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[2018] ZALCJHB 116
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Mashishi v Mdladla and Others (JR2644/11) [2018] ZALCJHB 116; [2018] 7 BLLR 693 (LC); (2018) 39 ILJ 1607 (LC) (15 March 2018)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
CASE
NO: JR2644/11
In
the matter between:
PETER
MARUTWANE MASHISHI
Applicant
and
ZODWA
MDLADLA
First
Respondent
PUBLIC
HEALTH AND WELFARE SECTOR
BARGAINING
COUNCIL
Second
Respondent
MINISTER
OF
HEALTH
Third Respondent
Application
heard: 13 March 2018
Judgment
delivered: 15 March 2018
Summary:
Application to condone late filing of review application filed more
than five years late. Explanation woefully inadequate,
prospects of
success irrelevant. Condonation refused. Liability of practitioners
for pursuing ‘hopeless case’. Ethical
obligation owed to
court as an institution to advise client not to pursue litigation;
trumps client’s narrow interests. Section
162 of LRA - orders
for costs or orders that fees be forfeited to be granted in
appropriate cases.
JUDGMENT
VAN
NIEKERK J
[1]
This is an unopposed application to review and set aside an
arbitration award issued by the first respondent, to whom I shall
refer as ‘the arbitrator’. In the award, the arbitrator
held that the applicant’s dismissal by the third respondent
was
both substantively and procedurally fair.
[2]
The arbitrator’s award is dated 26 July 2006. The applicant
avers that he received part of the award on the same day,
but that
the award was missing a page which he received on 3 August 2006. In
terms of s 145 of the LRA, the review application
was to have been
filed within six weeks, by mid-September 2006. The application for
review was filed on 10 November 2011, more
than five years late.
[3]
In support of his application for condonation, the applicant states
that during August 2006 he referred the matter to an attorney
for the
purpose of pursuing the case in this court. The attorney took no
steps beyond opening a file and his mandate was terminated.
The
applicant states that during September or October 2006, he instructed
another attorney, who similarly took no steps to pursue
the matter.
During December 2006 the applicant states that he was admitted to
hospital, that he was diagnosed with tuberculosis
in or around August
2007 and that he his treatment for that condition was completed in
February 2008. He was advised that he would
need rest in order to
recover fully from his condition and it was only in March 2008 that
he instructed yet another firm of attorneys
to pursue the matter.
They declined to take up the case. In September 2008, yet another
attorney was consulted who after discussion
with the third respondent
advised the applicant that she was no longer proceeding with the
matter and closed the file. The applicant
then states that he became
depressed due to ill-health and is unemployment, that he later (at
some undisclosed date) was required
to undergo surgery and treatment
and that he obtained employment in January 2009 until February 2010,
when he says he was unfairly
dismissed by his new employer. On 1
April 2010 he was employed by current employer as a contract driver
and needed to devote his
full time and attention to his new
employment.
[4]
The applicant states that on 31 March 2011 he approached his current
attorneys of record who accepted his mandate and advised
him that he
would need to produce evidence supporting his explanation for the
late filing of the review application. As I’ve
indicated above,
the application was filed more than seven months later. The applicant
submits that his failure to comply with
the statutory time limit was
neither wilful nor negligent in order to give rise to the probable
inference that he had no interest
in resolving the dispute.
[5]
In regard to his prospects of success, the applicant simply states
that he has been advised by his attorneys of record that
he would
need to demonstrate prospects of success and sets out in some detail
while he believes that his prospects of success or
such that
condonation ought to be granted. I do not intend to canvass all of
the points made by the applicant but the fact remains
that after his
suspension for unauthorised payments to suppliers, the applicant was
charged with nine counts of misconduct after
an investigation by what
was then the scorpions investigating unit. The applicant pleaded
guilty to 7 of the eight charges that
were ultimately pursued against
him. The applicant was dismissed and that sanction was upheld on
appeal. The applicant disputed
the fairness of his dismissal and
referred the matter to the bargaining Council. The matter was
referred ultimately to the arbitration
proceedings which are the
subject of this review application. I do not intend to canvass all of
the submissions made by the applicant
in regard to the conduct of the
arbitration hearing, save to say that he now contends that he ought
to have been acquitted in respect
of all of the charges in respect of
which he was found guilty.
