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[2015] ZALCJHB 85
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Tawusa Obo Mnisi and Others v Bras Trucking CC (JS1121/09) [2015] ZALCJHB 85 (4 March 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JS1121/09
DATE: 04 MARCH 2015
Not Reportable
In the matter between:
TAWUSA obo J MNISI & 54
OTHERS
..................................................................................
Applicant
And
BRAS TRUCKING
CC
.........................................................................................................
Respondent
Heard: 06 May 2013
JUDGMENT
BENJAMIN, AJ
[1] This is an ex-tempore judgment in
the matter of Transport and Allied Workers Union of South Africa and
J Mnisi and 54 others
and Bras Trucking CC.
[2] The matter relates to a mass
dismissal of employees of the company in August 2009. The matter was
referred to the relevant bargaining
council and the bargaining
council issued a certificate of non-resolution in September 2009.
[3] Thereafter the matter was referred
as an unfair dismissal case to the Labour Court. While the referral
was dated 25 August 2010,
it was only served on the court and the
respondent in December 2010. The application was therefore clearly
out of time and the
applicant was required to apply for condonation
for the late filing of the application.
[4] The matter did not proceed quickly
and was only enrolled for trial in May 2013. The initial attorneys
representing the applicant
withdrew and new attorneys who currently
represent the applicants went on record from 26 November 2012. Mr
Memani was instructed
by these attorneys to appear in court for the
applicant. The respondent was represented by Mr Orton who was also
instructed shortly
before the matter.
[5] A pre-trial minute was concluded in
November 2012 and this clearly recorded that the applicant would be
required to apply for
condonation for the late referral to the Labour
Court. On the morning when the matter was enrolled for trial in the
Labour Court,
the applicant applied for a postponement to enable it
to apply for condonation for the late filing. No affidavit was
presented
by the applicant containing facts as to why the application
for postponement was being made or to explain the circumstances which
led to the late filing of the referral to the Labour Court.
[6] Mr Memani, for the applicant,
argued that even if his instructing attorneys had failed to do
everything that they should have
done, this should not be allowed to
prejudice the workers and, as a result, if I looked with disfavour on
the manner in which they
had dealt with the matter, I should deal
with that by an order for costs de bonis propriis or some other
sanction and not dismiss
the matter.
[7] In brief, the explanation provided
from the bar was that, shortly before the matter was enrolled, the
applicants’ attorneys
believed that it would be settled and
therefore did not prepare for trial. I was further advised that the
attorneys believed there
was a common understanding between the
parties that the matter would either be settled or postponed.
[8] Unfortunately as no affidavit was
filed, there is no evidence before me to justify such a ruling. The
rules and practise of
this court are well-known and when matters are
enrolled for trial parties are required to prepare for trial, even if
they believe
settlement to be imminent. If this were not the case,
the trial roll of this court would not be functional and matters
would be
postponed at will. Matters that are enrolled must proceed,
unless there are compelling circumstances for that not to happen.
[9] This matter has been going on for
four years. It is obviously in the interest of both parties that at
some point there be finality.
I am not inclined in the absence of any
evidence placed before me on affidavit to grant a postponement, no
matter what arguments
may be addressed to me from the bar and no
matter what indication of what occurred is brought to my attention
during argument.
[10] In the absence of a compelling set
of reasons put forward on affidavit it is not appropriate in a matter
such as this to grant
a postponement in order to allow for an
application for condonation. It is clear from the record that the
attorneys for the applicant
have been on record for approximately six
months which gave them adequate opportunity to make any necessary
application. The fact
that they anticipated settlement is not a
justification for such a failure.
[11] It is correct that the effect of a
ruling to refuse to grant a postponement is that the case is
effectively ended for these
workers. This is not in itself a
justification for allowing matters to continue where they have not
been properly proceeded with,
despite clear rules and directives as
to how matters should be dealt with.
[12] My ruling therefore is to refuse
to grant the application for postponement. Accordingly, the matter is
dismissed with costs.
Benjamin, AJ
Acting Judge of the Labour Court
Appearances:
For the applicant: Advocate F R
Memani
Instructed by: Medupi Lehong Inc
For the respondent: R.J.C. Orton