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[2018] ZALCJHB 150
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Legodi and Others v SSSBC and Others (JR685/06) [2018] ZALCJHB 150 (28 March 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable/Not
Reportable
Case
No: JR 685/06
In the
matter between:
A
LEGODI AND
OTHERS
Applicant
and
SSSBC
AND
OTHERS
Respondent
Heard:
23 July 2016
Ex-tempore
judgment: 23 July 2016
Date
Edited :28 March 2018
EX
TEMPORE
JUDGMENT
VAN
NIEKERK J:
[1]
This application has its origins and events that occurred in
2001 when allegations of misconduct in the form of theft were made
against the applicants. The dispute that followed the dismissal for
that reason was ultimately referred to arbitration before the
second
respondent, the arbitration award is dated 5 January 2005.
[2]
The present application for review was filed only on 17 May
2006. The application is therefore more than 15 months late. That is
by any account an inordinate delay, having regard to the six-week
time limit that is established by section 145 of the Labour Relations
Act 66 of 1995.
[3]
On 17 May 2006 the applicant filed an application for
condonation. In that application he sets out what appears to be an
explanation
for the late filing of the application. The explanation
is limited to correspondence with various parties prior to the filing
of
the application. These included various officials and the members
of the executive. Quite why the applicant engaged in this course
of
correspondence rather than file an application for review is not
explained.
[4] In regard to the prospects of
success, the applicant simply states that he believes that he has
good course, it seems, on the
basis that when the matter came before
a criminal court, the applicant was acquitted. This court is required
to have regard to
a number of factors. These include the degree of
lateness, the explanation for the delay, the applicant’s
prospects of success
and the prejudice to the parties.
[5
]
As I have already indicated, the delay in this matter is inordinate.
The explanation, in my view, is unsatisfactory. It is not
a full and
proper explanation for the whole period of the delay. In any event,
it does not explain the applicant’s failure
to invoke the
provisions of section 145 or quite why that decision was made only
after an unsuccessful campaign of correspondence
that endured for
some 15 months.
[6] In regard to the prospects of
success, the applicant has not dealt in his affidavit in any detail
with his prospects of success.
He avers only that he was acquitted in
a criminal court, presumably, of the offence that formed the basis
for his dismissal. It
is not for this court to troll through the
record to determine whether the applicant has prospects of success.
These must be properly
articulated in any application for
condonation.
[7] In regard to the respective
prejudice to the parties; it has been submitted on behalf of the
applicant that he should be entitled
to his day in court. Well, the
fundamental purpose of the Labour Relations Act is the expeditious
resolution of labour disputes.
That finds reflection in section 145
which imposes a six-week time limit on the filing of review
applications. It defines reflection
in the rules in the Practise
Manual. Indeed, the Practise Manual goes so far as to suggest that an
applicant in a review application
is required to pursue the
application with the same degree of diligence as is required in
urgent applications.
[8
]
In my view, the respondent’s interest in finality far outweigh
any interest the applicant might have in having the review
application determined. I must take into account, as I have
indicated, that the facts that gave rise to this dispute occurred in
2001. The award was granted in 2005. The review filed in 2006. There
is simply no explanation for the applicant’s failure
to
prosecute this application with the degree of diligence required.
[9
]
The applicant in effect seeks to come to this court, some ten years
after filing an application for review and seeks an indulgence
by way
of a hearing of the application.
[10] The Constitutional Court and the
Supreme Court of Appeal have more than once reproached this court for
what are being called
systemic delays in the resolution or
determination of labour disputes. This court is not always to blame.
This matter is a prime
example of an applicant who has litigated at
his leisure and after a decade seeks this court’s indulgence by
way of the granting
of an application for condonation. In my view,
there is no basis for condonation to be granted and the application
for condonation
is accordingly refused.
[11]
In regard to costs, this is a matter which ordinarily ought to be the
subject of a cost order and perhaps a cost order on a
punitive scale.
However, I do note that as far back as 2006 the respondent has filed
an application in terms of Rule 11 to dismiss
the application for
review. They have never prosecuted that application and are as
equally culpable with the applicant in regard
to the dilatory
handling of this litigation. For that reason, I intend to make no
order as to costs.
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 of the Labour Court