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[2013] ZALCD 10
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Chemical Energy Paper Plastic Wood and Allied Workers Union and Others v Commission for Conciliation Mediation and Arbitration and Others (D396/04) [2013] ZALCD 10 (7 May 2013)
Reportable
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
Case no: d396/04
In the matter between:
CHEMICAL ENERGY PAPER PLASTIC
WOOD AND ALLIED WORKERS UNION
.......................................................
First
Applicant
NTSHANGASE AND 11 OTHERS
...........................................
Second
to twelfth Applicants
and
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION
..............................................................
First
Respondent
A DEYZEL N.O.
......................................................................................
Second
Respondent
MONDI LIMITED t/a MONDI KRAFT
.........................................................
Third
Respondent
Heard
:
10 August 2012
Delivered: 07 May 2013
Summary: Application for review and condonation for late filing of
review. Applicants filing condonation application seven years
later.
Condonation refused.
JUDGMENT
GUSH J
This matter involved three separate applications by the applicants.
The first application was for the condonation for the late
filing of
the applicants’ heads of argument; the second, an application
for condonation for the late filing of the applicants’
application to review the award of the second respondent; and the
third the review application itself.
There was no opposition to the application for condonation for the
late filing of applicants’ heads of argument and accordingly
this application was granted.
Before dealing with the application for condonation for the late
filing of the applicants’ application to review the award
of
the second respondent and the applicants’ review application,
it is necessary to set out briefly the chronology of the
matter.
The applicants were all employees of the third respondent and during
2001 were engaged in a protected strike at the third respondent's
premises. During the course of the industrial action, 15 employees
of the third respondent including the second to the 11
th
applicants were allegedly involved in acts of misconduct which led
to them facing disciplinary charges during October 2001.
A disciplinary enquiry took place during October 2001 which resulted
in the dismissal of the 15 employees by the third respondent.
The
dismissed employees referred a dispute concerning their dismissal to
the first respondent on 24 December 2001, which dispute
was
conciliated on 28 January 2002 and a certificate of non-resolution
issued. The employees requested that the matter be referred
to
arbitration and the pre-arbitration procedures were finalised by 27
May 2002.
The arbitration commenced on 29 July 2002 and continued on 31 July
2002, 24 January 2003, 30 June 2003, 1 July 2003 to 3 July
2003 and
22 September 2003. During the course of the hearing, an application
to lead evidence in camera was heard and granted.
The parties
presented argument on 24 November 2003.
The second respondent delivered his award on 6 January 2004. In his
award, the second respondent reinstated four of the 15 dismissed
employees and dismissed the application of the second to twelfth
applicants in this matter.
The applicants are unable to state on what day they received the
award. The third respondent however avers that the applicants
must
have had knowledge of the award at the latest on 23 January 2004.
The applicants have accepted this date as the date upon
which they
became aware of the award.
It follows therefore that the review application should have been
filed within six weeks of the date they became aware of the
award
namely 9 March 2004.
The applicants filed their application to review the award of the
second respondent on 30 June 2004, some three and a half months
late. The application was filed without an application for
condonation for the late filing of the review.
The third respondent filed its notice of opposition to the
application to review the second respondent’s award on 14 July
2004.
It is apparent from the pleadings in these applications (and in an
application brought by the third respondent to dismiss the
applicants’ review on the grounds that the applicants had
failed to prosecute the review application with reasonable
expedition) that the applicants experienced some difficulty in
compiling the record or transcript of the arbitration hearing as
is
required by the rules of this Court. (A chronology of the efforts to
reconstruct the record is chronicled in the third respondents
dismissal application and in a schedule attached to the third
respondent’s heads of argument.)
It appears from the pleadings that during September 2004, the
applicants’ then attorney first advised the third respondent’s
attorneys of the difficulty he was experiencing regarding the
record. It is disturbing in the extreme that what followed was
that
the efforts to reconstruct the record persisted for the next six
years which lead the third respondent to launch its application
to
dismiss the applicants’ review application on the grounds that
the applicants were not diligently pursuing the review.
