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[2015] ZALCJHB 433
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SATAWU obo Nkabinde v UTI South Africa (Pty) Ltd and Others (JR3050/12) [2015] ZALCJHB 433 (11 December 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR3050/12
In the matter between:
SATAWU
obo ROBERT NKABINDE
Applicant
and
UTI SOUTH AFRICA (PTY)
LTD
First Respondent
E
MAREE
Second Respondent
NATIONAL BARGAINING
COUNCIL FOR THE ROAD
Third Respondent
FREIGHT AND LOGISTICS
INDUSTRY
Heard: 14 January
2015
Delivered: 11 December
2015
Summary:
Explanation for the delay in prosecuting a review application
occasioned by a legal representative’s
lack of diligence
reasonable and acceptable for condonation to be granted.
JUDGMENT
MTHOMBENI AJ
Introduction
[1] This is an
application in terms of Rule 11 of the Rules of this Court to dismiss
the review application filed by the first respondent
and the
arbitration award (“the award”),made by the second
respondent, to be made an order of court.
[2] The application is
opposed and the first respondent seeks to apply for condonation for
the late filing of its answering affidavit
to this application
Background
[3] The applicant was
employed at the first respondent on 1 July 2005 as a driver. The
first respondent terminated his employment
contract on 13 May 2011
for failure to inform management of his absence, following a
disciplinary enquiry.
[4] Aggrieved by his
dismissal, the applicant approached the third respondent and referred
a dispute claiming an unfair dismissal.
[5] On 11 October 2012,
the third respondent, after the dispute remained unresolved at the
conciliation meeting, scheduled the matter
for arbitration and
appointed respondent to arbitrate over the dispute.
[6] The second respondent
was enjoined to determine whether the dismissal was the most
appropriate sanction, considering that there
was no dispute
concerning the procedure followed or any of the substantive issues.
The second respondent concluded in his award
that the dismissal was
unfair and ordered reinstatement with retrospective effect.
[7] On 13 December 2012,
the first respondent brought an application for the reviewing and
setting aside of the award.
[8] On 9 December 2013,
the applicant brought an application in terms of Rule 11 for the
dismissal of the review application brought
by the first respondent.
[9] The matter was set
down for hearing on 29 April 2014. On that day, Molahlehi J postponed
the matter and ordered the first respondent
to file an application
for condonation for the late filing of its answering affidavit to the
application in terms of Rule 11 and
an explanation for the delay in
prosecuting the review application.
Application for
condonation
[10] The applicant
submits that on 18 February 2013, 11 Mach 2013 and12 August 2013, the
applicant’s attorneys of record addressed
letters to the first
respondent’s attorneys of record enquiring about the record of
the arbitration proceedings and underscoring
the importance of such a
record to ensure expeditious prosecution of the review application.
In addition, the applicant’s
attorneys of record indicated
their intention to bring this application, should the first
respondent fail to ensure that the record
was filed with the court.
[11] The first respondent
submits that its previous attorneys of record did not bring these
letters to its attention. Subsequently,
the Law Society of the
Northern Provinces had for this reason,
inter alia
, made an
application to the High Court for the removal of the name of the
third respondent’s former legal representative
from the roll of
attorneys.
[12] On 16 May 2013, the
first respondent’s attorneys of record responded and advised
that they had instructed the transcribers
to transcribe the record
and they would revert once they had received the record. Save this
response, there was no other communication
by the first respondent.
[13] The first respondent
submits that in or about September 2013 it terminated the mandate of
its erstwhile attorneys of record
and removed its files, owing to
their negligent handling of its review application, approached its
current attorneys of record
and instructed them to handle the matter.
[14] On 29 April 2014, Mr
Ross Acheson (“Acheson”), an attorney at the first
respondent’s current attorneys of
record, while attending to
another matter at this Court was alerted to the fact that the
applicant had brought this application
of which neither he nor the
first respondent had been made aware.
[15] Thereupon, Acheson
advised the first respondent about this application. The first
respondent instructed the current attorneys
of record to substitute
themselves for his erstwhile attorneys of record and oppose the
matter.
[16] On 30 April
2014,Ivan Pillay (“Pillay”),an attorney at the first
respondent’s current attorneys of record,
attended at this
Court’s registrar’s office, Lubbe and Mentijies and
IAfrica, the transcribers, with a view to locate
the record of the
arbitration proceedings. However, Pillay was unsuccessful.
[17] On 16 May 2014, the
first respondent’s current attorneys of record delivered a
notice of substitution of attorneys of
record.
[18] On 5 and 8 May 2015,
the first respondent’s attorneys of record addressed letters to
the third respondent and its attorneys
enquiring if the record of the
proceedings (“the record”) had been filed with the first
respondent.
[19] On 8 May 2014, one
Janine from the third respondent advised the first respondent’s
attorneys of record that they had
no record of the third respondent’s
review application and requested to be furnished with a copy. On the
same day, the third
respondent’s current attorneys of record
addressed a letter to the applicant attorneys of record advising them
of the situation
and requesting more time within which to file the
answering affidavit, but there was no response.
[20] The first respond
submits that it was under a reasonable impression that its previous
attorneys of record had been diligently
prosecuting the review
application, was not aware that the file relating to the review
application had not been handed over to
its current attorneys of
record and was not advised about the Rule 11 application.
