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[2011] ZALCCT 39
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NUMSA and Another v Atlantis Foundries (Pty) Ltd and Others (C490/2006) [2011] ZALCCT 39 (9 December 2011)
REPUBLIC OF SOUTH AFRICA
Of interest to other judges
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
case
no: C490/2006
In the matter between:
NUMSA
…...........................................................................
FIRST
APPLICANT
MCLAREN
HOLLOWAY
…...........................................
SECOND
APPLICANT
and
ATLANTIS
FOUNDRIES (PTY) LTD
….........................
FIRST
RESPONDENT
URSULA
BULBRING N.O
….....................................
SECOND
RESPONDENT
MEIBC
…........................................................................
THIRD
RESPONDENT
Heard
:
1 December 2011
Delivered
:
9 December 2011
Summary:
Application to dismiss review application due to
unreasonable delay in prosecuting application for a period exceeding
four and half
years. Review application dismissed with costs.
JUDGMENT
SAVAGE AJ
Introduction
[1] This is an application in terms of
rule 11 in terms of which the third respondent seeks the dismissal of
the review application
filed by the applicants on 2 August 2006. This
application came before me more than more than six years after the
dismissal of
the second applicant, Mr McLaren Holloway (“the
employee”).
[2] The employee, who was employed as
a universal cutter/grinder, was dismissed for assaulting a fellow
employee on 4 August 2005.
On 19 June 2006 the second respondent
found that the dismissal of the employee was both procedurally and
substantively fair. On
2 August 2006, an application to review the
arbitration award was filed by the applicants in which the review and
setting aside
of the arbitration award was sought.
[3] On 3 November 2006, the third
respondent opposed the review application. On 12 August 2008, almost
two years after launching
the review, the applicants appointed
Ranamane Phungo Incorporated as their attorneys of record. By this
date the record of proceedings
had not been filed by the applicants.
On 4 May 2011, Phungo Incorporated were substituted as attorneys of
record. On 4 May 2011
a supplementary affidavit in terms of Rule
7A(8)(a) was filed at the same time as the transcript of oral
evidence presented at
the arbitration hearing. This was more than
four and a half years after the review application had been filed.
[4] The company seeks that the review
application be dismissed given the length of the delay in prosecuting
the matter and given
further the incomplete record of proceedings
filed.
The facts
[5] Mr Lavhelesani Phungo, a
practising attorney who was a former director of Ramamane Phungo and
is a current director of Phungo
Incorporated, deposed to the
answering affidavit in this matter. In this affidavit he stated that
until 30 March 2011 he was responsible
for all labour law matters at
Ranamane Phungo, as one of the two directors of the firm. He
allocated the review application to
Ms Z Tuswa and Ms J Hlungwane, an
associate and a candidate attorney respectively. On 30 March 2011 Mr
Phungo left Ramamane Phungo
to establish Phungo Incorporated. It was
only on inheriting the matter at Phungo Incorporated that he “read
a handover memorandum
from Tuswa and Hlungwane to familiarise himself
with the state of play in all the matters” he had inherited.
[6] The applicants in terms of rule
7A(8) were required to file a notice amending or supplementing their
notice of motion, or a
notice that they stand by the notice of
motion, within 10 days of the record being made available. On 4 May
2011 Mr Phungo served
a notice of substitution and filed the
transcription of oral evidence led at the arbitration hearing. He did
not file the documents
which formed part of the record as he “had
not realised that there had been any documents which had also formed
part of the
record at arbitration” as these documents were not
in a physical file and had remained at Ramamane Phungo.
[7] On 23 May 2011, the applicants
through Mr Phungo sought a date of set down of the review application
on the unopposed roll given
that no answering affidavit had been
served by the company. On 24 May 2011, Mr Phungo became aware of the
application to dismiss
the review application which had been served
on him on 19 May 2011. On 14 June 2011 the outstanding documents were
filed by Mr
Phungo on behalf of the applicants, together with a
notice of opposition in respect of the application to dismiss the
review application.
The legal principles
[8]
In
Sishuba
v National Commissioner of the South African Police Service
(2007) 28
ILJ
2073
(LC) it was held that there are two principal reasons why the court
should have the power to dismiss a claim at the instance
of an
aggrieved party where the other has been guilty of unreasonable
delay. The first is that the unreasonable delay may cause
prejudice
to the other parties; and the second is that it is “both
desirable
and important that finality should be reached within a reasonable
time in respect of judicial administrative decision”
.
