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[2013] ZALCJHB 23
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Hulme v KLM Consulting Services (Pty) Ltd (JR1256/05) [2013] ZALCJHB 23; [2013] 9 BLLR 920 (LC) (26 February 2013)
Not reportable
Of interest to other judges
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
case
no: JR
1256/05
In the matter between:
HULME
, YVONNE MERLE
Applicant
and
KLM CONSULTING SERVICES (PTY) LTD
Respondent
Heard
:
24 January 2013
Delivered
:
26 February 2013
Summary:
Application to dismiss review application on account
of unreasonable delays. Both parties acted in dilatory manner. Review
application
set down for hearing on unopposed roll.
judgment
STEENKAMP J
Introduction
The applicant, Ms Yvonne Hulme, seeks an order dismissing a review
application brought by the respondent, KLM, 7 ½ years
ago.
Background facts
The dispute has a long and unhappy history, characterised by delays
on both sides and a lack of common courtesy.
It arises from a dispute whether Hulme resigned or was dismissed. A
CCMA arbitrator found that she had been dismissed and ordered
KLM to
pay her compensation equivalent to 12 months’ remuneration.
That was on 22 April 2005.
KLM brought a review application on 13 July 2005. Hulme delivered a
notice of intention to oppose the review application on 4
October
2005. KLM delivered the CCMA record in terms of rule 7A(6) on 27
January 2006. However, the record was not complete.
The review
application was set down for hearing on 20 September 2006 but was
postponed pending an application by KLM to compel
the CCMA to comply
with rule 7A(3) and to deliver the complete record. On 15 November
2008 this Court ordered the CCMA and the
Commissioner to file the
missing records and the commissioner’s notes within 14 days.
In the meantime, on 5 March 2008, Hulme brought an application to
dismiss the review application (the first application to dismiss).
That application served before Basson J on 26 March 2009. She
dismissed Hulme’s application to dismiss and ordered KLM
to
deliver its final supplementary affidavit in terms of rule 7A(8).
KLM did so; but despite her having delivered a “notice
of
intention to oppose”, she did not deliver an answering
affidavit in terms of rule 7A(9).
Instead, 2 ½ years later, on 14 November 2011, Hulme again
brought an application to dismiss the review application (the
second
application to dismiss). That is the application that now serves
before this Court. KLM opposes the second application
to dismiss.
Evaluation / Analysis
Hulme argues that the review application should be dismissed because
of KLM’s failure to prosecute it timeously and diligently
over
the last six years.
Outrageous as the delay appears at first blush, the lady doth
protest too much. Her own actions – or lack thereof –
and that of her attorneys also need to be scrutinised.
Some of the initial delays were occasioned by KLM as well as the
CCMA. By March 2009, though, Basson J had put the proceedings
back
on track. She ordered KLM to comply with rule 7A(8) by filing its
supplementary affidavit. KLM did so. Hulme and her attorneys,
on the
other hand, did not file an answering affidavit as required by rule
7A(9). At the hearing of this application, Mr
Voyi
submitted
that the reason for his inaction was that Hulme was not opposing the
review application. That came as a surprise to
the Court and to
KLM’s attorney. It is at odds with Hulme having delivered a
“notice of intention to oppose”
the review application.
Hulme and her attorney never wrote to KLM’s attorneys to
advise them that she no longer intended
to oppose the review
application. Had they done so, the review application could have
been enrolled on the unopposed motion roll
three years ago.
Voyi replaced Hulme’s previous attorney, Ashley Slamat, in
September 2009. On 29 September and 7 October 2009, he wrote
to KLM
enquiring whether it had complied with the order issued by Basson J
on 26 March 2009, i.e. to file its supplementary affidavit
in the
review application within 14 days. On 9 October 2009, KLM responded
and confirmed that it had complied with the order;
and it included
“for ease of reference” a copy of the final
supplementary affidavit. Voyi did not respond, despite
having placed
himself on record as Hulme’s attorney in the review
application. He did not deliver an opposing affidavit;
nor did he
write to or phone KLM and inform it that Hulme did not intend to
oppose the review application, despite her earlier
indications to
the contrary.
In these circumstances, it is understandable that KLM was waiting
for Hulme to deliver her answering affidavit. What is not,
is that
neither party bothered to ascertain from the other what the state of
play was and to then take steps to have the review
application
enrolled, either on an opposed or unopposed basis.
Order
The application is dismissed. The registrar is directed to enrol the
review application on the unopposed motion roll.
_______________________
Steenkamp J
APPEARANCES
APPLICANT:
Ndumiso Voyi.
RESPONDENT:
Andrew Goldberg.