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[2018] ZALCJHB 277
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Lephoto and Others v WHBO (Pty) Ltd (JS232/2014) [2018] ZALCJHB 277 (21 August 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JS 232/2014
In
the matter between:
LEHLOHONOLO
LEPHOTO
First
Applicant
PHILLIP
MAJADIBODU
Second
Applicant
DUMASILE
FONGWANA
Third
Applicant
XOYISILE
YEKISO
Fourth
Applicant
MARTINS
MOFOKENG
Fifth
Applicant
LUCAS
MABASO
Sixth
Applicant
SIYABONGA
NDZIMEZWENI
Seventh
Applicant
BRIGHT
NOBHUNGA
Eight
Applicant
VUSILE
NOMAQXABA
Ninth
Applicant
and
WBHO
(PTY)
LTD
Respondent
Heard:
18 May 2018
Delivered:
21 August 2018
JUDGEMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
The applicants seek condonation for the late filing of a
statement of claim. Other than several factors to consider in
such
applications, central to this application is whether the applicants
should be absolved from the errors of their attorney of
record in
calculating the statutory timeframes within which statements of claim
should be filed in accordance with the provisions
of section
191(11)(a) of the LRA. The applicants’ attorney of record
attribute the delay purely to his mistaken but
bona fide
belief that his calculation of the time periods within which dispute
were to be lodged was correct.
[2]
The respondent opposed the application for condonation on the basis
that the applicants’ may not avoid the consequences
of the
delay in circumstances where they and their attorney of record were
timeously warned of their non-compliance with the time
frames, and
where the attorneys of record as practitioners in this court
ought to have been familiar with how to calculate
‘
days’
for the purposes of referring disputes.
Background:
[3]
The individual applicants were charged for acts of misconduct during
a protected national strike called by National Union of
Mineworkers
(NUM) that took place on 26 August 2013. Following internal
disciplinary hearings, they were then dismissed
on 15 October 2013.
An alleged unfair dismissal dispute was referred to the Commission
for Conciliation Mediation
and Arbitration (CCMA) on 30 October 2013.
[4]
A certificate of outcome declaring the dispute as unresolved was
issued on 26 November 2013. In terms of the provisions
of
section 191(11)(a) of the LRA, disputes such as in
casu
ought
to be referred to this Court within 90 days from the date that CCMA
has certified the dispute as unresolved. The statement
of claim was
filed on 19 March 2014. Upon its receipt, the respondent on
7 April 2014 in its statement of response
pointed out that
referral was out of time, and that in the absence of an application
for condonation, this Court would lack jurisdiction.
It is common
cause that no application for condonation was filed then.
[5]
The parties
concluded and signed a pre-trial minute on 2 February 2016. It was
inter
alia
recorded that the ‘
Respondent
contends that the Applicants’ statement of case has not been
delivered timeously’
[1]
.
One would have expected that the applicants’ attorney of
record, Mr AJ Masingi (of Masingi Attorneys), who was signatory
to
those minutes would have addressed the obvious concern there and
then, having initially been made aware of the non-compliance
with the
time frames as early as 7 April 2014 when the same issue
was raised in the statement of response. This however
was not to be
so.
[6]
The matter was then enrolled for trial on 28 November 2016.
Prior to the set-down date, Masingi filed a ‘Practice
Notice’
wherein in respect of the anticipated preliminary point, he had
stated that the statement of claim was filed within
the prescribed
time frames, and that there was no need to file a condonation
application. Attached to Masingi’s
‘Practice
Notice’ was a founding affidavit in which he further reiterated
that the statement of claim was filed on
time, and that the
respondent’s preliminary point was ‘misconceived and ill
purposed’.
[7]
The respondent’s preliminary point was upheld by the Court (per
Mooki AJ) and the matter was struck from the roll. For
his troubles,
Masingi was ordered to pay the wasted costs, on a scale as
between attorney and own client.
