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[2014] ZALCCT 73
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Cedras and Another v Baywatch Terraces Body Corporate (C696/2013) [2014] ZALCCT 73 (31 July 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not
Reportable
C696/2013
In the matter between:
JOSEPH
CEDRAS
First
Applicant
GERT
PEDRO
Second
Applicant
BAYWATCH
TERRACES BODY
CORPORATE
Respondent
Date
heard:
16
April 2014
Delivered:
31
July 2014
Summary:
Condonation
application
JUDGMENT
Rabkin-Naicker J
[1] This
was an opposed application for condonation for the late filing of a
statement of case. An application
for joinder was also made which is
unopposed, and will be dealt with in this judgment if condonation is
granted. The applicants
were represented pro bono and it was evident
that much effort had been put into such representation, which the
court appreciates.
[2] The
statement of claim in question, which was founded on an alleged
automatically unfair dismissal, was filed
some six months out of
time, which is an excessive delay.
[3] The
applicants started employment with the respondent on 1 March 2012 and
1 July 2012 respectively. They were
maintenance assistants and their
duties consisted of gardening, general cleaning and general
maintenance. On 10 October 2012, they
were notified in writing of
possible retrenchments due to operational requirements. The reason
given for such retrenchments was
the decision by the body corporate
to outsource these functions to an external service provider.
[4] The
applicants had joined a union, the EAMWU SA. An official represented
them at a consultation meeting with
the body corporate on 23 October
2012. The applicants were required to make proposals regarding
alternatives to their retrenchment
before 30 October 2012. Various
communications took place between the union and the body corporate
and the applicants were formally
notified of their retrenchments on
the 1 November 2012.
[5] The
applicants attended at an unsuccessful conciliation meeting on the 22
November 2012 with a union representative.
According to their
averments, they believed the official would then take the matter
further. It was only sometime in January 2013
that they attended at
the union offices to find out more about the status of the matter. It
is emphasised in the founding papers
that this was still within the
90 day period. They were informed that the official, who had
represented them, had resigned towards
the end of 2012 and that union
was unable to assist. The union advised them to seek pro bono
assistance. They then attended at
the Cape Law Society offices on the
17th of January 2013.
[6] The
applicants filled in application forms and were told that the Law
Society would make an assessment as to
whether they could assist.
More than a month later, shortly after 26 February 2013, the Cape Law
Society sent them a letter informing
them that they required further
documentation. The letter reads in part as follows: “.. the
above matter, your pro bono application
dated 17 January 2013, as
well as the telephone conversation between yourself and writer hereof
on 14 February 2013, refers. Kindly
be advised that we are still
awaiting your municipal property value, your wife’s sworn
affidavit of unemployment, as well
as a copy of the award of the CCMA
as requested. Upon receipt of the requested information your
application will be further considered."
[7] The
application forms which were filled in by the applicants and dated 17
January 2013 when they visited the
Cape Law Society, clearly state as
follows: "Please note that your application will not be
processed unless the information
requested in this form has been
provided. It will be in your best interest to complete and submit the
form on time and have the
relevant documents in your possession when
you have been contacted for consultation…" It is clear
from the annexures
to the founding affidavit that the applicants
delayed in getting the necessary information between 17 January 2013
and 1 March
2013. It is of concern that the founding affidavit does
not take the court into their confidence in this respect.
[8] After
providing the documents, the applicants aver that they heard nothing
until they telephoned the
Cape Law Society on 1 August 2013 and were
informed that they should attend the SASLAW pro bono office at the
Labour Court which
operates on a Friday morning. The five month
period in which they made no follow up with the Law Society is
explained in the founding
affidavit as follows: “We heard
nothing from the Cape Law Society for quite some time but verily
believed that the delays
were not out of the ordinary”.
[9] Various
reasons are then given for the delay until 23 August 2012 in
attending the SASLAW clinic, including
a public holiday on August 9
and a funeral that first applicant had to attend on 16 August.
[10] It
is evident from the above that there are lengthy periods within the
six months in question for which there
are no adequate reasons
provided for the inaction of the applicants. Particularly problematic
is the lack of a reasonable explanation
for the period from the end
of February until 1 August 2013 during which the applicants made no
attempt to follow up on their application
with the Cape Law Society.
[11] It
is trite that in an application for condonation, without a reasonable
and acceptable explanation for the
delay, the prospects of success
are immaterial, and the court may refuse condonation on that
basis.
[1]
The delay in bringing
this matter to court was excessive and the explanation for it is
simply not acceptable- as referred to above,
the applicants sat on
their hands for the most part of the six months in question. Given
the pro-bono representation of the applicants,
I do not make a costs
order in the circumstances of this case. I therefore make the
following order:
1.
The
application for condonation is dismissed.
H.
Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances:
Applicants: Adv.
Craig Bosch instructed by Bowman Gilfillan
Respondent: Adv.
Grobler instructed by Jacques Maree Attorney
[1]
See inter alia NUM @ Others v Western Holdings Gold Mine (1194) 15
ILJ 610 (LAC) at 613E