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[2016] ZALCCT 38
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POPCRU obo Sontlaba v National Commissioner of the South African Police Service and Others (C148/2013) [2016] ZALCCT 38 (27 October 2016)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case
no: C148/2013
Not
Reportable
In
the matter between:
POPCRU
obo VINCENT NYANISO SONTLABA
Applicant
and
THE
NATIONAL COMMISSIONER OF
THE
SOUTH AFRICAN POLICE
SERVICE
First Respondent
MARTINUS
CHRISTOFFEL VAN AARDE N.O.
Second Respondent
SAFETY
& SECURITY SECTORAL BARGAINING COUNCIL
Third Respondent
Heard: 5
May 2016
Delivered:
27 October 2016
JUDGMENT
RABKIN-NAICKER,
J
[1]
This is an opposed application to dismiss a review application under
the above case number. The review application was filed
by the SAPS
on the 5 March 2013 in respect of an award issued on the 2 October
2012.
[2]
The SAPS subsequently filed its Notice of Compliance in terms of Rule
7A (2) (b) at court but did not serve same on the applicant.
Approximately 13 months then elapsed during which SAPS failed to take
further steps to prosecute the review.
[3]
On 2 May 2014 applicant’s attorneys of record wrote to the SAPS
legal representatives informing them that:
3.1
Their review was materially defective as it failed to call upon the
Third Respondent to
dispatch the record of the proceedings to the
registrar in terms of Rule 7A (2) of the Rules;
3.2
SAPS had failed to furnish the registrar and the first, second and
third respondent with
a copy of the record in terms of Rule &A
(6) of the Rules of the Labour Court; and
3.3
That failure to adhere to the requests to file the record would
result in the lodging of
an application to compel.
[4]
The applicant eventually itself lodged an application to compel which
was opposed by the SAPS. When the matter came to the Labour
Court on
the 17 October 2014, the parties were granted an order by agreement
as follows:
“
1.
That the parties shall meet
within 30 (thirty) days of date of this order to reconstruct
the
record;
2.
That the reconstructed record will be filed with the Registrar of
Court within
60 (sixty) days of this order.
3.
That costs will stand over for later determination.”
[5]
The parties held a round table conference at the office of the State
Attorney on 31 March 2015 to give effect to the court order.
The
state attorney had no documents that could be used for the
reconstruction of the record and requested time to try and trace
more
documents. It appears from a letter annexed to the founding papers
that the state attorney wrote to the third respondent on
the 8 April
2015 requesting that it re-send the record of the proceedings stating
that “We have inspected the court file
and have found no cd or
handwritten notes.”
[6]
Another letter was sent by the State Attorney on the 23 July 2015 to
which the third respondent replied stating as follows:
“
Please
note that the following records regarding the above mentioned matter
(C148/2013) were filed at the Labour Court in Cape Town
on the 8
April 2013:
·
Copy of the SSSBC file
·
Bundle of documents
·
Arbitrator’s
handwritten notes, and
·
CD x 1
Attached
is the Index and the courier slip from Postnet to show that what we
file the above mentioned records at the Labour Court.
Kindly
also note that the SSBC is not in possession of any other
records of proceedings on this matter as we have submitted
all the
records that were forwarded to us by the arbitrator..”
[7]
According to the applicant herein the SAPS then threatened to apply
to compel the third respondent to provide the record
but did
not take any steps to do so.
[8]
In the answering papers filed in this application it is worth
recording the following averments on behalf of the SAPS:
“
12.
This is not a case where the applicant
[1]
can be accused of being dilatory, as will become clearer below, the
applicant took active steps to prosecute the review. At first
blush,
the overall view of the three year period may seem long, however, a
close examination of the sequence of events that took
place over this
period reveals a different picture. The applicant did not adopt a
passive attitude in prosecuting the review but
sent regular reminders
to the Bargaining Council. The debacle with the record of the
proceedings was beyond the control of the
applicant.
13.
Alternatively, in the event that this court finds that here has been
a delay in prosecuting the review, it is not the extent
that the
review may be dismissed. I submit that the applicant is not the sole
party to Blame. In arriving at this conclusion the
court is obliged
to examine the extent to which the First Respondent’s
[2]
inaction contributed to the delay.”
[9]
SAPS also submits that the period relevant to this application is
from the period 13 March 2015 when the consent order was granted,
to
the date on which the application to dismiss was filed 21 January
2015.
[10]
It appears that the deponent for APS, although assisted in his legal
submissions by counsel, has not appreciated the role of
a dominus
litis i.e. that as the applicant in the review application, SAPS is
master of the process it has initiated. In addition
the answering
affidavit makes no specific allegations supporting the “Blame”
to be laid at the door of the applicant
in casu
, which
SAPS suggest this court “is obliged” to consider.
[11]
I am also of the view that there is no legal basis for the submission
that the material period the court is to consider dates
from the
court order dated 17 September 2014. The SAPS had, as dominus litus,
opposed an application to compel the production of
the record in
order for the review application to proceed. Extraordinary as this
is, the parties then agreed to reconstruct the
record. The agreement
is contained in the order and has no wider import than its clear
wording. It did not change the date
on which the application to
review the award was launched nor did it affect the period I must
consider regarding the time taken
in prosecuting the review. The
period is thus an excessive delay of some three years.
[12]
The law as set out in the matter of Karan t/a Karan Beef Feedlot &
another v Randall
[3]
applies:
“
[14]
In summary: despite the fact that the rules of this court make no
specific provision for an application to dismiss a claim
on account
of the delay in its prosecution, the court has a discretion to grant
an order to dismiss a claim on account of an unreasonable
delay in
pursuing it. In the exercise of its discretion, the court ought to
consider three factors:
•
the
length of the delay;
•
the
explanation for the delay; and
•
the
effect of the delay on the other party and the prejudice that that
party will suffer should the claim not be dismissed.
This
is subject to the consideration that an application to dismiss is a
drastic remedy, and should not be granted unless the dilatory
party
has been placed on terms, and when appropriate, after any further
steps as may have been available to the aggrieved party
to bring the
matter to finality have been taken. “
[13]
It is evident that the length of the delay and the explanation by the
SAPS do not assist its case. The prejudice it will suffer
should this
application be granted is limited to a situation where the main
dispute between the parties will go to a condonation
hearing at
the bargaining council. I am not required to consider the merits of
the review application in exercising my discretion
in this matter.
However, I note that the review is not properly before court as
condonation has not been granted for its late filing.
[14]
In all the above circumstances, and taking into account the ongoing
relationship between the applicant union and SAPS, I make
the
following order:
Order
1.
The review application under case number C148/2013 is dismissed.
2.
There is no order as to costs.
____________________
H. Rabkin-Naicker
Judge of the Labour Court
Appearances:
Applicant
in the application to dismiss: K. Allen instructed by Sontlaba
Attorneys
First
Respondent: A.I.B Lechwano instructed by the State Attorney
Kimberley.
[1]
i.e. SAPS,
the applicant in the review
[2]
i.e. Pppcru
obo V.N. Sontlaba
[3]
(2009)
30 ILJ 2937 (LC)