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[2015] ZALCJHB 94
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Letsoalo v Boyce NO and Others (JR1873/09) [2015] ZALCJHB 94 (11 March 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JR1873/09
DATE:
11 MARCH 2015
Not
Reportable
SHARON
LETSOALO
............................................................................................................
Applicant
And
TIMOTHY
BOYCE
NO
..............................................................................................
First
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
......................................................................
Second
Respondent
MASTER
CURRENCY (PTY)
LTD
.........................................................................
Third
Respondent
BIDVEST
BANK
......................................................................................................
Fourth
Respondent
Heard: 12
February 2015
Delivered:
11 March 2015
JUDGMENT
EUIJEN,
AJ
Introduction
[1]
This is a rescission application brought in
terms of section 165(a) of the provisions of the Labour Relations
Act, no. 66 of 1995
(the LRA) read with Rule 16A of the Rules of the
Labour Court. The order sought to be rescinded was made by this Court
on 15 July
2010 (van Niekerk J), in the absence of the applicant. The
order which was granted, dismissed the present applicant’s
review
application brought, in its turn, against an award of the
first respondent, sitting as a commissioner of the second respondent
(the CCMA). There is also an application for condonation of the late
filing of the rescission application. Both applications are
strenuously opposed by the third and fourth respondents.
[2]
The applicant’s attorney states that
she first became aware of this Court’s order on 22 December
2011, during a routine
inspection of the court file to establish why
the matter was taking so long to be set down. Despite this, the
rescission application,
incorporating the condonation application,
was only launched on 4 April 2013. The intervening period was taken
up by the pursuit
of reasons for this Court’s order and a
fruitless application brought in terms of Rule 15 of the Rules of the
Labour Court.
That application was withdrawn shortly before the
rescission application was launched.
[3]
As
far as the rescission application itself is concerned, the principal
ground advanced in support of the application is that this
Court’s
order was “erroneously sought” within the meaning of
section 165(a) of the LRA, read with Rule 16A(1)(a)(i),
in that van
Niekerk J was under the erroneous impression that the notice of set
down had been received by the applicant’s
attorneys, whereas in
fact it had not. That, on the authority of this Court in
CAWU
v Federale Stene
[1]
,
and the cases which have followed it, is sufficient alone to grant
rescission of judgment. In addition and in the event that the
first
ground is not upheld, the applicant contends that she has made out a
case for “good cause” to rescind the order
in terms of
Rule 16A(1)(b), in that she was not in wilful default and her review
application has good prospects of success on the
merits.
Condonation
[4]
As stated earlier, the order of this Court
is dated 15 July 2010; the applicant’s attorneys became aware
of its existence
on 22 December 2011; and thereafter the rescission
and accompanying condonation applications were launched on 4 April
2013.
[5]
The period from 22 December 2011 and the
next concrete step which the applicant’s attorneys took in the
proceedings, which
was on 28
th
of September 2012 when an application in terms of Rule 15 for the
re-enrolment of the matter was launched, is largely explained
in the
founding affidavit by their pursuit of this Court’s reasons for
the dismissal of the review application. On 3 August
2012, the
applicant’s attorney was advised by the judge’s associate
that the matter had been dismissed due to the absence
of the
applicant. Further investigation regarding the service of the notice
of set down revealed that it had been faxed to a dedicated
number
used by an attorney who had left the applicant’s attorneys
employ. Thereafter the fax number was discontinued, although
a system
is in place for the re-routing of telefaxes sent to the discontinued
number.
[6]
Acting apparently on advice received from a
member of the Registrar’s office, an application in terms of
Rule 15 for the re-enrolment
of the matter was made on 28 September
2012. Answering and replying affidavits were exchanged in that matter
and it was persisted
with until shortly before the launch of the
rescission application when it was withdrawn on or about 27 March
2013.
[7]
Hence, as far as the period required by
Rule 16A(1)(b) is concerned, which prescribes a period of 15 days
after acquiring knowledge
of the order within which to bring the
rescission application, the delay is inordinate and amounts to almost
15 months. Rule 16A(1)(a)
does not contain any time limit within
which applications on its terms may be brought, but it is well
established that such applications
must be brought within a
reasonable time.
[8]
Since
the renowned decision in
Melane
v Santam Insurance Co Ltd
[2]
,
it has been repeatedly decided that in an application for
condonation, the factors to be taken into account are (a) an
acceptable
explanation for the failure to meet the requirements of
the Rule; one of the most important aspects in that regard is that
the
applicant for condonation must show a determined effort to lay
her case before the Court and not an intention to abandon it; and
(b)
good prospects of success in the matter.