[8]
On 13 December 2016, the applicants’ attorneys of
record filed the overdue application for condonation. Mr Masingi
deposed to the founding affidavit in which he took responsibility for
the miscalculation of the computation of the applicable
dies
,
which he contended was an honest mistake and was not as a result of
wilful default on his part.
Applicable
principles:
[9]
The
principles applicable in applications for condonation are trite. In
accordance with the provisions of section 191(11)(b) of
the LRA, the
Court may on good cause shown, condone the non-observance of the time
frames. ‘Good cause’ was explained
in
Melane
v Santam Insurance Co. Ltd
[2]
in the following terms;
‘
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. Any attempt to formulate a rule of thumb would
only serve to harden the arteries of what should
be a flexible
discretion. What is needed is an objective conspectus of all the
facts. Thus a slight delay and a good explanation
may help to
compensate prospects which are not strong. Or the importance of the
issue and strong prospects may tend to compensate
for a long delay.
And the Respondent’s interests in finality must not be
overlooked”
[10]
The
Constitutional Court in
Brummer
v Gorfil Brothers Investments (Pty) Ltd
has since pointed out that an application for condonation should be
granted if it is in the interests of justice and refused if
it is
not. The interests of justice must be determined by reference to all
relevant factors, including the nature of the relief
sought, the
extent and cause of the delay, the nature and cause of any other
defect in respect of which condonation is sought,
the effect on the
administration of justice, prejudice and the reasonableness of the
applicant’s explanation for the delay
or defect
[3]
.
[11]
It is
further trite that
the
period of the delay is reckoned from the date when the certificate
was issued, and that in the absence of a finding that there
was good
cause for the failure to refer the dispute within the prescribed
period, the Court will have no jurisdiction to adjudicate
the
dispute
[4]
. Significant with a
determination of such applications is
that
condonation
cannot be had for the mere asking, and that a party is required to
make out a case entitling it to the court’s
indulgence by
showing sufficient cause, and giving a full,
detailed
and accurate account of the causes of the delay
[5]
.
In the end,
the
explanation must be reasonable enough to excuse the default.
[6]
Evaluation:
The
delay:
[12]
The period
of delay is to be calculated from the date that the certificate was
issued up to the date that the statement of claim
was filed. Masingi
in his founding affidavit averred that the statement of claim was
filed 30 days out of time, whilst the respondent
holds the view that
the delay must be calculated from the date that the certificate of
outcome was issued to the date that the
condonation application was
filed, and not from the date the statement of claim was filed. The
approach of the respondent cannot
be correct in the light of the
decision in
F
& J Electrical CC v Metal and Electrical Workers Union of South
Africa obo Mashatola and others
[7]
.
The
delay in this case as calculated from the date that the certificate
of outcome was issued until the filing of the statement
of case is
effectively 12 days on a proper interpretation and calculation of
‘days’ as defined in the Rules and the
Practice Manual.
That delay on the whole can hardly be said to be excessive. This
conclusion nonetheless does not put an end to
the enquiry in this
case.
[13]
An
important consideration however raised with the respondent’s
contentions that the delay was even longer is that it is trite
that
an application for condonation must be filed without delay and/or as
soon as the applicant becomes aware of the necessity
to do so
[8]
.
This factor is obviously important in the consideration of whether
the effective administration of justice was not adversely affected.
Thus, where the applicant delays the filing the application for
condonation despite being aware of the need to do so, or despite
being put on terms, the Court may take a dim view, absent a proper
and satisfactory explanation for the further delays.
[9]
[14]
What the
above therefore implies is that it is required of the applicants to
not only explain the delay in respect of the periods
stipulated in
section 191(11)(a) of the LRA, but also in respect of the delays in
respect of the filing of the application for
condonation after they
became aware of the necessity to do so
[10]
.
In this case, the application for condonation was filed some two
years and seven months upon Masingi being made aware of the default.
That delay is excessive in the extreme.
