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[2017] ZALCJHB 159
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Rena Business Solutions (Pty) Ltd v Rangwaga and Another; In re: Rangwaga v Rena Business Solutions (Pty) Ltd (J2383/16) [2017] ZALCJHB 159 (9 May 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case
no: J 2383 / 16
In
the matter between:
RENA
BUSINESS SOLUTIONS (PTY) LTD
Applicant
and
RANGWAGA
TEBOGO
LEONARD
First Respondent
RAND
MERCHANT
BANK
Second
Respondent
In
re:
RANGWAGA TEBOGO LEONARD
Applicant
and
RENA
BUSINESS SOLUTIONS (PTY) LTD
Respondent
Heard
:
2 May 2017
Delivered
:
2 May 2017
Reasons: 9
May 2017
Summary:
Urgency –
require
ments for urgency
– principles set out – applicant must make out case for
urgency – urgency self created –
no urgency shown
Application
for interim relief
–
principles
stated – relief sought actually final relief –
application of final relief principles to matter – issues
of
clear right, alternative remedy and prejudice
Application
for condonation – principles considered – material delay
without proper explanation – application
dismissed
Rescission
– principles considered – no case for rescission made out
– clear right to relief does not exist –
application
dismissed
REASONS
SNYMAN, AJ
Introduction
[1]
This
matter came before me on 2 May 2017 as an urgent application brought
by the applicant, Rena Business Solutions (Pty) Ltd, which
application was filed on 31 March 2017. The substantive relief
sought by the applicant was in two parts, with the first part
seeking
what the applicant called interim relief to ‘unfreeze’
the applicant’s bank account that had been attached
by the
Sheriff, and the second part seeking rescission of an order
previously granted by this Court against the applicant by default.
After hearing argument presented on behalf of the parties on 2 May
2017, I made the following order:
‘
1.
The application by the applicant, Rena Business Solutions (Pty) Ltd,
for
interim relief and rescission, brought on 31 March 2017, is
dismissed with costs.
2.
Written reasons for this order will be handed down on 9 May 2017.’
[2]
This
judgment now constitutes the reasons for the order I have made,
supra
.
[3]
Before
dealing with the merits of the matter, there is a preliminary issue
that must be addressed. The applicant, in the notice
of motion and
founding affidavit, has classified the relief it seeks where it comes
to the ‘unfreezing’ of its bank
account as interim
relief. However, and to simply call the relief sought interim relief
does not make it so. Just attaching a particular
label to substantive
relief sought in a notice of motion cannot change the true nature of
what it is that is being applied for.
It is always important to
establish from the outset what the nature of the relief being sought
by an applicant actually is, the
reason being that the requirements
for interim relief and final relief are different.
[1]
In simple terms, it is easier to obtain interim relief, especially
where it comes to the issue of the ‘right’
sought to be
protected. In seeking interim relief, all an applicant has to show is
the existence of a
prima
facie
right even if it is open to some doubt
[2]
,
as opposed to having to show the existence of a clear right in the
case of final relief sought.
[4]
I am
satisfied that what the applicant is actually seeking is final
relief. This is because the applicant’s purported
‘interim relief’ sought to unfreeze its bank account, is
directly linked to its application for a final order for rescission.
The point simply is that once rescission is granted, it follows that
there can be no basis to continue with the attachment of the
applicant’s bank account. This is clearly not interim relief,
but final relief.
[3]
[5]
As this matter
accordingly concerns the
granting
of final relief, and not interim relief, the applicant must satisfy
three essential requirements, being: (a) a clear right;
(b) an injury
actually committed or reasonably apprehended; and (c) the absence of
any other satisfactory remedy.
[4]
[6]
Further,
and as these are motion proceedings in which final relief is sought,
any factual disputes that exist between the parties
must be resolved
and determined on the basis as set out in the regularly referred to
judgment of
Plascon
Evans Paints v Van Riebeeck Paints.
[5]
The principles are aptly summarized in
Thebe
Ya Bophelo Healthcare Administrators (Pty) Ltd and Others v National
Bargaining Council for the Road Freight Industry and
Another
[6]
,
as follows:
‘…
where
an applicant in motion proceedings seeks final relief, and there is
no referral to oral evidence, it is the facts as stated
by the
respondent together with the admitted or undenied facts in the
applicants' founding affidavit which provide the factual
basis for
the determination, unless the dispute is not real or genuine or the
denials in the respondent's version are bald or uncreditworthy,
or
the respondent's version raises such obviously fictitious disputes of
fact, or is palpably implausible, or far-fetched or so
clearly
untenable that the court is justified in rejecting that version on
the basis that it obviously stands to be rejected.
