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[2016] ZALCJHB 140
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Chubb Electronic Security SA (Pty) Ltd v Mokoena; In re: Mokoena v Chubb Electronic Security SA (Pty) Ltd and Others (JR2033/11) [2016] ZALCJHB 140 (1 March 2016)
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Not Reportable
Case
No: JR 2033/11
In the matter
between:
CHUBB
ELECTRONIC SECURITY SA (PTY) LTD
Applicant
and
SIMON
M.
MOKOENA
Respondent
In
re:
SIMON
M.
MOKOENA
Applicant
and
CHUBB
ELECTRONIC SECURITY SA (PTY) LTD
First
Respondent
THE COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION
Second Respondent
COMMISSIONER LUNGILE
MATSHAKA,
N.O.
Third
Respondent
Heard:
18 March 2015
Judgment
:
01 March 2016
Summary:
Application to dismiss review proceedings on account of delay in
their prosecution; No exculpatory explanation
for the delay;
Application succeeding with costs.
JUDGMENT
VOYI AJ.
Introduction
[1]
This is an application launched by Chubb
Electronic Security South Africa (Pty) Ltd (hereinafter “
Chubb
”)
for the dismissal of review proceedings that were instituted by Mr
Simon M. Mokoena (hereinafter “
Mokoena
”)
on or about 23 August 2011 under case number JR2033/11.
[2]
The application to dismiss was launched,
under Rule 11 of the Labour Court Rules, on 9 February 2012. It is
opposed by Mokoena.
Background
[3]
The need to launch the application arose
after Mokoena failed to comply with the provisions of Rule 7A(6) of
the Labour Court Rules.
In terms of the said Rule 7A(6), Mokoena had
to “…
furnish the registrar
and each of the other parties with a copy of the record or portion of
the record, as the case may be, and
a copy of the reasons filed
…”.
[4]
With the review application having been
served on both the Commission for Conciliation, Mediation and
Arbitration (hereinafter “
the
CCMA
”) and Commissioner Lungile
Matshaka (hereinafter “
the
Commissioner
”) on or around 23
August 2011, the CCMA duly complied with the provisions of Rule 7A(3)
of the Labour Court Rules.
[5]
According to the aforementioned Rule 7A(3),
the CCMA and the Commissioner had to “…
timeously
comply with the direction in the notice of motion
”
calling upon them to
inter alia
dispatch to the Registrar of this Court the record of the proceedings
sought to be reviewed. This they did on or about 31 October
2011.
Thereafter, it was the responsibility of Mokoena to fulfil the
provisions of Rule 7A(6) of the Labour Court Rules.
[6]
As mentioned herein above, there was no
compliance with the provisions of Rule 7A(6) by Mokoena. This was
notwithstanding a letter
from the CCMA dated 27 October 2011, wherein
the following was stated:
‘
The
above-mentioned Review application refers.
In
compliance with Rule 7A(3) of the Rules of the Labour Court, the CCMA
has dispatched the record of the proceedings in the above-mentioned
application to the Registrar of the Labour Court.
…
In
terms of Rule 7A(6) you must furnish the Registrar and each of the
others parties (sic) with a cop of of the record or portion
of the
record.
In
terms of Rule 7A(9) (sic) you must advise the Registrar whether you
stand by your notice of motion or otherwise wish to amend,
add or
vary it.
Yours
faithfully.’
[7]
On 9 November 2011, Chubb’s attorneys
of record addressed a letter to Mokoena’s attorneys requesting
‘a copy of
the transcribed records’, ‘the
arbitration records’ as well as a ‘supplementary
affidavit’, if any.
There was no response to this letter. A
subsequent letter was, apparently, dispatched by Chubb’s
attorneys. In a letter dated
12 January 2012, Mokoena was placed on
terms with regards to delivery of the record of the arbitration
proceedings. In this particular
letter, the following was stated:
‘
We
refer to the above mentioned matter and our letter dated 9 November
2011.