[6]
Condonation is not there merely for the asking, nor are applications
for condonation a mere formality (see
NUMSA v Hillside Aluminium
[2005] ZALC 25
;
[2005] 6 BLLR 601
(LC);
Derrick Grootboom v National Prosecuting
Authority & another
[2013] ZACC 37]).
A party seeking
condonation must make out a case for the indulgence sought and bears
the onus to satisfy the court that condonation
should be granted.
[7]
This court is required to exercise a discretion, having regard to the
extent of the delay, the explanation proffered for that
delay, the
applicant’s prospects of success, and the relative prejudice to
the parties that would be occasioned by the application
being granted
or refused.
[8]
In this court, that formulation, which has its roots in
Melane v
Santam Insurance Co Ltd
1962 (4) SA 531
(A), has long been
qualified by the rule that where there is an inordinate delay that is
not satisfactorily explained, the applicant’s
prospects of
success are immaterial. In
National Union of Mineworkers v Council
for Mineral Technology
[1999] 3 BLLR 209
(LAC) the LAC said the
following:
…
without
a reasonable and acceptable explanation for the delay, the prospects
of success are immaterial, and without prospects of
success, no
matter how good the explanation for the delay, an application for
condonation should be refused.
[9]
This principle was recently reaffirmed in
Collett v Commission for
Conciliation, Mediation and Arbitration
[2014] 6 BLLR 523
(LAC),
a unanimous judgement of the LAC, Musi AJA 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. In
NUM v Council for Mineral
Technology
[1999] 3 BLLR 209
(LAC) at para 10, it was pointed out
that in considering whether good cause has been shown the well-known
approach adopted in
Melane v Santam Insurance Co Ltd
1962 (4)
SA 531
(A) at 532C-D … Should be followed but:
‘
There
is a further principle which is applied and that is without a
reasonable and acceptable explanation for the delay, the prospects
of
success are immaterial, and without good prospects of success, no
matter how good the explanation for delay, an application
for
condonation should be refused.’
The submission that the court a quo
had to consider the prospects of success irrespective of the
unsatisfactory and unacceptable
explanation for the gross and
flagrant disregard of the rules is without merit.
[10]
When an applicant seeks to ascribe blame for a delay on the part of a
legal or other representative, the courts have made clear
that the
applicant may not rest content in the knowledge that the
representative concerned has been furnished with instructions
–
it is incumbent on the applicant to follow up and ensure that those
instructions are being executed. There is a limit beyond
which a
litigant cannot escape the consequences of an attorneys lack of
diligence (see
Salojee and another NNP v Minister of Community
Development
1965 (2) SA 135
(A)). An applicant in these
circumstances must satisfy the court that none of the delay is to be
imputed to him or herself.
[11]
There is a further consideration that must necessarily be taken into
account, consequent on the publication of this court’s
practice
manual and recent amendments to the LRA. In the recent decision by
Myburgh AJ in
Makuse v Commission for
Conciliation Mediation & Arbitration and others
(2016)
37
ILJ
163,
the court alluded to measures recently instituted to address systemic
delays, particularly in review applications. The practice
manual
records that a review application is ‘by its very nature an
urgent application. The practice manual also requires
that all of the
necessary papers in any review application be filed within 12 months
of the date of the launch of the application.
A review application is
one that must necessarily be prosecuted with diligence and urgency.
As the court observed, the corrective
steps taken by this court and
the legislature (in the form of the 2014 amendments to the LRA) the
statutory imperative that labour
disputes must be effectively and
thus expeditiously resolved. What this requires is a strict scrutiny
of condonation applications
and an approach that affords due regard
to the statutory purpose of expeditious dispute resolution.
[12]
The period of delay in the current matter is excessive, to say the
least. The explanation for delay is manifestly inadequate
–
there are significant periods of the delay that are simply left
unexplained, and in respect of those periods for which
an explanation
is proffered, that explanation is weak. For these reasons
alone, the applicant’s prospects of success
are irrelevant, and
the application for condonation stands to be dismissed.
[13]
Ordinarily, a matter such as the present would have been swiftly
dealt with by way of an
ex tempore
judgment. The only reason
that I have prepared a written judgment is to draw the attention of
practitioners and others with right
of appearance in this court to
the abuse of this court’s process that continues,
notwithstanding prior indications from the
Bench that given the
court’s limited resources and the backlogs that have built up
(especially in relation to the motion
rolls), consideration would be
given to making punitive costs orders and orders to the effect that
practitioners forfeit their
fees where that is appropriate.