[21] The first respondent
submits, further, that it has reasonable prospects in the review
application, for the second respondent
committed a gross irregularity
when he concluded that dismissal was not an appropriate sanction in
circumstances where dismissal
was fair in that the employee had
admitted breach of the rule concerning failure to inform management
of his absence for which
he had been counselled before. Should
condonation not be granted, the first respondent submits that it will
be prejudiced in that
it would not deliver its answering affidavit to
the review application
[22] The Labour Appeal
Court in
NUM v Council for Mineral Technology
[1999] 3 BLLR
209
(LAC), stated, after reference to a number of cases with
approval, that:
‘…
in
considering whether good cause has been shown in an application of
this kind, the approach in
Melane
v Santam Insurance Co Ltd
1962 (4) SA 531
(A) at 532C-F should be adopted…The approach
is that the court has a discretion, to be exercised judicially upon a
consideration
of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant are the
degree of lateness,
the explanation therefore, the prospects of
success and the importance of the case. These facts are interrelated;
they are not
individually decisive. What is needed is an objective
conspectus of all the facts. A slight delay and a good explanation
may help
to compensate for prospects of success which are not strong.
The importance of the issue and strong prospects of success may tend
to compensate for a long delay. There is a further principle which is
applied and that is that without a reasonable and acceptable
explanation for the delay, the prospects of success are immaterial,
and without prospects of success, no matter how good the explanation
for the delay, an application for condonation should be refused…The
courts have traditionally demonstrated their reluctance
to penalise a
litigant on account of conduct of his representative but have
emphasised that there is a limit beyond which a litigant
cannot
escape the results of his representative’s lack of diligence or
the insufficiency of the explanation tendered…’.
[23] In
Grootboom v
National Prosecuting Authority and Another
[2014] 1 BLLR 1
(CC)
at para 22,the Constitutional Court stated the standard is the
interest of justice and what is in the interest of justice
must
reflect due regard to all the relevant factors set out in
Melane
,
but it is not necessarily limited to those factors. The particular
circumstances of each case will determine which of these factors
are
relevant. (See also
Nehawu obo Mofokeng and Others v Charlotte
Theron Children’s Home
[2004] 10 BLLR 979
(LAC).
[24] The third
respondent’s erstwhile attorneys of record are responsible for
failure to serve and file the record from the
launching of the review
application up to the date when the third respondent withdrew his
mandate. I am convinced that the third
respondent had been under the
impression that the file relating to the review application had also
been handed over to its current
attorneys of record and that both the
respondent and their current attorneys of record had not been aware
of the Rule 11 application.
[25] It is axiomatic that
there are limits to which litigants can rely on the negligence of
their legal representatives; in particular
where they display gross
ineptitude. This notwithstanding am not convinced that the third
respondent had also been negligent. In
my view, therefore, the
consequences of the negligence of the first respondent’s former
attorney of record must not be visited
upon the first respondent.
[26] I am convinced that
the first respondent’s current attorneys of record had, since
substituting themselves as attorneys
of record, diligently acquitted
themselves. Moreover, they even requested the applicant for an
extension of time, but there was
no response.
[27] I
now turn to consider if the application for condonation has been
sufficiently motivated as set out in
Melane
.
The delay in delivering the answering affidavit to the Rule 11
application is not five months and one. While the delay is
considerable
find the explanation reasonable and acceptable. It is
trite that the prospect of success cannot be debated in any detailed
and
meaningful manner. It suffices that the first respondent made
submissions in such detail to enable the court to assess if,
prima
facie
,
there are prospects of success. I am, therefore, convinced that there
are adequate submissions on the prospects of success that,
if made
successfully in the review application, the first respondent would be
entitled to relief. I am convinced that, having considered
all the
facts, the first respondent will be prejudiced if condonation is not
granted.
Application to make
the award an order of court
[28] It is trite that the
mere fact that of a pending review is not a bar to a court making an
award an order of court and the power
to make an order of court is a
discretionary power to be exercised judicially.
[29] In
Ntshangase v
Speciality Metals CC
[1998] 3 BLLR 305
(LC) at para 13, the
Labour Court stated that:
‘…
To
succeed in (sic) stay proceedings the applicant must satisfy the
Court that there are good prospects of success in the pending
matter,
that the balance of convenience is in his favour and that it would be
fair to stay the present proceedings’.
(See
also
Khoza
v Sasol
[2002] 9 BLLR 868
(LC) and
Olivier
v University of Venda
[2003] 5 BLLR 471
(LC)).
[30] I have found
hereinbefore that the first respondent has reasonable prospects of
success of the review application succeeding.
For this reason, in my
view, it would be unfair to deny the first respondent an opportunity
of challenging the award.
[31] In my view, it is
not appropriate in this case that costs should follow the result,
considering that the applicant had incurred
costs in bringing this
application in circumstances where the first respondent was
responsible for prosecuting the review application.
Order
[32] I, accordingly, make
the following order:
32.1 The
application for condonation is granted;
32.2 The
application for the dismissal of the review application instituted by
the first respondent under Case Number JR3050/12
is dismissed;
32.3 The
application to make the arbitration award, issued by the second
respondent under Case Number GPRFCBC16351, an order
of court is
dismissed; and
32.4
The third respondent to pay the applicant’s costs.
_____________________
Mthombeni,AJ
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant:
MM Baloyi, of
MM Baloyi Attorneys
For
the Third Respondent: KM McAdam,of Lee and McAdam
Attorneys