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[2015] ZALCJHB 423
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SATWU obo Tshalana v Transnet Bargaining Council and Others (JR2619/07) [2015] ZALCJHB 423 (1 October 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case NO: JR 2619/07
In the matter between:
SATAWU obo DELPORT
TSHALANA
Applicant
and
TRANSNET BARGAINING
COUNCIL
First Respondent
ADV. G DUNN-DE
BRUYN
Second Respondent
TRANSNET FREIGHT
RAIL
Third Respondent
Heard:
30 October 2014
Delivered:
1 October 2015
Summary:
An inordinate delay in the prosecution of a review application and
failure to apply for condonation of
non-compliance with Rule 7A (6)
and (8), may lead to the dismissal of the review application.
JUDGMENT
LALLIE J
Introduction
[1] The applicant
approached this Court for an order reviewing and setting aside an
arbitration award of the second respondent who
I will refer to in
this judgement as the arbitrator. In her arbitration award dated 13
September 2007, the arbitrator dismissed
the applicant’s unfair
labour practice claim. The application is opposed by the third
respondent.
Factual background
[2] The individual
applicant is an employee of the third respondent. On 10 February
2006, he was charged with six counts of misconduct
and subjected to a
disciplinary enquiry. He was found guilty of four and demoted to the
position of section manager. He challenged
the third respondent’s
decision at the first respondent on the basis that his demotion
constituted an unfair labour practice.
The arbitrator found that he
had failed to prove that the third respondent had committed an unfair
labour practice and dismissed
his claim. In this application the
applicant seeks to have the award reviewed and set aside.
Point in limine
[3] Opposing the
application, the third respondent raised a
point in limine
that the review application stands to be dismissed because of the
applicant’s inordinate delay in prosecuting the review
application and failure to file a proper application for condonation
for the late filing of the notices in terms of Rule 7 A (6)
and (8).
It is common cause that the arbitration award was issued on 13
September 2007. The application for review was filed on
25 October
2007. An amended notice of motion, a further notice in terms of Rule
7A (6) with the bundle of documents used in the
arbitration
proceedings and a supplementary affidavit were filed on 1 March 2012.
[4] The applicant opposed
the
point in limine
on the basis that it has no basis in law.
In addition, the applicant submitted that if there is non-compliance
it should be condoned
because of the first respondent’s failure
to dispatch the record of the arbitration proceedings to the
Registrar of this
Court. It was therefore impossible for the
applicant to comply with provisions of Rule 7A (6). Nothing precluded
the third respondent
from raising the
point in limine
as both
the letter and spirit of the Labour Relations Act 66 of 1995 (the
LRA) require disputes to be resolved expeditiously. The
third
respondent may also raise a
point in limine
when it is
reasonably of the view that the applicant has flouted the Rules. In
determining the validity of the third respondent’s
point in
limine
it is necessary to consider whether the applicant was
responsible for the inordinate delay.
[5] It is common cause
that the review application was launched within the six weeks period
prescribed in section 145 (1) of the
LRA on 25 October 2007 as the
arbitration award dismissing the individual applicant’s unfair
labour practice claim was issued
on 13 September 2007. The first
respondent should have dispatched the record of the arbitration
proceedings to the Registrar within
10 days after receipt of the
review application. The applicant was required to have furnished the
Registrar and the respondents,
in terms of Rule 7A (6), with a copy
of the record or relevant portions thereof. This step should have
been taken by the applicant
within reasonable time. The applicant
submitted that it was impossible to comply with Rule 7A (6) as no
record was dispensed to
the Registrar. The first respondent informed
the applicant on 29 October 2007 that it did not maintain a record of
arbitration
proceedings as it was the responsibility of parties to do
so. As early as 29 October 2007 therefore, the applicant was aware
that
the first respondent would not be filing a record of the
arbitration proceedings as it had not been generated. The applicant
union
facilitated the appointment of its attorneys of record who on 7
April 2008 addressed a letter to the third respondent’s
attorneys
indicating the need to have the arbitration record
constructed. The third respondent responded on 16 April 2008 by
furnishing the
applicant’s attorney with a CD it believed to be
the mechanical record of the arbitration proceedings. On 14 May 2008,
applicant’s
attorneys informed the third respondent that it had
forwarded the CD to transcribers.
[6] On 14 July 2008, the
third respondent’s attorneys addressed a letter to the
applicant’s attorneys expressing their
concern about the
applicant’s delay in prosecuting the review application. They
further indicated that the delay was prejudicial
to the third
respondent which needed finality on the matter. It took a letter of
reminder for the applicant’s attorneys to
respond to the letter
on 4 August 2008 and inform the third respondent’s attorneys
that they were awaiting the transcription.
On 11 September 2008, the
applicant’s attorneys informed the third respondent’s
attorneys that the transcribers were
encountering problems in their
efforts to transcribe the CD. They requested the cassette tapes of
the arbitration proceedings.
They further intimated that they would
only be in a position to provide the arbitration record as soon as a
proper record had been
completed.
[7] After an exchange of
correspondence between the attorneys, the third respondent’s
attorneys informed the applicant’s
attorneys on 13 January 2009
that the tapes were ready for collection at their offices for
purposes of transcription. It turned
out that the tapes contained the
record of the individual applicant’s disciplinary enquiry.
