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[2013] ZALCPE 13
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Roberts v Workmens Compensation Commissioner and Another (P 412/08) [2013] ZALCPE 13 (6 June 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not reportable
case No: p 412/08
In the matter between:
RONALD GODFREY ROBERTS
Applicant
and
WORKMENS COMPENSATION COMMISSIONER
DEPARTMENT OF LABOUR
First Respondent
SOUTH AFRICAN RAILWAYS (TRANSNET)
Second Respondent
Heard
:
22 May 2013
Delivered
:
6 JUNE
2013
Summary: An application for condonation for the late filing of a
rescission application will be denied when the applicant lacks
prospects of success in the main application.
JUDGMENT
LALLIE, J
In this application the applicant seeks an order rescinding a
judgement handed down on 15 August 2011. The application is opposed
by the first respondent. The applicant also seeks condonation of the
late filing of the rescission application. As the answering
affidavit was filed late, the first respondent has applied for
condonation of the lateness. Both condonation applications are
opposed.
Factual Background
This matter has a long history which starts on 14 July 1967 when the
applicant sustained a back injury on duty. The claim which
the
applicant lodged with the first respondent pursuant to his injury
was repudiated on the grounds that the latter was not satisfied
that
the injury arose out of the scope of the applicant’s
employment. Agrieved by the decision the applicant filed an
objection leading to a hearing being held in January 1969. The
objection was upheld and his degree of permanent disability was
determined at 5%. The applicant was not satisfied with the finding
and lodged a further objection which was dismissed. He pursued
his
dispute with the first respondent. In 1988 he filed a review
application at the High court. His application was dismissed.
He did
not lodge an appeal against the High Court decision.
In 2001 the applicant sought advice from the Judge President of the
Eastern Cape Local Division who informed him that he had
exhausted
all his remedies and that the matter could not be taken any further.
He advised the applicant that he could launch
a review application
with the Workmen’s Compensation Commissioner in terms of the
section 24 (1) (f) of the Workmen’s
Compensation Act 30 of
1941. That advice notwithstanding, the applicant approached this
court in 2008. Both Cele and Pillay JJ
advised him via directives
that this court lacks jurisdiction to adjucate his case. In 2010 he
lodged an appeal at this court.
The matter was opposed by the first
respondent. There was no appearance by or for the applicant when the
matter was set down
for hearing on 15 August 2011 and his appeal was
dismissed. It is the dismissal order the applicant seeks this court
to rescind.
Application for the late filing of the answering affidavit
I considered it convenient to deal with the first respondent’s
condonation application first. The first respondent’s
answering affidavit was filed 22 days late. The reasons proffered by
the first respondent for the delay are that while the attorney
delivered the brief to counsel timeously it got mislaid. Part of the
delay was attributed to work pressure and consequences of
the fact
that the counsel she had briefed was a victim of crime.
Notwithstanding, opposition by the applicant and the reason
thereof
I am satisfied that the delay is not excessive. Its explanation is
reasonable and the first respondent has good prospects
of success as
the dismissal order which is the subject of the rescission
application is based on this court’s lack of jurisdiction
over
the dismissed dispute. The first respondent will suffer prejudice
should its application be refused as it will be denied
the
opportunity of opposing the rescission application, for these reason
I am satisfied the first respondent has shown good cause
for the
grant of its condonation application as it has satisfied the
requirements in
Melane v Santam Insurance Co Ltd
1
.
In the premises the condonation application is granted.
Application for the codonation of the late filing of the
rescission application
The applicant’s application falls within the purvue of Rule 16
A. He was therefore required to file it within 15 days after
acquiring knowledge of the judgment. The condonation application is
opposed by the first respondent. The applicant submitted
that the
attorney whose service he had enlisted failed to attend court on 15
August 2011. He was aware of the date on which his
case was set
down. This allegation turned out not to be true. Although he did not
disclose the date on which he became aware
of the judgement he seeks
this court to rescind the probabilities are that he got to know of
the judgement shortly after it was
handed down. His attorney should
have told him, alternatively, he should have taken an interest in
his case and enquired from
the Labour Court what the outcome of his
case was. The rescission application was filed on 27 February 2012
more than 5 month
after the judgement had been handed down. The
delay is substantial. The applicant attributed the delay to the
negative approach
by all the legal personnel he approached to
enquire about the relevant information for the application.
Three Judges of this court and then Judge President of the Eastern
Cape Local Division informed him that this court has no jurisdiction
to adjucate his case. He was even directed to the correct forum he
could take his dispute to but he unreasonably insisted on
coming to
this court. Granting a litigation with no prospects of success in
the main dispute defies logic.
Amongst the consequences of granting the condonation application is
denying the first respondent closure on this dispute. Such
denial is
unfair, the first respondent needs closure on the matter which it
continues to defend at considerable cost to the tax
payer. The
applicant has no prospects of success in the rescission application
as he has neither a valid reason for his default
nor a
prima
facie
defence. When his condonation application is considered in
its totality the only logical conclusion that can be reached is that
he was not shown good cause for the grant of his condonation
application. Even the interests of justice are not in his favour.
In
the circumstances his application cannot succeed. The condonation
application therefore stands to be dismissed.
Costs
Section 162 of LRA requires that the law and fairness be taken into
account when the issue of costs is determined. Although the
first
respondent sought costs on the attorney and client scale I have
considered that the applicant is a lay litigant who was
assisted
briefly by an attorney. He found new evidence after his case was
dismissed at the first respondent and believes that
he has a right
to present such evidence at this court. In his quest for justice, he
seeks to exercise his constitutional rights
in and through this
court. In the circumstances, I am not convinced that justice
requires that a costs order be granted against
him.
[9] In the circumstances the following order is made:
9.1. The application for the condonation of the late filing of the
first respondent’s answering affidavit is granted.
9.2. The application for the late filling of the rescission
application is dismissed.
9.3. The rescission application is dismissed.
9.4. No order is made as to costs.
_______________________
Lallie, J
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Ronald Godfrey Robert in person
For the first Respondent: Advocate Rawjee.
Instructed by State Attorney
1
[1962]
4 ALL SA 442
(AD)