This application unfortunately did not have the effect of expediting
the filing of the record. When the application to dismiss
the review
application was heard some twelve months later the record still had
not been filed. The application to dismiss the
applicants review was
enrolled and heard by this Court on 15 November 2010. The honourable
Judge Cele in an
ex tempore
judgment dismissed the dismissal
application with no order as to costs and directed the parties to
file the transcript of the
arbitration proceedings within 40 days.
The import of this was that the record was to be filed by the end of
December 2010. It
is clear from the judgment that the 40 days period
was agreed to by the applicants’ counsel.
It is clear that the applicants did not comply with this order, and
it appears from the pleadings in the review application that
the
applicants only filed their supplementary affidavit (seemingly in
accordance with Rule 7A (8) (a)) on 4 April 2011, almost
seven years
after the review application was filed. Rule 7A (8) requires an
applicant to file its supplementary affidavit within
10 days of the
record be made available by the registrar. The third respondent
filed its answering affidavit timeously, on 14
April 2011.
It is apparent from the judgment of Cele J that the failure of the
applicants to apply for condonation for the late filing of
the
review application was raised in the application and referred to
during in the course of argument in the dismissal application,
Despite this, it must be emphasised that the applicants’
condonation application was only filed without explanation almost
five months after judgment was given in the dismissal application,
on 4 April 2011. I shall return to this issue below.
The pleadings having closed the applicants’ applications were
enrolled to be heard on 12 April 2012 but were adjourned
on that day
to 10 August 2012. . What is disturbing is the fact that the
applicants, despite having spent seven years reconstructing
the
record in order to prosecute their review application, have made no
reference whatsoever in their pleadings to any identifiable
portion
of the eight voluminous volumes of exhibits and transcripts which
comprise the record they eventually filed. The rules
of this Court
applicable to review applications specifically enjoin the applicant
to furnish copies of “... such portions
of the record as may
be necessary for the purposes of the review...”
1
Three firms of attorneys have been involved in this matter. The
first attorneys, who were responsible for the late filing of
the
application, were Sihlali Molefe Inc [SMI], who was on record from
the date that the applicants received the award until
approximately
mid 2006 when CTH Attorneys [CTH] were instructed. They in turn were
replaced by SRA attorneys in April 2007. SRA
remained on record
until shortly before these applications were heard when CTH were
again instructed as attorneys of record.
[19] The applicants in their application for condonation expressly
confined their explanation for the delay for the filing of the
application for condonation only to the period between 6 January 2004
when the award was received by the applicants and 30 June
2004 when
the review application was filed. The applicants expressly and
intentionally did not attempt to explain the delay in
launching the
application for condonation, for the period June 2004 to 15 November
2010 for the reasons set out below. The applicants
also offerred no
explanation whatsoever for the delay in bringing the application for
condonation between the filing of the application
to dismiss and the
judgment in that application or the period from 15 November 2010, on
which date he dismissal application was
disposed of and the date on
which the applicants finally deigned to apply for condonation, viz. 4
April 2011.
[20] I shall deal with each period separately:
(a) 6 January 2004 to 30 June 2004.
The essence of the applicants’ “explanation” for
the late filing of the review application is that the
applicants
are unable to explain the reasons for the late filing of the
review application. The deponent to the founding
affidavit states:
“apart from the applicants themselves no other persons that
were involved in the matter during [this],
and for some time
thereafter, have been able to be contacted – those that
have, have not been able to assist in explaining
the delay”
2
.
It is clear from the founding affidavit that all the attorneys
that at various times represented the applicants were aware
of the
late filing of the review application and they needed to apply for
condonation. The deponent states when SRA received
the file from
CTH they discovered in the file a notice of motion (unsigned and
with accompanying affidavit) seeking condonation
for the late
filing of the review dated 14 June 2004.
One of the reasons the applicants offer for not being able to
ascertain the reason for the late filing of the review application
is that the first applicant's official who was dealing with the
matter at the time had been suspended by the first applicant
and
was subsequently dismissed in early 2009 and was not cooperative.
There is no explanation as to why no attempt was made
to contact
this official in 2007 when the instructions were first received.
The applicants further aver that they were unable to get any
information from SMI and that SMI are no longer in existence.
There is no indication as to when this firm ceased to exist.
