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[2019] ZALCJHB 110
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Free State Gambling and Liquor Authority v Mafokeng (JR394/15) [2019] ZALCJHB 110 (17 May 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JR 394/15
In the matter between:
FREE STATE GAMBLING
AND LIQUOR AUTHORITY Applicant
And
MAJORO MARVIN MOFOKENG
Respondent
Heard: 29 November 2018
Delivered: 17
May 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
The
applicant approached this Court in terms of the provisions of section
165 of the Labour Relations Act (LRA)
[1]
read with rule 16A
[2]
of the
Rules of this Court for an order rescinding and setting aside the
order of this Court issued on 19 August 2016
in its
absence.
[2]
The
respondent (Mr Majoro Mofokeng), opposed the application, further
contending that the rescission application was filed some
30 days
outside the time-frames provided in terms of rule 16A(2)(b)
[3]
of the Rules of this Court. In those circumstances, it was submitted
that the application for rescission ought be dismissed owing
to the
failure to seek condonation for its late filing.
Background:
[3]
Following his dismissal on 17 December 2013, Mofokeng
referred
an unfair dismissal dispute to the
Commission
for Conciliation Mediation and Arbitration (CCMA)
which
resulted in
favourable award on 14 February
2015
in terms of which he was reinstated in the employ of the applicant
with back-pay.
[4]
On 9 March 2015, the applicant filed its
application to review and set aside the arbitration award.
On
12 March 2015, the CCMA notified the parties that the
record of arbitration proceedings was ready to be uplifted from
the
Registrar of this Court.
[5]
On 19 March 2015, Mofokeng filed his notice of intention to
oppose the review application. On 19 March 2015 and
16 April 2015 the applicant uplifted the record of
arbitration
proceedings.
[6]
During May 2015, the applicant instituted urgent stay of
proceedings
which culminated in a judgement and order dated
19 May 2015, staying the enforcement of the arbitration
award pending
the final determination of the review application. The
Judgment of Rabkin-Naicker J in that regard was delivered on
26 June 2015.
The applicant lodged an appeal against the
order of costs granted against it. As at the time of the hearing of
this application,
the appeal (and cross-appeal) was still pending
before the Labour Appeal Court.
[7]
In correspondence dated 25 September 2015, Mofokeng through
his attorneys of record placed the applicant on terms, indicating
that the latter had failed to filed a record of arbitration
proceedings
in terms of the provisions of rule 7A(6) of the rules of
this Court, and that the requirements of rule 7A(8) of the Rules of
this
Court had not been complied with.
[8]
On 9 November 2015, Mofokeng filed an application in terms
of
the provisions of Rule 11 of the Rules of this Court to dismiss
the review application on account of the failure of the applicant
to
comply with the provisions of section 145(5) of the LRA. The
applicant on 8 March 2016 filed its notice of intention
to
oppose the Rule 11 application.
[9]
The Rule 11 application was to be heard on 8 March 2016. On
the same date, the applicant sought a postponement of the Rule 11
proceedings. In its averments in support of the postponement,
it was
conceded that it had failed act in compliance with the Rules, in
particular the provisions of rule 7A of the Rules of this
Court. The
applicant further averred that its failure to oppose the Rule 11
application was due to its mistaken belief that the
record of
arbitration proceedings and the notice in terms of Rule 7A(8) would
be served and filed prior to the sitting of the Rule
11 proceedings.
The proceedings in regard to the Rule 11 application were postponed
sine die
, and the applicant was ordered to pay the wasted
costs on a punitive scale.
[10]
The Rule 11 application was again re-enrolled for 12 August 2016,
and was postponed
to 29 August 2016. On
29 August 2016, the Court (Per Whitcher J), and in the
absence of the applicant, dismissed
the application to review and set
aside the arbitration award on account of lack of timeous
prosecution.
[11]
On 31 August 2016, Mofokeng’s attorneys of record
wrote to the applicant
seeking to enforce the arbitration award in
view of the concluded proceedings. On 5 September 2016,
Mofokeng’s
attorneys of record advised the applicant that he
would resume his duties on 7 September 2016. On
6 September 2016,
the applicant indicated its’
intentions to institute the current rescission proceedings.