1
This is
because it is not always possible to adjudicate satisfactorily on
cases that have gone stale.
2
The court
holds a discretion as to whether to
allow
proceedings to continue where there has been this lapse of time.
3
This
discretion arises as a consequence of the court’s
inherent
power to control its own proceedings and that accordingly the Court
should assess whether the Plaintiff is guilty of an
abuse of
process".
4
[9]
In
Bezuidenhout
v Johnston NO & others
5
,
Nel AJ held:
"When an
Applicant party has been dilatory in pursuit of his relief, and finds
himself outside prescribed periods, it is vital
that a good
explanation needs to be provided for such delays as may have occurred
in order to warrant the granting of an indulgence
to the defaulting
party. The prejudice suffered by parties as a result of undue delays
is another fact to consider”.
[10]
In
Ivor
Michael Karan t/a Karan Beef Feedlot and Another v Randall
6
Van Niekerk J concurred with the
approach adopted in the
Bezuidenhout
and
Sishuba
cases. It follows therefore
that this Court i
n
the exercise of its discretion ought to 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.
7
[11] In
Smith v Olivier
8
Fourie J noted that
while “
courts
are generally slow to penalise a litigant for an attorney's negligent
conduct of litigation, but as stated in Colvn v Tiger
Foods
Industries Limited
9
,
there comes
a point where there is no alternative but to make the client bear the
consequences of the negligence of his or her attorneys
”
.
Melamet J in
De
Wet v Western Bank Beperk
10
expressed the view
that a litigant “
cannot
divest themselves of their responsibilities
”
in relation to a
matter “and then complain “
that
their agents, in whom they have apparently vested sole
responsibility, have failed them
”
.
Evaluation
[13] The applicants’ notice in
terms of rule 7A(8)(a) was filed more than four and a half years
after the application to review
was filed with this Court on 2 August
2006. This is an extraordinary period of delay and an unusually
substantial one. The applicants
could do no more than accept that
this was so since no steps were taken for over four and a half years
to prosecute the matter.
[14] What is remarkable in this matter
is the absence of any proper explanation from both the applicants and
their attorneys to
explain the inordinate delay. No explanation was
placed before this Court by the union as to what caused the delay in
prosecuting
the review application after it was filed on 2 August
2006 until the appointment of attorneys Ranamane Phungo Incorporated
almost
two years later on 12 August 2008. Thereafter, Mr Phungo’s
explanation provided amounts to a bald submission that his
subordinates,
Ms Tuswa and Ms Hlungwane experienced difficulties in
procuring the record. No confirmatory affidavits are provided by
either Ms
Tuswa or Ms Hlungwane and Mr Phungo cannot take the matter
any further or provide the necessary facts to support this
allegation.
In fact, he admits that he only familiarised himself with
the matter once he had left Ranamane Phungo to establish his own
practice.
There is an absence of any explanation provided to this
Court regarding the nature of the difficulties experienced by Ms
Tuswa
or Ms Hlungwane or the steps taken to resolve these
difficulties.
[15] A further delay was occasioned
when on 4 May 2011 Mr Phungo finally filed the transcription of oral
evidence but not the documents
which formed part of the record of
proceedings. It took him until 14 June 2011 to file these outstanding
documents. The reason
provided for this was that he “had not
realised that there had been any documents which had also formed part
of the record
at arbitration” and these documents were not in a
physical file and had remained at Ramamane Phungo. Why this process
should
take almost five weeks is simply unexplained.
[16] There is furthermore no
explanation placed before this Court as to any steps taken by the
applicants to secure the prosecution
of the review application by
their attorneys of record.
[17] The extent of the delay in
prosecuting the review application is patently inordinate and
substantial. The explanation provided
by both the applicant and its
attorney is either completely absent or, where an attempt is made by
Mr Phungo to explain the delay
in respect of certain of the periods
of the delay, extremely thin. So thin, in fact, that it does no more
than confirm the negligent
conduct of the matter by the attorneys of
record.
[18] In
MM
Steel Construction
16
Nugent
JA noted:
“
In my
view the failure to provide any explanation for [the labour
consultant’s] failure to file the papers necessary to defend
the claim is in itself sufficient reason to dismiss the application
(Chetty’s case).
…
I might
add that it has been held that negligence on the part of an
attorney... will not necessarily constitute an acceptable
explanation.
