About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 354
|
|
POPCRU v Ledwaba NO and Others (JR636/2012) [2015] ZALCJHB 354; (2016) 37 ILJ 493 (LC) (14 October 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JR 636/2012
In the matter between:
POPCRU
Applicant
and
L G P LEDWABA
N.O.
First Respondent
MINISTER OF CORRECTIONAL
SERVICES
Second Respondent
SACOSWU
Third Respondent
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING COUNCIL
(“GPSSBC”)
Fourth Respondent
Heard:
Considered in Chambers
Delivered:
14 October 2015
Summary:
Application for leave to appeal – delay in prosecution –
steps to be taken
in prosecuting leave to appeal
Practice and procure –
prosecution of leave to appeal – diligent litigant principle –
nothing done to prosecute
leave to appeal for some two years –
leave to appeal dismissed
JUDGMENT
SNYMAN, AJ
Introduction
[1]
This
matter concerned, on the merits, an application by the applicant to
review and set aside an arbitration award of the first
respondent in
his capacity as arbitrator of the GPSSBC (the fourth respondent).
The substance of the matter was about the
entitlement of the third
respondent to organisational rights and the validity of a related
collective agreement, and concerned
a dispute between the applicant,
and the second and third respondents in this regard. The
dispute ended up before the first
respondent for arbitration, who
found that the third respondent as minority union is entitled to
organisational rights in the second
respondent and that the
collective agreement concluded in this regard between the second and
third respondents was valid.
[2]
In a
judgment handed down on 5 September 2013, I upheld the applicant’s
review application, set aside the award of the first
respondent, and
substituted such award with a determination that the third respondent
was not entitled to organizational rights
in the second respondent
and that the collective agreement concluded in this regard between
them was invalid.
[1]
[3]
It is
now more than two years later, and I only recently became aware that
the third respondent had filed an application for leave
to appeal
against my judgment referred to above. I find it concerning
that the application for leave to appeal was never
brought to my
knowledge. It is critical that these kinds of
applications are dealt with as expediently as possible.
In
fact, I would have never been aware of the application for leave to
appeal was it not for an article written by Professor John
Grogan in
the Employment Law publication headed “
Majority
Rules – of thresholds and extended agreements
’
.
This article
inter
alia
discussed my judgment in this matter. A copy of this article
was given to me by Professor Stefan Van Eck at the ISLSSL conference
in Cape Town on 16 September 2015, where I presented a paper on
majoritarianism where it comes to organizational rights.
[4]
Having
then read this article, I noticed in the concluding paragraph thereof
that it was said that ‘
SACOSWU
has applied for leave to appeal against the judgment, but at the time
of writing Snyman AJ had yet to decide whether leave
should be
granted.
’
Having
now been alerted to the possible existence of an application for
leave to appeal by way of this article, I took it upon myself
to
follow up with the Registrar’s office whether such an
application existed, and was informed that the file in this matter
was missing. I then caused the parties to prepare a duplicate
file, which only came to me some two weeks ago. This
file
contained copies of the original pleadings and all the process
relating to the leave to appeal application, which thus indeed
existed.
[5]
The
entire situation is unsatisfactory. It is simply unacceptable
that an application for leave to appeal is left languishing
and that
two years must come to pass before it is dealt with. I will
deal with this hereunder.
[6]
I
note from the file that the application for leave to appeal is dated
13 September 2013. There is no clear indication as
to when it
was actually served and filed, but I will accept for the purposes of
deciding this application that it was filed within
the time limit
prescribed by Rule 30
[2]
.
The file also contained written submissions by both the applicant for
leave to appeal (the third respondent in the main
matter) and the
first respondent (the applicant in the main matter) in the
application for leave to appeal, filed as far back as
26 September
and 17 October 2013, respectively. I will, for sake of
convenience, continue to refer to the parties in this
application for
leave to appeal, as they are cited in the main application.
[7]
Clause
15.2 of the Practice Manual provides that an application for leave to
appeal will be determined by a Judge in chambers, unless
the Judge
directs otherwise. I see no reason to direct otherwise and will
therefore determine the third respondent’s leave
to appeal
application in chambers.
Delay
in prosecution
[8]
Where
it comes to applications for leave to appeal, there is simply no
basis for such applications to become protracted. The
substance
of the matter giving rise to the leave to appeal has already been
heard, a Judge has been dedicated to it, and in normal
circumstances
no further hearing or argument on it would be required. As
touched on above, and unless exceptional circumstances
dictate
otherwise, a courtroom and hearing date is not even needed, as
applications for leave to appeal are decided in chambers.
