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[2014] ZALCJHB 21
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Maiphwanya v Commission for Conciliation, Mediation And Arbitration and Others (JR 2297/07) [2014] ZALCJHB 21 (23 January 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA ,JOHANNESBURG
JUDGMENT
Case
no. JR 2297/07
DATE:
23 JANUARY 2014
REPORTABLE
In
the matter between:
SEANI
REBECCA MAIPHWANYA
…..............................................................
Applicant
And
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
...................................................
First
Respondent
COMMISSIONER
SAMUEL KHAKHATI N.O.
.......................
Second
Respondent
THE
SOUTH AFRICAN POST OFFICE
...................................
Fourth
Respondent
Heard:
7 January 2014
JUDGMENT
WILKEN,
AJ
Introduction
[1]
This is an application to review the arbitration award handed down by
the Second Respondent (“the Commissioner”)
dated 4 July
2007 in Case LP 3382/05 finding that the dismissal of the Applicant
was substantively unfair and ordering the Third
Respondent to
compensate the Applicant by paying her an amount of R60 469.70, which
equates to 10 months salary. The Applicant
seeks to set aside on
review the Commissioner’s award in respect of sanction and
costs. The Employee seeks to be reinstated,
alternatively to be
re-employed, and the Employer pay her costs incurred at the
arbitration proceedings.
[2]
The review is opposed by the Third Respondent. The Third Respondent
launched applications in terms of Rule 11 on 27 October
2008 and 30
April 2012 seeking the dismissal of the Applicant’s review and
an order making the arbitration award handed down
by the Commissioner
an Order of Court.
Background
[3]
The chronology of the events as they unfolded from the dismissal of
the Applicant, the review and Third Respondent’s Rule
11
applications are particularly relevant in relation to the
determination of the Rule 11 and review applications.
[4]
The Third Respondent terminated the Applicant’s employment
after a disciplinary enquiry on 14 July 2005. The Applicant’s
employment was terminated after having been found guilty of
dishonesty and fraud. The charges emanated from a banking shortage
in
the sum of R170.43 which occurred on 10 December 2004.
[5]
The Applicant was aggrieved by her dismissal and referred a dispute
to the CCMA. The arbitration as held over 5 days spanning
over a
period of 18 months, the first sitting being 7 December 2005 and the
last sitting being 6 June 2007. The award dated 4
July 2007 was
issued on or about 5 July 2007. The award was accordingly issued
approximately 2 years after Applicant’s dismissal.
[6]
The 6 week period within which the Applicant had to launch her review
lapsed on 16 August 2007. The Applicant launched her review
approximately 1 month later, viz. on 18 September 2007. No
application for condonation was brought at the time of launching the
review, but the Third Respondent has not challenged the Applicant in
this regard. At the hearing of the matter the Applicant’s
attorney, attempted to seek condonation from the Bar. No explanation
other than his lack of proficiency in labour law (resulting
in him
relying on Counsel drafting the necessary founding affidavit) was
advanced for the delay in launching the application late.
[7]
The First Respondent filed a notice informing the parties that it had
delivered the mechanical recording of the arbitration
proceedings and
documents called at the arbitration proceedings as required in terms
of Rule 7A(3) with the Court on 21 September
2007. On or about 19
October 2007 the Employee’s Attorney transmitted a letter to
Third Respondent’s attorneys informing
the Third Respondent
that it stands by its affidavit.
[8]
On or about 29 October 2007, the Third Respondent advised the
Applicant that it was not able to deal with the review in the
absence
of having received the transcript and in the absence of compliance by
the Applicant with Rule 7A(6) and 7A(8).
[9]
What then follows is a series of letters between the parties
regarding the transcription of the arbitration proceedings
culminating
in the Third Respondent launching its first application
to dismiss in terms of Rule 11 on 27 October 2008, approximately 1
year
after the CCMA had complied with Rule 7A(3).
[10]
The Applicant contends it made a copy of the transcript available to
the Third Respondent. No proof of service of the record
as is
required by Rule 7A(6) is contained in the Court file. Whilst a
transcript was filed in Court, none of the documents referred
to in
the transcript of the arbitration proceedings forms part of the
record filed in Court. The record is accordingly incomplete,
to the
extent that a record was filed.
[11]
The Third Respondent filed its answering affidavit on 3 April 2009.
It seems from a letter by Third Respondent’s attorney
that
there was an understanding between the parties that the Rule 11
launched by it on 18 September 2007 would not be proceeded
with by
Third Respondent.