[14]
Judge Owen Rogers recently suggested that it is improper for counsel
to act for a client in respect of claim or defence which
is hopeless
in law or on the facts. (Rogers O, ‘The Ethics of the Hopeless
Case’ Advocate vol 30 number 3 December
2017. Although these
assertions are directed primarily at counsel (the article having been
published in the South African Bar Journal),
the same principles
apply to attorneys, and indeed all those who have the right of
audience before a court.) By this he means that
counsel must be able
to formulate a coherent argument comprising a series of logical
propositions which have a reasonable foundation
in law or on the
facts and which, if they are all accepted by the court, will result
in a favourable outcome, even if counsel believes
that one or more of
the essential links are likely to fail. But counsel acts improperly
when she is ‘quite satisfied’
that one or more of them
will fail. In particular, there is an ethical obligation on counsel,
to ensure that only ‘genuine
and arguable’ cases are
ventilated, and that this be achieved without delay (at p 51).
[15]
What is significant about Judge Rogers’ argument is his
acknowledgement that there is no express or even implied prohibition
against pursuing the hopeless case to be found in the General Council
of the Bar’s Uniform Rules of Professional Conduct.
The
obligation not to accept or pursue a hopeless case is located outside
of the formal rules of professional conduct, in sources
that include
the court’s power to stay those proceedings that amount to an
abuse of process, the court’s right to mulct
a practitioner in
costs (something that necessarily implies impropriety), and the
founding values of the Constitution; in particular,
effective,
efficient and expeditious adjudication (at pp 49-50).
[16]
Recent experience in the Labour Court during a pre-enrollment
assessment of opposed motion files awaiting the allocation of
hearing
dates suggests that a significant number of matters referred to the
Labour Court are hopeless or unarguable cases, in the
sense that
Judge Rogers uses that term. In the Labour Court, the right of
appearance extends beyond advocates and attorneys to
officials of
trade unions and employers’ organisations. In my view, in
respect of all those who enjoy right of appearance
in the Labour
Court, the same obligation (i.e. to refrain from pursuing a hopeless
case) applies. The same penalties, in the form
of punitive costs
orders and orders that practitioners forfeit their fees) ought also
to apply. The obligation owed by those who
have the privilege of
right of appearance in this court requires them in return to respect
this institution and the statutory purposes
of expeditious dispute
resolution that it is statutorily mandated to uphold. Section 162,
which regulates orders for costs in this
court, confers a discretion
to make orders for costs, based on the requirements of the law and
fairness. Those requirements, as
I have stated above, compel
practitioners and other representatives to refrain from referring
hopeless cases to this court, and
to place the interests of justice
and of the court before the parochial interests of their clients and
what might be seen to be
a principle of partisanship that requires
representatives to advance their clients’ partisan interests
with the maximum zeal
permitted by law; and the principle of
non-accountability, which insists that a representative is not
morally responsible for either
the ends pursued by the client or the
means of pursuing those ends.
[17]
The present application is a hopeless case. The applicant’s
attorney ought never to have filed the application for review,
or the
application for condonation. He ought to have advised the applicant
not to institute these proceedings, whatever the applicant’s
instructions may have been. The fact that the applicant consulted at
least four other attorneys, all of whom for one reason or
another
declined to pursue a review application speaks volumes, and ought to
have caused the applicant and his attorney to consider
very carefully
the merits of seeking to review the arbitrator’s award in
circumstances where any review would be filed years
out of time. The
founding values of the Constitution (in particular, the efficient and
effective operation of an independent judiciary),
and the purpose
that underlies the LRA (the expeditious and efficient resolution of
labour disputes and the promotion of labour
peace) ought all to have
obliged the applicant’s attorney, as a matter of professional
ethics and conduct, to have declined
to file the review application,
whatever the applicant’s instructions.
[18]
The present application is unopposed, and the question of costs
accordingly does not arise. In fairness to the applicant’s
attorney, I did not afford him the opportunity to make submissions on
why he should forfeit his fees, and for that reason. I do
not intend
to make any such order. But those who appear in this court should be
aware that in future, the pursuit of the hopeless
case will attract
consequences.
I
make the following order:
1.
Condonation for the late filing of the
review application is refused.
2.
The review application is dismissed.
André
van Niekerk
Judge
REPRESENTATION
For
the applicant: Mr Pillay, Pillay Thesigan Attorneys