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
>>
2016
>>
[2016] ZALCPE 28
|
|
South African Transport and Allied Workers Union v Algoa Bus Company (Pty) Ltd and Others (P337/12) [2016] ZALCPE 28; [2016] 7 BLLR 711 (LC) (20 April 2016)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
Case
no: P337/12
In
the matter between:
SOUTH
AFRICAN TRANSPORT AND ALLIED
WORKERS
UNION (SATAWU)
Applicant
and
ALGOA
BUS COMPANY (PTY) LTD
First Respondent
TRANSPORT
ACTION RETAIL AND G
ENERAL
WORKERS UNION (THOR)
Second Respondent
TRANSPORT
AND ALLIED
WORKERS
UNION OF
SOUTH
AFRICA (TAWUSA)
Third Respondent
Heard:
17 November 2015
Delivered:
20 April 2016
Summary:
Failure to provide reasonable explanation for inordinate delay in
bringing an
application may lead to the refusal of a condonation
application.
JUDGMENT
LALLIE,
J
Introduction
[1]
Two applications served before
court. One is an application for leave to appeal
which was brought by the applicant.
The second was brought by the
third respondent. It is an application for the rescission of an order
of this court dated 31 October
2014. As both applications were
brought outside the prescribed time limits, applications for
condonation of the lateness were also
filed. The applications are
opposed by the applicant.
Background
[2]
In September and October 2011,
members of the applicant, second and third respondents who
are
employees of the applicant embarked on unprotected strikes. Part of
the first respondent's reaction to the unprotected strikes
was to
bring an application in terms of section 68 (1) (b) of the Labour
Relations Act 66 of 1995 ('the LRA') for compensation
for loss
attributable to the unprotected strike. The application
was unopposed and the following
order was granted in
favour of the first respondent in the absence of the applicant,
the second respondent, the third respondent
and their members who
were cited as the fourth respondent in the application:
'1
The First, Second and Third respondents are jointly and
severally·indebted to the Applicant in the amount of R10
million
plus interest thereon calculated
a
tempore morae,
or such other amount as the
above Honourable Court may determine.
2
Those of the Further Respondents, against whose names ticks appear in
Column "A" of annexure
"T" to the Founding
Affidavit, are jointly and severally indebted to the Applicant for a
share of R350 000.00 of the
amount specified in paragraph 1 above,
plus interest thereon, calculated a
tempore
morae,
or such other amount as the above
Honourable Court may determine.
3
Those of the Further Respondents
against whose names ticks appear .in Column "B" of Annexure
"T" to the Founding
Affidavit are jointly and severally
liable and indebted to the Applicant for a share of R10 million of
the amount specified in
paragraph 2 above, plus interest thereon,
calculated a
tempore morae,
or
such other amount as the above Honourable Court may determine.
4
The First, Second, Third, Fourth
and Further Respondents pay the Applicant the amounts determined
under paragraphs 1 and/or 2 and/or
3 above within 14 days of the date
of this order, the one paying, the others to be absolved.
5
Should the First, Second, and
Third Respondents not pay the amount determined within 14 days of the
date of this order, the Applicant
may deduct from the further
respondents' salaries over a period of six months an amount
proportional to their individual share
of the amount determined, on
the balance thereof, subject to the limitations imposed by Section
34(d) of the Basic Conditions of
Employment Act, or recover the
amounts owing by other alternate measures.
6
Costs of this application to be
paid by First, Second, Third and Fourth respondents jointly and
severally.'
Condonation
of the late filing of the application for leave to appeal
[3]
The order that the applicant seeks leave
to appeal against was granted on 31 October 2014. In terms of Rule
30(2), the applicant
should have filed its application for leave to
appeal within 15 days of the date of the order. The applicant,
however, filed the
application on 20 March 2015. It is, therefore, 83
days late. The explanation proffered by the applicant for the
delay
is mainly that the attorney it had instructed to file the
application failed to execute its instructions. The first respondent
proved the untruthfulness of the explanation by presenting
correspondence from the attorney to an official of
the applicant in which the attorney sought instructions as time for
filing the application was running out. The applicant submitted
that
it has good prospects of success on
appeal as the case pleaded by the first respondent, in
the application in terms of the LRA 68 (1)(b), necessitated the
hearing
of oral evidence. It should have been determined through
action proceedings and not by application. The spreadsheet that the
first
respondent relied on was insufficient to justify the granting
of the order in the absence of oral evidence and the contracts which
formed the basis of part of the first respondent's case. The first
respondent contended that it complied with section 68 of the
LRA
which prescribe that the relief that it sought should be obtained
through application proceedings.
[4]
The applicant further submitted that
although the delay may prejudice the first respondent who is entitled
to have the matter brought
to finality as expeditiously as
possible, it is in the interests of justice that the condonation
application be granted as
justice is better than expediency. It
argued that the first respondent will suffer no prejudice should this
application be
granted when its refusal will open it to
the prejudice of having a debt of R10 million which threatens its
very existence . The
first respondent submitted that the applicant
has itself to blame for not preventing its members from
participating
in the unprotected strike which led to the filing of
the section 68 application and for not opposing the
application.
[5]
The first respondent submitted that the
extent of the delay and the applicant's failure to provide reasonable
explanation justify
the dismissal of the application. It
further submitted that the applicant has no prospects of success on
appeal as
the order that it seeks is not final and, therefore, not
appealable.
[6]
The test for condonation is expressed as
follows in
Van Wyk v Unitas Hospital
and Another:
[1]
'This
court has held that the standard for considering an application for
condonation is the interests of justice. Whether it is
in the
interests of justice to grant condonation depends on the facts and
circumstances of each case. Factors that are relevant
to this enquiry
include but are not limited to the nature of the relief sought, the
extent and the cause of the delay, the effect
of the delay on the
administration of justice and other litigants, the reasonableness of
the explanation for the delay, the importance
of the issue to be
raised in the intended appeal and the prospect of success.'
