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[2015] ZALCJHB 70
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Bifawu and Another v Computershare Investor Services Ltd (J1345/04) [2015] ZALCJHB 70 (5 March 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: J1345/04
DATE: 05 MARCH
2015
Not Reportable
In the matter
between:
BIFAWU
............................................................................................................................
First
Applicant
MARIMUTHU
.............................................................................................................
Second
Applicant
And
COMPUTERSHARE
INVESTOR SERVICES
LTD
.........................................................
Respondent
Heard:
02 June 2014
Delivered:
05 March 2015
Summary:
Application to dismiss statement of case in terms of Rule 11 of the
Rules of the Court.
JUDGMENT
MOLAHLEHI, J
Introduction
[1]
It is now almost nine years since the
individual respondent in this interlocutory application instituted
the unfair dismissal claim
against the applicants. The applicant
seeks an order in terms of rule 11 of the Rules of the Labour Court,
dismissing the respondents’
claim on the grounds of
unreasonable delay. For ease of reference, I shall refer to the
individual respondent hereinafter as “the
employee.”
Background facts
[2]
The employee who was prior to his dismissal
a shop steward was on 28 May 2003, dismissed for misconduct relating
to allegations
of unauthorised communication with staff; inciting or
encouraging staff to refuse to work; and unauthorised use and abuse
of the
company’s email facility.
[3]
The employee being unhappy with his
dismissal referred a dispute concerning an alleged unfair dismissal
dispute to the CCMA on 26
June 2003, for conciliation. The dispute
was conciliated but remained unresolved. The attempt to have the
dispute arbitrated was
unsuccessful because the applicant objected to
the jurisdiction of the CCMA to entertain the matter and that
objection was upheld
in the ruling by the CCMA on14 May 2004.
[4]
It was following the ruling, that the CCMA
did not have jurisdiction, that employee on 13 August 2004,
instituted the main claim
of unfair dismissal in this Court. The
statement of claim was filed late and accordingly the employee
applied for condonation.
The condonation application was successful
and was granted on 15 August 2006.
[5]
On 17 July 2009, the Registrar of the
Labour Court issued a directive for the parties to hold a pre-trial
meeting and file a pre-trial
minute within 14 days of date thereof.
The pre-trial meeting was, however, held on 04 November 2009. The
parties did not, however,
sign the pre-trial minute and accordingly
on 28 January 2012, the applicants gave the employee notice of the
intention to apply
to the Labour Court to seek an order directing the
finalisation of the pre-trial minute. It would appear that nothing
came out
of that notice.
[6]
The employee on the other hand also on 02
March 2012 notified the applicant of the intention of having the
matter placed before
a Judge for the purposes of finalising the
pre-trial minute.
[7]
The matter was then set down for 11 June
2013 and, on that day, the Court ordered that a signed pre-trial
minute be filed by 14
June 2013. The pre-trial minute was filed on 18
June 2013. The applicant then instituted these proceedings some 24
days thereafter,
on 12 July 2013.
Principles
governing unreasonable delay
[8]
It
is now well known that inordinate or unreasonable delay in the
prosecution of a claim may justify its dismissal depending on
the
circumstances of each case.
[1]
The determination of the reasonableness or otherwise of the delay in
the prosecution of a claim is dependent on the facts and the
circumstances of a particular case. The enquiry into the
reasonableness or otherwise of the delay is not depended on the
discretion
of the Court as has been stated by the SCA in
Association
Institution Pension Funding and Others v Van Zyl and Others
.
[2]
In dealing with an application for the dismissal of a claim due to
unreasonable delay the Court exercise discretion to bar the
dilatory
party from proceeding further with his or her case once it has been
established that the delay is unreasonable.
[3]
[9]
The
case law and the basis for the unreasonable delay rule received
attention by this Court in
Sishuba
v National Commissioner of the South African Police Servic
e.
[4]
It was held in that case that from a policy perspective, there are
two principal reasons why the Court should have the power to
dismiss
a claim at the instance of an aggrieved party where the other has
been guilty of unreasonable delay. The reasons are set
out in
Radebe
v Government of the Republic of South Africa
[5]
,
in the following terms::
‘
The
first is that unreasonable delay may cause prejudice to the other
parties… The second reason is that it is both desirable
and
important that finality should be reached within a reasonable time in
respect of judicial administrative decisions…’
[10]
The
policy consideration upon which the unreasonable delay rule is based
on was also expressed in
Mohlomi
v Minister of Defence,
[6]
where
the Court observed:
‘
Nor
in the end is it always possible to adjudicate satisfactorily on
cases that have gone stale. By then witnesses may no longer
be
available to testify. The memories of those whose testimony can still
be obtained may have faded and become unreliable. Documentary
evidence may have disappeared.’
[11]
The
broad approach to adopt when dealing with a claim of unreasonable
delay is set out in
Bezuidenhout
v Johnston NO and Others,
[7]
in the following terms:
’
35
When an Applicant party has been dilatory in pursuit of his relief,
and finds himself outside prescribed periods, it is trite
that a good
explanation needs to be provided for such delays as may have occurred
in order to warrant the granting of an indulgence
to the defaulting
party…
36
The prejudice suffered by parties as a result of undue delays is
another fact to consider….’
[12]
In
interpreting the above, Van Niekerk J in
Karen
Beef t/a Karen Beef and Another v Randall
,
[8]
had the following to say:
‘
[9]
This is not to say that a respondent party is entitled to lie in
wait, intending to ambush the applicant once a period of delay
becomes sufficiently protracted to justify the filing of an
application to dismiss. In the
Bezuidenhout
judgment, Nel AJ
observed that the respondent party also bears a responsibility to
ensure that disputes are resolved expeditiously,
inter alia by
ensuring that the applicant party complies with the time periods
applicable to it, for example, by compelling compliance.