The
explanation:
[15]
Masingi attributed the delay to his misreading of the Practice Manual
of this Court, which defines “
a day”
as any day
other than Saturday, Sunday and public holiday. He averred that he
mistakenly thought that the statement of claim was
filed within the
prescribed time periods on his calculation of ‘
court days’
,
and that there was no need to seek condonation.
[16]
In regards to the subsequent delays in bringing the application for
condonation, he again contended that he genuinely believed
that the
statement of case was not out of time, and it was only on
28 November 2016 (when the matter came before the
Court)
that the calculation of ‘
days’
was clarified, and
he had immediately launched this application.
[17]
The
respondent’s contention was that the delay was inordinate and
that the explanation in that regard was not satisfactory
in view of
the fact that the applicants were at all material times, represented
by attorneys who ought to have been aware of the
rules governing
conduct of proceedings in this Court is on point. In my view, it
would be excusable if an attorney miscalculated
the applicable time
frames on some reasonable grounds other than an incorrect
interpretation of ‘
day’
as defined in the Rules of this Court
[11]
,
and similarly in Paragraph 3 of the Practice Manual of this Court.
The attempts by Masingi to attribute blame to the manner with
which
‘
day’
is defined in the Rules of this Court or the Practice Manual is not
only lame but also ridiculous.
[18]
It nonetheless gets worse for Masingi and the individual applicants
in that despite the claim that his belief was
bona fide, albeit
mistaken, when the statement of response was filed, the issue of
non-compliance with the time frames was raised. However, no action
was taken to correct the defect. Similarly, the same issue was raised
with him at the convened pre-trail conference, and again,
no action
was taken. Equally puzzling is the contention that any confusion
surrounding the definition of ‘
day’
was clarified
by Mooki AJ on 28 November 2016 when the matter was heard. Even then,
it is not correct that Masingi had filed this
application
immediately. It took him a further 11 days to do so, and for which no
explanation was proffered.
[19]
In regard to a further delay of two years and seven months, Masingi’s
explanation that he still belaboured under the
mistaken belief that
his calculations were correct cannot be equated to a
bona fide
mistaken belief. This is so in circumstances where on no less than
two occasions, he was made aware that the statement of claim
was out
of time. Any reasonable practitioner in the face of an insistence by
an opponent that there was non-compliance with the
statutory time
frames would have reflected on the matter and acted diligently. Even
if ultimately Masingi was to be proven to be
correct, there was still
an obligation on him to nonetheless have acted on the side of
caution, and to have filed the application.
Where ultimately the
Court would have found that the application for condonation was
unnecessary as he had always maintained, he
would then have had a
strong argument for costs against the respondent.
[20]
In the end, the explanation proffered by Masingi for the delays in
referring the dispute, and the further delays when it became
apparent
that a condonation application was necessary is neither reasonable
nor acceptable, as his belief that he was correct in
his calculations
cannot be viewed as
bona fide
. His failure to further explain
the delay between Mooki AJ’s order and the date on which the
application was ultimately filed
is further indicative of his
lackadaisical approach to this matter.
[21]
The next
issue for consideration is whether Masingi’s ineptitude should
be visited upon the individual applicants. It is trite
that there are
limits to which litigants may be absolved from the negligence,
tardiness or ineptitude of their chosen representatives
[12]
.
This principle was reiterated
in
NUM
v Council for Mineral Technology
[13]
,
where the Labour Appeal Court held that courts have traditionally
demonstrated their reluctance to penalise a litigant on account
of
the conduct of its legal representative, but have emphasised that
there is a limit beyond which an applicant cannot escape the
results
of his representatives lack of diligence or the insufficiency of the
explanation tendered.
[14]
[22]
In this case, and in the absence of any confirmatory affidavits from
any of the individual applicants, it is not clear as to
what role
they had played in ensuring that their matter was properly and
timeously prosecuted. It is therefore safe to conclude
that they
appear to have washed their hands of their case and left it to
Masingi. To that end, there is no reason for them to be
absolved from
the tardiness of their chosen representative.
