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[2015] ZALCJHB 392
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Edcon (Pty) Limited v Commission for Conciliation, Mediation and Arbitration and Others; In re: Thulare and Others v Edcon (Pty) Limited (JR698/2013; J271/2015) [2015] ZALCJHB 392; (2016) 37 ILJ 434 (LC) (13 November 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JR 698/2013
Case no: J 271/2015
In the matter between:
EDCON (PTY)
LIMITED
Applicant
and
COMMISSION FOR
CONCILIATION, MEDIATION AND
ARBITRATION
First Respondent
WILLEM KOEKEMOER
N.O.
Second Respondent
JAMES THULARE AND 14
OTHERS
Third Respondent
In
re
:
JAMES
THULARE AND 14
OTHERS
Applicant
and
EDCON (PTY)
LIMITED
Respondent
Heard:
7 and 16 July 2015
Delivered:
13 November 2015
Summary:
Revival Application in terms of clause 16.2 of Practice Manual read
with Rule 11 to reverse deemed archiving
of review court file.
Enforceability of provisions of Practice Manual restated. Effect of
deemed archiving of review application
–what must be proven in
order to reverse this. “Good cause” to be shown –same
principles as utilised in
rescission applications. Thin explanation
and weak prospects of success. Application dismissed.
Application to dismiss
review – Rule 11. No general principle that a respondent must
place an applicant on terms before seeking
dismissal of review,
especially where Rule 16.2 is of application which allows such
applicant to enrol its review for default judgment.
Application
granted.
JUDGMENT
Bank; AJ
[1]
This matter comprises
four related applications traversing two case numbers:
1.1
A review application
under case number JR698/2013 in which the applicant (“Edcon”)
seeks to review and set aside an
arbitration award dated 30 March
2013 (“the arbitration award”) handed down by
Commissioner Willem Koekemoer (“the
Commissioner”) under
CCMA Case No GATW12372-12 in which the respondent employees,
comprising some 15 employees of Edcon,
were reinstated with back pay
after their dismissal was found to be substantively unfair (“the
review application”).
The review application was launched on 16
April 2013;
1.2
an application launched
by the respondent employees under Case No J271/2015 in terms of
section 158(1)(a) of the LRA seeking that
the arbitration award be
made an order of this court. This application was launched on 13
February 2015 (“the section 158
application”);
1.3
an application under
case number JR698/2013 launched by the respondent employees to
dismiss the review application. This too was
launched on 13 February
2015 together with the section 158 application and will be referred
to as “the application to dismiss”;
and
1.4
an application launched
by Edcon in terms of Rule 11 of the Rules of this Court as read with
clause 16.2 of the Practice Manual
in which an order is sought that
the court file be retrieved from the archives of the Registrar’s
office pursuant to the
deemed archiving of the review application.
This was launched on 22 April 2015 (“the revival application”).
This judgment
is chiefly concerned with the revival application as
the fate of all others depends on it.
Adjournment
proceedings
[2]
When the matter came
before me on 7 July 2015, it was apparent that the combined court
files in this matter were not in a satisfactory
condition and Edcon
requested an opportunity to file heads of argument in respect of the
revival application. Mr Van Graan SC,
who appeared on behalf of the
employees, opposed the application for the one-week adjournment and I
heard both him and counsel
for Edcon, Mr Manchu, in this regard and
was persuaded to grant a one-week adjournment, ordering that Edcon
was to pay the wasted
costs occasioned by the adjournment. Although I
handed down an
ex
tempore
judgment
setting out reasons for awarding costs against Edcon, I will again
state the reasons for doing so:
2.1
the parties went to
arbitration in 2012 regarding an alleged unfair dismissal which
resulted in an arbitration award handed down
in favour of the
employees;
2.2
but for the fact that a
review application was instituted by Edcon, it stands to reason that
the award would have been complied
with or, at the very least, the
employee parties would have taken steps to enforce the award granted
in their favour;
2.3
the main application is
one for review and, although there are three other ancillary
applications, it is beyond dispute that Edcon
is the ultimate
dominus
litis
in these
proceedings;
2.4
in any event, Edcon’s
review application is now deemed to be archived and it has an onus to
discharge in order to succeed
in its revival application;
2.5
more than three years
have elapsed and there is still no finality in the matter;
2.6
any prejudice suffered
by Edcon cannot be compared with that suffered by the employee
parties who remain dismissed with their fate
hanging in the balance.