[12]
On 23 June 2009, the Applicant applied to the Registrar of the Labour
Court to enrol the matter for trial. It is not evident
what, if any,
steps were taken by the Applicant to ensure the matter would be ready
for hearing, such as paginating and indexing
the Court file (as was
the practice then
1
)
or ensuring that the full record of the proceedings were before the
Court prior to 9 March 2010.
[13]
As from 9 March 2010 a number of letters were exchanged between the
Applicant’s Attorneys and Third Respondent’s
Attorneys
concerning the Applicant’s failure to ensure that the matter is
further prosecuted, ie. enrolled for hearing. It
transpires that the
Third Respondent’s Attorneys discovered that the papers had
been removed from the court file. The Applicant’s
Attorneys
adopted a cavalier approach to ensuring that the papers were returned
to the Court file. A duplicate file was prepared
to re-instate the
court file.
[14]
The Third Respondent’s Attorneys then launched a further Rule
11 application on or about 30 April 2012, some 3 years
since having
filed its answering affidavit and almost 3 years since the Applicant
had sought enrolment of the matter, if the Applicant
had not taken
any further steps to prosecute the review. The further Rule 11
application is brought on the basis of it supplementing
the initial
application and repeats the allegations contained in the initial Rule
11 application. Once again the Third Respondent’s
attorneys
sought an order to have the review dismissed and the arbitration
award be made an order of Court.
[15]
The Applicant’s Attorneys filed an affidavit opposing the
relief but the Affidavit is once again filed late without any
condonation application. In the Replying Affidavit the Third
Respondent’s Attorneys take issue with the Applicant having
opposed the Rule 11 application outside the time periods permitted
without filing an application for condonation .
[16]
The Registrar of the Labour Court issued a directive to the parties
on 12 November 2013 to file heads and on 27 November 2013
the
Employee indexed and paginated the court file, but still failed to
ensure that the full record is before court.
[17]
Most notably in the answering affidavit to the Second Respondent,
Rule 11 application the Applicant herself deposes to an affidavit
contending that she was dismissed having allegedly not accounted for
an amount for R1 012.80 and that the Second Respondent issued
a
compensatory award of 6 months compensation. In reply, the Third
Respondent’s Attorneys correctly take issue with the Applicant
on the correctness of these two averments. On the other hand, the
Third Respondent similarly got the relief granted wrong in its
Heads
of Argument.
[18]
What is evident is that there has been a considerable delay in the
proceedings from the onset and that this delay has resulted
in the
parties not recalling the facts surrounding the matter particularly
well.
[19]
It is not clear from the papers before the Court whether any party is
to blame for the delay in finalising the arbitration
proceedings, but
it is evident from the facts set out above that from at least 21
September 2007 the Applicant and/or her attorney
did very little to
ensure that the dispute was properly prosecuted. When the Rule 11
application was launched in 2008 there was
a flurry of activity, but
sadly by the time the matter was enrolled for hearing there remained
major obstacles in the matter being
heard :
19.1
the review was launched outside the time period prescribed by Section
145 of the LRA;
19.2
there was no application for condonation for the late referral;
19.3
the full record, if any, was served upon the Third Respondent. The
full record was never placed before the Court;
19.4
there was no Rule 7A(8) notice; and
19.5
the opposition to the condonation was filed late without a
condonation application.
[20]
Whilst the Applicant cannot direct the registrar to enrol the review,
the Applicant could at least have ensured that steps
were taken to
satisfy the registrar that the matter was ripe for enrolment and have
followed up with the registrar as to the enrolment
of the matter. In
the absence of any evidence of such steps having been taken the
escapable conclusion to be draw from the Applicant’s
conduct is
that the Applicant took no steps at all to progress the enrolment of
the matter.
[21]
On the face of it, the only attempts to bring the Court file in
readiness for hearing was after a directive was issued by the
Registrar calling upon the parties to file Heads on 12 November 2013,
approximately another 18 months after the second Rule 11
application
was launched.
The
Law
[22]
The proper basis for approaching an application to dismiss for want
of timeous prosecution of a dispute arises from an unjustifiable
delay by the party seeking to prosecute his dispute to finality. The
approach to be adopted is an application of the maximum “vigilantibus
non dormientibus aequitas subvenit”. This approach has long
been recognised by our courts and is captured by the Appellate
Division in the following terms:
‘
Thus,
the Court is left free in 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 option, it would be
inequitable to do so
after lapse of time constituting the delay. And informing an opinion
as to the justice of granting the relief
in the face of the delay,
the Court can rest its refusal upon potential prejudice, and that
prejudice need not be to the determinative
action, but to third
parties’.
2
[23]
The Constitutional Court has sanctioned this approach in the
following terms:
‘
Rules
that limit the time during which litigation may be launched are
common in our legal system as well as many others. Inordinate
delays
in litigating damage in the interest of justice. They protract the
disputes over the rights and obligations sought to be
enforced,
prolonging the uncertainty of all concerned about their affairs..’.
