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[2012] ZALCPE 2
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Frans Meintjies New Tyre Manufacturers v Bargaining Council and Others (P137/07) [2012] ZALCPE 2; [2012] 6 BLLR 558 (LC); (2012) 33 ILJ 1725 (LC) (17 January 2012)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Reportable
Case no: P137/07
In the matter between:
FRANS MEINTJIES.
…..............................................................................................
Applicant
NEW TYRE MANUFACTURERS
and
BARGAINING COUNCIL
….........................................................................
First
Respondent
CHARINE SMITH
…................................................................................
Second
Respondent
GOODYEAR SA (PTY) LTD
…...................................................................
Third
Respondent
Heard: 20 October 2011
Delivered:
17 January 2012
Summary: Application to dismiss
review for want of prosecution. Explanation for undue delay in
prosecuting the review not satisfactory.
________________________________________________________________________
JUDGMENT
________________________________________________________________________
MOLAHLEHI J
Introduction
This is an application in terms of
which the applicant seeks an order reviewing the arbitration award
made by the second respondent
(arbitrator) under case number
NTBC04/06 dated 27 March 2007. In terms of that arbitration award,
the arbitrator found the dismissal
of the applicant by the third
respondent to have been fair and according dismissed the applicant's
unfair dismissal claim.
It is as a result of being unhappy
with that outcome that the applicant has instituted the present
proceedings.
In opposing the review application,
the third respondent contends firstly that the review should be
dismissed for want of timeous
prosecution thereof. And in relation
to the merits, the respondent contends that the findings made by the
arbitrator were within
the range of outcomes that could have been
reached by a reasonable decision-maker.
Background facts
The applicant who prior to his
dismissal had been in the employ of the third respondent for a
period of about 38 years, was charged
and dismissed for misconduct
related to an alleged act of dishonesty.
The incident that gave rise to the
charge against the applicant arose early in March 2005 when the
applicant approached both Mr
Marais and Mr Jafter and indicated his
interest in obtaining an old tool box together with old tools which
the respondent may
have wished to discard.
According to the applicant, Mr Marais
informed him that there was an old trolley available but that if he
wished to have it he
should approach Mr Hoffman for an authorisation
note (pass) for the purposes of being able to remove the trolley
from the third
respondent's premises. After obtaining the pass which
recorded that ‘scrap trolley and scrap tools,’ were to
be removed
from the premises, the applicant went back to Mr Jargens
who also signed the pass. Thereafter, the applicant approached Mr
Marais
who undertook to arrange to let the applicant have the items
in question but however took several months before keeping to his
undertaking.
After receiving the approval to
remove the items from the respondent's premises, the applicant
approached the security for final
authorisation to remove the items
which he received. Because of the size of the items, the applicant
left them at the security
to fetch a car to collect them. On his
return, he was told that there was some suspicion about the items.
Thereafter, the following
charges were proffered against the
applicant:
‘
It
is alleged that you committed gross misconduct in breach of the trust
relationship in that on 17 August 2005, you attempted to
remove a
toolbox belonging to the company under the presences of a scrap
material pass, when such property was in actual fact not
scraped by
the company
.’
At the disciplinary hearing, the
applicant applied for legal representation which was refused by the
chairperson of the disciplinary
enquiry.
The applicant was subsequent found
guilty and dismissed. The applicant being unhappy with the outcome
of the disciplinary hearing
referred a dispute concerning an alleged
unfair dismissal to the first respondent which after the failure of
the conciliation
was referred to arbitration.
Grounds for review
The applicant challenges the
arbitration award on both substantive and procedural fairness. In
relation to substantive fairness
the applicant contends that the
arbitrator made certain factual findings which are not justified
having regard to the evidenced
which was presented during the
arbitration hearing. The applicant also contends that the conclusion
reached by the arbitrator
is not justified in relation to what was
presented to her.
As concerning procedural fairness,
the applicant complains that the process followed by the arbitrator
was unfair in that:
‘
3.1
It was patently obvious that Botha was not impartial as chairperson
of the disciplinary enquiry;
31.2
The second respondent concludes that the outcome of the hearing would
have been the same even if no aggravating factors were
considered;
It
is trite that no difference principle has been consistently
rejected by our courts . . .’
