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[2018] ZALCPE 25
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Madikane and Others v Bantwini and Others (P403/11) [2018] ZALCPE 25 (3 October 2018)
IN THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
Not Reportable
Case No: P403/11
In
the matter between:
IMATU
OBO MADIKANE AND 2
OTHERS
Applicant
and
MS
FIATH NCUMISA
BANTWINI
First
Respondent
THE
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
Second
Respondent
INGQUZA
HILL LOCAL
MUNICIPALITY
Third
Respondent
Heard:
20 March 2018
Delivered:
3 October 2018
Summary:
An unexplained delay of 4 years in prosecuting a review application
justifies its dismissal.
JUDGMENT
LALLIE,
J
[1]
This is an application to dismiss an application to review and set
aside the first respondents’ arbitration award filed
by the
applicant on 25 August 2011. It is based on what the third respondent
referred to as the applicant’s unreasonable
and excessive
delay, over a considerable period, to prosecute its review
application despite this Court’s directive that
the applicant
take constructive steps to prosecute it. The application is opposed
by the applicant.
[2]
The applicant filed its answering affidavit out of time and the third
respondent objected to the late filing in terms of clause
11.4 of the
Practice Manual of the Labour Court of South Africa
[1]
(the Practice Manual). Consequently, the applicant filed an
application for condonation of the late filing of its answering
affidavit.
The third respondent did not file an opposing affidavit.
The reasons proffered by the applicant for the late filing of the
answering
affidavit are that it became aware that the dismissal
application had been filed upon receipt of the notice of set down on
5 February
2018. The dismissal application had been served on its
correspondent who did not forward it to the applicant’s
attorneys.
On 5 February 2018, the applicant had been engaged in
settlement negotiations with the third respondent and the applicant
was awaiting
a response in respect of the negotiations from the third
respondent. In addition, the applicant’s attorneys were
arranging
the rescheduling of the reconstruction of the missing parts
of the arbitration record with the second respondent. As the third
respondent elected not to file opposing papers, the applicant’s
averments are unopposed. They constitute reasonable and excusable
explanation for the delay. Condonation should in the circumstance be
granted.
[3]
The factual background to this matter is that in 2007 the applicant
conducted a restructuring exercise which resulted in the
demotion of
the individual third respondents (the respondents). The third
respondent referred an unfair labour practice dispute
to the second
respondent regarding the respondents’ demotion. On 25 June
2010, the first respondent issued an arbitration
award in which she
found in favour of the third respondent. She ordered the applicant
to,
inter alia
, place the respondents in their former post
level 6 positions with effect from 1 July 2010. On 25 August 2011,
over a year after
the award had been issued, the applicant filed an
application to have the award reviewed and set aside. On 14 September
2011, the
second respondent filed with the Registrar of the Labour
Court (the Registrar), a record of the arbitration proceedings which
consisted
of the documents used during the arbitration proceedings, 2
compact discs and a portion of the first respondent’s hand
written
notes. On 16 September 2011 the Registrar sent a notice to
the applicant advising of the filing of the record and seeking the
applicant
to comply with Rule 7A (8) of the Labour Court Rules (the
Rules). On 2 November 2011 the third respondent filed a notice of its
intention to oppose the review application. On 10 February 2012 and
before the complete record of the arbitration proceedings was
filed,
the applicant filed a notice in terms of Rule 7A (8).
[4]
On 24 March 2012 a directive was issued for the applicant to comply
with the Registrar’s notice of 16 September 2011.
On 28 August
2012, as a result of the applicant’s non-compliance with the
directive of 24 March 2012, a further directive
was issued. It
directed the applicant to show cause on 16 November 2012 why its
review application should not be dismissed for
failure to comply with
previous directives and for non-compliance with Rule 7A (6) and (8).
On 12 September 2012 the applicant
filed the arbitrator’s hand
written notes. On 26 September 2012, the third respondent’s
attorney informed the applicant
in a letter that the record it served
on 11 September 2012 was incomplete. On 8 November 2012 the applicant
filed a document which
it referred to in the covering letter as a
complete set of arbitration proceedings. The document turned out to
be only a portion
of the record.
[5]
On 16 November 2012, when the applicant was required to show cause
why its review application should not be dismissed, its attorney
blamed the correspondents they relied on for failure to file the
record and not conveying the court directives to his firm. Mr
Ximbi,
the applicant’s attorney, took it upon himself to oversee the
process of compliance. In a judgment handed down on
21 November 2012,
the applicant’s review application was not dismissed and the
applicant was ordered to file a complete transcript
within 14 days
and a fresh notice in terms of Rule 7A (8). A meeting to reconstruct
the record scheduled for 5 February 2013 had
to be postponed because
the applicant’s attorneys received the notification only on 4
February 2013. They could not approach
Mr Guleni (Guleni) who
represented the applicant at arbitration and could assist in the
reconstruction of the record exercise as
he had left the applicant’s
employ. The third respondent submitted that after the failed meeting
of 5 February 2013, the
applicant made no attempts to have the record
filed by 18 May 2017 when the founding affidavit was attested to.
