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[2017] ZALCPE 19
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Umicore Catalyst South Africa v Pullen and Others (P595/12) [2017] ZALCPE 19 (10 November 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not Reportable
CASE NO: P595/12
In
the matter between
UMICORE
CATALYST SOUTH
AFRICA
Applicant
and
RANDALL
PULLEN
First Respondent
MOTOR
INDUSTRY BARGAINING COUNCIL
Second Respondent
COMMISSIONER
BOTHA N.O
Third
Respondent
Heard:
21 October 2016,
Delivered:
10 NOVEMBER 2017
Summary:
An application for review may be dismissed owing to the applicant’s
inordinate delay in its prosecution.
JUDGMENT
Lallie,
J
[1]
The first respondent was an employee of the applicant. Pursuant to
his dismissal for misconduct on 8 February 2012 he referred
an unfair
dismissal dispute to the second respondent where the third respondent
who will be referred to as the arbitrator in this
judgment issued an
award in which he found his dismissal fair. On 28 December 2012, the
first respondent filed an application to
review and set aside the
arbitration award. On 21 January 2013, the applicant and first
respondent were advised of the availability
of the record of the
arbitration proceedings. The applicant filed its notice to oppose the
review application on 7 February 2013.
Eight months thereafter the
applicant’s attorneys addressed a letter to the first
respondent informing him to comply with
the rules of the Labour Court
and pursue his review application. The first respondent was further
informed of the applicant’s
intention to bring an application
dismissing his review application if he had not communicated with the
applicant’s attorneys
by 8 November 2013. The first respondent
denied having received the letter. The first respondent served the
transcribed record
of the arbitration proceedings at the applicant’s
premises on 16 May 2014. In 2 letters which the first respondent
claimed
not to have received, the applicant’s attorneys again
reminded him to follow the rules of the Labour Court and of the
applicant’s
intention to bring a dismissal application.
[2]
The applicant submitted the first respondent has floated the rules of
this Court and delayed unreasonably in prosecuting his
review
application. He also failed to file a full record of the arbitration
proceedings as he did not file the documents that were
presented
arbitration. The applicant further submitted that the first
respondent has no prospects of success in that the award
is not
susceptible to review. The applicant suffers prejudice as a result of
the delay as it is entitled to have the application
finalised. It
sought an order dismissing the application owing to the first
respondent’s inordinate delay in its prosecution.
[3]
The first respondent conceded the existence of the delay but denied
that it is inordinate. In his explanation for the delay
he submitted
that after a
pro bono
counsel drafted the notice of motion and
founding affidavit in the review application, he explained to him
what he was supposed
to in terms of the rules of the Labour Court. He
generated money to pay for the transcript of the arbitration
proceedings by selling
some of his belongings. He then served the
transcript on the applicant in May 2014 and not on its attorneys
because he did not
know that the applicant was legally represented.
He denied receiving any letter. He only received information after
approaching
the office of the registrar of this Court. During 2013
and 2014 he was diagnosed with post-traumatic stress disorder (PTSD)
as
a result of his inability to provide for his family. He attended
counselling at his church. He submitted that he has prospects of
success in the review application because the third respondent
committed gross irregularities when conducting the arbitration
proceedings. The irregularities include bias which stemmed from the
third respondent’s refusal to recuse himself as he had
conciliated the dispute. He further alleged that the respondent
unfairly permitted the applicant to be legally represented and
failed
to postpone the arbitration proceedings to afford him an opportunity
to seek legal representation. He did not apply his
mind to the
dispute and disregarded contradictions in the applicant’s
version. He submitted that no party will be prejudiced
but if merits
of the review application heard, justice and fairness we prevail. He
insisted that he filed the full record of the
arbitration proceedings
and submitted that the applicant was not before Court with clean
hands as it had filed its answering affidavit
in the review
application, late.
[4]
The essence of the applicant’s argument was that the
applicant’s review application should be dismissed as he was
dilatory in prosecuting it. The first respondent, so went the
argument, proffered no cogent reasons for the delay and disregarded
the applicant’s warnings to file the application at hand owing
to his failure to comply with the rules of this Court. Amongst
the
authority the applicant sought to rely on is the following dictum in
Moraka v
National Bargaining Council for the Chemical Industry &
others
[1]
.