There
is thus little chance of the systemic delays plaguing the labour law
dispute resolution system intervening in disposing of
leave to appeal
applications.
[9]
The
need for expedition is amplified by short time limits prescribed in
the case of leave to appeal applications. The time
limit within
which to bring the application is 15 days from handing down of
judgment. The application is then prosecuted
by prescribed
written submissions to be filed by the parties
[3]
.
Equally, the time limits for filing these written submissions are
short, being 10 days by the applicant for leave to appeal
after
bringing the leave to appeal application, and 5 days for the
respondent thereafter.
[4]
[10]
All
the above being considered, a Judge should be in the position to
decide, and then dispose of, the leave appeal application within
two
months after leave to appeal was applied for.
[11]
The
above being the case, I must state that I find the manner in which
the third respondent prosecuted its application for leave
to appeal
to be deplorable. As the applicant in such application, the
third respondent was compelled to take all reasonable
steps to
diligently prosecute the same to finality. The third
respondent, being competently legally represented throughout,
must
have realized and appreciated that its application for leave to
appeal was ready for determination by November 2013, at the
latest.
Having heard nothing after that, it needed to take positive steps to
prosecute the same to finality.
[12]
This
prosecution would entail regularly following up with the Registrar
about the progress in the application, and if that failed
to achieve
an outcome in a reasonable time, then raise the issue even with the
Judge President to solicit an outcome. In
simple terms, the
applicant for leave to appeal must press the issue, so as to ensure
finality in the Court proceedings as soon
as possible. It is
entirely unacceptable to file an application for leave to appeal,
file written submissions, and then adopt
a ‘come what may’
attitude with regard to the outcome of the same.
[13]
If
the third respondent had followed up on its application for leave to
appeal on a regular and expedited basis, it would have come
to my
attention much sooner, and I would have dealt with it immediately.
The third respondent would have also come to realise
much sooner that
the file was missing, and taken steps to remedy this. It should
not be up to the presiding Judge to divine
the existence of an
application for leave to appeal, and then ask for the file to be
reconstructed, based on what fortuitously
comes to the attention of
the Judge.
[14]
I am
convinced that regular follow up by the third respondent with regard
to its application for leave to appeal would have resulted
in it
being disposed of early in 2014, at the latest. But instead,
and I have said above, it is now October 2015, close on
two years
later.
[15]
I
consider that the third respondent has not acted in the manner a
diligent litigant is expected to act, where it comes to its
application for leave to appeal. To remain supine for two years
without even trying to explain what was done to prosecute
the
application for leave to appeal is inexcusable. The
failure by the third respondent to diligently prosecute its
application for leave appeal could have the effect that the
application must fail for this reason alone, based on the maxim
'
vigilantibus
non
dormientibus lex subvenit’
.
This maxim was dealt with in
Pathescope
(Union) of South Africa Ltd v Mallinick
[5]
,
where Stratford AJA said the following:
‘
That
a plaintiff may, in certain circumstances, be debarred from obtaining
relief to which he would ordinarily be entitled because
of
unjustifiable delay in seeking it is a doctrine well recognised in
English law and adopted in our own Courts. It is an application
of
the maxim: ‘
vigilantibus
non
dormientibus lex subvenit.’
The
very nature of the doctrine necessitates its being stated in general
terms. I take the following apt extract from the judgment
in
Lindsay
Petroleum Company v Hurd
(L.R.
5
PC 239)
quoted in the court below: --- "The doctrine of laches
in Courts of Equity is not an arbitrary or a technical doctrine.
Where
it would he practically unjust to give a remedy, either because
the party has by his conduct done that which might fairly be regarded
as equivalent to a waiver of it or where, by his conduct and neglect
he has, though perhaps not waiving that remedy yet put the
other
party in a position in which it would not be reasonable to place him
if the remedy were afterwards to be asserted, in either
of these
cases lapse of time and delay are most material. But in every case if
an argument against relief, which otherwise would
be just, is founded
upon mere delay, that delay of course not amounting to a bar by any
statute of limitations, the validity of
that defence must be tried
upon principles substantially equitable. Two circumstances always
important in such cases are the length
of the delay and the nature of
the acts done during the interval, which might affect either party
and cause a balance of justice
or injustice in taking the one course
or the other, so far as relates to the remedy.’