The arbitration award
In rejecting the version of the
applicant, the arbitrator said that the applicant adopted an:
‘
Opportunistic
approach to say in retrospect that the individuals certifying the
item as a scrap were negligent and his attempt in
removing the item
is therefore not dishonest.’
The arbitrator further found that the
applicant was fully aware of the failures of those who authorised
the removal of the items
but did nothing because it benefited him.
In relation to the role of Mr Marais,
the arbitrator observed that the applicant capitalised on the long
standing trust relationship
between the two of them in obtaining
authorisation of the removal of the items.
The other finding of the arbitrator
concerning the intention of the applicant is that:
‘
Even
if I were to find that the applicant was not aware of the exact
nature or state of the toolbox at the time of applying for
the Waste
Disposal Certificate, he was most definitely aware of the fact that
the item cannot be deemed as a scrap at the time
he attempted to
remove the toolbox. His submission that he did not look at the
toolbox when it was showed to him by Mr Jafta does
not ring true. It
is highly unlikely that the applicant would go to great lengths to
obtain a Waste Disposal Certificate, wait
a number of months or the
item and then, when shown the long waited toolbox, elected not to
look.’
The other defence of the applicant
during the arbitration hearing was that the respondent had applied
discipline inconsistently.
This, the arbitrator rejected on the
basis that Mr Marais, the person who was allegedly treated
favourably in the outcome of
his disciplinary hearing, was not an
employee but a contractor and further he was simply negligent.
The issue concerning procedural
fairness relates to two issues. The one issue concerns the complaint
by the applicant that the
chairperson of the disciplinary hearing
took into account aggravating factors which were never put before
her by the initiator
of the disciplinary hearing. The other issue
concerns the interaction between the chairperson of the disciplinary
hearing and
the respondent's attorneys regarding the issue of legal
representation.
The point in limine
The third respondent has raised two
preliminary points. The first point which I am of the view disposes
of this matter, concerns
the unreasonable delay by the applicant in
prosecuting his review application. The other point relates to the
issue of the defective
record. The applicant has applied for
condonation for his late filing of part of the record.
The question that needs to be
considered in this matter is whether the applicant should be barred
from proceeding further with
the review application in light of the
delay in its prosecution.
The starting point in contextualising
the delay in the prosecution of the review application is to note
that the review application
was timeously filed on 8 May 2007.
However since then for a period of over two and half years the
applicant did little, if at
all, to ensure that the review
application progressed to the next stage. This happened despite
numerous reminders and being placed
on terms about doing certain
things that would ensure progress of the application.
As early as 31 May 2007, the
Registrar addressed a letter to the applicant in which she reminded
his attorneys of the requirements
of rule 7 (2) (b) and 7 (A) (4) of
the Rules of the Court.
The Registrar sent another letter
dated 18 June 2007 indicating that the record of the arbitration
proceedings and the cassettes
had not been filed with the Court. In
the same directive, the Registrar reminded the applicant's attorney
of their failure to
comply with the previous directive.
On 23 July 2007, the registrar
addressed a directive to the applicant's attorneys informing them
that the Court has received one
disc of the recording of the
arbitration hearing. A month later, the applicant had done nothing
in relation to this issue and
consequently the Registrar reminded
his attorneys of their failure to comply.
After a period of 10 months since
being notified about the availability of part of the record nothing
happened. The applicant’s
attorneys were then required by the
Registrar to indicate their stand in relation to the further conduct
of the review. They
were required to do so by 3 July 2008. Again
having not responded to this enquiry the Registrar addressed another
directive indicating
that she intended achieving the application.
On 21 December 2009, the respondent's
attorneys addressed a letter to the applicant's attorneys and
amongst others raised the
issue of the delay by the applicant in
pursuing his application. The issue of the delay was again raised by
the respondent’s
attorneys in a letter dated 5 August 2010. In
that letter, the respondent's attorneys pointed out the failure by
the applicant
to comply with rule 7(6) of the Labour Court Rules.