’
When
I summarize facts in this judgment, these are the facts I regard as
the accepted evidence in terms of the
Plascon Evans
test set
out above.
[7]
Finally,
as part of an introduction in this case, the applicant has brought
this application as one of urgency. If a litigant seeks
to have the
matter determined as one of urgency, a proper case of urgency as
contemplated by Rule 8 must be made out. The
first question to
be answered must therefore be whether the applicant has made out such
a case for urgency, which I will turn to
next.
Facts
relating to Urgency
[8]
The applicant’s
case for urgency is founded on one simple basis, being that its bank
account has been attached by the Sheriff
pursuant to an order granted
by Nieuwoudt AJ on 10 January 2017, and in respect of which a warrant
of execution was issued on 17
February 2017. Properly described, as
explained by the second respondent, what happened is that a ‘pledge
indicator’
was loaded against the applicant’s bank
account by the second respondent, pursuant to the Sheriff serving the
warrant of
execution on the second respondent. It is clear from the
evidence that this pledge indicator was ultimately implemented around
6 March 2017, but the urgent application followed only at the end of
March 2017.
[9]
The factual enquiry
where it comes to urgency is not just limited to the period from
which the pledge indicator was loaded. In fact,
it may be said that
the applicant remained idle in dealing with this matter until the
point when it had no other choice but to
act.
[10]
The reality is that the
order of Nieuwoudt AJ was served directly on the applicant on 12
January 2017. The applicant has conceded
it was aware of the order as
from that date. Other than one e-mail to its attorneys on 19 January
2017 stating that an application
for rescission needed to be made as
a matter of urgency, there is no evidence of any kind that the
applicant actually did something
concerning the rescission of the
order until the end of March 2017.
[11]
As stated above, the
applicant was clearly aware as from about 6 March 2017 that its
account had been attached and that a warrant
of execution in this
matter had been issued, and executed. This is apparent from e-mail
correspondence between the applicant and
its attorneys on 9 March
2017, in which the applicant’s attorneys requested the payment
of a deposit for counsel’s
fees to proceed with the matter on
behalf of the applicant. It is clear from this correspondence that
the applicant is actually
quoted a fee of R30 000.00 in order to
set aside the attachment order on the applicant’s bank account.
[12]
But there is no evidence
of the applicant ever paying the deposit sought, or providing the
attorneys with any instructions to deal
with the matter further.
There is no explanation of any kind as to what happened between 9
March 2017, and 28 March 2017,
the latter date being the date on
which the Sheriff formally served the notice of attachment in terms
of the warrant, on the applicant.
[13]
In effect, the applicant
did nothing about the order granted against it, from 12 January 2017
until 31 March 2017, on which date
it then filed its urgent
application referred to above.
Principles
- Urgency
[14]
Urgent
applications are governed by Rule 8. In considering this Rule,
the Court in
Jiba
v Minister: Department of Justice and Constitutional Development and
Others
[7]
said:
‘
Rule
8 of the rules of this court requires a party seeking urgent relief
to set out the reasons for urgency, and why urgent relief
is
necessary. It is trite law that there are degrees of urgency, and the
degree to which the ordinarily applicable rules should
be relaxed is
dependent on the degree of urgency. It is equally trite that an
applicant is not entitled to rely on urgency that
is self created
when seeking a deviation from the rules.’
[15]
As to
what an applicant must show in order to make out a case of urgency,
the Court in
Mojaki
v Ngaka Modiri Molema District Municipality and Others
[8]
,
referred with approval to the following
dictum
from the judgment in
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite
(Pty) Ltd and Others
:
[9]
‘…
.
An applicant has to set forth explicitly the circumstances which he
avers render the matter urgent. More importantly, the applicant must
state the reasons why he claims that he cannot be afforded
substantial redress at a hearing in due course. The question of
whether
a matter is sufficiently urgent to be enrolled and heard as
an urgent application is underpinned by the issue of absence of
substantial
redress in an application in due course. The rules allow
the court to come to the assistance of a litigant because if the
latter
were to wait for the normal course laid down by the rules it
will not obtain substantial redress.
