About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Port Elizabeth Labour Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Port Elizabeth Labour Court, Port Elizabeth
>>
2015
>>
[2015] ZALCPE 48
|
|
Kula v Nxuba Local Municipality and Another (P386/14) [2015] ZALCPE 48; [2016] 1 BLLR 55 (LC) (30 October 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
Case
no: P 386/14
In
the matter between
ZOLILE
WILLIAM
KULA
Applicant
and
NXUBA
LOCAL
MUNICIPALITY
First Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
Second Respondent
Heard:
3 September 2015
Delivered:
30 October 2015
Summary:
Inordinate delay in the prosecution of a review application may lead
to its dismissal.
JUDGMENT
LALLIE,
J
[1]
The applicant sought an order for the consolidation of his
application to make an arbitration award an order of court in terms
of
section 158
(1) (c) of the
Labour Relations Act 66 of 1995
as
amended (the LRA) and the review application launched by the first
respondent under case number PR 234/2014. He also filed an
application to dismiss the review application. The factual background
of this matter is that the applicant was employed by the
first
respondent in 1990 until his dismissal on 13 September 2013 for
inappropriate allocation of houses constructed by the Department
of
Human Settlements. He challenged the fairness of his dismissal at the
second respondent which found his dismissal substantively
and
procedurally unfair and ordered his reinstatement and payment of an
amount of R 157 668. 00 in an award dated 27 August 2014.
[2]
On 22 October 2014, the first respondent filed an application to
review and set aside the arbitration award under case number
PR
234/2014. On the same day, the applicant filed an application to make
the arbitration award an order of court. On 10 November
2014, the
applicant opposed the review application. After persuasion by the
applicant’s attorneys, an incomplete record was
filed on 19
January 2015. On 2 February 2015, the applicant’s attorneys
placed the first respondent’s attorneys on
terms for the filing
of the complete record and threatened to move an application to have
the award made an order of court. The
first respondent’s
attorneys replied in a letter dated 12 February 2015 by advising that
they were awaiting the record from
transcribers. After waiting for
further communication from the first respondent for over three
months, the applicant filed the
application to have the review
application dismissed on the grounds that the first respondent had
abandoned the review application
owing to its inordinate delay in its
prosecution when it was aware of his application to make the
arbitration award an order of
court.
[3]
On 31 August 2015, only two days before the hearing of the
application to make the arbitration award an order of court and the
application to dismiss the review application, the first respondent
filed its answering affidavit opposing the latter application.
It
filed an application for condonation of the late filing of the record
simultaneously. The first respondent submitted that it
served the
transcribed record of the arbitration proceedings on 27 August 2015.
It expressed the view that it would have been meaningless
to oppose
the application without filing the record. It took no issue with the
facts of the application as presented by the applicant.
It, however,
took issue with the submission that it had abandoned the review
application as its filing of the record and the notice
in terms of
Rule 7A
(8) was conclusive proof of its intention to pursue the
review application. The reason advanced by the first respondent for
filing,
on 27 August 2015, a record which was delivered to its
attorneys on 3 February 2015 is that it was misplaced and not brought
to
the attention of the first respondent’s attorney responsible
for the matter. When the error was discovered the record was
served
on the applicant without delay.
[4]
The application for the order consolidating the application to make
the arbitration award an order of court and the application
to
dismiss the review application is not opposed. I am satisfied that
the applicant has established that it would be expedient
and just for
the order to be granted. Both applications have the effect of
bringing the matter to finality and consolidating them
will save both
parties time and legal costs.
[5]
The application to dismiss the review application was served on the
first respondent on 12 May 2015. The first respondent was
required to
have filed its answering affidavit thereto within 10 days thereafter.
It, however, filed it on 31 August 2015 more
than three months out of
time. The first respondent did not apply for condonation of the late
filing of the answering affidavit.
It is, therefore, not properly
before Court. I have considered the arguments on behalf of the first
respondent to the effect that
without the record which was filed on
31 August 2015, there were no grounds to resist the application to
dismiss the review application.
Having perused the record, the first
respondent is convinced that it has a
prima facie
case on
review. It was further argued that the application to condone the
late filing of the record should succeed particularly
because the
first respondent has taken all the steps to cure defects in the
review application. Any prejudice the applicant stands
to suffer will
be cured should the review application fail as he will be reinstated.
[6]
The condonation application was opposed by the applicant on the basis
that it was too little too late. The applicant submitted
that he
warned the first respondent shortly after the application was filed
in November 2014, that if there was any delay in the
prosecution of
the review application, the application to make the arbitration award
an order of court would be set down. The first
respondent was
reminded by the applicant to file the record on 21 November 2014 and
informed, on 19 January 2015, that the record
was incomplete. The
complete record was finally filed on 31 August 2015. The applicant
argued that the delay was excessive. Its
explanation that the record
was delivered at the first respondent’s attorneys in February
2015 but misfiled and discovered
in August 2015 is unacceptable. The
applicant relied on the unreported decision of the Labour Court in
Makuse
v Commission for Conciliation, Mediation and Others
,
[1]
where the Court referred with approval to a number of cases which
highlight the need for litigants to act promptly and in terms
of the
Rules of Court. One such decision is
Van
Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as
Amicus Curiae)
,
[2]
where the Court held as follows:
‘
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. After an inordinate delay a litigant is entitled to assume
that the losing party has accepted the finality
of the order and does
not intend to pursue the matter any further.’
