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[2015] ZALCJHB 182
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Coetzee and Another v Nampak Liquid Bloemfontein (JS902/2014) [2015] ZALCJHB 182 (26 May 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
CASE
NO: JS 902/2014
In
the matter between
MAGDEL
COETZEE
First Applicant
DAVID
COETZEE
Second Applicant
and
NAMPAK
LIQUID
BLOEMFONTEIN Respondent
Heard:
22 May 2015
Delivered:
26 May 2015
Summary:
Condonation of the late filing of the statement of
case may be granted when the applicants have good
prospects of
success and will suffer prejudice should condonation be refused.
JUDGMENT
LALLIE
J
[1]
This is an application to condone the late filing of the applicants’
statement of case. It is opposed by the respondent.
The applicants
were employed by the respondent until their dismissal for operational
requirements on 31 March 2014. Aggrieved by
their dismissal they
referred a dispute to the Commission for Conciliation Mediation and
Arbitration (“the CCMA”) on
6 May 2014. As the CCMA
lacked jurisdiction over the dispute, it transferred it to the Metal
and Engineering Industries’
Bargaining Council (“MEIBO/
bargaining council”), the correct forum for the conciliation of
the dispute. The applicants
did not attend the conciliation which was
scheduled for 4 June 2014. They filed their statement of case at the
Labour Court on
10 October 2014, outside the 90 day period envisaged
in section 191(11)(a) of the Labour Relations Act 66 of 1995 (“the
LRA”).
The condonation application is opposed by the
respondent.
[2]
The following dictum in
South
African Post Office Ltd v Commission for Conciliation Mediation and
Arbitration and Others
[1]
:
‘
[17]
This Court has a discretion when deciding to condone the late filing
of the record or any other pleading. In exercising that
discretion,
the court must consider a number of factors, namely: the degree of
the delay and the explanation for the delay; the
prospects of the
party seeking the indulgence succeeding in its claim or defence; the
prejudice that the parties will suffer if
condonation is granted or
refused; and finally, whether it is in the interests of justice to
grant the condonation sought.
[18] The degree of delay
and the reason thereof complement each other. While the degree of
delay is a mere arithmetic calculation,
it is significant in relation
to the expeditiousness with which the matter was required to be
resolved. Hence, in the matters where
importance is placed upon the
speedy and expeditious resolution of a dispute, even a short delay
may not be excusable unless an
explanation is proffered that sets out
the reasons for the delay which the court finds acceptable. With the
factors of delay, go
the prospects of success. Where it is evident
that the party seeking condonation has no prospects of succeeding in
its principal
claim or opposition, no purpose is served in granting
condonation and the court must in such circumstances refuse to grant
condonation
irrespective of the degree of delay or the explanation
provided. Where the prospect of success are reasonably good or even
fair
then depending on the delay and the explanation, consideration
must be given to the prejudice that the parties may suffer before
the
discretion can be exercised on whether to grant the indulgence
sought. The factor of prejudice plays a role only when the delay
is
substantial.’
[3]
The extent of the delay is 56 days. It is substantial. The reason
proffered by the applicants is that they are policy holders
of Legal
Wise which is responsible for the payment of the fees of their legal
team. Legal Wise has terms and conditions which govern
payment of the
fees. Cover was granted by legal wise on 28 May 2014 thereafter the
applicants’ attorney consulted with them
in preparation for the
conciliation which was scheduled for 4 June 2014. It was submitted on
behalf of the applicants that they
could not afford to travel from
Bloemfontein to Welkom for the conciliation. The efforts of the
applicants’ attorney to obtain
conciliation outcome
certificates from the bargaining council yielded partial results in
June 2014, when he received a copy of
the certificate pertaining to
the first applicant’s dispute. The bargaining council failed to
attach the second applicant’s
certificate as promised in its
letter of 23 July 2014. In fact, it never finished the applicants’
attorneys with the certificate
pertaining to the second applicant’s
dispute. After losing hope of receiving the certificate, the
applicants’ attorney
contacted the applicants to arrange
consultation for the referral of the dispute to the Labour Court. He
also enquired from Legal
Wise whether the applicants were covered for
travel and accommodation costs involved in the planned consultation.
He received the
response informing him that they were not covered for
the costs on 25 September 2014. The applicants took responsibility
for the
payment, consultation was held and their statement of case
was filed on 10 October 2014. The applicants therefore attributed the
delay to the bargaining council’s failure to provide their
attorney with the certificate of the non- resolution of the second
applicant’s dispute as well as the cover confirmation response
he had to wait for from Legal Wise. It was submitted that
the
applicants have good prospects of success in that the respondent
failed to follow the procedure laid down in section 189A of
the LRA
in that it did not afford them the 60 day period for consultation
before effecting their dismissal. In addition, it had
no basis to
dismiss them for its operational requirements and singled them out
unfairly for the dismissal. The applicants’
case is that their
condonation application should succeed as, although the delay is
excessive, it was caused by reasons out of
their control they have
good prospects of success and have at all reasonable times expressed
an interest of pursuing the dispute.