Kindly
take note that although we have requested your transcribed records
and supplementary affidavit numerous times, you failed
to respond to
any of our requests.
Kindly
serve our office with your transcribed records and supplementary
affidavit within 10 days. We hereby advise that your failure
to
respond to our numerous requests will authorise our client to launch
an application for the dismissal of your client’s
application.
We will proceed with an application for dismissal should you not
serve your records and supplementary affidavit within
10 days.
We
trust you find the above in order.
Yours
faithfully’
[8]
There was no reaction to the aforementioned
letter of 12 January 2012 by Mokoena and/or his attorneys. On 9
February 2012 and after
the lapse of the ten (10) days period stated
in the said letter, Chubb launched its application to dismiss
Mokoena’s review
application.
[9]
The application to dismiss was served on
Mokoena’s attorneys of record on 6 February 2012 via registered
post. Under Rule
4(1)(a)(vii) of the Labour Court Rules and unless
the contrary is proven, it is presumed that service via registered
post was effected
on the seventh day following the day on which the
document was posted.
[10]
In terms of Rule 7(4)(b) of the Labour
Court Rules, Mokoena had to deliver his notice of intention to oppose
Chubb’s application
as well as his answering affidavit within
ten (10) days from the day on which the application to dismiss was
served. In this matter,
the date of service is presumed to have been
the seventh day after 6 February 2012.
[11]
No opposing papers were received from
Mokoena and, as a result, the application to dismiss was enrolled for
hearing on the unopposed
motion roll for 12 June 2012. On this
date, the matter was removed from the roll on account of
non-appearance.
[12]
Shortly thereafter, Chubb’s attorneys
launched an application for the re-enrolment of the application to
dismiss on the unopposed
motion roll. Pursuant thereto and on 4 June
2013, an Order was issued that the application to dismiss be enrolled
for hearing on
notice to both parties.
[13]
The application to dismiss was, indeed,
enrolled for hearing by the Registrar and the date allocated was 6
August 2013. Before this
date and on or about 30 July 2013, Mokoena
delivered his notice of intention to oppose the application to
dismiss. The answering
affidavit followed suit on 1 August 2013.
[14]
The matter was removed from the unopposed
motion roll on 6 August 2013 with costs reserved. The removal was
occasioned by the matter
being, all of a sudden, opposed by Mokoena.
[15]
On 15 August 2013, Chubb delivered its
replying affidavit. In as much as Mokoena’s answering affidavit
was way out of time,
no notice of objection as contemplated by
paragraph 11.4.2 of the Practice Manual of the Labour Court of South
Africa (“
the Practice Manual
”)
was delivered.
[16]
Instead, Chubb raised a point
in
limine
regarding the late delivery of
the answering affidavit in its replying affidavit. The latter
affidavit was also delivered outside
the prescribed five (5) days’
time frame under Rule 7(5)(a) of the Labour Court Rules.
[17]
I do not intend to dwell much on the late
delivery of the answering and replying affidavits. If either of the
parties had an issue
with the late delivery of the said affidavits,
the necessary notice of objection envisaged by paragraph 11.4.2 of
the Practice
Manual had to be delivered. I therefore regard both
affidavits as being properly before me.
Evaluation
[18]
The review application was launched on 28
August 2011. After a period of over five (5) months with no action on
the part of Mokoena,
the application to dismiss was launched.
[19]
The application was launched after Mokoena
failed to comply with the provisions of Rule 7A(6) of the Labour
Court Rules.
[20]
Mokoena only caused the transcript of the
arbitration proceedings to be delivered on 30 July 2013, which was
almost two (2) years
after the review proceedings were initiated.
[21]
At
this juncture I wish to recall the following statement in
United
Plant Hire (Pty) Ltd v Hills and Others
,
[1]
which is apt in the context of this matter:
‘
Litigation
is a serious matter and, once having put a hand to the plough, the
applicant should have made arrangements to see
the matter
through.’
[22]
The
authority of this Court to dismiss a case on account of delays in its
prosecution was, recently, affirmed by the Constitutional
Court in
Toyota
SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others.