’
[16]
Also,
the Court in
Maqubela
v SA Graduates Development Association and Others
[10]
dealt with the
considerations pertaining to urgency as follows:
‘
Whether
a matter is urgent involves two considerations. The first is whether
the reasons that make the matter urgent have been set
out and
secondly whether the applicant seeking relief will not obtain
substantial relief at a later stage. In all instances
where urgency
is alleged, the applicant must satisfy the court that indeed the
application is urgent. Thus, it is required of the
applicant
adequately to set out in his or her founding affidavit the reasons
for urgency, and to give cogent reasons why urgent
relief is
necessary. As Moshoana AJ aptly put it in
Vermaak
v Taung Local Municipality
:
'The
consideration of the first requirement being why is the relief
necessary today and not tomorrow, requires a court to be placed
in a
position where the court must appreciate that if it does not
issue a relief as a matter of urgency, something is likely
to happen.
By way of an example if the court were not to issue an injunction,
some unlawful act is likely to happen at a particular
stage and at a
particular date.'
’
[17]
Where
an applicant seeks final relief, the Court must be even more
circumspect when deciding whether or not urgency has been
established.
[11]
In simpler terms, the applicant must make out an even better case of
urgency. In
Tshwaedi
v Greater Louis Trichardt Transitional Council
[12]
the Court said:
‘…
An
applicant who comes to court on an urgent basis for final relief
bears an even greater burden to establish his right to urgent
relief
than an applicant who comes to court for interim relief. ….
’
[18]
But it is not just about
the applicant and its interests. Another consideration is possible
prejudice
the
respondent might suffer as a result of the abridgement of the
prescribed time periods and an early hearing.
[13]
[19]
Further,
urgency must not be self-created by an applicant, as a consequence of
the applicant not having brought the application
at the first
available opportunity.
[14]
[20]
A
final consideration where it comes to urgency is expedition in taking
action. In other words, the more immediate the reaction
by the
litigant to remedy the situation by way of instituting litigation,
the better it is for establishing urgency.
[15]
But the longer it takes from the date of the event giving rise to the
proceedings, the more the urgency is diminished. In
short, the
applicant must come to Court immediately, or risk failing on
urgency.
[16]
In
Valerie
Collins t/a Waterkloof Farm v Bernickow NO and Another
[17]
the Court held:
‘…
if
the applicants seeks this Court to come to its assistance it must
come to the Court at the very first opportunity, it cannot
stand back
and do nothing and some days later seek the Court’s assistance
as a matter of urgency.
’
[21]
Applying
all the above principles to the facts
in
casu
,
I am convinced that the applicant has failed to make out a case of
urgency. The requirements of Rule 8 have thus not been satisfied.
[22]
The
applicant in effect did nothing about the order granted against it
for a period of close on three months. There is no proper
explanation
for this failure. The applicant should have immediately brought
an application for rescission, within the time
limits are prescribed
by Rule 16A of the Rules of the Labour Court. If the first respondent
persisted with execution in such circumstances,
then the applicant
may very well have convinced me to afford it urgent relief. But
to simply do nothing is destructive of
any case of urgency in this
respect.
[23]
Then,
and even when the applicant was aware of the attachment of its bank
account at the beginning of March 2017, it did not act
immediately.
It did not place its attorneys in funds and instruct such attorneys
to proceed with the matter. The applicant only
filed its application,
without any proper explanation for this delay, some four weeks later.
[24]
In
the end, there is a total period of delay of some 12(twelve) weeks
that must be considered, if the lack of bringing rescission
proceedings is also taken into account, with some four weeks thereof
being after the applicant’s back account was frozen.
This
situation is completely inconsistent with the existence of urgency.
In
Mashiya
v Sirkhot NO and Others
[18]
the Court dealt
with a period of delay
from
25 July to 19 August which the Court considered to be unacceptable.
And in
Ngcongo
v University of South Africa and Another
[19]
the Court found a
five week delay in seeking to urgently challenge a ruling, without
any proper explanation for it, to not be urgent.
In my view,
the
same considerations apply
in
casu
.
[25]
The
applicant, when this matter was argued before me, placed considerable
emphasis on the financial prejudice it would suffer as
a basis to
establish urgency, because it was confronted with an order making it
liable to pay an amount it contended it was not
liable for. But if
that was the case, then surely one would have expected the applicant
to act with far more vigour and expedition,
than what it did. In any
event, for financial hardship to establish urgency per se,
exceptional circumstances must be shown to
exist
[20]
,
and the applicant simply made out no such case. In
Jonker
v Wireless Payment Systems CC
[21]
it was held:
‘
The
general rule that financial hardship and loss of income are not
considered to be grounds for urgent relief was upheld in
Malatji
v University of the North
[2003] ZALC 32
(LC) and
Nasionale
Sorghum Bierbrouery (Edms) Bpk (Rantoria Divisie) v John NO en Andere
(1990)
11 ILJ 971 (T)
.’