[9]
Counsel
who appeared for the third and fourth respondents has reminded me
with reference to the decisions of the Labour Appeal Court
in
NEHAWU
v Nyembezi
[3]
and Moila v Shai NO & others
[4]
,
and this Court in
NEHAWU
obo Mofokeng & others v Charlotte Theron Children’s
Home
[5]
,
that in order to succeed in a condonation application such as the
present, the applicant is required to establish both that she
has a
reasonable explanation for the delay and, secondly, that she has
prospects of success in the rescission application. Should
she fail
on either one of these legs, it becomes unnecessary to consider the
other. In the submission of the third and fourth respondents’
counsel, the applicant fails at the first hurdle, since there is no
acceptable explanation for the delay.
[10]
A
glance at the facts of the cases to which I have been referred by the
third and fourth respondents’ counsel reveals them
to be
egregious and not at all on a par with the present matter. In those
cases there were lengthy periods of inactivity which
were unexplained
(as in
Nyembezi
)
or the explanation tendered so outrageous as to be unworthy of
consideration (as in
Moila
).
NEHAWU
obo Mofokeng & others v Charlotte Theron Children’s Home
[6]
was overruled on this very point by the Labour Appeal Court because
the merits involved a constitutional right, namely the right
not to
be discriminated against on the grounds of race. A similar allegation
is made by the applicant in the present matter with
regard to her HIV
status.
[11]
In the present matter, although the courses
of action adopted by the applicant’s attorney, in persisting
with a request for
reasons for the order and embarking on the Rule 15
application are to be criticised, it does not amount to the type of
egregious
inactivity displayed in the cases to which I was referred.
Neither can it be said to amount to a non-explanation. I should also
add that the applicant’s attorney who dealt with this matter
and whose conduct is the subject of much of this judgment is
not the
same attorney, although from the same firm, as the attorney who
appeared for the applicant, Ms Thakor, who submitted helpful
and able
argument in support of her case.
[12]
Third and fourth respondents’
counsel, Mr Mphahlani, embarked upon a distasteful criticism of the
applicant’s attorney’s
conduct, as well as that of her
firm, going so far as to cast doubt on the veracity of the
explanation given by the attorney on
affidavit. There are no grounds,
in my judgment, to doubt the veracity of the applicant’s
attorney’s affidavit and
I have no hesitation in rejecting
those submissions out of hand. Third and fourth respondent’s
counsel is reminded that it
is both unprofessional conduct to accuse
a fellow officer of the Court of such serious misconduct without good
grounds to do so
and also that in the course of his career, the boot
may well be on the other foot someday. He has already, in this
unseemly attack
on a colleague, displayed the same lack of judgment
that he accuses the applicant’s attorney of.
[13]
That the applicant’s attorney’s
conduct of the matter is open to serious criticism is clear. In the
first instance,
it ought to have been immediately apparent to even a
junior attorney on reading this Court’s order, that if an
application
is dismissed in the absence of the applicant, then the
appropriate remedy is rescission. The pursuit of reasons for the
order ought
not to have delayed such an application. In the event,
the application was launched without any substantive reasons
provided. The
Rule 15 application was obviously pointless, since it
applies only to matters struck off the roll. Its purpose is to
achieve re-enrolment
which was not possible in this matter since an
order on the merits had been made. Finally, the applicant’s
attorney did not
(until a late stage) seek the guidance of more
senior and experienced practitioners at her well-resourced firm, but
instead followed
the advice of an employee in the Registrar’s
office. All of this displays a lamentable lack of knowledge of the
Rules of
this Court, civil procedure in general, as well as a lack of
professional judgment.
[14]
Third
and fourth respondent’s counsel submitted with reference to a
plethora of pre-1994 High Court authority, that an attorney’s
ignorance of the Rules of Court constitutes an unacceptable
explanation and stands to be rejected on this ground alone. The
correct
position is that where litigants themselves are blameless,
the courts are reluctant to penalise them by refusing condonation on
account of the conduct of their representative.
[7]
.
The leading case in this regard is still
Saloojee
and Another NNO v Minister of Community Development
[8]
.
If one has regard to the whole of that judgment, rather than just the
oft-quoted passage, it reinforces this principle, although
it also
sets an outer limit to its applicability. I have therefore set out a
slightly longer version of the famous passage, to
include some of
what went before (at 141):
“
This
Court has on a number of occasions demonstrated its reluctance to
penalise a litigant on account of the conduct of his attorney.
A
striking example thereof is to be found in R v Chetty,
1943 AD 321.
In that case there was an even longer delay than here, and the
excuses offered by the attorney concerned were clearly
unsatisfactory,
but the Court nevertheless granted condonation.