The respondent further indicated in the same letter that the
applicant failed
to deal with the issue of the delay in his
supplementary affidavit.
The supplementary affidavit was filed
on 4 August 2010. It has to be noted that the applicant filed the
supplementary affidavit
without taking any further steps of ensuring
that the record of the arbitration proceedings was filed. This,
applicant did despite
previous reminders for him to file the record.
The applicant has filed two
condonation applications. The first relates to the preliminary point
raised by the respondent and
that is dated 23 November 2010. The
second application which relates to the late filing of the Exhibit A
which was part of the
documents relied upon during the arbitration
hearing, was filed about four years since the filing of the review
application and
that was on 19 October 2011.
In the first application for
condonation, the applicant seems to assume that the issue raised by
the respondent relates to the
period between the filing of the
answering affidavit and the replying affidavit. The reason for that
delay according to the applicant's
attorneys was due to an oversight
which was due to an administrative error caused by the misfiling of
the of the answering affidavit.
The applicant further says:
‘
Despite
the Respondent’s vehement protest at late delivery of the
outstanding part of the record, it follows from what I have
said that
at all material times the Third Respondent was possessed of the
missing part of this record, also at the time it prepared
its Heads
of Argument for the purposes of this review. The Third Respondent’s
present counsel and instructing attorney represented
the Third
Respondent during the arbitration proceedings and were therefore very
familiar with what had occurred
.’
The applicant further contends that
the respondent was also duty bound to place before the Court the
missing part of the record
and not seize upon the missing part of
the record as a ground for seeking to have the review application
dismissed for that reason.
Unreasonable delay rule.
It
is trite that the Court has discretion to bar an applicant who fails
to provide a reasonable and satisfactory explanation for
the delay
in timeous prosecution of his or her review application. The
approach to be adopted when dealing with the issue of
unreasonable
delay has received attention in number of both the Labour and Appeal
Court cases. The Courts in considering whether
to uphold an
application for the dismissal of a review on the ground of want of
prosecution take into account the following:
1
is the delay in the prosecution of
the matter excessive;
is there a reasonable explanation for
the delay;
what prejudice will the other party
suffer if the dismissal is not granted; and
are there prospects of success in the
main case.
The
other principle which the Courts have taken into account in
considering whether an undue delay warrants dismissal of a review
application is that there is a mutual obligation on both parties to
ensure that the review application progresses expeditiously
towards
its finalisation. It has been held in this regard that when
confronted with the delay in prosecution of a review application,
the respondent
needs
to place the offending party on terms or seek the intervention of
the Registrar or file an application to compel.
2
In
Karan
Beef Feedlot
and
Another v Randall,
3
the court held
that the respondent party is ‘not 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.’
In
NACBAWU
and Another v
Springbox Box (Pty) Ltd t/a Summit Associated Industries,
4
this Court held
that it is not every inaction or failure on the part of the
respondent to place the applicant on terms that would
result in the
failure to obtain an order for the dismissal of a review due to
unreasonable delay. The court in dealing with this
issue had the
following to say:
‘
The
other factor which needs to be weighed together with these factors is
the inaction or otherwise of the respondent in ensuring
that the
matter is brought to finality. The defence of a party opposing an
application for the dismissal of a claim on the basis
of unreasonable
delay is quite often that the other party in not taking action to
progress the matter to the next step also contributed
to the delay.
In this regard often judgments relied upon are those of
Buzuidenhout
v Johnston NO & others
[2006]
12 BLLR 1131
(LC)
and
Karan
Beef Feedlot & another v Randall
(2009)
30 ILJ 2937 (LC). I do not read those judgments as saying that the
inaction of the applicant in an application to dismiss
a matter on
the basis of unreasonable delay is necessarily an absolute defence.
The contribution in the delay by the party seeking
to have the matter
dismissed for delay in prosecution must be objectively assessed with
the view of evaluating the extent to which
the inaction of the
applicant contributed towards the excessiveness or otherwise of the
delay. The inaction has to be weighed against
the objective facts
that may point towards loss of interest in pursuing the matter by the
party opposing such an application. It
may well be that the facts and
the circumstances objectively point to a case where the respondent
can be said to have abandoned
or lost interest in the matter. In that
instance I do not believe that it would be correct and fair to blame
the applicant for
contributing to the delay due to his or her
inaction.’