[4]
Opposing the application the respondent submitted that the applicants
conceded that the delay was lengthy. They failed to submit
proof of
their attorney’s efforts to obtain certificates of the
non-resolution of the disputes from the bargaining council
and there
were steps that their attorney could have taken to avoid the delay
which he elected not to take and caused of the delay.
They denied
that the retrenchment which led to the termination of the applicants’
contracts of employment was a large scale
retrenchment and submitted
that it did not breach provisions of section 189A of the LRA. It
further denied that the applicants
were unfairly singled out for the
retrenchment. It was the respondent’s case that the applicants
had no prospects of success.
It further attacked the applicants for
their failure to state why they would suffer prejudice.
[5]
It is common cause that the applicants’ delay in filing their
statement of case is excessive. As the extent of the
delay
compliments the explanation thereof, it was necessary for the
applicants to provide reasonable explanation for the delay.
I have
considered the explanation proffered on behalf of the applicants.
Their attorney knew of the conciliation date before it
sat on 4 June
2014 and informed the relevant panellist that the applicants would
not attend it owing to financial constraints.
At that stage, the
applicant’s attorney knew that the 90 day period within which
the dispute should have been referred to
the Labour Court started
running from 4 June 2014. The certificates were not necessary either
for filing the statement of case
or enquiring from Legal Wise whether
the applicants were covered for the consultation and the filing of
the statement of case as
the attorney already knew that they were
recovered. The only enquiry that had to be made was the one
pertaining to travel and accommodation
costs. The date on which the
enquiry was made has not been disclosed and the only date which was
furnished is the one on which
the response from Legal Wise declining
to cover travel and accommodation costs was received. This was after
the 90 day period had
come and gone. The explanation provided by the
applicants’ attorney is inadequate and unreasonable. It proves
that the delay
was caused by his failure to prosecute the applicants’
case expeditiously having been paid by Legal Wise.
[6]
I am not convinced that the applicants have no prospects of success
in their main claim. They did not have to prove a
prima facie
case against the respondent. Their prospects of success needed to be
fair. The applicants could be successful should they prove
that the
respondent failed to fulfil the requirements in terms of section 189A
of the LRA. The submission that they are casualties
of a large scale
retrenchment is not far-fetched as it is based on a letter they
received from the respondent albeit the respondent
subsequently
averred that their retrenchment had been incorrectly classified in
error. There is substance in the respondent’s
argument that the
applicants made no submissions on the prejudice the parties stands to
suffer should this application be granted
or refused. However, it can
be gleaned from a reading of the application in its totality that
they stand to suffer the prejudice
of being non-suited should this
application be refused. Without diminishing the prejudice the
respondent stands to suffer as a
result of the delay, the applicants
will suffer more prejudice than the respondent should this
application be refused as their
main case will not be heard.
[7]
I have considered the authority the respondent sought to rely on in
arguing that condonation will not be readily granted in
cases of
disputes over individual dismissals as well as those providing that
even a blameless client may not hide behind the negligence
of its
attorney. Each case is determined on its merits. The applicants have
good prospects of success and they stand to suffer
more prejudice
than the respondent should this application be refused. I cannot turn
a blind eye to the reality that the applicants
are unemployed and
dependent largely on Legal Wise to fund their legal representation.
They cannot be non-suited because of the
financial position they find
themselves in. Access to justice is not a preserve of litigants who
have the financial means to fund
and have full control over their
litigation. It is in the interests of justice that this application
be granted.
[8]
When this matter was argued the respondent sought a costs order
de
bonis propriis
to be paid by the applicants’ attorney
.
Section 162 (1) of the LRA provides that this court may make an order
for the payment of costs according to the requirements of
the law and
fairness. Section 162 (3) enables this court to grant a costs order
against any person who represented a party in proceedings
before it.
The applicant’s attorneys are responsible for the delay in the
filing of the applicant’s statement of case
and the respondent
did not act unreasonably in opposing the condonation application. It
will not be fair for the applicants to
be mulcted with costs as a
result of delays occasioned by its attorney. I do not give costs
orders
de bonis propriis
easily, however, the law and fairness
require that the attorney pay the respondent’s costs.
[9]
In the premises the following order is made:
9.1
The application for condonation of the late filing of the statement
of case is granted.
9.2
Mr Jacques Nortjie of Kramer Weihmann & Joubert Inc. is ordered
to pay the respondent’s
costs.
Lallie
J
Judge
of the Labour Court of South Africa
APPEARANCES
For
the Applicant:
Instructed
by:
For
the Respondents
Instructed
by:
[1]
[2012]
1 BLLR 30
(LAC)