[7]
It is, at this stage, trite that in the absence of reasonable
explanation for the delay, there is no need to consider prospects
of
success. The first respondent’s explanation for the delay
between February and August 2015 that the record was misfiled
is
rendered unreasonable by the absence of the explanation of the steps
taken to find and serve the record earlier than August
2015. The
first respondent adopted a laid-back approach when it was aware that
the applicant had filed an application in terms
of
section 158
(1)
(c) and after the applicant had expressed his unwillingness to
tolerate delays. As the delay is excessive and its explanation
unreasonable the late filing of the record cannot be condoned.
Amongst
the authority the applicant sought to rely on in arguing for the
dismissal of the review application is
Novo
Norsdick (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[3]
where it was held that employers who launch spurious review
applications and then fail to prosecute them with due diligence will
not receive assistance or sympathy from courts. In
Meities
v New Tyre Manufacturers Bargaining Council and Others
,
[4]
it was held that the following factors have to be taken into account
in considering whether to uphold an application for the dismissal
of
a review application for want of prosecution:
‘
(a)
Is the delay in the prosecution of the matter excessive?
(b)
Is there a reasonable explanation for the delay?
(c)
What prejudice will the other party suffer if the dismissal is not
granted?
(d)
Are there prospects of success in the main case?’
[8]
The applicant’s submission that the delay in the prosecution of
the review application is excessive cannot be denied.
The review
application was filed in October 2014. The first respondent was
required to have taken the necessary steps to file the
record of the
arbitration proceedings shortly thereafter. Clause 11.2.2 of the
Practice Manual of the Labour Court provides that
for purposes of
Rule 7A
(6), records must be filed within 60 days of the date on
which the applicant is advised by the Registrar that the record has
been
received. Clause 11.2.3 provides that an applicant who fails to
file the record within the prescribed period will be deemed to have
withdrawn the review application. The record in the review
application was filed on 27 August 2015 more than nine months after
the review application was filed and after being prompted by the
applicant. In the absence of an answering affidavit, there is
no
explanation for the delay.
[9]
The first respondent will suffer prejudice should this application be
granted. The first respondent’s argument that any
prejudice
that the applicant stands to suffer will be cured by his
reinstatement should the review application not succeed overlooks
the
reality that the applicant obtained an arbitration award in his
favour in August 2014. He was entitled to be gainfully employed
shortly thereafter. He last received an income when he was dismissed
in September 2013. The first respondent cannot expect the
applicant
to continue leaving without an income any further. The prejudice the
applicant continues to suffer because of the impediments
in the
enforcement the arbitration award in his favour should not be
underestimated. So is his right to have the review application
brought to finality without undue delay. The prejudice the first
respondent suffers is self-created. On the applicant’s version,
which is the only version before me, the first respondent has no
prospects of success. The applicant has established valid grounds
for
the dismissal of the review application owing to the first
respondent’s inordinate delay in prosecuting it.
[10]
The applicant has an arbitration award ordering his reinstatement. He
was prevented by the first respondent from reporting
for duty in
terms of the arbitration award. There are no impediments to his
reinstatement. His application to have the arbitration
award made an
order of court should, therefore, succeed.
[11]
I could find no reason both in law and fairness for costs not to
follow the result.
[12]
In the premises, the following order is made:
12.1
The order to consolidate the application to make the arbitration
award under case number ECD 101307 and dated
27 August 2014 an order
of court and the review application instituted by the First
Respondent under case number PR 234/2014 is
granted.
12.2
The arbitration award under case number ECD 101307 and dated 27
August 2014 is made an order of court.
12.3
The review application under case number PR 234/2014 is dismissed.
12.4
The first respondent pay the applicant’s costs.
______________
Lallie,
J
Judge
of the Labour court of South Africa
Appearances
:
For
the Applicant: Advocate Grogan
Instructed
by Wheeldon, Rushmere & Cole Attorneys
For
the First Respondent: Advocate Grobler
Instructed
by Wikus Van Rensburg Attorneys
[1]
(JR2795/11) [2015] ZALCJHB 265 (18
August 2015) at paras 4-9.
[2]
[2007] ZACC 24
;
2008 (2) SA 472
(CC) at para 31.
[3]
(2011) 32
ILJ
2663 (LAC).
[4]
(2012) 33
ILJ
1725 (LC) at para 30.