An applicant who relies on the ineptitude or remissness
of his attorney should at least satisfy a court that none of it is to
be
imputed to himself (Saloojee & another v Minister of Community
Development
11
).”
[19] There is no evidence provided by
applicants as to why for two years the review application was not
prosecuted and the record
of proceedings filed. This undue delay on
its own could have provided sufficient basis upon which to dismiss
the application. For
the period thereafter, it is patently clear that
the conduct of the applicants’ attorneys was negligent.
[20]
In
Pathescope Union of SA
Ltd v Mallinick
12
in considering the maxim of
vigilantibus non
dormientibus subveniunt
the
appellate division held:
“…
a
plaintiff may, in certain circumstances, be debarred from obtaining
relief to which he would ordinarily be entitled because of
unjustifiable delay…where…in seeking relief…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
relief in the 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.”
[21] Given the extent of the delay and
the explanation for it, I accept that the company stands to be
prejudiced should it be required
to proceed with its opposition to
the review application. The length of time that has elapsed since the
dismissal of the employee
is now inordinate. This has a material
impact on the litigants and I am satisfied that the company stands to
be prejudiced by having
to oppose an application now four and a half
year old when the delay was not of its own making. The fact that
there is no express
rule of this Court requiring of an applicant that
a record be filed within a prescribed period and no express rule
which permits
the dismissal of an action or application before this
Court is of no assistance to the applicants. This court has the
inherent
power to manage its own processes. In doing so, it must seek
to advance and serve one of the fundamental purposes of the Labour
Relations Act, namely the expeditious resolution of disputes.
[22] Section 34 of the Constitution is
of no assistance to the applicants. The constitutional right to have
a matter adjudicated
in a court of law does not permit an applicant
to take no reasonable steps to prosecute its claim timeously. Were
parties to be
permitted to take no steps to prosecute matters brought
to this Court for inordinate and substantial periods of time with no
good
cause shown for such delay, this would have an unacceptable
impact on this Court’s ability to administer justice in
accordance
with the prescripts and fundamental values of our
constitutional order. The default of the applicants, and that of
their attorneys,
is of their own making and their constitutional
rights in terms of section 34 do not stand to be infringed. In the
circumstances,
the application succeeds.
Costs
[23] With regards to the issue of costs, this Court holds a
discretion in terms of section 162 of the Labour Relations Act as to
whether or not to award costs taking into account considerations of
law and fairness. In exercising this discretion,
ordinarily,
it is the party that is wholly successful in an action or application
that is awarded costs.
‘…
In other words, the
judicial officer may not, as he or she pleases, deprive a successful
party of its costs. He or she must
do so for reasons which he or she
must set out or state. It similarly follows that, although ordinarily
a successful party will
be awarded its costs, it does not follow that
that will always be the case
.’
13
[24] I can find there to exist no reason as to why costs, given
considerations of law and fairness, should not follow the result.
Order
[25] In conclusion, I order as
follows:
The application to dismiss the
review application is granted.
The applicants are ordered to pay
the third respondent's costs.
_______________________
K M Savage
Acting Judge
APPEARANCES
APPLICANT: K Lengane
Instructed by Phungo Incorporated
FIRST RESPONDENT: N F Rautenbach
Instructed by Maserumule Incorporated
1
Radebe
v Government of the Republic of South Africa
1995
(3) SA 787
(N)
2
Mohlomi
v Minister of Defence
[1996]
ZASCA 82
;
1997
(1) SA 1
to 4 (CC), at 129H-130A
3
Bernstein
v Bernstein
1948(2) SA 205 (W) referred to in
Molala
v Minister of Law and Order & another
1993
(1) SA 673
(W)
4
Kuiper
& others v Benson
1984(1) SA
474 (W)
5
(2006)
27
ILJ
2337 (LC)
6
[
2009]
ZALC 120
7
At
para 14
8
(22887/2010)
[2011] ZAWCHC 166
(8 March 2011)
9
2003
(6) SA 1
(
SCA)
at 9H
10
1977
(4) SA 770
(
T)
at 780C-G
11
1965
(2) SA 135
(A)
at 141B-H
12
1927
AD 292
13
The
Trustees of the Time Being of the Biowatch Trust v Registrar
Genetic Resources and Others
(Open
Democracy Advice Centre as Amicus Curiae) (A831/2005)
[2008] ZAGPHC
135
(13 May 2008)
2008 JDR
0442 (T)
at para 31