3
[24]
In exercising its discretion to grant an applicant to dismiss due to
undue delay, the Court is called upon to consider, inter
alia, the
extent of the delay, the explanation proffered, the prejudice to the
other party as well as third parties.
4
The test accordingly is similar to that which would ordinarily be
applied in condonation matters.
Analysis
[25]
Given that the Applicant’s dismissal occurred almost 8 ½
years ago, and that the review was launched more than
6 years ago,
the delay in ensuring that this matter comes before Court is
significant, even taking into account the normal delays
that would
occur in matters of this nature. Given that the delays since the
review was launched is largely to be ascribed to the
tardiness of the
Applicant (or her attorney, whose tardiness must necessarily be
ascribed to her)
5
,
the delay in prosecuting the review and the non-compliance with the
Rules of this Court. One would have expected the Applicant
to be more
diligent in prosecuting the review especially since the Third
Respondent had previously launched a Rule 11 application
on account
of the Applicant’s tardiness in prosecuting this review.
Regrettably, the explanation tendered by the Applicant
for her
tardiness in the prosecution of the matter does not demonstrate any
urgency of action, but at best an abdication of responsibility
to a
correspondent whom Applicant wants the Court to believe was equally
lax in dealing with her matter. Even when Applicant’s
attorney
was made aware of the state of the court file the steps taken by the
Applicant to address the apparent laxity of its correspondent’s
problematic situation possibly constituting unprofessional conduct
was lack lustre.
[26]
Given the Employee party’s significant non-compliance with the
Rules of Court, and the significant delays that occurred
which could
have been prevented or at least been severely curbed had the
Applicant’s Attorney taken the appropriate steps
has resulted
in the delay presenting the Third Respondent suffering significant
prejudice if the Applicant was re-instated. Given
it is ultimately
the taxpayers who would be prejudice, should the relief sought by the
Applicant be granted. The Commissioner’s
finding that the
Employee ought have resulted in the re-instatement. Given that it is
not in the interests of justice to overlook
the significant
non-compliance with the LRA (in relation to prosecuting the review
timeously) and delays in prosecuting the review.
The fact that no
record was served upon the Third Respondent, and that material parts
of the record does not even form part of
the record filed in Court,
the review stands to be dismissed on those grounds alone.
6
Similarly, the lack of any plausible explanation for the delaying
seeking condonation is enough reason to dismiss the review.
7
In the circumstances the Rule 11 application thus succeeds.
[27]
When considering the issue of costs, I am disinclined to issue an
order. The costs would follow the result given the facts
advanced
from the Bar by the Applicant’s attorney that the Applicant has
remained unemployed and given that her prospects
of success in the
review application were not without merit. This matter ought to have
been dealt with by this Court as a review,
but for the dilatoriness
of the Applicant’s attorney. No order for costs on a de boni
propriis basis was sought and I shall
therefore not consider such
costs order, in prosecuting the review. In the circumstances I issue
the following order:
27.1
the application for review is dismissed;
27.2
the arbitration award issued by the Second Respondent dated 4 July
2007 under Case LP 3382/05 is made an order of Court; and
27.3
there is no order as to costs.
[28]
In considering whether the Rule 11 application should be granted or
dismissed, it also requires the court to consider the nature
of the
non-compliance by the errant party with the rules of the court in
prosecuting its case on the one hand, and such explanation
tendered
by the
Applicant
why she has not been able to comply with the rules of the court.
Wilken,
AJ
Acting
Judge of the Labour Court of South Africa
23
January 2014
1
This
practice no longer applies given the Practice Manual of 2013
2
Pathescope
(Union) of SA Limited v Mallinick
1927
AD 292.
3
Mohlomi
v Minister of Defence
[1996] ZACC 20
;
1997
(1) SA 124
CC at para 11
4
Cassimjee
v Minister of Finance
2012
[ZASCA 101] (1 June 2012) at paragraphs 11 – 12.
5
Saloojee
and Another v Minister of Community Development
1965(2)
SA 135(A) 135(A) at 140H – 141D,
Buthelezi
and Others v Eclipse Foundaries
Ltd (1997) 18 ILJ 633 (A) at 638I – 639A .
6
Solidarity
on behalf of Botha v CCMA and Others
(2009)
30 ILJ 1363 (LC) at para 14.
7
Chetty
v Law Society Transvaal
1985
(2) SA 756
A at 765A – C and
NUM
and Others v Western Holdings Gold Mine
(1994) 15 ILJ 610 (LAC) at 613 E.