[3]
It is for these reasons
that I ordered that Edcon pay the wasted costs occasioned by the
adjournment of the matter.
[4]
The parties duly
reconvened for further argument on the matter on 16 July 2015
(although 17 July 2015 had originally been ordered,
this was not
convenient to all parties and an earlier date agreed upon).
Background
[5]
Before considering the
four applications before me, it is appropriate to set out a brief
background to the events in question and
I am grateful to both
counsel for assisting me with summaries and chronologies of the
salient facts.
[6]
The 15 employees were
all employed by Edcon at its Woodlands Boulevard store near Pretoria
in various positions ranging from customer
assistants to managers.
All employees are permitted to purchase merchandise on staff accounts
which are subject to credit limits.
It came to light in March 2012
and in the ensuing months that several of Edcon’s employees,
including the 15 respondents
in this matter, had purchased
merchandise beyond the permitted credit limits or had in fact done so
under circumstances where they
did not in fact qualify for any
credit. It appears that they had also done so when the electronic
systems were operative (such
as during times of load-shedding). They
were subsequently suspended and notified of internal disciplinary
enquiries and accused
of a failure of their duty to act honestly and
with integrity in having abused the Edgars offline facility at that
store. It was
further alleged that these actions had resulted in a
breach of the trust relationship between the company and each
employee. Each
of the 15 employees were found guilty and dismissed on
different dates.
[7]
The first 11 of the
respondent employees referred a dispute to the CCMA on 8 October 2012
and the remaining four employees referred
their dispute on 30 October
2012. All disputes were thereafter consolidated.
[8]
Arbitration proceedings
took place under the auspices of the CCMA and chaired by the
Commissioner. The final arbitration session
took place on 13 March
2013 and the Commissioner handed down his award on 30 March 2013,
reinstating 12 of the 15 and awarding
financial compensation to the
remaining three.
[9]
The Commissioner
allowed legal representation after Edcon opposed this. From the
arbitration award it appears that only one witness
testified on
behalf of Edcon, namely, Mr Makhado Tshihadu, a forensic
investigator. He explained in detail how the individual employees
had
intentionally misused their Edgars staff accounts to obtain credit
for which they did not qualify. They did so by specifically
purchasing goods at offline pay points and that this had been done in
an intentionally dishonest manner to the extent that the
trust
relationship had broken down. He also confirmed that, at the initial
stages of the investigation, some of the employees had
been advised
that they could receive final warnings provided that their staff
accounts were fully paid up and that they disclosed
exactly what had
happened. He, however, cautioned that no promises of any sort were
made to these employees.
[10]
Three of the dismissed
employees testified at the arbitration. Several of the dismissed
employees had been employed by Edcon for
many years. They were
adamant that Edcon had not suffered any loss and denied that they had
been dishonest in any way. They explained
that the payroll department
would deal with any oversold accounts (that is, where they had
purchased merchandise in excess of their
stipulated credit limits) by
automatically deducting monthly instalments from their salaries,
which would be reflected on their
individual payslips. This would
continue until the entire amount of purchases was paid off. It
appears that this operated as a
form of revolving credit facility
which enables Edcon staff to purchase merchandise at discounted
prices. It also appears that
purchases were generally made on an
“online” basis, meaning that the system would be able to
immediately determine
whether a staff member had overshot their
credit limit and therefore refuse a particular purchase. It seems,
however, that “offline”
purchases were also possible, in
which case the system would not be able to detect whether a staff
member’s purchase would
cause them to overshoot their credit
limit.
[11]
The employees further
stressed that at no stage over a period of several years were the
offline staff purchases or alleged oversold
accounts ever questioned
by Edcon. They stated that no training had been given or any clear
policy implemented by Edcon. It was
also alleged that Makhado himself
had directed the employees as to the contents of their written
statements during the investigation
and had informed them that if
they immediately paid all outstanding amounts they would each receive
final written warnings. Most
of the employees had obtained loans in
order to pay off these accounts. The employees all denied that they
had been dishonest in
any way but insisted that any amounts purchased
would invariably be repaid through payroll deductions.
