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[2014] ZALCPE 3
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Weweje v Post Office Pension Fund (P21/2009) [2014] ZALCPE 3 (9 May 2014)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT PORT ELIZABETH
NOT
REPOTABLE
CASE
NO: P21/2009
In
the matter between
SHANE
STEVEN
WEWEJE Applicant
And
POST
OFFICE PENSION
FUND Respondent
Heard:
22 May 2013
Delivered:
9 May 2014
Summary: An
application for a postponement may be granted when an appropriate
Court order may compensate the respondent’s
prejudice caused by
such postponement.
JUDGMENT
Lallie
J
[1]
The applicant launched an application on 16 February 2009 for an
order that the respondent consider his entitlement to disability
benefits in terms of the Post Office Pension Fund, alternatively, an
order directing the respondent to refer the dispute regarding
the
applicant’s entitlement to disability benefits in terms of
Section 9.8 of the Statutes of the Post Office Pension Fund,
dated 27
September 1999. The respondent opposed the application.
[2]
On 5 December 2012 the respondent filed an application in terms of
Rule 11 for the dismissal of the applicant’s application
owing
to his failure to prosecute it within a reasonable time. The
dismissal application was set down for 22 May 2013.
A day
before the application was heard, the applicant filed an application
for the postponement of the dismissal application.
The reason
proffered by the applicant was that he was advised of the dismissal
application by his erstwhile attorneys on 15 May
2013. The
attorney also advised him to seek an alternative representative as he
could no longer assist him. The applicant’s
present
attorney received his file on 18 May 2013 and her request to have
this matter postponed by consent was unsuccessful.
The
application is opposed by the respondent.
[3]
In
National
Police Service Union v Minister of Safety & Security
[1]
it was held that an applicant must furnish a full and satisfactory
explanation of the circumstances that gave rise to the application.
An application for a postponement must be
bona
fide
and not used as a delaying tactic. In deciding a postponement
application regard must be had to prejudice it may cause and
whether
such prejudice may be compensated by an appropriate costs order.
[2]
[4]
The respondent’s main grounds for opposing this application are
that this court lacks the necessary jurisdiction to determine
the
matter as the applicant seeks money not from his employer but from a
pension fund. He has no prospects of success.
This matter
was postponed in 2009 for him to refer it to another forum. The
respondent denied that the applicant became aware
only on 15 May 2013
of the dismissal application as, on his own version, he contacted his
erstwhile attorneys at least once a month.
He should therefore
have been aware of the dismissal application when it was filed in
December 2012.
[5]
I am not convinced that the applicant seeks the postponement as a
delaying tactic. The telephone message from his erstwhile
attorneys supports his version that he was advised of the dismissal
application on 15 May 2013. His monthly communication
with his
erstwhile attorney did not necessarily translate to being kept
abreast of the developments in his matter. The applicant
is a
layman. He reasonably believed that his case was in good
hands. In the event of his application being refused,
he will
suffer the prejudice of losing his right to be heard. He has
given satisfactory reasons for the circumstances which
led to this
application. This court does not take the decision to close its
doors to litigants lightly.
[6]
The respondent will suffer prejudice should the application be
granted in that bringing this matter to finality will be delayed.
However, it is the applicant who stands to be more prejudiced should
this application be refused as he will be denied of the opportunity
to oppose the application to dismiss his application. A
decision in the respondent’s favour in the dismissal
application
is dispositive of the applicant’s main
application. An appropriate costs order will compensate the
prejudice the respondent
stands to suffer as a result of the
postponement. The respondent should however not be out of
pocket as a result of the indulgence
of a postponement being granted
to the applicant.
[7]
In the premises, the following order is made:
7.1
the application for postponement is
granted;
7.2
the applicant is directed to deliver his
answering affidavit in the dismissal application within 14 days;
7.3
the applicant pay the respondent’s
costs.
Lallie
J
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicant:
Mr. van der Walt For JA Gordon & Associate
For the
Respondents:
Advocate Euijen
Instructed by: Goldberg &
de Villiers Inc.
[1]
2000 (4) SA 1110
(CC) at 1112 C - F
[2]
In this regard see: Shilubana and Others v Nwamitwa (National
Movement of Rural Women and Commission for Gender Equality
as
amici
curiae
)
[2007] ZACC 14
;
2007 (5) SA 620
(CC) at 624F.