FEETHAM, J.A., remarked (at p. 323):
'So
far, however, as appeared from the papers before us, the applicant
himself was not responsible for the delays which have occurred,
save
in so far as he continued to allow his case to remain in the hands of
an attorney who had shown himself unworthy of his confidence,
and, in
view of the serious nature of the conviction recorded against the
applicant, and of the fact that he was given leave to
appeal by the
Transvaal Provincial Division, the application for condonation is now
granted.'
“
In
Regal v African Superslate (Pty.) Ltd.,
1962 (3) SA 18
(AD) at p. 23,
also, this Court came to the conclusion that the delay was due
entirely to the neglect of the applicant's attorney,
and held that
the attorney's neglect should not, in the circumstances of the case,
debar the applicant, who was himself in no way
to blame, from relief.
I should point out, however, that it has not at any time been held
that condonation will not in any circumstances
be withheld if the
blame lies with the attorney. There is a limit beyond
which a litigant cannot escape the results
of his attorney's lack of
diligence or the insufficiency of the explanation tendered. To hold
otherwise might have a disastrous
effect upon the observance of the
Rules of this Court. Considerations
ad
misericordiam
should not be allowed to
become an invitation to laxity. In fact this Court has lately been
burdened with an
undue and increasing number of
applications for condonation in which the failure to comply with the
Rules of this Court was due
to neglect on the part of the attorney.
The attorney, after all, is the representative whom the litigant has
chosen for himself,
and there is little reason why, in regard to
condonation of a failure to comply with a Rule of Court, the litigant
should be absolved
from the normal consequences of such a
relationship, no matter what the circumstances of the failure are.
(Cf. Hepworths Ltd v
Thornloe and Clarkson Ltd.,
1922 T.P.D. 336
;
Kingsborough Town Council v Thirlwell and Another,
1957 (4) SA 533
(N)). A litigant, moreover, who knows, as the applicants did, that
the prescribed period has elapsed and that an application
for
condonation is necessary, is not entitled to hand over the matter to
his attorney and then wash his hands of it. If, as here,
the stage is
reached where it must become obvious also to a layman that there is a
protracted delay, he cannot sit passively by,
without so much as
directing any reminder or enquiry to his attorney (cf. Regal v
African Superslate (Pty.) Ltd., supra at p. 23
i.f.) and expect to be
exonerated of all blame; and if, as here, the explanation offered to
this Court is patently insufficient,
he cannot be heard to claim that
the insufficiency should be overlooked merely because he has left the
matter entirely in the hands
of his attorney. If he relies upon the
ineptitude or remissness of his own attorney, he should at least
explain that none of it
is to be imputed to himself. That has not
been done in this case. In these circumstances I would find it
difficult to justify condonation
unless there are strong prospects of
success (
Melane v Santam Insurance Co.
Ltd
.,
1962 (4) SA 531
(AD) at p. 532).”
[15]
In the present matter, I do not consider
that the ineptitude of the applicant’s attorney can be imputed
to the applicant herself.
The applicant would have been assured that
her matter was receiving the necessary attention and she could have
been provided with
considerable documentary evidence that this was
the case, both in the form of recorded attendances at the Registrar’s
office
in the (fruitless) pursuit of reasons and the Rule 15
application itself. Consequently, the applicant would not have known
how
misguided the steps taken on her behalf were.
[16]
In short, this is not, in my judgment, a
matter which can be rejected on the explanation tendered for the
delay alone. I should
also consider the prospects of success. A
reminder of the ordinary approach taken from the judgment in
Melane
v Santam Insurance Co
. (at 532) is
apposite in this regard:
“
Ordinarily
these facts are interrelated: they are not individually decisive, for
that would be a piecemeal approach incompatible
with a true
discretion, save of course that if there are no prospects of success
there would be no point in granting condonation.
Any attempt to
formulate a rule of thumb would only serve to harden the arteries of
what should be a flexible discretion. What
is needed is an objective
conspectus of all the facts. Thus a slight delay and a good
explanation may help to compensate for prospects
of success which are
not strong. Or the importance of the issue and strong prospects of
success may tend to compensate for a long
delay.”
[17]
This
Court has in the past condoned substantial delays in circumstances of
attorney neglect and ineptitude, where it was held to
be outweighed
by strong prospects of success
[9]
.
Similarly, as appears below, the applicant has very strong prospects
of success in respect of her section 165(a) or Rule 16A(1)(a)
application, which accordingly compensates for the deficiencies in
the attorney’s conduct, which, in any event, I have already
held, cannot be imputed to the applicant. Condonation is therefor to
be granted for the late filing of the rescission application.
Rescission
[18]
As
stated earlier, the principal ground advanced in support of the
rescission application is that this Court’s order was
“erroneously sought” within the meaning of section 165(a)
and Rule 16A(1)(a)(i), in that van Niekerk J was under the
erroneous
impression that the notice of set down had been received by the
applicant’s attorneys, whereas in fact it had not.