The arbitration award
[12]
The Commissioner
clearly took great pains to consider and analyse the arguments
advanced by both parties. The Commissioner found
that Edcon had
failed to demonstrate that the rule upon which it relied had even
been applied, not to mention applied consistently.
He did not regard
Makhado’s testimony as authoritative, by reason of the fact
that no other employee of Edcon, having knowledge
of the rule as well
as how and when it was implemented and applied, had bothered to
testify. For these reasons, he found that there
was no evidence to
support Edcon’s contention that the employees were aware of the
applicable workplace rule or that they
could reasonably be expected
to have been aware of this rule. He even found that it was
questionable whether any rule had in fact
been contravened.
[13]
Turning his attention
to the appropriateness of the sanction of dismissal, he found that
Makhado simply could not substantiate such
sanction, as he had not
taken the decision to dismiss. The Commissioner could only speculate
as to how Edcon had arrived at its
decision to dismiss, stating that
there was no evidence before him to demonstrate that Edcon had ever
considered any disciplinary
sanction short of dismissal. He rejected
Edcon’s claim that there was no trust left in the employment
relationship. This
was a mere unsubstantiated claim.
[14]
The Commissioner found
that it was common cause that all employees were first offenders with
clean disciplinary records and that
quite a number of them had many
years of employment with Edcon. Moreover, Edcon had not suffered any
losses due to their conduct
and the only possible harm was a possible
contravention of the provisions of the
National Credit Act 34 of
2005
. At most, all the employees had been guilty of was
utilisation of a greater credit limit than that for which they
qualified,
or they utilised credit to which they were not entitled.
He found that Edcon ought, at the very least, to have placed the
employees
on terms regarding their use or alleged misuse of these
accounts. He found that although the employees had been
“
opportunistic
”
in the way they managed their accounts, their explanations had been
plausible and there had clearly been no intention to
defraud.
Ultimately, he stated, the employees remained responsible to repay
any debts which they had incurred. For these reasons,
the dismissal
of the 15 employees was found to be unfair.
The review application
[15]
Edcon launched its
review application against the arbitration award on 16 April 2013 and
this was followed by a notice of opposition
filed on behalf of the
dismissed employees by their former attorney-of-record. It appears
clear that the CCMA filed the record
of arbitration proceedings less
than one month later, on 10 May 2013. The employees take issue with
Edcon in that, to this day,
it has still never disclosed the date on
which the Registrar advised it that the record had been received from
the CCMA for upliftment,
or that the record had in fact been uplifted
within seven days as required by clause 11.2.1 of the Practice Manual
(which, I point
out, came into effect on 1 April 2013).
[16]
Thereafter, it appears
that much correspondence between the respective attorneys passed
regarding the transcribed record of proceedings
until it appears that
Edcon received the transcribed record on or about 19 July 2013 and
subsequently filed this record and transcript
on 6 August 2013, along
with a notice in terms of
Rule 7A
(8) stating that it stood by its
notice of motion.
[17]
It is common cause that
no answering affidavit in this review application has ever been filed
on behalf of the respondent employees.
Counsel for the employees, Mr
Van Graan, conceded that none of the copious papers filed of record
in this matter disclosed any
reason for this. He however, argued that
Edcon had always been at liberty to instruct the Registrar to have
the review application
enrolled for default judgment after the last
day for the filing of the opposing affidavit had passed, in terms of
Rule 16(2)
of the Rules. It appears that this filing date was 15
August 2013. He pointed out that it was common cause that at no time
after
15 August 2013 did Edcon ever attempt to have its review
application enrolled on the unopposed roll for default judgment.
This,
he argued, was a crucial factor which militated against the
prospects of success of Edcon’s revival application.
The revival
application
[18]
Thereafter, the matter
appears to have lain dormant. Neither party appears to have been
aware that a significant date was looming:
16 April 2014 - the
12-month anniversary of the launching of the review application. The
significance of this date is that clause
11.2.7 of the Practice
Manual of this Court requires that all necessary papers in a review
application must have been filed within
12 months ‘… of
the date of the launch of the application (excluding Heads of
Argument) and the registrar [must be]
informed in writing that the
application is ready for allocation for hearing’.
