next day, on 23 August
2006,
the union sent it a letter proposing that the parties meet for a
pre-trial conference on 29 September 2006. The company
did not
respond.
It is not clear whether either of the parties took any further steps
until the matter was set down for a pre-trial conference
at the
Labour Court on 26 March 2007. However, the company asked that the
pre-trial conference be postponed and noted that "the
parties
will agree on a date for filing of minutes."
On 28 February 2008, the union wrote to the company again. The legal
officer, Mr JS Sondiyazi, noted the following:
"You will remember that I
wrote you a fax in which I was requesting a meeting for the purpose
of completing the pre-trial conference
minutes. Further, you will
note that you failed to respond to such request, nevertheless the
Labour Court set down the proceedings
for such conference, in which
your representative requested a postponement.
It is almost a year since I have
furnished your representative with a draft of the minutes. There is
no comment and such is viewed
as deliberately delaying this matter.
In the circumstances I attach
for your convenience the new draft of conference minutes of which I
want you to peruse and comment.
If I do not hear from you and or your
representative within a week of receipt of this fax I will apply to
the court for set down
of pre-trial."
Despite this plea, the company still did nothing. Eventually, on 17
September 2008, the union wrote to it again. By now, the
Labour
Court had again set the matter down for a pre-trial conference
before a judge scheduled for 21 October 2008. The union’s
Mr
Sondiyazi wrote as follows:
"I refer to my
correspondence dated 28 February 2008 in which I reminded you that I
have requested a pre-trial conference meeting
and that you have
failed to such request despite the Labour Court setting down the
matter for hearing and that your representative
requested a
postponement of such proceedings.
Further I also attached to my
correspondence another draft of pre-trial conference minutes. Up to
date I did not receive any response.
You will note that this matter
has been set down for pre-trial on 21 October 2008 at Labour Court
Cape Town and we can only be excused
by the court if we can file the
minutes two clear days prior to the date of hearing before the judge.
…
Therefore you are requested to
peruse the attached draft minutes and revert to me as a matter of
urgency for purposes of finalising
the minutes. Also attached is the
court set down."
On 16 October 2008, a few days before the pre-trial meeting was to
be held at the Labour Court, the company's employer’s
association, the South African United Commercial and Allied
Employers’ Organisation, eventually responded on its behalf
and attached a draft pre-trial minute. The signed pre-trial minute
was eventually filed at the Labour Court on 21 October 2008.
About two weeks later, on 4 November 2008, Francis J issued a
directive in terms of rule 6(5)(a), directing the registrar set
the
matter down for trial.
Despite this directive, the notice of set down for the trial to
commence on 7 November 2011 was only sent to the parties on 24
June
2011. It is not clear from the court file or from the evidence
before me what occasioned this delay. I must accept, though,
that it
appears to be due to the registrar of the court and not to any
further delay by the union.
In the period from August 2006 to October 2008, the delay in
ensuring that a pre-trial minute was filed in terms of rule 6(4)
can
be attributed mainly to the company and its employer’s
organisation. One could, in hindsight, argue that the union
should
have done even more to spur the company into action; but in
circumstances where the company and its employer's organisation
simply ignored at least four attempts by the union to convene a
pre-trial conference, it does not lie in the mouth of the company
to
blame the union for the delay.
The further delay of three years from November 2008 to November 2011
appears to be attributable to the "systemic delays"
that
have plagued this court for a number of years. (I should add that
most of those delays have been addressed,
inter alia
by
appointing more permanent judges to the court in the last two years,
and delays such as this is nowadays the unhappy exception).
The only
criticism of the union can be that it did not press the registrar to
set the matter down for hearing. However, I would
not consider it
fair to non-suit the employees because of a delay attributable to
the court’s functionaries and not to
the employees or their
union.
In these circumstances, the application to dismiss the claim due to
the extensive delay cannot succeed.
Jurisdiction: second to fifth applicants
The next point
in limine
raised by Ms
Cheroux
is that
the court has no jurisdiction to entertain the claim by the second
to fifth applicants, viz
Anna Tshintshi;
Lena Monemi;
Moses September; and
Dennis Ramafikeng.
It is common cause that the sixth to 25
th
applicants were
dismissed for their participation in an unprotected strike on 16
January 2006. With regard to the second to fifth
applicants, though,
it was recorded in the pre-trial minute that they were dismissed for
being absent from duty without permission
for the period of 17 to 30
January 2006. Therefore, said Ms
Cheroux
, the court lacked
jurisdiction to entertain their dismissal dispute, as it relates to
misconduct which does not resort under
section 191(5)(b)(iii) of the
LRA.
Despite the assertion to the contrary in the pre-trial minute, there
does appear to be some confusion as to the reason for the
dismissal
of these four employees. In a letter sent to the union by the
company with the heading, "Namelist of FAWU members
participated [sic] in illegal strike action on 16 January 2000",
the names of those four employees are included.