[23]
In
NUM
v Council for Mineral Technology
[15]
,
it was held that in considering whether good cause has been shown,
and notwithstanding the well-known approach that all factors
to be
considered are interrelated as enunciated in
Melane
[16]
,
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. In
SA
Post Office Ltd v CCMA,
it
was stated that this principle is not inflexible, and that it applied
where other factors do not in themselves raise issues that
could
necessitate the court’s interference to grant the indulgence
sought
[17]
.
[24]
In
Grootboom v National Prosecuting Authority
and Another
, Zondo J held that:
“
Although
the existence of the prospects of success in favour of the party
seeking condonation is not decisive, it is an important
factor in
favour of granting condonation.
The
interests of justice must be determined with reference to all
relevant factors. However, some of the factors may justifiably
be
left out of consideration in certain circumstances. For example,
where the delay is unacceptably excessive and there is no explanation
for the delay, there may be no need to consider the prospects of
success. If the period of delay is short and there is an
unsatisfactory
explanation but there are reasonable prospects of
success, condonation should be granted. However, despite the presence
of reasonable
prospects of success, condonation may be refused where
the delay is excessive, the explanation is non-existent and granting
condonation
would prejudice the other party. As a general proposition
the various factors are not individually decisive but should all be
taken
into account to arrive at a conclusion as to what is in the
interests of justice.”
[18]
[25]
Inasmuch as the initial delay in referring the dispute is not
excessive, the subsequent delay upon Masingi and by implication,
the
applicants being made aware of the need for this application is
excessive in the extreme, and the explanation in that regard
as
already pointed out is far from being reasonable, acceptable or
satisfactory. In line with the authorities referred to in this
judgment, the overall concept of interests of justice, and the
objective overall discretion to be applied, I will address the
question whether the applicants have established reasonable prospects
of success that are sufficient to outweigh the failure to
explain the
subsequent delay in bringing the condonation application. This
approach is premised on the fact that it is not uncommon
for the
courts to condone non-compliance with time frames even if the delay
is inordinate and the explanation is poor.
Prospects
of success:
[26]
In respect
of the prospects of success, it was held in
Gaoshubelwe
and Others v Pieman's Pantry (Pty) Ltd
,
that this meant that all what needs to be determined is the
likelihood or chance of success when the main case is heard
[19]
.
A
similar approach was followed in
Seatlholo
& others v Entertainment Logistics Service (A division of Gallo
Africa Ltd)
[20]
,
where
it was held that the test is whether the applicants would succeed in
the main action if the facts pleaded by them in their
condonation
application were established at trial. Equally so, the prospects of
success do not entail an applicant having to prove
on a balance of
probabilities that he or she would succeed when the merits of the
case are heard
[21]
.
[27]
In
Mulaudzi
[22]
however,
the Supreme Court of Appeal has since been held that it is advisable
in such applications, to set forth briefly and succinctly
such
essential information as may enable the court to assess an
applicant's prospects of success. The court was therefore bound
to
make an assessment of an applicant's prospects of success as one of
the factors relevant to the exercise of its discretion,
‘unless
the cumulative effect of the other relevant factors in the case is
such as to render the application for condonation
obviously unworthy
of consideration.’ This would be in circumstances where there
was
flagrant
breach of the rules, excessive delays, and where no acceptable
explanation was forthcoming.
[28]
It was common cause that the individual applicants were dismissed for
acts of misconduct during a protected strike. Masingi
in his founding
affidavit merely contended that the individual applicants have
demonstrable prospects of success, based on the
record of the
internal disciplinary proceedings, which indicated that ‘
there
was no credible and admissible evidence linking all the applicants to
the commission of the offences’
.
[29]
The difficulty with Masingi’s contentions despite based being
based on the individual applicants’ instructions
is that no
confirmatory affidavits were filed in that regard. Other than that
omission, despite Masingi making reference to a record
of the
internal disciplinary enquiry, such a record was not attached to the
founding affidavit. Despite it not being the function
of this Court,
I had trawled through the applicants’ supposedly indexed and
paginated bundles, and was unsuccessful in finding
the record of
disciplinary proceedings Masingi had referred to.