The fact of the matter remains that the applicants have not
explained the reason for the delay at all. What is clear however
is that it is probable that the inability of the applicants to
explain the delay is due in no small measure to the substantial
delay in bringing the application for condonation.
(b) June 2004 to 15 November 2010.
(i) The applicants expressly argued that their application for
condonation was only in respect of the period 6 January 2004 and
30
June 2004 and it was not necessary to deal with the delay in
launching the application for condonation from June 2004 to 15
November 2010.
(ii) The reason the applicants argued that the delay between June
2004 and 2010 was irrelevant and required no explanation was
based on
an extract from the judgement of the honourable Cele J, in dismissing
the third respondent’s application to dismiss
the applicants’
review application.
3
(iii) In the course of his judgment Cele J said the following:
What compounds the problem for
the applicants is the fact that there is no condonation application
that has been brought for the
3 1/2 months delay. I have been
persuaded not to hold that against the applicants. Notwithstanding
more than enough authority that
an applicant for a condonation must
file an application as soon as it arises. But I am alive to the fact
that I am not here empowered
to consider the condonation application
because it is not before me.
4
(iv) The applicants argued on the strength of the above that the
court should conclude that the issue surrounding the delay in
launching the condonation application had been determined by Cele J
and therefore could not be taken into account.
(v) This interpretation by the applicants ignores the fact that the
application before Cele J was to dismiss the applicants’
review
application on the grounds that they had failed to diligently pursue
it. There is nothing to suggest that the application
to dismiss the
review was premised on the failure of the applicants to timeously
apply for condonation. It must be borne in mind
that at the time this
application was heard the applicants had not filed a condonation
application. As Cele J specifically states
in indicating that he
would not hold the fact that the applicants had not file a
condonation application in considering the dismissal
application that
he was “am alive to the fact that [he was] not ... empowered to
consider the condonation application because
it is not before [him]”.
(vi) It is trite that the failure of an applicant to timeously bring
an application for condonation is a factor to be considered
in
whether to grant condonation
(vii) What is particularly startling is that the applicants make no
attempt whatsoever to explain why, on receipt of the application
to
dismiss, they did absolutely nothing for approximately 12 months
regarding an application for condonation for the late filing
of the
review, that being the time it took for the dismissal application to
be concluded.
(c) 15 November 2010 to 4 April 2011.
(i) The applicants in their founding affidavit provided no
explanation whatsoever for this period. In fact the delay between 15
November 2010 and four April 2011, as with the period between the
filing of the application to dismiss the review and the hearing
of
the application is not even mentioned.
[21] The principles applicable to applications for condonation have
been enunciated repeatedly by our courts.
5
The first and fundamental requirement is for an applicant to apply
for condonation as soon as he realises that the application
is out of
time.
6
Even if the judgment of Cele J could be interpreted to mean that the
period between the filing of the review application and the
judgment
in the application had been dealt with in his judgment, the
applicants’ persistence in failing to apply immediately
for
condonation is inexcusable.
[22] It is also so the applicants’ have, seemingly
intentionally, failed to account for the delays. In the matter of
Uitenhage Transitional Local Council v South African Revenue
Service
7
the Supreme Court of Appeals held that “
condonation
is not to be had merely for the asking; a full, detailed and accurate
account of the causes of the delay and their effects
must be
furnished so as to enable the Court to understand clearly the reasons
and to assess the responsibility. It must be obvious
that, if the
non-compliance is time-related then the date, duration and extent of
any obstacle on which reliance is placed must
be spelled out.”
8
By no stretch of the imagination can it be said that the applicants
have satisfied these requirements.
[23] In FEDERATED EMPLOYERS FIRE & GENERAL INSURANCE CO LTD AND
ANOTHER v MCKENZIE
9
the Appellate Division set out the factors to be taken into account
when considering condonation viz: “...the degree of
non-compliance, the explanation therefor, the importance of the case,
the prospects of success, the respondent's interest in the
finality
of his judgment, the convenience of the Court and the avoidance of
unnecessary delay in the administration of justice”
10
.