In these circumstances, I asked the parties to consider whether I
should not hear the evidence with regard to the reason for
the
dismissal of these four employees; and if it should appear that the
dispute should have been referred to arbitration, whether
it would
not be more expeditious and less costly for the parties if this
court were to continue sitting as an arbitrator in order
to decide
on their claim, in terms of s 158(2)(b) of the LRA. Ms
Cheroux
readily conceded that such a course of action would be more sensible
and the parties therefore gave the necessary consent as
contemplated
in that subsection.
Condonation
That brings me to the remaining preliminary point, i.e. the question
of condonation for the late filing of the statement of claim.
In
considering the union’s application for condonation, I will
apply the well-known principles set out in
Melane v Santam
Insurance Co Ltd.
9
Extent of the delay
On the union’s calculations, the statement of claim was filed
at the Labour Court three days out of time. The company says
it was
five days. On either version, the delay is not excessive.
The other significant factor is that the statement of claim was
served on the company well within the prescribed time period.
In
terms of section 191(11)(a), the dispute had to be referred to the
Labour Court within 90 days after the CCMA had certified
that the
dispute remains unresolved; and in terms of section 191(5)(b) the
court may condone non-observance of that timeframe
on good cause
shown.
The referral is governed by rule 6. In terms of rule 6(1)(f) the
statement of claim must “be delivered”. And “deliver”
means “serve on other parties and file with the registrar".
10
In this case, the union served its statement of case on time. It
filed it with the registrar, at most, five days out of time.
It is
not an unreasonable delay.
Reasons for late filing
The union's administrator in Bloemfontein erroneously sent the
statement of claim to its head office in Cape Town, instead of
the
Labour Court. When its legal officer, Mr Sondiyazi, realise the
mistake, he rectified it immediately. At that stage, the
company had
already delivered its response.
Although the administrator was negligent, the legal officer was not.
There is no prejudice to the company. Considered together
with the
short period of strict non-compliance, the reason for late filing is
acceptable.
Prospects of success
This matter has been set down at trial. At this stage, I can only
consider the pleadings, together with the affidavit in support
of
the application for condonation. I do not have the benefit of
extensive affidavits setting out the full evidence to be led
at
trial. On the facts set out in the pleadings, the affidavit and the
pre-trial minute, though, the union and its members have
at least
some prospects of success. Even though it is common cause that the
employees participated in an unprotected strike,
that is not in
itself sufficient reason for dismissal. The allegations by the union
– such as an inadequate ultimatum and
provocation by the
company – can only be considered after I had heard the
evidence. At this stage, on a full conspectus
of all the factors –
especially the short delay and the absence of prejudice to the
company – I consider the prospects
of success at trial to be
sufficient so as to give the employees an opportunity to pursue
their claim.
The remaining issue raised by Ms
Cheroux
is that the
application for condonation was itself only delivered a few days
before trial. For this, the union can and should
be criticised;
however, the company did not raise the issue of condonation at any
stage until it brought the current application
in terms of rule 11.
Even when the parties signed an agreed pre-trial minute in October
2008, the parties specifically noted
that there were no preliminary
points to be decided. The belated application for condonation has
caused the company no prejudice.
Importance of the case
It is self-evident that the case is important to the employees. That
is usually the case for any dismissed employee. In this
case,
though, a large number of 24 employees are affected. The case has
added importance because it deals with the question of
the
circumstances in which dismissal for participation in an unprotected
strike can be held to be fair.
For all of these reasons, condonation for the late filing of the
statement of case is granted.
Conclusion
In conclusion, I rule as follows with regard to the points in
limine:
The company’s application in terms of rule 11 is dismissed.
The union’s application for condonation is granted.
The costs relating to the preliminary points are to be costs in the
cause of the trial.
_______________________
A J Steenkamp
Judge
APPEARANCES
APPLICANTS: Attorney MJ Ponoane, Bloemfontein.
RESPONDENT: Ms L Cheroux
Instructed by Yusuf Nagdee, Johannesburg.
1
I
shall refer to the applicant at trial (the Food and Allied Workers’
Union) as “the union” and to the respondent
as “the
company” in order to avoid confusion. The company is the
applicant in the rule 11 application. The union
acts on its own
behalf and on behalf of 24 of its members who are cited as the
second to 25
th
applicants.
2
Labour
Relations Act 66 of 1995
.
3
Act
68 of 1969.
4
The
exceptions outlined in the rest of that section do not apply to a
claim for reinstatement or compensation arising from unfair
dismissal in terms of the LRA.
5
[2000]
12 BLLR 1459
(LC) paras 9-10.
6
MM
Loubser,
Extinctive Prescription
(Juta 1996) p 43.
7
(2007)
28
ILJ
2073 (LC) paras 8-16, cited with approval in
Moraka
v National Bargaining Council for the Chemical Industry & others
(2011) 32
ILJ
667 (LC). See also
National
Construction, Building & Allied Workers’ Union and others
v Springbok Box (Pty) Ltd t/a Summit Associated Industries
(2011)
32
ILJ
689 (LC).
8
Supra
fn 6 para [31].
9
1962
(4) SA 531
(A).
10
Rule
1.