[30]
On the other hand, the respondent’s detailed contentions are
that the misconduct in question was of a serious nature,
in that the
individual applicant failed to adhere to picketing rules; failed to
comply with an order issued by this court on 29 August 2013;
blockaded access to the respondent’s construction site with the
intention to stop non-striking employees, subcontractors
and clients
from accessing the site; were insolent and disrespectful towards
management and had uttered racists remarks; had arranged
transport to
convey locked out employees with the intention to commit acts of
intimidation, violence or the like on subcontractors,
and
non-striking employees, and that the internal disciplinary hearings
were conducted in an open and fair manner before an independent
chairperson of the hearings. It was contended that in the
circumstances, the dismissals were substantively and procedurally
fair.
[31]
A worrying factor with this application is that as already indicated,
the individual applicants appear to have washed their
hands off this
matter and left it to Masingi to deal with. No attempt was made to
confirm Masingi’s averments by way of confirmatory
affidavits.
Despite Masingi’s averments in regards to the prospects of
success lacking in detail, and notwithstanding the
respondent’s
detailed response in regards to prospects of success, similarly, no
attempt was made to file a replying affidavit.
[32]
In the end, even on the less stringent the test as set out in
Gaoshubelwe,
Seatlholo,
Production Institute of South Africa (PTY) Ltd v CCMA & others
and
SA Democratic Teachers Union v
Commission for Conciliation, Mediation & Arbitration & others
as referred to elsewhere in this
judgment, I am not satisfied that the applicants have
established demonstrable prospects
of success, and it is apparent
that the founding affidavit coupled with the statement of case
contain bare averments and denials.
My conclusions in this regard are
further fortified by the following considerations;
32.1
I
have further in the interests of completeness, had regard to the
statement of case, and significantly, the applicants alleged
an
automatically unfair dismissal for which no basis was laid.
32.2
In
the alternative, they had contended that the dismissal was not
a fair sanction, and it is not stated in what material respects
that
was the case.
32.3
They
further appear to have disputed the evidential material used against
them in the form video footage, its authenticity, accuracy
and
reliability. Even then, it is not stated on what basis there was a
dispute in that regard.
32.4
In
the founding affidavit in respect of this application, Masingi had
averred that the applicants would be prejudiced if condonation
was
not granted on the grounds that they were entitled to compensation
for their alleged unfair dismissal. Even if that was the
relief that
they sought, they are not entitled to it as of right.
Other
considerations and conclusions:
[33]
The respondent contends that it would suffer prejudice if condonation
were to be granted because of the lengthy period it had
taken for the
applicants to comply with the Rules of this Court. Masingi on the
other hand averred that there was no prejudice
to the respondent if
condonation were to be granted, whilst the individual applicants
would suffer substantial prejudice if condonation
were to be refused
as they were entitled to compensation for unfair dismissal.
[34]
Within the context where Masingi, and by implication, the individual
applicants, were made aware on no less than two occasions
that there
was a need to file the condonation application and they had simply
failed to do so for over two years and seven months,
and where upon a
court order, they had still failed to act with the necessary haste,
and further where the applicant’s papers
do not reveal any
prospects of success at trial, it is my view that any prejudice to be
suffered by the individual applicants is
purely of Masingi’s
making, coupled with their own lack of interest in the matter as
already indicated elsewhere in this
judgment.
[35]
It may have been argued that the prejudice to be suffered by the
respondent is far outweighed by that to be suffered by the
applicant,
and that this could be mitigated by an adverse cost order. In
considering this argument, I have also taken into account
that the
parties had completed a pre-trial minute and the fact that the matter
may be ready to be heard. However, these considerations
become
irrelevant in circumstances where on the papers, the applicants have
not shown good cause or more particularly, some prospects
of success
on the merits. In effect, no purpose would be served in granting
condonation simply because a matter is ready to run.