[19]
What is more important,
and, indeed, what has led to the present situation, is the sentence
which follows directly thereafter:
‘
Where
this [12 month] time limit is not complied with, the application will
be archived and be regarded as lapsed
unless
good cause is shown
why the application should not to [sic] be archived or be removed
from the archive’ (
my
emphasis).
[20]
As mentioned above,
none of this appears to have entered the minds of either party’s
representatives until the representatives
of the respondent employees
launched an application to dismiss Edcon’s review in terms of
Rule 11(3) of the Labour Court
Rules in February 2015. This was
accompanied by the section 158 application. It appears that
approximately two months later, Edcon
thereupon launched its revival
application. I now turn to consider the revival application in
detail.
[21]
Clause 16.2 of the
Practice Manual states:
‘
A
party to the dispute in which the file has been archived may submit
an application, on affidavit, for the retrieval of the file,
on
notice to all other parties to the dispute. The provisions of Rule 7
will apply to an application brought in terms of this provision’.
[22]
Clause 16.3 of the
Practice Manual provides that the legal consequences of a file being
placed in archives (or, preferably, a file
which is deemed to have
been archived) is the same as if the matter had been dismissed.
[23]
The question naturally
arises as to the status and enforceability of the provisions of the
Practice Manual.
[24]
This
has been confirmed by Molahlehi J in
Tadyn
Trading CC t/a Tadyn Consulting Services v Steiner and Others
[1]
from which it is clear that all practice directives are competent and
should be adhered to and are not merely guidelines. I respectfully
agree with this interpretation, which is fortified by the peremptory
language used in clause 16 of the Practice Manual with regard
to the
legal effect of a court file having been archived. In my view it
seems clear that the deemed archiving of a review court
file is to
consign the unfortunate file to a form of limbo without ever being
formally dismissed and from which the file may never
emerge unless a
properly-motivated revival application demonstrating “good
cause” enters to rescue it from a shadowy
netherworld akin to
the Asphodel Meadows of Greek Mythology.
[25]
Edcon seeks an order
that the court file be retrieved from the Registrar’s archives
in accordance with clause 16.2 of the
Practice Manual, together with
the costs of opposition. Presumably, if it obtains this relief then
the respondent employees are
to be placed on terms to file their
answering affidavit in the review application and the main matter
will thus proceed in the
ordinary course to be ventilated at another
time. It is thus necessary to scrutinise this application to see
whether in fact Edcon
has shown that “
good
cause
” exists
for such retrieval.
[26]
In
Superb
Meat Supplies CC v Maritz
[2]
the Labour Appeal Court adopted the same test used in the
determination of applications for the rescission of default judgments
when determining whether “
good
cause
”
has been shown. I am of the view that these wide-ranging principles
are most certainly of application to a revival application
such as
the present. These principles are:
26.1
the applicant must give
a reasonable explanation of its default;
26.2
the application must be
made
bona fide
;
26.3
the applicant must show
that it has a
bona
fide
defence to the
respondent’s claim (and must set out sufficient facts which, if
established at trial, would constitute a good
defence).
[27]
In determining whether
or not good cause has been shown, a court is given a wide and
flexible discretion which ought not to be fettered
or abridged by an
exhaustive definition to the meaning of these words. What is clear is
that the court’s discretion must
be exercised after a proper
consideration of all relevant circumstances. The Labour Appeal Court
also held that where the default
has been wilful or due to gross
negligence, a court may well decline to grant relief. However, the
absence of such wilfulness or
gross negligence in relation to the
default is not an absolute prerequisite for the granting of such
relief.
[28]
With these principles
in mind I now turn to the case for revival made out by Edcon, as set
out in its founding affidavit deposed
to by one Bonelela Mgudlwa
(“Mgudlwa”), a labour relations specialist in its employ.
Mgudlwa states that its human
resources legal specialist who was
dealing with the matter left its employ on 16 September 2013 (which
is approximately one month
after the last day for the filing of an
answering affidavit by the employees in the review application) and
then, approximately
11 days later, its senior legal specialist also
left its employ. No handover of pending legal matters ever took
place.