That, on the
authority of this Court in
CAWU
v Federale Stene
[10]
,
and the cases which have followed it
[11]
,
is sufficient alone to grant rescission of judgment
[12]
.
[19]
Third
and fourth respondent’s counsel submitted that as there was
proper service of the notice of set-down in terms of the
Rules, this
is determinative of the matter. It isn’t. A fax transmission
report is no more than
prima
facie
proof that the transmission has been sent. It can be rebutted by
other evidence to show that the transmission was not received
[13]
.
This has been convincingly demonstrated in this case and I find that
third and fourth respondent’s counsel’s contentions
to
the contrary to be without foundation.
[20]
I accordingly find that the applicant has
made out a case for the order of this Court to be rescinded on the
grounds that it was
“erroneously sought” within the
meaning of section 165(a) read with Rule 16A(1)(a) of the Rules. This
conclusion renders
it unnecessary for me to consider whether the
applicant has shown “good cause” in terms of Rule
16A(1)(b) of the Rules
of this Court.
[21]
Finally,
third and fourth respondent’s counsel submitted with reference
to
Lumka
& Associates v Maqubela
[14]
,
that the Labour Appeal Court has already held that where there has
been proper service in terms of the Rules, it cannot be said
that
there is an acceptable explanation for the default. That case was
decided in terms of Rule 16A(1)(b) and does not affect the
conclusion
which this Court has reached in regard to the interpretation of Rule
16A(1)(a).
Conclusion
[22]
It follows from the reasons given in this
judgment, that the rescission application must succeed. Ordinarily,
as the applicant has
sought indulgences from this Court on two
fronts, I would be reluctant to award her any costs. However, in the
present matter,
there has been vigorous opposition by the third and
fourth respondents, which has been of the shotgun variety, replete
with unfounded,
unseemly and intemperate accusations directed at a
fellow officer of this Court and her firm. Had the opposition been
more discerning,
focused and principled, my order as to costs would
have been different. In the event, the respondents have not hit the
mark with
any of their missiles. In these circumstances, it seems to
me equitable and just that costs should follow the result and I
intend
to grant the applicant her costs.
Order:
The
order of this Court is:
I.
Condonation for the late filing of the
rescission application is granted.
II.
The order of this Court dated 15 July 2010
under the above case no. is rescinded in terms of
section 165(a)
of
the
Labour Relations Act, no. 66 of 1995
, read with
Rule 16A(1)(a).
III.
The Registrar is directed to re-enrol the
review application for hearing on notice to all parties on record.
IV.
The third and fourth respondents, jointly
and severally, the one paying the other to be absolved, are ordered
to pay the costs of
both applications.
Euijen, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant:
Ms A Thakor
of Webber Wentzel Attorneys
On
behalf of the Respondent:
Adv JS Mphahlani
Instructed
by:
[1]
(1991)(Pty)
Ltd [1998] 4 BLLR 374 (LC)
[2]
1962
(4) SA 531 (AD)
[3]
[1999]
5 BLLR 463 (LAC)
[4]
[2007]
5 BLLR 432 (LAC)
[5]
[2003]
8 BLLR 781 (LC)
[6]
[2004]
10 BLLR 979
(LAC) at 984 paras [24-25]
[7]
Rose
v Alpha Secretaries Ltd
1947
(4) SA 511
(AD) at 519
;
Reinecke v Incorporated General Insurances Ltd
1974
(2) SA 84
(A) at 92F;
NUM
v Council for Mineral Technology
[1999]
3 BLLR 209
(LAC) at para [10]
[8]
1965
(2) SA 135 (A)
[9]
See
NUMSA
& others v Eberspächer SA (Pty) Ltd
[2003]
8 BLLR 804 (LC)
[10]
(1991)(Pty)
Ltd
[1998] 4 BLLR 374
(LC)
[11]
Bayete
Security Holdings v Mokgadi & others
[2000] 9 BLLR 1020
(LC);
Romani
Plant Hire CC & Another v SASTWU & Others
[2001] 8 BLLR 961
(LC);
Electrocomp
(Pty) Ltd v Novak
[2001] 10 BLLR 1118
(LC);
Roux
v City of Cape Town
[2004] 8 BLLR 836
(LC)
[12]
See
F
& J Electrical CC v MEWUSA obo E Mashatola and Others
[2015]
ZACC 3 (CC)
[13]
Halycon
Hotels (Pty) Ltd t/a Baraza v CCMA & others
[2001]
8 BLLR 911
(LC);
Roux
v City of Cape Town
[2004] 8 BLLR 836 (LC)
[14]
(2004)
25 ILJ 2326 (LAC)