[7]
The extent of the delay is excessive.
Its explanation is unreasonable as it is not factually
correct. In
Van Wyk (supra)
it
was held that granting condonation of an inordinate delay and
in the absence of a reasonable explanation would undermine
the
principle of finality and cannot be in the interests of justice.
[2]
Another factor which weighed against the applicant is that the order
which it intends appealing against is not final. The principle
is
elucidated as follows in
Pitelli v
Everton Gardens Projects CC:
[3]
'An
order is not final for the purposes of an appeal merely because it
takes effect, unless it is set aside. It is final
when
the proceedings of the court of first instance are
complete and that court is not capable of revisiting
the order. That
leads one ineluctably to the conclusion that an order that is taken
in the absence of a party ordinarily not appealable
(perhaps there
might be cases in which it is appealable, but for the moment I cannot
think of one). It is not appealable because
such an order is capable
of being rescinded by the court that granted it, and it is thus not
final in its effect.'
[8]
The applicant has no prospects of
success in the principal claim as it has not yet applied for the
rescission of the order that
it seeks leave to appeal against. The
order is not final and therefore not appealable . For these reasons
the application for condonation
cannot succeed. As condonation
has been refused the application for leave to appeal is not
properly before court.
Application
for rescission
[9]
The third respondent is one of the trade
unions and their members against whom the first respondent obtained
the order dated 31
October 2014 ('the order'). The order has already
been cited in full in this judgment. The third respondent brought
this application
seeking an order rescinding and setting aside the
order as against itself and those of its members who
were directed
to compensate the first respondent ('the
individual judgment debtors') and
concomitant relief. The application was filed more than
two months after the order was granted and the respondent applied for
condonation.
Condonation
application
[10]
The third respondent submitted that the
order handed down on 31 October 2014, came to its attention
on or
about 25 November 2014, through its Port Elizabeth correspondents. In
terms of Rule 16A (2)(b), it should have filed its
rescission
application by 17 December 2014. It was filed on 17 March 2015. The
application is, on the third respondent's version,
out of time by 65
days. The third respondent added that in so far as its rescission
application is based on common law, it should
have been brought
within reasonable time. In its view, it is not late as it has been
brought within reasonable time. It submitted
that should it be found
that it delayed in bringing the application , the delay is not
inordinate.
[11]
The reasons advanced by the third
respondent for the delay in launching this application are, mainly,
that the default judgment
was brought to the attention of its
main office in Johannesburg in November 2014, when a
journalist sought
comments of one of its officials. It gave
instructions to its attorneys to obtain a copy of the judgment and
the court file. The
respondent briefed counsel, it, however, had
insufficient funds to allow counsel to travel to Port Elizabeth to
consult with witnesses.
An attempt was made to draft the papers
without counsel having to travel to Port Elizabeth. In January 2015,
when the third respondent
had sufficient funds, its counsel travelled
to Port Elizabeth for the necessary consultation. Further delay was
caused by the unavailability
of witnesses and the difficulty in
obtaining relevant documents.
[12]
The first respondent argued that
the 65 day delay which the third respondent acknowledged is excessive
although its true extent
is even more. Whether the third respondent
was required to have brought its application within 15 days of
becoming aware of the
judgment or within reasonable time, 65 days is
excessive in the circumstances of this matter. I accept the first
respondent's argument
that the explanation proffered by the third
respondent that the delay was due to logistical and financial
constraints is unreasonable.
The third respondent had an obligation
to explain the full extent of the delay. It did not. It
omitted essential dates
and left portions of the delay unaccounted
for. The third respondent's difficulty to provide reasonable
explanation for the delay
is consistent with the first respondent's
version that the third respondent filed the application on 17 March
2015 having been
jolted into action by receiving the writ of
execution on 13 March 2015. The absence of reasonable explanation for
inordinate delay
constitutes sufficient grounds for the refusal of a
condonation application.
[13]
Any prejudice that the third
respondent and the individual judgment debtors stand to suffer as a
result of the refusal of the condonation
application is the direct
result of TAWUSA, as a trade union, to act on behalf of its members.
It is, therefore, self-created
and may not be relied upon. The amount
of the judgment debt on its own does not make the matter of
significance. With
regard to prospects of success, I found the
following
dictum
apposite:
'There
are overwhelming precedents in this Court, the Supreme Court of
Appeal and the Constitutional Court for the proposition that
where
there is a flagrant or gross failure to comply with the rules of
court condonation may be refused without considering prospects
of
success.'
[4]
[14]
The inordinate delay in bringing
the rescission application is a direct result of the third
respondent's flagrant failure to comply
with Rule 16A. In the
absence of reasonable explanation for the delay and the
importance of the matter, condonation may not
be granted. As
condonation has been refused the rescission application is not
properly before court.
[15]
In the premises, the following
order is made:
15.1
The applicant's application for
condonation of the late filing of the application for leave to appeal
is dismissed.
15.2
The third respondent's application for
condonation of the late filing of the rescission application is
dismissed.
Lallie
J
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: Advocate Mafokeng
Instructed
by
Masondo Attorneys
For
the First Respondent: Advocate Grogan
Instructed
by
Joubert Galpin Searle
For
the Third Respondent:
Advocate Wilke
Instructed
by
Lennon Moleele & Partners
[1]
[2007] ZACC 24
;
2008 (2) SA 472
(CC) at para 20.
[2]
Ibid at para 31.
[3]
2010 (5) SA 171
(SCA) at para 27.
[4]
Collett v CCMA and Others
[2014] 6 BLLR 523
(LAC) at para 38.