[2]
[23]
In
Toyota SA
Motors (Pty) Ltd
(
supra
),
the Constitutional Court passed the following relevant remarks:
‘
Any
delay in the resolution of labour disputes undermines the primary
object of the LRA. It is detrimental not only to the
workers
who may be without a source of income pending the resolution of the
dispute but, ultimately, also to an employer who may
have to
reinstate workers after many years.’
[24]
With
the above passage, the Constitutional Court was echoing similar
sentiments expressed by Ngcobo J in
Commercial
Workers Union of SA v Tao Ying Metal Industries and Others
,
[3]
wherein he held thus:
‘
Any
delay in resolving a labour dispute could be detrimental not only to
the workers who may be without a source of income pending
the
resolution of the dispute, but it may, in the long run, have a
detrimental effect on an employer who may have to
reinstate workers after a number of years.’
[25]
The
relevant principles for consideration when dealing with an
application to dismiss review proceedings on account of delay in
their prosecution were extensively dealt with by this Court in
Sishuba
v National Commissioner of the SA Police Service.
[4]
[26]
The
factors to be taken into account in considering whether or not to
grant the dismissal of a matter due to unreasonable delay
in its
prosecution were stated by this Court in
Baldwin
Steel and Another v National Union of Metalworkers of SA and
Others
[5]
as being:
‘…
the
length of the delay; the explanation for the delay; and the effect of
the delay on the other party and the prejudice that party
will suffer
should the claim not be dismissed.’
[27]
The
prospects of success in the main case were also pointed out as a
relevant factor by this Court in
Meintjies
v New Tyre Manufacturers Bargaining Council and Others
.
[6]
[28]
In
Moraka
v National Bargaining Council for the Chemical Industry and
Others
,
[7]
this Court held as follows:
‘
A
party defending itself against an application to dismiss a review on
account of undue delay is effectively asking the court to
condone its
dilatoriness and similar considerations which apply to the evaluation
of applications for condonation ought to be relevant
in the
evaluation of these applications.’
[29]
In resisting the application to dismiss,
Mokoena proffers the following explanation for his delay:
‘
9.2
Since my dismissal, I am not working and I depend on
my wife who is
getting children grant R720.00 per month to survive.
9.3
I could not raise money for the transcript of CCMA
record as required
by rules, hence, it took time for me to finally be able to pay for
the record to the transcribers.
9.4
I always wanted to take the matter on review and
the transcribers
could not proceed with the transcript without the payment of the
money for transcript.
9.5
I could only manage to make payment in May 2013
hence the record has
only been finalised on the 18 July
2013.’
[30]
Somewhere in his answering affidavit,
Mokoena goes on to state that he is “…
unemployed
and it took time for [him] to get the amount required to the
transcript which is R5000.00
”.
[31]
As to how he eventually obtained the
required funds, Mokoena states that he was “…
ultimately
assisted by [his] mother who is a pensioner and [his] brother
…”.
[32]
In
essence, Mokoena simply advances lack of funds as an explanation for
the delay. In
Gaoshubelwe
and Others v Pie Man's Pantry (Pty) Ltd
,
[8]
this Court held thus:
‘…
as
a general approach the lack of funds should not on its own
constitute a reasonable explanation.’
[33]
With regard to the explanation proffered by
Mokoena, I am afraid there is not much detail. There is not a single
correspondence
between Mokoena or his attorneys and the transcribers
concerned.
[34]
Proof of the payment that was eventually
made in May 2013 is also not attached. Mokoena does not even attach
confirmatory affidavits
from the individuals that eventually assisted
him with the required funds. In my considered opinion, the
explanation tendered is
superficial.
[35]
There is also no explanation as to why
Mokoena never saw it fit to advise Chubb, through the attorneys on
record, of the alleged
difficulties he was experiencing in raising
the required funds to have the record transcribed.
[36]
If the difficulties with prosecuting the
review were solely with regard to raising funds to have the record
transcribed, the least
that Mokoena could have done was to deliver
the documentary part of the record of the arbitration proceedings.