The issue is
whether good cause has been shown and in this case, it clearly was
not.
[36]
In circumstances where the delay in bringing this application was
excessive and where the applicants failed to correct the
defect
timeously when made aware of it, the poor explanation for the delay
and the weak prospects of success, it would neither
be in the
interests of justice or effective administration of justice to grant
condonation.
[37]
In respect of costs, it is trite that this court takes into account
the requirements of law and fairness when making such an
award. I am
mindful of the fact that Masingi as attorneys of record was ordered
by Mooki AJ to pay the wasted costs on a punitive
scale when the
matter was initially enrolled on 28 November 2016. In my
view, to the extent that the application for
condonation is to be
dismissed for the reasons given, and notwithstanding Masingi’s
clear dilatoriness, it would not be fair
to make any further cost
orders.
[38]
Accordingly, the following order is made;
Order:
1. The application for
condonation for the late filing of the individual applicants’
statement of claim is dismissed.
2. The individual
applicants’ claim is dismissed.
3. There is no order as
to costs.
____________________
E Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: M.J. Letsoalo
Instructed
by: J Masingi Attorneys
For
the Respondent: D. Whittington
Instructed
by: Fluxmans Incorporated Attorneys
[1]
At paragraph 13.1 of the signed Pre-Trial Minutes
[2]
1962
(4) SA 531
(A) At 532b-E
[3]
[2000] ZACC 3
;
2000 (5) BCLR 465
;
2000 (2) SA 837
(CC) at para 3; See also
Ndlovu
v S
2017 (10) BCLR 1286
(CC);
2017 (2) SACR 305
(CC) (15 June
2017) at paras 22 – 23;
Van
Wyk
v
Unitas Hospital (Open Democratic Advice Centre as amicus curiae)
[2007] ZACC 24
;
2008
(2) SA 472
(CC)
at
477A-B;
SA
Post Office Ltd v CCMA
[2012]
1 BLLR 30
(LAC) at para [23], where Waglay DJP (as he was
then) stated that;
‘
In
my view, each condonation application must be decided on its own
facts bearing in mind the general criteria. While the rules
are
there to be applied, they are not inflexible but the flexibility is
directly linked to and apportioned in accordance with
the interests
of justice; prejudice; prospects of success; and finally, degree of
delay and the explanation thereof. The issue
of delay must be viewed
in relation to the expedition with which the law expects the
principal matter to be resolved’
[4]
F
& J Electrical CC v Metal and Electrical Workers Union of South
Africa obo Mashatola and others
[2015] 5 BLLR 453
(CC) at
461,
para [30]
[5]
Mulaudzi
v Old Mutual Life Assurance Company (South Africa) Limited
2017
(6) SA 90
(SCA) at para 6
[6]
Ndlovu
v S
at para 31
supra
at fn
3
[7]
Ibid
[8]
See
All
Round Tooling (Pty) Ltd v NUMSA
(1998)
8 BLLR 847
(LAC);
Rennie
V Kamby Farms (Pty) Ltd
1989 (2) SA 124
(A) At 129G where it was held:
'whenever
an appellant realises that he has not complied with a rule of court
he should
apply
for condonation without delay.'
[9]
See
Commissioner
for Inland Revenue v Burger
1956 (4) SA 446
(A) At 449G
[10]
Mulaudzi
at
para [26].
[11]
1.
Definitions
.-
“
day”
means any day other than a Saturday, Sunday or public holiday, and
when any particular number of days is prescribed
for the doing of
any act, the number of days must be calculated by excluding the
first and including the 1st day;
[12]
See
Buthelezi
& others v Eclipse Foundries Ltd
(1997)
18 ILJ 633 (A) at 638I–639A)
;
Saloojee
and Another, NNO v Minister of Community
Development
[1965] 1 All SA 521
(A) at 527 where in was held:
“
There is a limit
beyond which a litigant cannot escape the results of his attorney’s
lack of diligence or the insufficiency
of the explanation tendered.