And
in the case of
Harley
v Bacarac Trading 39 (Pty) Ltd,
[22]
the Court held:
‘
If
an applicant is able to demonstrate detrimental consequences that may
not be capable of being addressed in due course and if
an applicant
is able to demonstrate that he or she will suffer undue hardship if
the court were to refuse to come to his or her
assistance on an
urgent basis, I fail to appreciate why this court should not be
entitled to exercise a discretion and grant urgent
relief in
appropriate circumstances. Each case must of course be assessed on
its own merits.’
[26]
In my
view, the applicant’s case of urgency is as good an example of
self-created urgency as one can get. The applicant’s
financial
hardship is of its own making. It should not have remained
supine, as it did, until it was in effect too late,
and then seek to
do something on an urgent basis. In the end, there is no explanation
for what is a material delay, and this in
itself destroys any valid
consideration of urgency.
[27]
The
first respondent, on the other hand, acted promptly in pursuing his
matter throughout. On the applicant’s own version,
it owes the
first respondent close on R190 000.00, but has not made any
effort to pay this or tender payment, and there is
no reason to have
the first respondent continue to suffer further prejudice at the
hands of the cavalier conduct of the applicant.
[28]
For
all these reasons as set out above, the application falls to be
struck from the roll, or even dismissed, for a complete want
of
urgency. The Court in
February
v Envirochem CC and Another
[23]
dealt with a
similar situation, and even though Steenkamp J in that judgment
accepted that urgency was not established, the learned
Judge still
proceeded to dismiss the matter. I intend to follow suit,
in
casu
,
for the reasons I will now set out.
Rescission
[29]
The
applicant’s clear right to the relief it seeks is squarely
founded on it application for rescission. As touched
on above,
rescission applications in the Labour Court are regulated by Rule 16A
of the Labour Court Rules, as read with Section
165 of the LRA. In
terms of Rule 16A, an application for rescission had to have been
brought within 15 (fifteen) Court days of
the date when the applicant
became aware of the order against it.
[24]
In
casu
,
this was on 12 January 2017, meaning the applicant’s rescission
application was due by 2 February 2017. The rescission application
was only filed on 31 March 2017, which is close on two months’
out of time. Condonation was thus required, and the applicant
indeed
applied for the same. It is critical to consider the merits of this
application for condonation first, because if the applicant
is unable
to even overcome this hurdle, it has to be the end of the matter.
[30]
Where
it comes to deciding condonation applications, the law in this regard
is now well settled, on the basis of the following principles
as set
out in the well-known judgment of
Melane
v Santam Insurance Co Ltd
[25]
:
‘
In
deciding whether sufficient cause has been shown, the basic principle
is that the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success and the importance of the case. Ordinarily these
facts are
interrelated, they are not individually decisive, save of course that
if there are no prospects of success there would
be no point in
granting condonation.
’
[31]
In
the case of condonation applications brought in the Labour Court, and
in applying the
ratio
in
Melane
,
the Court in
Academic
and Professional Staff Association v Pretorius NO and Others
[26]
summarized the principles for consideration in the case of
condonation applications as follows:
‘
The
factors which the court takes into consideration in assessing whether
or not to grant condonation are: (a) the degree of lateness
or
non-compliance with the prescribed time frame; (b) the explanation
for the lateness or the failure to comply with time frame;
(c)
prospects of success or bona fide defence in the main case; (d) the
importance of the case; (e) the respondent's interest in
the finality
of the judgment; (f) the convenience of the court; and (g) avoidance
of unnecessary delay in the administration of
justice. …. It
is trite law that these factors are not individually decisive but are
interrelated and must be weighed against
each other. In weighing
these factors for instance, a good explanation for the lateness may
assist the applicant in compensating
for weak prospects of success.
Similarly, strong prospects of success may compensate the inadequate
explanation and long delay.
’
I am satisfied this this
ratio
in
Academic and Professional Staff Association
properly and
succinctly summarizes all the Court must consider when exercising its
discretion whether or not to grant condonation.
[32]
What
is further clear from the
ratio
in
Academic
and Professional Staff Association
is
that the providing of a proper explanation for any default or delay
is a critical component of any condonation application.