5
I have previously stated that in an
unreasonable delay claim refusal to grant the relief due to the
inaction of the respondent
or failure to put the applicant on terms
will depend on the facts and the circumstances of a given case.
Evaluation
In
as far as the delay is concerned,
it
is apparent from the facts of this matter that the delay was largely
due to the gross negligence of the attorney of the employee.
The
question that then follows is whether the employee should for this
reason be exempted from responsibility for the delay.
It is trite in
our law that a litigant can blame his or her attorney up to a point
and thereafter he or she has to take responsibility.
There
is no doubt that the applicant has unreasonably delayed in the
prosecution of his review application. Whilst the delay is
largely
due to the negligence of his attorney, the principle that a litigant
can up to an extent not escape the negligence of
his or her legal
representative
6
is in my view,
applicable in this matter. The delay is excessive and the
explanation thereof is unsatisfactory and unreasonable.
In
analysing and evaluating the delay in the prosecution of the review
application,
the
starting point is to note that the arbitration award was issued on
2
nd
February 2007 and
the review application was thereafter filed on 22
nd
March 2007. In
essence,
the
employee has done nothing since 22
nd
March 2007 to 4
th
June 2010 when
this matter was heard by this Court.
The
facts and circumstances of this case are such that the review
application stands to be dismissed for unreasonable delay. The
explanation for the delay in filing part of the record a year late
is completely unsatisfactory. The contention that the third
respondent is also to blame for the delay is in my view,
unsustainable as the third respondent had placed very early the
applicant
on terms in relation to the delay in prosecuting the
review application. It is apparent,
from
the papers before this Court,
that
the respondent did not seat back and wait for the delay in the
prosecution of the review application to present itself as
an
opportunity to exploit. The respondent raised the issue of the delay
in correspondence with the applicant and in its answering
affidavit.
In light of failure to provide
reasonable and acceptable explanation there is no need to consider
the issue of prospects of success.
Accordingly, the applicant’s
application to review and set aside the arbitration award stands to
fail. I do not however
belief that it would be fair to allow the
costs to follow the result.
In the premises, the applicant’s
review application is dismissed for want of prosecution.
___________________
Molahlehi J
APPEARANCES:
FOR THE APPLICANT: Wikus Van Rensburg
Attorneys
FOR THE THIRD RESPONDENT: Adv B Wade
instructed by Chris Baker and Associates
1
See
Solidarity and Others v ESKOM Holdings Ltd
(2008) 29
ILJ 1450 (LAC);
Associated Institutions Pension Fund and Others v
Van Zyl and Others
2005 (2) SA 302
(SCA),
and Sishuba v
National Commissioner of the South Africa Police Service
(2007)
28 ILJ 2073 (LC),
NAPTOSA and Others v Minister of Education,
Western Cape and Others
(2001) 22 ILJ 889 (C) and
Autopax
Passenger Services (Pty) Ltd v Transnet Bargaining Council and
Others
(2006) 27 ILJ 2574 (LC).
2
.
See
Sishuba v National Commissioner of SAPS
[2007] 10 BLLR
988
, and Buzuidenhout v Johnston
NO and Others
[2006]
12 BLLR 1131
(LC).
3
(2009)
30 ILJ 2937 (LC) at para 9.
4
(2010)
JOL 26401
(LC).
5
Springbox
Box (Pty) Ltd t/a Summit Associated Industries
at
page 13-15
.
6
See
in this regard
Saloojee and
Another v Minister of Community Development
1965
(2) SA 135
at 141 C-E where the court held that there is a limit
beyond which a litigant cannot escape the results of his attorney’s
lack of diligence or the insufficiency of the explanation tendered .
see also
Old Mutual Life
Assurance Co SA Ltd v Gumbi
(2007)
28 ILJ 1449 (SCA) at para 20
.