To hold otherwise might have a disastrous effect upon the observance
of the Rules of this Court.
Considerations
ad misericordiam
should not be allowed to become an invitation to laxity. In fact
this Court has lately been burdened with an undue and increasing
number of applications for condonation in which the failure to
comply with the Rules of this Court was due to neglect on the
part
of the attorney. The attorney, after all, is the representative whom
the litigant has chosen for himself, and there is little
reason why,
in regard to condonation of a failure to comply with a Rule of
Court, the litigant should be absolved from the normal
consequences
of such a relationship, no matter what the circumstances of the
failure are. (Cf.
Hepworths Ltd. v. Thornloe and Clarkson Ltd.,
1922 T.P.D. 336
;
Kingsborough Town Council v. Thirlwell and
Another,
1957
(4) S.A. 533
(N)). A litigant, moreover, who
knows, as the applicants did, that the prescribed period has elapsed
and that an application
for condonation is necessary, is not
entitled to hand over the matter to his attorney and then wash his
hands of it. If, as here,
the stage is reached where it must become
obvious also to a layman that there is a protracted delay, he cannot
sit passively
by, without so much as directing any reminder or
enquiry to his attorney (cf.
Regal v. African Superslate (Pty.)
Ltd.,
supra at p. 23 i.*.) 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 the
insufficiency should be overlooked merely because he has left the
matter entirely
in the hands of his attorney. If he relies upon the
ineptitude 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. In these circumstances I would find it
difficult
to justify condonation unless there are strong prospects
of success (
Melane v. Santam Insurance Co. Ltd
.,
1962 (4)
S.A. 531
(A.D.) at p. 532).”
[13]
[1999] 3 BLLR 209 (LAC)
[14]
NUM
v Council for Mineral Technology
supra
at fn
13 at 211I-212A. See also
Superb
Meat Supplies CC v Maritz
(2004)
25 ILJ 96 (LAC) at 100I-101A, where it was held that;
‘
It has never been
the law that invariably the litigant will be excused if the blame
lies with the attorney. To hold otherwise
might have a disastrous
effect upon the observance of the rules of this court and set a
dangerous precedent. It would invite
or encourage laxity on the part
of practitioners. The courts have emphasized that the attorney,
after all, is the representative
whom the litigant has chosen for
himself, and there is little reason why, in regard to condonation of
a failure to comply with
a rule of court, the litigant should be
absolved from the normal consequences of such a relationship, no
matter what the circumstances
of the failure are.’
[15]
Supra
fn
13
at
para 10
[16]
Supra
fn 2
[17]
Supra
fn 3
at
para [22]
[18]
(2014)
1 BLLR 1
(CC);
2014
(2) SA 68
(CC);
2014 (1) BCLR 65
(CC); (2014) 35 ILJ
121 (CC) at paragraphs 50 - 51
[19]
2009 30 ILJ 347 (LC) at para 27
[20]
(2011) 32 ILJ 2206 (LC) para 24
[21]
Production
Institute of South Africa (PTY) Ltd v CCMA & others
(Case
No: JR1974/2009) at para 12; See also
SA
Democratic Teachers Union v Commission for Conciliation, Mediation &
Arbitration & others
(2007)
28 ILJ 1124 (LC)
at
para 38,
where
it was held that;
‘
A
commissioner in considering prospects of success does not have to
pronounce on the merits of the case. All that the commissioner
needs
to do is to investigate whether on the averments made by the
applicant there is a
prima facie
case, that there
is a chance of succeeding when the main case is heard. In other
words to establish whether there is a reasonable
prospect of success
on the merits, it suffices if an applicant can show a prima facie
case through setting out averments which,
if established at the
proceedings of the main case, would entitle the applicant to some
relief. The applicant need not deal fully
with the merits of the
case’
[22]
Supra
fn 5
at
para [34]