[29]
With
regard to the length of the default, Mgudlwa immediately concedes
that when the time for filing of the answering affidavit
to the
review had elapsed by 15 August 2013, it failed to enrol the review
application for hearing in terms of clause 11.4.1 of
the Practice
Manual, and also concedes that the delay has lasted from 16 August
2013 until 20 April 2015 when it launched the present
revival
application, a period of approximately 20 months. Mgudlwa states
further that he was contacted by the respondent’s
erstwhile
attorney, Anton Rudman with a request for the transcribed record of
proceedings and that an opposing affidavit would
then be drafted. He
then states:
[3]
‘
They
were in contact with me. I had no knowledge of the matter prior to
their approach. I was able to establish however that [Edcon]
had
complied with its obligations up to that point including filing the
record. I communicated as much to the Individual Respondents’
attorneys by telephone after receipt of the letter at ‘MB4’’;
[30]
No further explanation
is provided and it is not clear what happened subsequently during
discussions between the parties.
[31]
With regard to its
prospects of success on review, Mgudlwa’s affidavit devotes a
scant one paragraph to this and simply incorporates
by reference the
grounds of review in the review application. I shall return to this
aspect shortly.
[32]
With regard to
prejudice, Mgudlwa states that the respondent employees will not be
prejudiced by the retrieval of the file from
the archives as they
already have an arbitration award in their favour and will still have
an opportunity to oppose the review
and make further representations
to the court. Should they be successful with their opposition, they
may receive an award of costs,
back pay and interest. On the other
hand (it is argued), should the file remain archived, Edcon will be
unable to continue with
its review application and will be denied an
opportunity to be heard. It insists that both parties are responsible
for the delay.
[33]
I pause to note that a
supplementary affidavit dated 10 July 2015 was filed during the one
week adjournment of the matter and deposed
to by one Isiah Kaizer
Moyane, Edcon’s Executive Manager: Employee Relations. This was
filed in response to a further argument
advanced on behalf of the
employees that the review application was deemed to have been
withdrawn because Edcon had failed to seek
consent for an extension
of time for the filing of the arbitration record from the respondents
and from the Judge President. Moyane
attaches letters dating back to
May and June 2013 relating to the status of the arbitration record in
support of an argument that
the attorneys had tacitly consented to
this. For reasons which will become apparent later, I do not deem it
necessary to deal with
this argument.
Has Edcon shown “good
cause”?
[34]
Applying the
abovementioned three principles applying to rescission applications,
I can immediately dispose of the second as I have
no doubt that
Edcon’s application for revival is indeed made
bona
fide
and it has
never been suggested otherwise. That leaves me to consider whether
Edcon has met the requirements of a reasonable explanation
for its
default and whether it has a
bona
fide
defence, or,
in other words, whether it has prospects of success on review.
[35]
The Rules of Court,
when read with the Practice Manual, place a heavy onus on an
applicant for review to ensure that such an application
is prosecuted
with both diligence and alacrity. When considering the explanation of
default, I note that Mgudlwa, on behalf of
Edcon, does not explain
why it failed to utilise the procedural advantage of simply setting
the matter down for hearing on as an
unopposed review application as
it was entitled to do in the absence of an answering affidavit. He
merely states that this failure
was “
regrettable
”.
[36]
Although Edcon clearly
seeks to shift the blame for the delays after August 2013 to the
individual employees for their failure to
file answering affidavits
in the review application, there can be no doubt that by no later
than February 2014, Edcon’s HR
representative, Mgudlwa, was
well aware of the review application which he had inherited. It is
also apparent that the 12-month
period referred to in clause 11.2.7
of the Practice Manual had not yet elapsed and the court file was not
yet deemed to be archived.
[37]
I find Edcon’s
explanation for the delay to be thin. Although Edcon cannot without
anything more be blamed for the departure
of two of its important HR
officials during the month of September 2013, there is no explanation
for the extraordinarily long period
of some fourteen months between
February 2014 (when Rudman contacted Mgudlwa) and late April 2015
when the revival application
was launched. It must of course be
mentioned that this revival application was only launched after the
individual employees had
launched their own section 158 application
and an application to dismiss the review.
