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[2013] ZALCPE 20
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FAWU obo Morris v South African Breweries and Others (P462/09) [2013] ZALCPE 20 (15 May 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not reportable
case
no: P462/09
In the matter between:
FAWU
obo MZILENI MORRIS
.....................................................................
Applicant
(The
respondent in the Rule 11 application)
and
SOUTH
AFRICAN BREWERIES
....................................................
First
Respondent
(The
applicant in the
rule
11
application
)
ZOLASHE
LALLIE
N.O
.........................................................
Second
Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
.................................................
Third
Respondent
Heard
: 15 May 2013
Order : 15 May 2013
Summary : Application in terms of Rule 11 granted with costs.
judgment-reasons for order
AC BASSON J
This is an application in terms of Rule 11 of the Labour Relations
Act
1
(“the LRA”) to dismiss a review application pending
under case number P462/2009. The Applicant in the Rule 11
application
is SA Breweries (Pty) Ltd and the Respondent in the Rule
11 application is FAWU on behalf of Mzileni Morris (I will refer
collectively
to them as the respondent. Where applicable I will
refer to Morris in his capacity as an employee).
Morris was dismissed in February 2009. He referred a dismissal
dispute to arbitration. The Commission for Conciliation Mediation
and Arbitration (“CCMA”) held that the dismissal was
fair. Morris served and filed a review application in this Court
on
29 September 2009. On 12 October 2009 the CCMA filed the record. On
22 October 2009 the applicant filed a notice of opposition.
On 17
November 2009 the Labour Court in Port Elizabeth issued a directive
to the respondent advising it of the availability of
the record and
2 disks for transcription. The applicant’s attorneys addressed
a letter to the respondent requesting the
record. On 9 December 2009
the applicant was served with the transcript of the proceedings
which included only a portion of the
evidence. Despite the defects
the respondent filed a Notice that they stand by its Notice of
Motion. The applicant’s attorney
realised that the evidence of
two witnesses did not form part of the transcript. The respondent
was advised of the defects and
was requested by the applicant to
provide the “full record”. The CCMA had also advised the
respondent that there
were in fact additional recordings that were
found in the archives. The disks however did not contain the
evidence of two of
the witnesses. In May 2010 the applicant’s
attorneys suggested to the respondent that should the missing
evidence not be
found, the parties should reconstruct the evidence
of the two witnesses. Correspondence followed thereafter to arrange
for a
meeting to reconstruct the record. No reply was received from
the respondent. A further directive was issued by the Labour Court
directing the respondent to file the record. No reply was received
from the respondent. No further steps were taken by the respondent.
On 3 June 2011 Van Niekerk J issued a directive which informed the
parties that the matter can only be remitted back to the CCMA
with
the consent of the parties. No reply was received from the
respondent. In June 2011 the respondent was advised that the
applicant is considering a dismissal application. Still no reply was
received from the respondent.
It is clear from the papers that no steps were taken by the
respondent to prosecute the review application with diligence.
Moreover to make matters worse for the respondent is the fact that
its answering affidavit in the present application was served
only
on 25 July 2012 approximately 10 months after the application was
filed. There is no explanation whatsoever in the answering
affidavit
as to why the papers were filed out of time. Even if this Court was
inclined to entertain the answering affidavit,
the answering
affidavit does not take the matter any further.
It was submitted on behalf of the applicant that it is prejudiced by
the respondent’s failure to pursue the review application.
Furthermore, more than two years have passed since the issuing of
the award. The respondent has not taken proper steps to prosecute
the review.
I have considered the matter and I am satisfied that the respondent
has not taken sufficient steps to secure a complete record
and that
the respondent has not pursued the review diligently. It is further
of concern that the respondent has ignored Court
Directives and that
the respondent has not even explained why it only filed an answering
affidavit in this application approximately
8 months after the
application was launched. Clearly the respondent is not interested
in prosecuting the matter.
2
I am therefore of the view that in light of the substantial delays,
this is a matter where the review application should be dismissed.
In the event the following order is made:
The Rule 11 application is granted.
The review application is dismissed.
The Applicant, in the review application, is ordered to pay the
costs, including the costs occasioned by the postponement on
11April 2013.
The Applicants are jointly and severally ordered to pay the costs,
the one paying the other to be absolved
_______________________
AC BASSON J
Judge of the Labour Court
05 August 2013
.
1
Act
66 of 1995
2
Bezuidenhout v Johnston NO & Others
(2006)
27
ILJ
2337
(LC):
“
[34] In arguing before me that
the review application should be dismissed by reason of the
applicant's failure
diligently to pursue it, I was referred by Mr
Rhoodie
, Ms Mostert's
legal representative, to the case of
Pathescope
Union of SA Ltd v Mallinik
1927 AD 292
where
Stratford AJA had the following to say (at 305) about the doctrine
vigilantibus non dormientibus lex subveniunt:
'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 very nature of the doctrine necessitates its being stated in
general terms. I take the following apt extract from the judgment
in
Lindsay
E
Petroleum Company v Hurd
(L.R. 5 P.C. 239)
quoted in the court below:
''The doctrine of laches in courts of equity is not an
arbitrary or a technical doctrine. Where it would be practically
unjust
to give a remedy, either because the party has by his conduct
done that which might fairly be regarded as equivalent to a waiver
of it or where, by his conduct and
F
neglect
he has, though perhaps not waiving that remedy, yet put the other
party in a position in which it would not be reasonable
to place him
if the remedy were afterwards to be asserted, in either of these
cases lapse of time and delay are most material.
But, in every case
if an argument against relief, which otherwise would be just, is
founded upon mere delay, that
G
delay
of course not amounting to a bar by any statute of limitations, the
validity of that defence must be tried upon principles
substantially
equitable. Two circumstances always important in such cases are the
length of the delay and the nature of the acts
done during the
interval, which might affect either party and cause a balance of
justice or injustice in taking the one course
or the other, so far
as relates to the remedy.... From the nature of the inquiry, it must
always be a question of more or less
depending upon the degree of
diligence which might reasonably be required, and the degree of
change which has occurred, whether
the balance of justice or
injustice is in favour of granting the remedy or withholding it. The
determination of such a question
must largely depend
I
on the turn of mind of those who have to decide, and
therefore be subject to uncertainty, but that, I think, is inherent
in the
nature of the enquiry.'
Thus the court is left free in the circumstances of
each case to judge the equity of granting the relief in face of the
delay
in asking for it.... 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 doctrine
'vigilantibus
non dormientibus lex subveniunt
' is in
A
English law called 'laches'.)
[35] When an applicant party has been
dilatory in pursuit of his relief, and finds himself outside
prescribed
periods, it is trite law that a good explanation needs to
be provided for such delays as may have occurred
B
in order to warrant the granting of an indulgence to the
defaulting party.”