[16]
The
maxim
vigilantibus
non
dormientibus lex subvenit’
has
found fertile soil in the Labour Court in a number of judgments
dealing with undue delays in prosecuting applications
[6]
.
The elimination of unjustified and undue delays is even more of an
imperative where it comes to employment law disputes,
considering the
fundamental principle that such disputes must be expeditiously
resolved. I refer to
Khumalo
and Another v Member of the Executive Council for Education:
KwaZulu-Natal
[7]
where the Court said:
‘…
.
The importance of resolving labour disputes in good time is thus
central to the LRA framework. ….
’
.
Further authorities in this regard are
Aviation
Union of SA and Another v SA Airways (Pty) Ltd and Others
[8]
where it was held:
‘…
.Speedy
resolution is a distinctive feature of adjudication in labour
relations disputes ….
’
,
and
National
Education Health and Allied Workers Union v University of Cape Town
and Others
[9]
where it was held: ‘
By
their very nature labour disputes must be resolved expeditiously and
be brought to finality so that the parties can organize
their affairs
accordingly. They affect our economy and labour peace. It is in the
public interest that labour disputes be resolved
speedily ….
’
.
[17]
The
Labour Court has not shied away from disposing of applications on the
basis of a failure to diligently prosecute the same.
I will
suffice with a few individual references in this regard. In
Bezuidenhout
v Johnston NO and Others
[10]
the Court said: ‘
…
If
applicant parties have unduly delayed prosecuting their applications,
and fail to provide acceptable reasons for the delays,
the ultimate
penalty of dismissing such applications should be used in appropriate
cases. This will hopefully help creating a culture
of compliance and
ensure that disputes are expeditiously dealt with
’
.
Similarly, and in
Autopax
Passenger Services (Pty) Ltd v Transnet Bargaining Council and
Others
[11]
it was held: ‘
…
[T]he
rule that the court has the power to dismiss proceedings due to a
delay in the prosecution thereof lies in the court's inherent
power
to prevent an abuse of its own process.‘
.
A final reference in this respect is to
Karan
t/a Karan Beef Feedlot and Another v Randall
[12]
where it was said that: ‘
In
summary: despite the fact that the rules of this court make no
specific provision for an application to dismiss a claim on account
of the delay in its prosecution, the court has a discretion to grant
an order to dismiss a claim on account of an unreasonable
delay in
pursuing it….
’
.
I agree with all of this.
[18]
In
the end, one can do little better, when pondering the question
whether an application should be dismissed for an unjustified
and
undue delay in the prosecution thereof to finality, than to
apply the following
dictum
of Van Niekerk J in
BP
Southern Africa (Pty) Ltd v National Bargaining Council for the
Chemical Industry and Others
[13]
:
‘
The
rules of this court make no specific provision for an application to
dismiss when a party fails diligently to pursue a claim
referred to
the court for adjudication, but the court has recognized and adopted
the rule based on the maxim
vigilantibus
non dormientibus lex subveniunt
,
in terms of which a party may in certain circumstances be debarred
from obtaining the relief to which that party would have been
entitled because of an unjustifiable delay in prosecuting their
claim. …. 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. In
Radebe
v Government of the Republic of SA
1995 (3) SA 787
(N), the court said the following:
'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....'
In
Molala
v Minister of Law & Order & another
1993 (1) SA 673
(W), the High Court held that the approach to be
followed 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'. The court referred with approval to
Kuiper
& 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'
.’
[19]
I see
no reason why these same considerations should not apply to
applications for leave to appeal. In summary, this means
that
in considering whether to dismiss an application for leave to appeal
because of an undue and unjustified delay in prosecution
thereof,
what must be considered is the length of the delay, any explanation
for the delay, what steps have been taken to mitigate
the delay or
pursue the matter, as well as considerations of justice (or injustice
for that matter) and prejudice.
[20]
In
casu
,
the third respondent has offered no explanation for the delay.
I also could find no indication of any steps taken by the
third
respondent to try and have its application for leave to appeal
decided. In fact, I am convinced that had I not taken
action to
deal with the application for leave to appeal, once I was
fortuitously alerted to its existence, the third respondent
would
still have done nothing with regard to its prosecution. I
consider this to be untenable, and an important factor in
deciding
whether to dismiss the application for leave to appeal for non
prosecution thereof. In considering an application
for leave to
appeal, the Court in
MCC
Contractors (Pty) Ltd v Johnston NO and Others
[14]
held:
‘
As
already pointed out, the applicant in the present application made no
attempt whatsoever to explain the delay and I am of the
view that the
application for leave to appeal should therefore be dismissed on this
basis alone. ….’