In
Sishuba
,
Molahlehi AJ noted that the Rules as they related to the filing of
process in review applications did not preclude a dilatory
party or
representative from being placed on terms, nor was a degree of
self-help prohibited:
"Whilst
there is indeed a practice well-known in this Court that a matter
will be set down only once the Applicant has filed
the Heads of
Argument, there is no rule governing this practice. There is,
however, in my view, no reason why an Employee faced
with a delay on
the part of the Applicant cannot file Heads of Argument prior to that
of the Employer, and thereby activate the
process of the Registrar
setting the matter down. I also see no reason why the Employee did
not, in the circumstances of this case,
place the Employer on terms
and called upon him to file his Heads of Argument before bringing
this application."
It
seems to me that the approach adopted both in the
Bezuidenhout
and
Sishuba
cases requires that a respondent party confronted
by an unreasonable delay on the part of an applicant ought at least
to place
the offending party on terms, or to seek the intervention of
the Registrar or file an application to compel (when these steps are
appropriate), prior to filing an application to dismiss.’
[13]
The facts in the present matter are different to
these of the above cases in the sense that in those cases the Court
was dealing
with the application to dismiss review applications on
the grounds of unreasonable delay. Similar to
Karen
Beef
, this matter has to do with the
referral to this court in terms of Rule 6 of the Rules of this
Court. As stated in that case, Rule 6(4)(d) provides that the party
initiating the proceedings must ensure that a copy of the pre-trial
minute is delivered within five days of the conclusion of the
pre-trial conference. Rule 6(5) also provides that when the minute of
a pre-trial conference is delivered or the time limit for
its
delivery lapses, whichever occurs first, the Registrar is required to
send the file to a Judge for directions in terms of the
sub-rule. The
Judge who receives the file from the Registrar may, direct the
Registrar to enroll the matter for a hearing if the
Judge is
satisfied that the matter is ripe for hearing; direct that an
informal conference be held before a Judge in chambers to
deal with
any pre-trial matters; or direct the parties to convene a further
formal pre-trial conference at a date, time and place
fixed by the
Registrar, at which a Judge must preside, to deal with any pre-trial
matters.
Analysis
[14]
The delay of about nine years is excessive and therefore, the
applicant had an onerous duty of providing a satisfactory and
convincing explanation for that delay. However, the applicant, as
indicated in the authorities cited above, also has the responsibility
of making sure that the prosecution of the matter is processed
expeditiously with no hindrance from their part.
[15]
Unlike in
Karen Beef
, there is no evidence in the present
matter that the employee was ever placed on terms with regard to the
delay in the prosecution
of the claim. That would have gone a long
way in weighing whether the interest of justice favored barring the
employee from proceeding
further with his claim. In fact, what is
clear is that the delay was in all respect due to the disagreement
over the finalisation
of the pre-trial minutes. The applicant is not
innocent in as far as this is concerned. There is no evidence that
the applicant
did put any effort towards the finalisation of the
pre-trial minute.
[16]
In my view, considering the facts and the circumstances of this
matter in particular the fact that
the delay was
significantly caused by the failure of both parties to conclude a
pre-trial minute, it would not serve the interest
of justice to
exercise my discretion in favour upholding the application. I have
also taken into account the fact that the applicant
has stayed and
did nothing for all the years but instituted these proceedings only
after about 24 days of the filing of the pre-trial
minute. Whilst
accepting that the delay is excessive, the facts do not support the
suggestion that the employee has lost interest
in his claim nor for
that matter that he has waived his rights in that regard.
[17]
In the circumstances, I am of the view that the
application to dismiss the applicants’ statement of case stands
to be refused
with no order as to costs.
Order
[18]
In the circumstances, the following order is made:
1.
The applicant’s application to dismiss the
respondent’s unfair dismissal claim is dismissed with no order
as to costs.
2.
The Registrar is directed to arrange a judicial
case management with both parties before a judge within 10 days of
date of this
order.
E,
Molahlehi
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicant: MT Nhlapo of BIFAWU
For the
Respondents: Advocate S. Tilly
Instructed
by: Goldman Judin Inc.
[1]
See
Verkouteren
v Savage
1918 AD 143
at 144,
Groupal
v Subbamah
2002 (6) SA 551
(D) at 558.
[2]
[2004]
4 All SA 133 (SCA).
[3]
See
Molala
v Minister of Law and Order and Another
1993 (1) SA 673
(W) at 676I-677A, where the Court said that the
approach to be followed when dealing with unreasonable delay in the
prosecution
of a claim was the one set out in
Bernstein
v Bernstein
1948 (2) SA 205
(W), where it was held that ‘it is in the
discretion of the Court to allow proceedings to continue where there
has been
this lapse of time.’ Reference was also made in that
case to the decision in
Kuiper
and Others v Benson
1984 (1) SA 474
(W), where it was held that the court has ‘an
inherent power to control its own proceedings and that accordingly
the Court
should assess whether the plaintiff is guilty of an abuse
of process’.
[4]
(2007) 28
ILJ
2073 (LC).
[5]
1995 (3) SA 787 (N).
[6]
1997 (1) SA 1
to 4 (CC) at para 11.
[7]
(2006) 27
ILJ
2337 (LC) at paras 35-36.
[8]
(2009)
30
ILJ
2937 (LC) at para 9.