[38]
Turning to analyse
Edcon’s prospects of success, it is necessary to have regard to
the content of its review application and,
more specifically, to the
grounds of review set out therein. In brief, these grounds are:
38.1
the Commissioner
misdirected himself in concluding that the clarity of the rule of
purchasing offline had not been properly established,
whereas one of
the employees, Julia Makololo, had conceded that although offline
purchasing was allowed over-selling was disallowed.
It is submitted
that the Commissioner placed very little or no weight on this
evidence and thereby arrived at “
an
illogical conclusion
”;
38.2
the fact that the
individual respondents took advantage of using the system when it was
offline in order to purchase indicates an
awareness of the
wrongfulness of their actions and that they took advantage of a flaw
in the system. This, it is argued, renders
their actions dishonest;
38.3
the Commissioner
misdirected himself in finding that Edcon’s witness, Makhado,
was in no position to state whether the trust
relationship had indeed
broken down between the parties;
38.4
the Commissioner placed
undue emphasis on the issue of consistent application of the Rule,
where neither party presented any evidence
on this issue;
38.5
the fact that the
respondent employees had made “
exorbitant
purchases while the system is offline
”
that could not be detected at the time rendered their conduct
“
fraught with
ill-will and intention to be dishonest
”.
This had, in turn, been a clear breach of their fiduciary position
vis-à-vis
the company and justified their dismissal;
38.6
the Commissioner
misdirected himself in concluding that monthly deductions from the
individual respondents’ salaries constituted
a tacit acceptance
of the over-selling transgression;
38.7
the award handed down
was a “
blanket
award
” that
included three employees who had abandoned the proceedings midway.
These employees had been awarded salary backpay
along with the others
and the attorney acting for all the employees had no mandate to do so
in respect of these three employees.
[39]
Having considered these
grounds of review (and noting that I am not hearing the review
application itself) I am of the view that
Edcon’s prospects of
success are not very good. I say so for the following reasons:
39.1
the factual version of
the individual employees who testified at the arbitration was never
controverted, especially with regard
to the deduction of instalments
from the staff’s monthly salaries in order to pay for all
purchases, no matter the amount
thereof;
39.2
the Commissioner
properly and correctly analysed the evidence in relation to the
question of whether there was a rule or standard
in place, as
required by item 7 of Schedule 8 to the LRA;
39.3
the Commissioner
correctly pointed out the weaknesses in Edcon’s case regarding
the appropriateness of the sanction of dismissal.
His analysis of the
evidence and conclusion on a balance of probabilities that there was
no intention to defraud and therefore
no dishonesty cannot be
credibly challenged as reviewable. Moreover, his finding that Edcon
had failed to consider any sanction
short of dismissal cannot be
faulted;
[40]
This is therefore a
case in which the applicant for revival has provided a poor
explanation for its default accompanied by a case
having little
prospect of success on the merits. I am not persuaded that Edcon can
be said to have shown good cause for the file
in the review
application to be retrieved from the archives. Accordingly, the
revival application must fail. I now turn to consider
the remaining
applications before me.
Application to dismiss
review
[41]
The individual
applicants have launched an application to dismiss the review
application in terms of Rule 11.3 of the Labour Court
Rules. This
application was launched on 13 February 2015. Although the notice of
motion is somewhat curiously worded in that it
seeks that the review
application itself be set aside and reviewed, I do not consider this
to be of any moment as it is clear that
a dismissal of the review
application is sought. As expected, this application is based on
Edcon’s failure to prosecute its
review after August 2013 when
the answering affidavit was due. This application reveals that,
despite the aforementioned transcription
of the record having taken
place, it was not to be found in the court file at all. I also noted
that it was not present in the
court file. What is, however, present
is merely the CCMA file which was obviously despatched by the CCMA in
compliance with Rule
7A (3) of the Rules in May 2013.
[42]
It was also submitted
by Mr Manchu on behalf of Edcon that, because the individual
respondents had failed to file an answering affidavit
in the main
review application, it was not open to them to seek a dismissal of
the review application. No authority for this submission
was
provided, nor do the provisions of Rule 11 support such a tortuous
and limited reading. There can be no doubt that the individual
respondents are still very much before the court as litigants and,
even had Edcon set the review application down for default judgment,
this would have had to be on the opposed role, in accordance with the
Practice Manual.