I
cannot agree more.
[21]
The
delay of some two years, as matters currently stand, especially
considering the short time limits imposed by the by the Labour
Court
Rules and Practice Manual, is grossly excessive and unpalatable.
The situation is contrary to the important interest
of finality of
litigation.
[22]
I
cannot help but think that the third respondent’s design of non
prosecution is perhaps deliberate, and affords the third
respondents
the enjoyment of organizational rights in terms of the original
arbitration award despite this having been set aside
by me on
review. The reason for my view in this regard is that whilst
the leave to appeal is pending, my judgment is suspended
and the
third respondent continues to enjoy organizational rights it should
not. I am fortified in my views by what Professor
Grogan says
in the article I have referred to above, being: ‘
So
SACOSWU retains its rights until; leave to appeal is granted ….
’
.
This scenario is certainly to the prejudice of the applicant, POPCRU,
and would constitute an injustice.
[23]
In
conclusion, I take some guidance from the following
dictum
by Davis JA in
Martin
& East (Pty) Ltd v National Union of Mineworkers and Others
[15]
where the learned Judge said:
‘
Before
I conclude there is a further comment I wish to make. I indicated
that the events in this case took place in 2010. The Labour
Relations
Act was designed to ensure an expeditious resolution of industrial
disputes. This means that courts, particularly courts
in the position
of the court a quo, need to be cautious when leave to appeal is
granted ….
’
In
line with this reasoning, and in exercising such due caution
intimated, this is an instance where this matter must be brought
to
an end.
[24]
Considering
all of the above, I have little hesitation in concluding that there
has been an inordinate delay by the third respondent
in prosecuting
its application for leave to appeal. This delay is entirely
unjustified and remains unexplained. The
third respondent has
taken no positive steps to ensure the finalization of the application
for leave to appeal. All of this
has led to an injustice and
prejudice to the applicant. In the end, the application for
leave to appeal has now become an
abuse of process
[25]
The
third respondent’s application for leave to appeal thus falls
to be dismissed on this basis alone.
[26]
As to
costs, I shall follow the same approach as in my judgment on the
merits of the matter, and make no order as to costs.
Order
[27]
In
the premises, I make the following order:
1.
The third respondent’s application for leave to appeal is
dismissed.
_____________________
S
Snyman
Acting
Judge of the Labour Court
Appearances:
For
the Applicant:
Grosskopf Attorneys
For
the Third Respondent:
Neville Borman & Botha Attorneys
[1]
The judgment is
reported at
[2013] 11 BLLR 1137
(LC) and
(2014)
35 ILJ 1037 (LC).
[2]
Rule 30(2) reads: ‘If leave to
appeal has not been made at the time of judgment or order, an
application for leave must
be made and the grounds for appeal
furnished within 15 days of the date of the judgment or order
against which leave to appeal
is sought ….’
[3]
See Rule 30(A).
[4]
Clause 15.2 of the
Practice Manual.
[5]
1927 AD 292.
[6]
See
Bezuidenhout
v Johnston NO and Others
(2006)
27 ILJ 2337 (LC);
Sishuba v
National Commissioner of the SA Police Service
(2007) 28 ILJ 2073 (LC);
National
Construction Building and Allied Workers Union and Others v
Springbok Box (Pty) Ltd t/a Summit Associated Industries
(2011) 32 ILJ 689 (LC);
Moraka
v National Bargaining Council for the Chemical Industry and Others
(2011) 32 ILJ 667 (LC).
[7]
(2014) 35 ILJ 613 (CC) at para 42.
[8]
(2011) 32 ILJ 2861 (CC) at para 76.
[9]
(2003) 24 ILJ 95 (CC) at para 31.
[10]
(2006) 27 ILJ 2337 (LC) at para 31.
[11]
(2006) 27 ILJ 2574 (LC)
at
para 14.
[12]
(2009) 30 ILJ 2937 (LC) at para 14.
[13]
(2010) 31 ILJ 1337 (LC) at para 10.
[14]
(2012) 33 ILJ 2096 (LC) at para 4.
[15]
(2014) 35 ILJ 2399 (LAC) at
2405J-2406A.