As to
how this explanation must be provided, the
Court
in
Independent
Municipal and Allied Trade Union on behalf of Zungu v SA Local
Government Bargaining Council and Others
[27]
held:
‘
In
explaining the reason for the delay it is necessary for the party
seeking condonation to fully explain the reason for the delay
in
order for the court to be in a proper position to assess whether or
not the explanation is a good one. This in my view requires
an
explanation which covers the full length of the delay. ….
’
[33]
Applying
all the aforesaid principles, I shall deal firstly with the length of
the delay. As I have already said above, the delay
is excessive. It
is more than four times the permitted period. In the context of
rescission applications, such an excessive delay
strongly works
against the granting of condonation.
[34]
The
next issue to be considered is the explanation for the delay. The
explanation is abysmal. Despite it being required, the entire
period
of the delay was not explained, and in fact most of it is not
explained. Properly considered, the explanation offered in
seeking
condonation is contained in two paragraphs of the founding affidavit,
substantially lacking in any kind of particularity,
which is in
itself unacceptable.
[35]
Considering
the substance what has been provided as an explanation, it is clear
that all the applicant has sought to do was to blame
its former
attorney, Mr Mokobane, for all the failures in this case. The
explanation of the applicant is that Mokobane was
instructed,
immediately after the applicant became aware of the order against it,
to apply for rescission, but he did nothing about
it. According to
the applicant, it trusted Mokobane as a professional service
provider, and it should thus not be blamed for Mokobane’s
failure. But this kind of explanation has a fundamental flaw. This is
that the applicant chose its attorney, and simply cannot
hide behind
the failure of such attorney. The Court in
Catering
Pleasure and Food Workers Union v National Brands Ltd
[28]
dealt with the following explanation by a litigant:
‘
The
explanation for the delay is that the union's attorneys were lax in
June, July and August 2004. On 8 September 2004, new attorneys
were
appointed …’
The
Court then said the following about this explanation, and when
refusing condonation:
[29]
‘
There
is no proper reason why the referral was out of time, other than the
inaction of the union's attorneys which inaction does
not amount to
an acceptable explanation.’
[36]
But
even worse than seeking to just blame its attorney; the applicant has
made out no case that it had regularly followed up with
Mokobane
about the status of the matter and what steps he had taken. Surely
the applicant should have asked to see some kind of
paperwork. The
approach of the applicant was, crystalized down to its core, one of
once the applicant had conveyed the matter to
its attorney, it could
wash its hands of the matter and just leave it to the attorney to
deal with. This is a fundamentally
wrong approach, and has been
the subject matter of numerous warnings issued by the Courts. The
principle in this respect has been
articulated
in
Saloojee
and Another NNO v Minister of Community Development
[30]
as follows:
‘
If,
as here, the stage is reached where it must become obvious also to
layman that there is a protracted delay, he cannot sit passively
by,
without so much as directing any reminder or enquiry to his attorney
and expect to be exonerated of all blame; and if, as here,
the
explanation offered to this court is patently insufficient, he cannot
be heard to claim that insufficiency should be overlooked
merely
because he has left the matter entirely in the hands of his attorney.
If he realises upon the aptitude or remissness of
his own attorney,
he should at least explain that none of it is to be imputed to
himself. That has not been done in this case.’
[37]
Other
than one contact on 19 January 2017, there is no other attempt by the
applicant itself to even communicate with Makobane until
the
beginning of March 2017. Then, and by March 2017, at the very least,
and on its own version, it must have dawned on the applicant
that it
had heard nothing from Mokobane, and there was now a warrant of
execution. The applicant should have then, at least, taken
a detailed
and active interest in this matter. But still, and other than one
e-mail exchange at the beginning of March 2017, nothing
is done until
almost a month later. In the end, therefore, the applicant appears to
have left the matter entirely up to its attorneys,
took no active
interest in the rescission, and never followed up on the prosecution
of any process to set aside the order. This
must be a factor that
heavily counts against the applicant and mitigates in favour of the
dismissal of any condonation application.
[31]
In
Superb
Meat Supplies CC v Maritz
[32]
the Court held as
follows:
‘
....
I also am of the judgement that the appellant through the agency of
its member Schreiber was negligent in not monitoring progress
of its
case from the time of the service of the claim in August 1999 to the
set down for the trial on 12 March 2001, a period of
nearly 18
months. The appellant appointed new attorneys and the file was
available to them and would have indicated what contact
took place
between Majola and Schreiber during that period. The court has not
been informed of any communication and it can be
inferred that the
appellant took no active interest in its own litigation, a further
reason to conclude that it was negligent.