[43]
Mr
Manchu also argued that there is a mutual obligation on both parties
to ensure that a review application progresses expeditiously
towards
finalisation. In this regard he referred me to
Meintjies
v New Tyre Manufacturers Bargaining Council and Others
[4]
in which Molahlehi J expressed this view, citing, as authority,
Sishuba
v National Commissioner of the SA Police Service
.
[5]
It is therefore necessary for me to digress to discuss that case. In
Sishuba
’s
case, Molahlehi J stated that there was no reason why an employee
faced with a delay on the part of the applicant cannot
file heads of
argument prior to those of the employer, ‘
thereby
activating the process of the registrar setting the matter down’
.
[6]
He also saw no reason why the employee did not in the circumstances
place the employer on terms and call upon it to file its heads
of
argument prior to bringing an application to dismiss. It must,
however, be noted that Molahlehi J took into account the prospects
of
success on review as appeared from the papers filed in the matter. It
must however, be noted that Sishuba’s case was decided
in 2007,
long before the advent of the Practice Manual.
[44]
Mr
Manchu also referred me to several other decisions where it has been
held that an application to dismiss is a drastic remedy
and not to be
granted lightly. However, in many of these decisions (such as
Karan
t/a
Karan
Beef Feedlots and Another v Randall
[7]
)
the court was concerned with action proceedings initiated by a
statement of claim and a delay on the part of the applicant in
bringing the matter to trial. In my view, a review application is
somewhat different as it is somewhat easier for an applicant
to
simply set down the matter for hearing in terms of clause 11.4.1 of
the Practice Manual, which states that, where a notice of
intention
to oppose has been delivered but no answering affidavit has been
delivered within the prescribed time limit, the Registrar
must, at
the request of the applicant, enrol the application on the opposed
motion roll and serve a notice of set down on all parties.
This is a
far cry from the situation where the defendant in action proceedings
is faced with a recalcitrant plaintiff: there is
no convenient rule
in place which provides specific relief. Instead such a defendant has
no choice but to bring a substantive application
to dismiss the
action. It is in the latter type of situation that it is appropriate
that the respondent party be placed on terms.
I do not view the
respondent in review proceedings such as the present being in an
analogous position.
[45]
It is clear that none
of the decisions to which I was referred concern review applications
that have been determined subsequent
to the commencement of operation
of the Practice Manual. As such, those decisions must be considered
distinguishable and treated
with a certain degree of circumspection
insofar as it might be contended that they have the effect of laying
down a general principle
that a respondent, who seeks to have a
review application dismissed for want of prosecution, must in all
circumstances place the
applicant on terms before bringing such
application.
[46]
In
fact, having regard to more recent case law, I must align myself with
the remarks of Lagrange J in the case of
Moraka
v National Bargaining Council for the Chemical Industry and Others
[8]
where the court, considering a long unexplained delay of almost two
years between the incorrect filing of a transcript and the
filing of
the supplementary affidavit, said:
‘…
A
significant consideration in deciding whether or not to dismiss this
review application is the casual approach adopted to the
litigation
by the applicant which indicates that he viewed it as a matter that
could be returned to from time to time when he or
his representatives
chose to do so. Such long periods of inactivity cannot be reconciled
with
the
conduct of a party that has a consistent interest in pursuing a case
and takes the necessary steps to do so without undue delay
.’
[47]
Although the facts in
the present matter are obviously different, there can be no doubt
that Edcon has, over the several years since
the inception of its
review application, adopted a casual approach to this litigation. It
has also failed to display a consistent
interest in pursuing its
review application and taken the necessary steps to do so without
undue delay.
[48]
From all the above, it
is clear that, despite Mr Manchu’s vehement arguments, it
cannot be said that Edcon has treated its
application for review with
the necessary degree of diligence, care and urgency as required by
the Rules of this Court as read
with the Practice Manual. As
mentioned above it has already failed to show good cause why the file
should be retrieved from the
archives and has very little prospects
of success on review. For these reasons, I do not consider it
necessary to have regard to
the submission made by Mr Van Graan on
behalf of the individual respondents that the review application
lapsed by reason of its
failure to obtain an extension of time.