It is difficult to conceive of a matter where the applicants’
and their representatives have, given the elapse of time between
filing the application and filing the record, shown so little
“interest in the finality” of the matter and “the
avoidance of unnecessary delay”.
[24] In considering the applicants’ prospects of success it is
necessary to consider the grounds of review upon which the
applicants
rely as set out in the founding and supplementary affidavits.
[25] The founding affidavit comprises of no more than a brief
statement of the background, a lengthy recordal of the evidence and
a
summary of the second respondent's findings before setting out the
applicants’ grounds of review. These are recorded as:
1. The arbitrator failed to
apply his mind on the evidence placed before him.
2. Alternatively arbitrator
misconducted himself and/or further alternatively committed a gross
irregularity in the conduct of arbitration
proceedings to apply the
principle of collective misconduct.
3. That he failed to properly
apply his mind to the evidence that was placed before him that
despite that the applicants went into
the factory they were not
charged for interim the factory but identifiable misconduct of
switching-off the machines.
4. That some of the witnesses
had gone home during the strike as they were sick and were never near
the factory. sic)
11
[26] The supplementary affidavit, deposed to by the applicants’
attorney, states specifically that the deponent has had sight
of the
reconstructed record and that the affidavit was prepared having
regard to that record. Conspicuous by its absence, particularly
given
the assurance that the affidavit was prepared having regard to the
record, is the absence of any reference whatsoever to
specific
passages in the award or the transcript or record in support of the
averments made in the affidavit. In summary, the deponent
does little
more than criticise the second respondent’s analysis and
acceptance of the evidence. What is startling is the
general nature
of the criticisms or “grounds of review” which comprise
the supplementary affidavit. This is particularly
so in light of the
fact that the award of the second respondent runs to some 52 pages.
In his award, the second respondent has
set out in detail the
evidence adduced by the parties. This is followed by an equally
detailed analysis of the evidence and argument,
before setting his
order.
[27] I am not satisfied that the applicants have in any way
whatsoever established in their pleadings any prospects of success
at
all. There is nothing contained in the founding and supplementary
affidavits that supports the averment that the second respondent’s
award is reviewable.
[28] In the circumstances and in particular in light of the
applicants failure to adequately explain the reason for the delay in
filing the review application timeously coupled with the absence of
an explanation as to why the condonation application was not
timeously brought, I am not persuaded that the applicants are
entitled to an order condoning the late filing of the review
application.
[29] Even if this was not sufficient to dismiss the applicants’
application for condonation coupled with the applicants’
failure to establish reasonable prospects of success in the review
application too justifies the refusal of the applicants’
application.
[30] It is so that the delays appear to have been occasioned by the
legal representatives of the applicants failing to diligently
and
expeditiously it is relevant that there is no reasonable explanation
offered by the applicants themselves setting out what
attempts they
took to expedite this matter. It cannot be ignored that the
applicants were dismissed 11 years ago and that their
trade union is
the first respondent. Despite the absence of any explanation from any
of the applicants save for the second applicant's
confirmatory
affidavit I am not, in the particular circumstances of this matter,
persuaded that the requirements of law and fairness
justify an order
as to costs.
[31] I accordingly make the following order:
(a) The applicants’ application for condonation is dismissed;
(b) There is no order as to costs.
_______________________
D H Gush
Judge
APPEARANCES
FOR THE APPLICANTS: Adv Seery
Instructed by Cheadle Thompson Haysom Attorneys.
FOR THE THIRD RESPONDENT: A J Chadwick; Shepstone and Wylie
Attorneys.
1
Rule
7A (5)
2
Founding
affidavit Condonation application para 7 page 6.
3
Ex
tempore
Judgment Cele J case number D396/04 dated 15 November
2010.
4
At
page 4 lines 15 to 21.
5
See
inter alia
MELANE v SANTAM INSURANCE CO
LTD
1962 (4)
SA 531
(A)
6
COMMISSIONER
FOR INLAND REVENUE v BURGER
1956 (4) SA 446
(A) at 449G
7
2004
(1) SA 292
(SCA)
8
para
6 page 297
9
1969
(3) SA 360
(A)
10
At
page 362 F-G
11
Pleadings
review application page 23 – 24 para 8.