Between 17 March 2009 and 13
July 2009, an attempt was made to
reconstruct the record. On 17 July 2009, the second respondent
informed the third respondent’s
attorneys that she was unable
to locate her notes of the arbitration proceedings. The information
prompted the third respondent’s
attorneys to address a letter
to the applicant’s attorneys on the same day, asking whether
there was still a need for the
parties to have another meeting with
the second respondent or to propose a way forward. The attorneys
agreed to hold a meeting
to reconstruct the record on 31 July 2009 on
which date, owing to the unavailability of the individual applicant’s
notes
of the arbitration proceedings, the applicant’s attorneys
made an undertaking to locate and make them available to the third
respondent.
[8] After about eight
months without hearing from the applicant the third respondent
addressed a letter to the applicant’s
attorneys on 29 March
2010 requesting a copy of the record of the individual applicant’s
notes by 23 March 2010. They again
expressed their concern about the
delay and asked whether the applicant still intended pursuing the
matter. The applicant’s
attorneys responded on 6 April 2010
that the applicant was finalising the transcription of the notes. The
third respondent’s
attorneys put pressure through
correspondence on the applicant’s attorneys to provide the
notes and on 17 May 2010, the applicant’s
attorneys informed
the third respondent’s attorneys that they were still awaiting
the applicant’s instructions. After
further prompting the
applicant’s notes were provided on 29 July 2010. The third
respondent’s attorneys confirmed the
notes and requested the
applicant to file them in compliance with Rule 7A (6). After more
pressure had been exerted on the applicant,
the record, without the
applicant’s notes was filed in compliance with Rule 7A (6) on
27 February 2012 with an amended notice
of motion and a supplement
affidavit in compliance with Rule 7A (8). The third respondent
submitted that the in ordinate delay
in complying with Rule 7A (6)
and (8) and the applicant’s failure to apply for condonation of
the delay justify the dismissal
of the review application.
[9] A number of material
factual averments on the
point in limine
are not opposed. The
applicant’s approach that the third respondent should have
challenged its delay in prosecuting the review
application through a
Rule 11 application which it would have opposed instead of raising a
point in limine
does not assist it. Nothing precluded the
applicant from opposing the
point in limine
. It in fact
opposed it but chose the factual averments it elected to deal with
from the allegations the third respondent relied
on. It did so at its
own peril. When the most lenient approach to the applicant’s
delay is adopted, it may be absolved for
the delay up to 30 July 2009
the day preceding the date the parties had set aside to reconstruct
the record. No reasonable explanation
was given by the applicant for
the individual’s failure to search for his notes on time and
make them available at the meeting
to reconstruct the record
scheduled for 31 July 2009. The meeting had to be postponed to afford
the individual applicant an opportunity
to find the notes and have
them served on the respondent. The delay between the 31 July 2009 and
6 April 2010 the date on which
the applicant’s attorneys
informed the third respondent’s attorneys that the individual
applicant was still finalising
the notes is substantial and
inexcusable particularly because but for the third respondent’s
attorneys prompting, the delay
might have been longer. After further
prompting by the third respondent’s attorneys, the applicant’s
attorneys advised
on 17 May 2010, that they were awaiting for the
applicant’s instructions. It took a further prompting by the
third respondent’s
attorneys for the notes to be served on the
third respondent on 29 July 2010. No reasonable explanation was
proffered for this
substantial delay as well. When the meeting to
reconstruct the record collapsed on 31 July 2009, the individual
applicant became
aware that for the review application to proceed, he
had to provide his notes. The most plausible inference that can be
drawn from
his year’s delay is that he had lost interest in the
review application.
[10]
As if the year’s delay was not enough, the applicant filed its
Rule 7A (6) notice on 27 February 2012 without the individual
applicant’s notes after the third respondent’s attorneys
had exerted enormous pressure for the notice to be filed.
It
therefore took the applicant over a year and five months and pressure
from the third respondent’s attorneys, from making
the notes
available to decide to comply with Rule 7A (6). No reasonable
explanation was offered for the substantial delay. All
the delay
which can be attributed to the applicant is excessive and without
reasonable explanation. The applicant refused to accept
responsibility for the delay and sought its condonation grudgingly.
Condonation may be refused without considering prospect of
success
where there is failure to provide a reasonable and acceptable
explanation for the delay.
Collet
v Commission for Conciliation Mediation and Arbitration and
Others
[1]
.
[11] I
have considered the prejudice that upholding the
point
in limine
may have on the applicant. I am however of the view that the
applicant is the author of its own inconvenience. Any prejudice it
may suffer is self-created as it flows directly from its failure to
prosecute the review application by complying with Rule 7A
(6) within
reasonable time. Prejudice caused by delays to respondent parties
should not be underestimated. I find the following
dictum
in:
Van
Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as
Amicus Curiae)
[2]
apposite:
‘…
A
litigant is entitled to have closure on litigation. The principle of
finality in litigation is intended to allow parties to get
on with
their lives...’.
The third respondent
communicated its concern over the delay, its prejudice and its
intention to have the matter brought to finality
as early as 14 July
2008.
[12] As no reasonable
explanation has been proffered for the excessive delay in complying
with Rule 7A (6) the
point in limine
must succeed. The third
respondent sought a costs order against the applicant. As the parties
have a continuing relationship, granting
the order will not be
appropriate.
[13] In the premises the
following order is made:
13.1
The application for review is dismissed.
__________________
Lallie J
Judge of the Labour Court
of South Africa
APPEARENCES
For the Applicant:
Mr Baloyi of Baloyi Attorneys
For
the Respondent: Maserumule of Maserumule Attorneys
[1]
[2014] 6 BLLR 523
(LAC).
[2]
[2007] ZACC 24
;
2008 (2) SA 472
(CC)