As
I have indicated Trengove AJA held in the De Wet case that
disinterest and failure to keep in touch with an attorney barred
relief. Attorneys cannot be blamed and the appellants - as in this
matter - were the authors of their own problems. The present
respondent has not erred and it would be inequitable to visit him
with the prejudice and inconvenience flowing from such conduct.
…’
These
same considerations equally apply
in casu
.
[38]
But
even on the facts, I am compelled to point out that I believe that
the applicant’s criticism of Mokobane was nothing else
but a
deliberate design, after the fact, to try and justify its own and
inexplicable failures. On the evidence, and after becoming
aware of
the order on 12 January 2017, Mokobane attorneys never came on record
for the applicant. In fact, and what the evidence
showed, is
that Mokobane quoted the applicant a fee to attend to the matter, and
asked that a deposit be paid, which was never
paid. There was no
evidence of Mokobane actually being instructed to apply for
rescission. And further, as set out above,
the applicant never
adequately communicated with Mokobane, nor followed up on the work
being done for it. It seems far more
likely that the applicant
deliberately let matters be, hoping it would go away. This inference
is further supported by the very
same kind of inaction when the
applicant was first served with the first respondent’s
application on the merits, at the end
of October 2016. In
Chemical
Energy Paper Printing Wood & Allied Workers Union and Others v
Metal Box t/a MB Glass
[33]
the Court said the following, which in my view similarly describes
the conduct of the applicant in casu:
‘
It
is abundantly clear from the self-contradictions in the explanation
for the delay that the applicants and/or their attorneys
had
unfortunately not been candid with this court. It is obvious also on
the papers, that the applicants have been as lax as their
legal
representatives in the prosecution of their claim.
’
[39]
In
the end, I find the applicant’s entire explanation for the
delay unpalatable. This means that the total delay of
close on
three months in finally bringing the rescission application is
completely unexplained. This must mean the end of the matter
for the
applicant. As was said in
3G
Mobile (Pty) Limited v Raphela NO and Others
[34]
:
‘
In
the end, the applicant has thus provided no explanation for what is a
material delay. This should be the end of the matter for
the
applicant without even considering the requirement of prospects of
success. …
’
[40]
Because
the applicant has committed such a gross and flagrant violation of
the Court Rules and processes, has in effect provided
no explanation
for what is an excessive delay, and has sought to provide an
explanation which I do not think is truthful, any consideration
of
the issue of prospects of success on rescission evaporates. In
simple terms, prospects of success become irrelevant, in
deciding
this matter. In
Colett
v Commission for Conciliation, Mediation and Arbitration and
Others
[35]
the Court held as follows:
‘
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 the
prospects of
success. …’
[41]
In
argument, the applicant suggested that its case that it actually
already paid the first respondent the bulk of the amounts encompassed
by the order of Nieuwoudt AJ, should shrug off all other
considerations when deciding on the applicant’s rescission
application.
The applicant contends that it would be unduly and
unfairly prejudiced if it expected that the applicant must pay money
that is
not due, and for this reason alone should be entitled to the
relief it seeks. In other words, what the applicant is
suggesting
is that because of the nature of its case on the merits,
condonation is there for the asking. I cannot agree with such a
proposition. Condonation is not just there for the asking, no
matter what the case may be. In
Seatlolo
and others v Entertainment Logistics Service
(
a
division of Gallo Africa Ltd
)
[36]
the Court
held:
‘
It
is trite law that condonation should only be granted where the legal
requirements have been met and is not a default option.
It remains an
indulgence granted by a court exercising its discretion whilst being
cognizant of the criticism emanating from the
Constitutional Court
and the SCA and bearing in mind the primary objective of the
expeditious resolution of disputes articulated
in the Act.
’
I
agree with these sentiments. It was squarely in the hands of
the applicant to have ensured that it took immediate action
to
challenge the order granted against it, especially considering that
the amount payable was specifically reflected in such order.
Had this
amount ordered to be paid been such an issue to the applicant, and as
I have already touched on above, I find it inexplicable
that the
applicant would not have been spurred into immediate action to set
the record straight. But what it does is to plod along,
in effect do
nothing, and then cry foul when its bank account is attached. All of
this is too little, and far too late.
[42]
Finally,
and even if the applicant has a properly sustainable case on the
merits, as it alleges, it is my view that the following
dictum
in
Ferreira
v Die Burger
[37]
aptly describes what should equally apply
in
casu
:
‘
I
am sympathetic to the fact that the applicant may have a case but,
were we to grant this application, this court would subvert
a crucial
principle in matters which deal with personal relationships, namely
labour relations, that these disputes have to be
dealt with
expeditiously and finalized as quickly as possible. Where in a case
such as this, there has been so flagrant of violation
of the rules,
then, as Myburgh JP correctly decided, a lack of any explanation at
all shrugs off other considerations.’