[6]
The applicant submitted that its attorneys made numerous phone calls
and wrote letters to the second respondent requesting the
scheduling
of meetings for the reconstruction of the record. It attached one of
those letters dated 7 December 2012. In a letter
dated 22 March 2017,
the applicant’s attorneys confirmed their visit with their
counsel to the second respondent’s
premises on 28 February
2017. They further requested records in respect of the respondents’
cases.
[7]
The third respondent attacked the validity of the review application
on the basis that it is fatally defective as it was filed
over 12
months late with no prospects of success. The applicant denied and
submitted that it is premature to determine the validity
of the
review application as it still has to file the full record and a
supplementary affidavit.
[8]
The respondents further submitted that the review application should
be dismissed as it was launched in 2011 as a stratagem
to frustrate
compliance with the arbitration award. The applicant disregarded
court directives and a judgment to pursue its review
application. It
took no steps to pursue the review application for 4 years. The
applicant denied being supine and submitted that
it illustrated its
efforts to have the record reconstructed but was let down by the
non-cooperation of some respondents. It further
relied on the
settlement negotiations held in October 2017 and January 2018.
[9]
In
Sishuba
v National Commissioner of the SA Police Service
[2]
the court referred with approval to authorities in which it was held
that there are two principal reasons for the court to have
the power
to dismiss a claim at the instance of an aggrieved party on grounds
of unreasonable delay. The first is prejudice to
the parties and the
second is that it is both desirable and important that finality be
reached within reasonable.
[10]
The third respondent did not file a replying affidavit. Allegations
made in the answering affidavit went unchallenged. In the
judgment
issued on 21 November 2012, the applicant’s delay in
prosecuting its review application was excused up to that point.
The
respondent’s averment that on 16 November 2012, the applicant’s
attorney made an undertaking in court to oversee
the process of
compliance in showing cause why the review application should not be
dismissed was not refuted. The applicant did
not succeed in refuting
the third respondent’s allegation that it delayed inordinately
in prosecuting the review application
after 21 November 2012. The
applicant cannot be faulted for not attending the meeting to
reconstruct the record scheduled for 5
February 2013 because it
received a day’s notice. The applicant’s submission that
after 5 February 2013, it made numerous
phone calls and wrote letters
requesting a date for the reconstruction of the record was not
substantiated. The letter it sought
to rely on in which it sought a
date for the reconstruction of the record was written on 7 December
2012. It supports its efforts
before the failed meeting of 5 February
2013.
[11]
A further letter which the applicant sought to rely on in disproving
the respondent’s claim that it is dilatory in prosecuting
the
review application was written on 22 March 2017. It confirms the
visit by the applicant’s attorney and counsel to the
second
respondent on 28 February 2017 and requests records of the
respondents’ case. It is silent on the reconstruction of
the
record. Other than addressing a letter to the second respondent on 21
February 2013 requesting reasonable notice of the reconstruction
of
the record, the applicant provided no proof of steps it took to
prosecute the review application before the visit of 28 February
2017
which is referred to in the letter of 22 March 2017. The applicant’s
explanation for the delay supports the third respondent’s
version that for 4 years after the letter of 21 February 2013 was
written, the applicant took no steps to pursue the review
application.
The applicant’s 4 year delay is rendered serious
by its attorney’s undertaking to oversee compliance with the
Rules
and directives as well as the judgment of 21 November 2012, in
which the applicant was ordered to file a complete transcript of
the
arbitration proceedings and a fresh Rule 7A (8) notice within 14
days. The applicant failed to act either with the urgency
referred to
in the judgment or the necessary diligence in prosecuting its review
application. The applicant’s efforts to
negotiate a settlement
with the third respondent in October 2017 and January 2018 do not
sanitise its failure to prosecute the
review application for 4 years.
The delay is inordinate and without reasonable explanation.
[12]
It is common cause that both the letter and the spirit of the Labour
Relations Act
[3]
(LRA) require
that labour disputes be resolved expeditiously. The applicant’s
failure to exercise its right to review, effectively
supports the
third respondent’s version that the review application was
filed as a stratagem to frustrate the respondents.
The respondents
continue to suffer the prejudice of not enjoying their rights in
terms of the arbitration award for no valid reason.
They cannot be
expected to wait for an unreasonably extended period for the
completion of the review application. The applicant
is responsible
for any prejudice it may suffer as a result of this application being
granted. In the judgment of 21 November 2012,
the applicant was
afforded an opportunity to prosecute the review application it filed
on 25 August 2011 to finality. It decided
not to seize the
opportunity. The review application is still not ripe for hearing.
For these reasons the third respondent’s
application must
succeed.
[13]
The applicant’s unexplained excessive delay in prosecuting the
review application justifies a costs order in favour of
the third
respondent.
[14]
In the premises the following order is made.
Order
1.
The late filing of the answering affidavit is
condoned.
2.
The application to review and set aside the first
respondent’s arbitration award under case number ECD050913
dated 23 June
2010 is dismissed with costs.
Z
Lallie
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: Mr Boyens of Minnaar Niehaus Attorneys
For
the Third Respondent: Advocate Notshe with Advocate Msiwa
Instructed
by: Ximbi Ncolo Incorporated Attorneys
[1]
April 2013.
[2]
(2007) 28
ILJ 2073 (LC)
[3]
Act
66 of
1995 as amended.