“
[20] 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. In this instance, the long delay of
nearly two years between the
incorrect filing of the transcript and
the filing of the supplementary affidavit which added nothing to the
merits of the review,
is unexplained. A significant consideration in
deciding whether or not to dismiss this review application is the
casual approach
adopted to the litigation by the applicant which
indicates that he viewed it as a matter that could be returned to
from time to
time when he or his representatives chose to do so. Such
a long period of inactivity cannot be reconciled with the conduct of
a
party that has a consistent interest in pursuing a case that takes
the necessary steps to do so without undue delay”.
[5]
The first respondent argued that he has good prospects of success on
review. He added that the applicant is not before court
with clean
hands as it filed its answering affidavit late in the review
application and failed to apply for condonation. The argument
is
refuted by the applicant which submitted that the first respondent
failed to file all the documents used at arbitration. Other
than
providing a date for the filing of the transcript, the first
respondent did not disclose when the full record of the documents
used at arbitration was filed. I therefore have to accept the
applicant’s averments that they were not filed and the first
respondent sought to rely on some of them in his review application.
What makes the applicant’s version more probable is
that the
applicant requested the first respondent to file the outstanding
documents even before this application was launched.
[6]
The applicant attributed part of the delay in the execution of his
review application to ill-health. The test whether the application
at
hand should be granted is expressed as follows in
Sishuba v
National Commissioner of the SA PS at
para 15
“
The focal point in
considering whether to grant the order barring the employer, in this
case, from proceeding further with the review
application is the
issue of justice and fairness to both parties. The question that then
arises is whether the interests of administration
of justice, in this
instance, dictates that the employer be barred from proceeding
further with the review application”.
[7]
The applicant launched his application for review on 28 December
2012. He submitted that his application for review was drafted
by a
pro bono
counsel who explained to him what he was supposed to
do in terms of the rules of this Court. Armed with that knowledge,
the first
respondent took no steps to pursue his application and only
served the transcript of the arbitration proceedings on 16 May 2014,
16 months after his application was launched. The applicant filed the
rule 7A (8) (a) notice and supplementary affidavit on 10
October
2014, almost 5 months after the transcript was filed. He denies
having received correspondence from the applicant’s
attorneys
asking him to take steps to prosecute his review application. Even if
I accept the first respondent’s version that
he did not receive
the letters, he has conceded that he was made aware of what he was
supposed to do as early as 28 December 2012.
If he lacked the
necessary knowledge, as an applicant in the review application he had
the duty to seek the necessary assistance.
The explanation for the
excessive delay in prosecuting the review application is
unacceptable. He claimed that he was diagnosed
with PTSD in 2013 to
2014. He did not substantiate his claim with the necessary documents
from the doctor who diagnosed him. The
applicant should have
explained the reason for the delay in full and stating that he was
diagnosed between 2013 to 2014 does not
assist him. It is vague. He
explained that he attended counselling sessions at his church but
failed to disclose when he attended
them. His version fails to
explain fully his egregious delay in prosecuting his review
application.
[8]
The first respondent’s argument that no party is prejudiced by
the delay is not sustainable as respondent parties in applications
have a right to have applications against them finalised within
reasonable time. Excessive delays therefore prejudice them. The
first
respondent submitted that he has prospects of success on review. The
grounds he sought to rely on are challenged by the applicant.
I am
satisfied that the interests of justice and fairness to both parties
dictate that the dismissal application be granted because
of the
first respondent’s failure to provide reasonable explanation
for his egregious delay in prosecuting his review application.
Both
the letter and spirit of the LRA requires that disputes between
employers and employees be resolved expeditiously. It is
impermissible for an applicant particularly one who has been made
aware of how to pursue his application for review to disregard
the
rules of this court. The applicant’s delay for no cogent
reasons to bring the review application to finality within reasonable
time is unacceptable.
[9] In the premises the
following order is made:
Order:
The application for
review is dismissed.
Z Lallie
Judge of the Labour Court
of South Africa
Appearances
:
For the Applicant: Mr
Randall Pullen In person
For the Respondent:
Advocate Le Roux
Instructed by Joubert
Galpin Searle
[1]
(2011) 32 ILJ 667 (LC)
para 20