[37]
When delivering the record on 30 July 2013,
Mokoena simply served and filed the transcript of the arbitration
proceedings. The other
documents that served before the Commissioner
at the arbitration proceedings were not delivered as part of the
record.
[38]
In this matter, I am not satisfied that
there is a satisfactory and reasonable explanation for the delay in
prosecuting the review.
Although the delay was not that excessive
when the application to dismiss was launched, I cannot turn a blind
eye to the fact that
the record was only delivered almost two (2)
years after the review proceedings were launched.
[39]
In his answering affidavit, Mokoena
addresses only one aspect of his prospects of success in the review
proceedings sought to be
dismissed. He does so by contending that the
Commissioner made an arbitration award for one ‘Karin Louise
Truebody’
and not for him. This contention arises from the fact
that the Commissioner’s award makes reference to ‘Karen
Louise
Truebody’ at paragraph 35 thereof.
[40]
Purely on account of the mentioning of
‘Karin Louise Truebody’ in the award, Mokoena contends
that the Commissioner’s
award stands to be reviewed and set
aside. It seems to me that this contention is an exaggeration. The
reference to ‘Karin
Louise Truebody’ in the
Commissioner’s award is nothing but an obvious error.
[41]
The award itself deals with the dispute
between Mokoena and Chubb. Throughout his award, the Commissioner
makes reference to Mokoena,
albeit under the name ‘Simon’.
In my view, Mokoena is being disingenuous in alleging that the
arbitration award he
seeks to review does not relate to him.
[42]
Other than reliance on the erroneous
reference to ‘Karin Louise Truebody’ in the
Commissioner’s award, Mokoena
does not address any other aspect
of his prospects of success in the main review proceedings.
[43]
In the circumstances of this matter, I am
satisfied that a case has been made out for the dismissal of the
review. The incident
which resulted in Mokoena being dismissed by
Chubb occurred in June 2008. Mokoena has failed to tender an
exculpatory explanation
for the delay in prosecuting his application
for review. He equally failed to advance prospects of success in his
review. In both
regards, he was remiss.
[44]
There is, in my view, no reason why in law
and fairness costs should not follow the results. This also applies
to the costs that
were reserved on 6 August 2013.
Order
[45]
I, accordingly, make the following order:
45.1
The application for review launched by the Respondent (being Simon M.
Mokoena)
on or about 23 August 2011 under case number JR2033/11 is
hereby dismissed.
45.2
The Respondent is ordered to pay the Applicant’s costs in
respect of both
the application for review as well as the application
to dismiss on a party-and-party scale.
NP Voyi
Acting
Judge of the Labour Court of South Africa
Appearance:
For
the Applicant:
Advocate
M Meyer
Instructed
by:
Nothnagel Attorneys
For
the Respondent:
T Faku (Attorney) of Faku Attorneys
[1]
1976 (1) SA
717
(A) at 721E-G.
[2]
(CCT
228/14)
[2015] ZACC 557
(15 December 2015).
[3]
(2008) 29
ILJ
2461 (CC) at para 63.
[4]
(2007)
28
ILJ
2073
(LC). See also:
Karan
t/a Karan Beef Feedlot and another v Randall
(2009)
30
ILJ
2937 (LC);
BP
Southern Africa (Pty) Ltd v National Bargaining Council for the
Chemical Industry and Others
(2010)
31
ILJ
1337 (LC);
Moraka
v National Bargaining Council for the Chemical Industry and
Others
(2011)
32
ILJ
667 (LC).
[5]
(2011) 32
ILJ
2116 (LC) at para 15.
[6]
(2012) 33
ILJ
1725 (LC) at para 30(d). See also:
Equity
Aviation Services (Pty) Ltd v SA Transport and Allied Workers Union
and Others
(2009) 30
ILJ
2912 (LC) at para 27.
[7]
(2011) 32
ILJ
667 (LC) at para 20.
[8]
(2009) 30
ILJ 347 (LC) at para 36.