[49]
I am therefore not
persuaded by the argument that the individual respondents bear an
equal amount of responsibility for the long
delay in the prosecution
of the main review application. Edcon must ultimately bear ultimate
responsibility for this delay. The
dilatoriness of the individual
respondents (and their representatives especially) may conveniently
be dealt with when I come to
consider the question of costs.
[50]
In the event, I am
satisfied that Edcon has failed to prosecute its review application
to the extent that the interests of justice
require that it
effectively be barred from pursuing its review. In light of its weak
prospects of success, I do not consider that
that the interests of
justice would be served by allowing the review application to proceed
only to have another judge of this
Court have to consider the very
same merits as are already before me. In any event, it is highly
unlikely that the ill-fated transcript
of proceedings will ever see
the light of day. This would probably make the task of any court
having to assess the review application
on its merits that much more
difficult. In light of my findings, however, this is now academic,
and no other court will be given
the unhappy task of having to
determine the review on the merits without the aid of a transcript of
proceedings.
[51]
In the circumstances, I
therefore find that the application by the individual employees to
dismiss the review is well-founded and
grant the application.
Section 158
application
[52]
In light of the
dismissal of the revival application and the dismissal of the review
application in favour of the individual employees
there is no reason
why they should not be entitled to the relief they seek in the
Section 158 application making the arbitration
award an order of
court. I accordingly grant such an order.
Costs
[53]
In this matter, the
question of costs arises as both parties are legally represented and
the individual employees have employed
the services of Senior
Counsel. Indeed, the costs of employing Senior Counsel were sought in
argument on behalf of the individual
respondents, as well as costs on
the attorney client scale.
[54]
I am mindful that
Section 162 of the LRA affords the Court a broad discretion relating
to the award of costs based on considerations
of both law and
fairness, and that the Court may take into account the conduct of the
parties in proceeding with or defending the
matter.
[55]
Although I would
ordinarily have had no hesitation in granting the individual
respondents the costs relating to all applications
before me as they
have been substantially successful on all counts, and would even
consider granting attorney client costs against
Edcon on the basis of
its failure to provide a reasonable explanation for its default or to
demonstrate good prospects of success
on review, I am also mindful of
the fact that their legal representatives failed to file an answering
affidavit in the main review
application when they could and should
have done so. This would most certainly have given rise to a course
of events quite different
from those that took place and would most
certainly have entailed a resolution of the matter to the advantage
of both parties at
least more than a year ago.
[56]
In the circumstances I
am prepared to grant the individual respondents their costs, but I
decline to grant them such costs on a
punitive scale, neither do I
deem it appropriate to order that such costs include the costs of
employing Senior Counsel.
Order
[57] I
therefore grant the following order:
1.
Edcon’s
application to retrieve the file under case number JR698/2013 from
archives is dismissed.
2.
The application by the
individual respondents under case number JR698/2013 to dismiss the
review application is granted.
3.
The application by the
individual respondents under case number J271/2015 in terms of
section 158(1) (c) of the LRA is granted and
the arbitration award is
made an order of court.
4.
Edcon is ordered to pay
the costs of all the above applications on the party and party scale.
__________________________
Bank; AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES
For the Applicant
(individual respondents,
James Thulare and 14
others):
Adv ESJ van Graan SC
Instructed
by:
Keith Whittaker Attorneys
For the
Respondent:
Advocate T Manchu
Instructed
by:
Norton Rose Inc
[1]
(2014) 35
ILJ
1672 (LC) at para [11],
approving
the approach of the South Gauteng High Court in
In
re several matters on the urgent roll
2013 (1) SA 549
(GSJ) per Wepener J at paras [10] and [13]
[2]
(2004) 25
ILJ
96 (LAC) at paras [19] - [23]
[3]
At para
10.4 of the founding affidavit
[4]
(2012) 33
ILJ
1725 (LC) at para 31.
[5]
(2007) 28
ILJ
2073 (LC).
[6]
Sishuba
(supra
)
at para 18.
[7]
(2009) 30
ILJ
2937 (LC).
[8]
(2011) 32
ILJ
667 (E) at para 20.