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[2016] ZALCJHB 147
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Giwusa and Others v Maxam Dantex SA (Pty) Ltd (JS699/15) [2016] ZALCJHB 147 (12 February 2016)
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Case
Number: JS 699/15
In
the matter between:
GIWUSA
First applicant
KEKANA
&
others
Second and further applicants
and
MAXAM
DANTEX SA (PTY) LTD
Respondent
Heard:
12
February 2016
Judgment:
12 February
2016
EX-TEMPORE
JUDGMENT
STEENKAMP
J
:
[1]
This is an application for condonation for
the late filing of the applicants’ statement of claim. It
arises from the dismissal
of the individual applicants, represented
by their trade union (GIWUSA), for participation in an unprotected
strike.
[2]
The application is marred by the
unprofessional and negligent conduct of the applicants’
attorney, Ms Jegeh, who is inexplicably
still the attorney of record
for the applicants. Despite the fact that almost the entire
explanation, such as it is, for the late
filing of the application is
to blame the attorney, she has not even graced the court with her
presence this morning. And Mr
Mqechane
,
who appears on her instructions, appeared here today without an
attorney present and with no explanation why he is appearing without
his attorney. I will return to that aspect when I deal with the issue
of costs.
[3]
Firstly
though, using the well-known principles set out in
Melane
v Santam Insurance Company Limited
,
[1]
I will look at the elements of the application.
[4]
The extent of the delay is excessive. The
application is more than four months late, over and above the
generous 90-day period in
which the applicants had to refer the
matter. I must also stress that the applicants have been represented
by both their trade
union and their attorney, Ms Jegeh, throughout.
[5]
Having referred an unfair dismissal dispute
to the CCMA, a certificate of outcome was issued on the 27
th
of January 2015. The statement of claim was only delivered on the
16
th
of September 2015. In the interim, having already waited for three
months and after the period of 90 days had already expired,
Ms Jegeh,
again inexplicably, filed an application for review. When I say
‘filed’, I use that word advisedly because
she did not
deliver the application as defined in the rules, because she only
served it on the respondent, Maxam Dantex, in July
of 2015. There is
no explanation for that delay. The applicants simply blame the delay
on their attorney and offer no explanation
at all for the delay.
[6]
After the application was served on the
respondent on 21 July 2015, the respondent’s attorneys of
record, Webber Wentzel,
immediately brought to the attention of the
applicants’ attorney that she had followed the wrong procedure.
Despite the diligence
of the respondent’s attorneys, the
applicants’ attorney still did nothing. For the period of July
to September 2015,
when the proper statement of claim was eventually
served, the only explanation offered by the applicants is that some
of the individual
applicants visited the court and drew the court
file on about five occasions. There is no explanation as to whether
they instructed
their attorneys to follow up or, for that matter,
their trade union. In any event, there is no explanation offered as
to what the
trade union, who is the first and nominal applicant in
this matter, did to follow up with the attorneys that it chose to
instruct
and who is still representing them even today.
[7]
To add further insult to this unhappy state
of affairs characterised by the negligence of the applicants’
representatives,
from September, when their current counsel was
briefed, they still did not bring an application for condonation
until November
of 2015. There is also no explanation for that further
delay.
[8]
This court has pointed out on numerous
occasions that there is a measure beyond which a litigant cannot
escape the negligence of
its chosen representatives. Firstly, dealing
with the inaction of the trade union, La Grange J remarked as long
ago as 2011 in
NEHAWU v Vanderbijlpark
Society for the Aged
(2011) 32
ILJ
1959 (LC) at paragraph 9 that the LRA has been in existence for more
than 15 years; and it is reasonable to expect that trade unions
ought
to be well aware of the need to act timeously in the interest of
their members. The same goes for this trade union in the
circumstances of this case.
[9]
As far as the negligence of the attorney is
concerned, our courts have stated on numerous occasions, starting
with
Saloojee v Minister of Community
Development
1964 (2) SA 135
(AD), that
a party cannot escape the negligence of its legal representatives
beyond a certain point. In
Superb Meat
Supplies CC v Maritz
(2004) 25
ILJ
96 (LAC) the Labour Appeal Court said:
“
It
has never been the law that invariably the litigant will be excused
if the blame lies with the attorney. To hold otherwise might
have a
disastrous effect upon the observance of the rules of this court and
set a dangerous precedent. It would invite or encourage
laxity on the
part of practitioners. The courts have emphasised that the attorney,
after all, is the representative whom the litigant
has chosen for
himself, and there is little reason why, in regard to condonation of
a failure to comply with a rule of court, the
litigant should be
absolved of the normal consequences of such a relationship, no matter
what the circumstances of the failure
are.”
[10]
Given
the extent of the delay and the poor explanation for it, which
amounts to no explanation at all, the court need not consider
the
prospects of success.
[2]
However, Mr
Mqechane
has addressed me on the prospects of success at length. I have had
regard to his argument as well as the respondent’s
comprehensive
answering affidavit and the findings of the
chairperson. On the evidence before me, it appears to me that the
employer followed
a fair process; that it provided the employees with
an opportunity to state their case; that they took part in an
unprotected strike,
which is per definition misconduct in terms of
the LRA; and that the chairperson, a senior advocate from the
Johannesburg Bar,
came to a fair conclusion. The prospects of success
are poor.
[11]
That brings me to the remaining issue of
costs. I was sorely tempted to order costs
de
bonus propriis
against the applicants’
attorney, Ms Jegeh. That is so because her counsel, Mr
Mqechane
,
readily admitted that she has been grossly negligent in the conduct
of this matter and that that has led to prejudice to her clients
–
the unfortunate 138 individual employees who are sitting here in
court this morning. They have been badly served by the
attorney
appointed by their trade union and who is presumably being paid by
the trade union. Had the applicants not at least been
represented by
a trade union, which is presumably footing the bill, I would have
asked Ms Jegeh – who, as I said, did not
bother to grace the
court with her presence here today – to make submissions as to
why she should not be held liable for
the costs
de
bonus propriis
. However, in
circumstances where the trade union has also been negligent and where
it will have to foot the bill, I think it is
not unreasonable to
simply make a normal costs order in law and fairness. Whether the
union should pay its attorney’s fees
is something for it to
discuss with the attorney. And whether the individual applicants here
should go further and sue both their
trade union and their attorney
for negligence, as Ms
Tolmay
suggested, is again something that I leave in their hands. I do note,
however, that they do have that recourse.
Order
[12]
The application for condonation is
dismissed with costs.
____________________________
AJ Steenkamp
Judge of the Labour Court
APPEARANCES
APPLICANTS:
T Mqechane
Instructed
by:
Jegeh attorneys
RESPONDENT:
E Tolmay
Instructed
by:
Webber Wentzel.
Counsel
for Applicant
:
Advocate Mqechane
Counsel
for Respondent
:
Advocate Tolmay
Date
of Judgment
:
2016-02-12
-
- - - - - - - - - - - -
IAFRICA
TRANSCRIPTIONS (PTY) LTD
ARBOUR
HOUSE
CNR
MELLE & JUTA STREET, 6TH FLOOR
BRAAMFONTEIN,
2001
TEL/FAX:
(011)339-4362
[1]
1968 (4) SA 531 (A).
[2]
NUM v Council for Mineral
Technology
[1999] 3 BLLR
209
(LAC).