[43]
For
all the above reasons, the applicant’s condonation application
for the late filing of its rescission application is doomed
to fail.
The excessive delay without any explanation for the bulk of it,
trumps all else. There is simply no basis to depart from
the normal
and accepted principle that in such circumstances, the matter must
now be brought to an end, once and for all.
There is
accordingly no need to consider the possible prospects of success of
the applicant’s rescission application.
[44]
Because
the applicant’s rescission application fails, the applicant has
shown no clear right to the relief sought where it
comes to the issue
of ‘unfreezing’ its bank account. That would equally
dispose of its application to have the pledge
indicator that was
loaded on its account uplifted, because this was done in terms of the
order of Nieuwoudt J of 10 January 2017,
which continues to stand. In
the absence of the applicant having a clear right to any relief
sought, it is therefore not necessary
to consider any of the further
requirements where it comes to the granting of the final relief
sought by the applicant.
[45]
This
then only leaves the issue of costs. The applicant has elected to
approach the Labour Court on an urgent basis when it must
have been
clear there was no basis for doing so. The applicant has
brought its application on the basis almost of it being
entitled to
condonation for the failures on its part, which is entirely
inappropriate. It must have been clear from a simple reading
of the
first respondent’s answering affidavit (which the applicant did
not even reply to) that the application had little
hope of
succeeding. The applicant has also not taken the Court into its
confidence and has sought to present explanations which
were in my
view not entirely truthful. But then, and worse still, when this
matter was argued, the applicant’s counsel tried
to offer
explanations from the bar which were not even contained in the
pleadings. I find the applicant’s entire conduct
in the
course of this matter to be unacceptable. In terms of Section
162 of the LRA, I have a wide discretion where it comes
to the issue
of costs, and in this instance, I exercise this discretion in favour
of making an order for costs against the applicant,
which I consider
to be justified.
[46]
Based
on all the above reasons, I made the order that I did on 2 May 2017,
referred to
supra
.
_____________________
S Snyman
Acting
Judge of the Labour Court
Appearances:
For the
Applicant:
Adv Sihlele
Instructed by:
Baloyi Inc Attorneys
For the First Respondent:
Mr M V Gwala of M V Gwala Inc Attorneys
For the Second
Respondent:
Ms L Moodley of Norton Rose Fulbright
[1]
Zondo
and Another v Uthukela District Municipality and Another
(2015)
36 ILJ 502 (LC) at para 2.
[2]
For the most recent authorities in this regard see
Palace
Group Investments (Pty) Ltd and Another v Mackie
(2014)
35 ILJ 973 (LAC) at para 18;
SA
Municipal Workers Union v City of Tshwane and Another
(2014) 35 ILJ 241 (LC) at para 21;
National
Union of Mineworkers v Lonmin Platinum Comprising Eastern Platinum
Ltd and Western Platinum Ltd and Another
(2014) 35 ILJ 486 (LC) at para 32.
[3]
See
Mashiya
v Sirkhot NO and Others
(2012) 33 ILJ 420 (LC) at para 19.
[4]
Setlogelo
v Setlogelo
1914 AD 221
at 227;
V
& A Waterfront Properties (Pty) Ltd and Another v Helicopter and
Marine Services (Pty) Ltd and Others
2006 (1) SA 252
(SCA) at para 20;
Royalserve
Cleaning (Pty) Ltd v Democratic Union of Security Workers and Others
(2012) 33 ILJ 448 (LC) at para 2.
[5]
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E 635C. See also Jooste v
Staatspresident en Andere
1988 (4) SA 224
(A)
at
259C – 263D; National Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA)
at
paras 26 – 27; Molapo Technology (Pty) Ltd v Schreuder and
Others (2002) 23 ILJ 2031 (LAC) at para 38; Geyser v MEC for
Transport, Kwazulu Natal (2001) 22 ILJ 440 (LC) at para 32;
Denel Informatics Staff Association and Another v Denel Informatics
(Pty) Ltd (1999) 20 ILJ 137 (LC) at para 26.
[6]
2009
(3) SA 187
(W) at para 19.
[7]
(2010)
31 ILJ 112 (LC) at para 18. See also
Luna
Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin's
Furniture Manufacturers)
1977 (4) SA 135 (W).
