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[2012] ZALCD 19
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Ramphal v Charles and Others (D 477/09) [2012] ZALCD 19 (13 March 2012)
Not reportable
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
Case
no: D 477/09
In the matter between:
VISHRAM RAMPHAL
Applicant
And
kAREN CHARLES
First Respondent
MEIBC
Second Respondent
HULAMIN LTD
Third Respondent
Heard
:
9 March 2012
Delivered
:
13 March 2012
JUDGMENT
VAN NIEKERK J
This is an application filed by the third respondent to dismiss an
application for review filed by the applicant in respect of
an
arbitration award made by the first respondent on 14 May 2009. Prior
to the hearing application, the applicant withdrew the
review
application without any tender of costs, with the consequence that
the parties presented argument only in relation to
the issue of
costs.
I do not intend to burden this judgment with a recitation of the
facts – the material facts are not in dispute and are
recorded
in the papers. It suffices to say that the application was dismissed
in March 2008. The first respondent upheld his
dismissal. The
application for review was filed on 30 June 2009, in which the
applicant challenged the award in a number of respects.
The basis
for the application to dismiss is that the applicant had failed to
prosecute the review application with the required
degree of
diligence and in particular, that he failed to take effective steps
to reconstruct missing portions of the record of
the arbitration
proceedings. It is not disputed that the tape recordings of the
proceedings on 20 And 21 January 2009 are missing.
This state of
affairs was established in or about August 2009. On 2 November 2009,
in response to a letter from the applicant’s
attorneys, the
second respondent advised that it was unable to locate the tapes
concerned. This was confirmed in mid-January
2010. There was an
exchange of correspondence regarding the missing record, in which
the third respondent’s attorneys expressed
their
dissatisfaction at the lack of any progress in the matter. In August
2010, the third respondent’s attorneys again
complained about
the lack of progress, and indicated that unless further steps were
in respect of the review application, an
application to dismiss
would be filed. Arrangements were then made for a meeting to attempt
a reconstruction of the record. A
meeting took place during which
the first respondent was contacted to ascertain whether she had any
notes that might assist in
a reconstruction of the record. It was
also agreed that the third respondent’s attorney would
transcribe his notes of the
proceedings. These were sent on 2
November 2010. Nothing further was done by the applicant’s
attorneys and on 15 December
2010, the third respondent’s
attorneys again complained that no further steps regarding the
reconstruction of the record
had been taken. The third respondent’s
attorneys contacted the second respondent on 4 January 2011 to
confirm that the
first respondent's handwritten notes had been
despatched to the applicant’s attorneys of record. Since then,
no further
steps were taken by the applicant to reconstruct and
finalise the record.
The applicant’s case is that he could not file the record in
the absence of the missing tapes, and thus that he .cannot
be blamed
for the failure to file a complete record. The third respondent
contends that it is entitled to costs on account of
the applicant’s
failure to prosecute the review with due diligence. In particular,
when the second respondent indicated
unequivocally in February 2010
that the record was missing, the applicant’s attorneys of
record took in further steps to
prosecute the matter until the third
respondent’s attorneys were constrained in July 2010 to
threaten an application to
dismiss. This letter was sent some seven
months after it had became apparent to the applicant’s
attorneys that the recordings
for 20 and 21 January 2009 were
missing.
The discretion to make an order for costs is broad (see s 162 of the
LRA) and must necessarily account for the requirements of
law and
fairness. The starting point is that the application to dismiss has
become academic by virtue of the withdrawal of that
application. The
general rule is that a litigant who withdraws an action has the
consequence that the other party is entitled
to its costs unless
there are sound reasons to the contrary (see
Germishuys v Douglas
Besproeingsraad
1973 (3) SA 299
(NC)). Although as I understand
the third respondent, it does not seek the costs of the review
application, the applicant’s
liability for the costs of the
application to dismiss must necessarily be viewed in a context that
accounts for the withdrawal
of the application for review, without a
tender for costs. I am persuaded that the applicant was less than
diligent in the prosecution
of the review application, and that he
application to dismiss was a justifiable response by the third
applicant, which had clearly
been frustrated by the applicant’s
lack of diligence. Although the Rules establish no time limit for
the filing of a record,
an applicant in a review application is
required to act diligently and with due expeditiousness in obtaining
and transcribing
the record, and attending to its service and
filing. It is regrettably not uncommon, as occurred in the present
instance, for
tapes to go missing, and for a record to be
incomplete, in whole or in part, for that reason. This court has
held that in those
circumstances, it is incumbent on the parties to
attempt a reconstruction of the record.
In the present instance, the running was done by the third
respondent’s attorney. The applicant’s attorneys failed,
as they were required to do, to take any initiative to in relation
to the reconstruction of the record. Such actions as there
were on
account of complaints by the third respondent’s attorneys and
threats to file an application to dismiss. Even when
the application
to dismiss was filed, the applicant was content to oppose the
application rather than seek consensus with the
third respondent on
how matters could be taken forward. It does not help the applicant
to say given the pattern of inactivity
on his part that the failure
to file a record is solely the fault of the first or second
respondent. The applicant must accept
some blame for his dilatory
conduct and that of his attorneys.
In all the circumstances, I am satisfied that an order to the effect
that the applicant bear 50% of the costs of the application
to
dismiss will satisfy the requirements of the law and fairness. To be
clear, that liability extends to 50% of the costs of
this
application.
I accordingly make the following order:
The applicant is to pay 50% of the costs of the application to
dismiss the application for review, such costs to include the
costs
of the opposed application argued on 9 March 2012. .
_______________________
Van Niekerk J
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT:
P Blomkamp, instructed
by Govidasamy & Pillay
THIRD RESPONDENT:
I Lawrence Edward
Nathan Sonnenbergs