[8]
(2015)
36 ILJ 1331 (LC) at para 17.
[9]
[2012]
JOL 28244
(GSJ) at para 6.
[10]
(2014)
35 ILJ 2479 (LC) at para 32. See also
Transport
and Allied Workers Union of SA v Algoa Bus Co (Pty) Ltd and Others
(2015) 36
ILJ
2148 (LC) at para 11.
[11]
[2002]
JOL 9452
(LC) at para 8.
[12]
[2000]
4 BLLR 469
(LC) at para 11.
[13]
IL
& B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd and Another
1981(4) SA 108 (C) at 113D-114C.
[14]
See
Golding
v HCI Managerial Services (Pty) Ltd and others
[2015] 1 BLLR 91
(LC) at para 24;
National
Union of Mineworkers v Lonmin Platinum Comprising Eastern Platinum
Ltd & Western Platinum Ltd and Another
(2014) 35
ILJ
486 (LC) at para 50;
Association
of Mineworkers and Construction Union v Lonmin Platinum (comprising
Eastern Platinum Ltd & Western Platinum Ltd)
and Others
(2014) 35
ILJ
3097 (LC) at paras 30-44.
[15]
See
University
of the Western Cape Academic Staff Union and Others v University of
the Western Cape
(1999) 20 ILJ 1300 (LC) at para 15.
[16]
Association
of Mineworkers and Construction Union and Others v Northam Platinum
Ltd and Another
(2016)
37 ILJ 2840 (LC) at para 26;
National
Union of Metalworkers of SA and Others v Bumatech Calcium Aluminates
(2016) 37 ILJ 2862 (LC) at para 26.
[17]
[2002]
JOL 9452
(LC) at para 8.
[18]
(2012)
33 ILJ 420 (LC).
[19]
(2012)
33 ILJ 2100 (LC) at para 9.
[20]
See
Democratic
Nursing Organisation of SA and Another v Director-General,
Department of Health and Others
(2009)
30 ILJ 1845 (LC) at para 19.
[21]
(2010)
31 ILJ 381 (LC) at para 16.
[22]
(2009)
30 ILJ 2085 (LC)
at
para 8.
[23]
(2013)
34 ILJ 135 (LC) at para 17.
[24]
See Rule 16A(2)(b).
[25]
1962
(4) SA 531
(A) 532C-E.
[26]
(2008)
29
ILJ
318 (LC) paras 17–18.
[27]
(2010)
31
ILJ
1413
(LC) para 13.
[28]
(2007)
28 ILJ 1064 (LC).
[29]
Id at para 26.
[30]
1965
(2) SA 135 (A).
[31]
See
Arnott
v Kunene Solutions and Services (Pty) Ltd
(2002)
23 ILJ 1367 (LC);
Parker
v V3 Consulting Engineers (Pty) Ltd
(2000) 21 ILJ 1192 (LC);
Independent
Municipal and Allied Trade Union on behalf of Zungu v SA Local
Government Bargaining Council and Others
(2010) 31 ILJ 1413 (LC);
GIWUSA
obo Heynecke v Klein Karoo Kooperasie
BPK
(2005)
26 ILJ 1083 (LC);
Theron
v AA Life Assurance Association Ltd
[1995] ZASCA 61
;
1995
(4) SA 361
(A) at 365;
Swanepoel
v Albertyn
(2000) 21 ILJ 2701 (LC).
[32]
(2004)
25 ILJ 96 (LAC) at para 27.
[33]
(2005)
26 ILJ 92 (LC) at para 8. See also
Basson
v Oosthuizen No and Others
(2008) 29 ILJ 1875 (LC).
[34]
[2014]
JOL 32479
(LC) at para 32.
[35]
(2014)
35 ILJ 1948 (LAC)
at
para 38. See also
Mziya
v Putco Ltd
(1999)
3 BLLR 103
(LAC) at para 9
:
‘… there is a further principle which is applied and
that is that without a reasonable and acceptable explanation
for the
delay, the prospects of success are immaterial’; National
Education Health and Allied Workers Union on behalf of
Mofokeng and
others v Charlotte Theron Children's Home
(2004)
25 ILJ 2195 (LAC) at para 23:
‘…
this Court has previously confirmed the principle that with
out
a reasonable and acceptable explanation for a delay the prospects of
success are immaterial’.
[36]
(2011)
32 ILJ 2206 (LC)
at
para 27. See also
3G
Mobile
(
supra
)
at para 33.
[37]
(2008)
29
ILJ
1704 (LAC) at para 8.