Preliminary
issues:
Postponement:
[12]
At the commencement of these proceedings, Mr Narian for the applicant
requested that the
matter be stood down whilst the parties engaged in
settlement discussions. When the matter resumed, Mr Narian informed
the Court
that the negotiations had broken down in view of the fact
that the applicant had not budgeted for the settlement amount
discussed.
[13]
Mr Narian then sought a postponement from the bar, in order for him
to properly prepare
for the rescission proceedings. The application
for a postponement was opposed on a number grounds including that the
litigation
has been unduly delayed at the instance of the applicant,
and further that the applicant in general terms had been delinquent
in
the prosecution of the review application, which had prejudiced
Mofokeng.
[14]
In the light the consideration of the submissions on behalf of the
parties and the facts
of the matter, the Court refused the
application for postponement on the following basis:
14.1.
The Court accepted that the settlement negotiations had been ongoing
for an extended period and further
that even if there was an
expectation from the applicant’s attorneys of record that the
settlement negotiations would culminate
in an agreement to be made an
order of Court, it was inconceivable that the applicant could only
discover at the eleventh hour
of the proceedings that there were
budgetary constraints that hindered its ability to satisfy any
settlement outcome. The Court
formed the view that the alleged
unforeseen budgetary constraints were indicative of negotiations in
bad faith and/or of
mala fides
on the part of the
applicant.
14.2.
Furthermore, even if the anticipation of the settlement of the
application by the applicant’s attorneys
of record was genuine,
there was nothing which precluded the representatives from preparing
for the application in the event (like
in this case) that the
settlement negotiations broke down.
14.3.
The Court in the light of a consideration of various factors,
including the prolonged history of the dispute;
the undue delay at
the instance of the applicant in prosecuting the review applicant;
the overall principles surrounding the expeditious
resolution of
labour dispute as contemplated by the LRA; the prejudice the parties
would suffer and the overall interests of justice,
came to a
conclusion that the postponement of the application was not
justified.
The
rescission application:
[15]
The rescission application was launched on
8 November 2016, when the order sought to be rescinded was
granted on 29 August 2016
. In the founding
affidavit, the applicant conceded that the application for rescission
was filed out of time.
[16]
Mofokeng in his answering affidavit averred that the rescission
application was launched
outside the timeframes contemplated in terms
of rule 16A(2)(b) of the Rule of this Court, and in the
circumstances, the applicant
ought to have filed an application for
condonation in that respect, and further that its failure to do so
was fatal to the rescission
application. The respondent elected not
to file a replying affidavit, nor was an application for condonation
filed in respect of
the late filing of the rescission application.
[17]
It is clearly shocking that a party could simply acknowledge that its
application before
the Court is out of time and yet not make any
attempts at addressing the delay. In circumstances such as these, it
should be the
end of the matter as far as this application is
concerned, as it is not properly before the Court.
[18]
In conclusion, something needs to be said about the manner with which
the applicant had
prosecuted this matter, which in my view leaves a
lot to be desired. These concerns are raised in regards to the
awarding of costs,
which I am of the view that the considerations of
law and fairness calls for such an order.
[19]
The protracted history of this matter is set out in the background as
summarised somewhere
in this judgment. It needs to be stated that
since the dismissal of Mofokeng on 17 December 2013 and the
favourable award
he obtained on 14 February 2015, this
matter has been beset by every dilatoriness conceivable on the part
of the applicant.
The review application having been delivered on
9 March 2015, not much progress had been made in bringing
the matter
to finality, hence the Rule 11 application that was
delivered on 26 October 2015.
[20]
When the Rule 11 application was to be heard five months later on
8 March 2016,
the applicant had still not filed an
opposition to that application, and had sought to have proceedings
postponed in order to deliver
its answering affidavit. It was only at
that stage that the record of proceedings and the supplementary
affidavit was filed, some
one year since the parties were notified of
the availability of that record and since the record was uplifted.
[21]
The Rule 11 application set down for 8 March 2016 was
postponed with an order
of punitive costs. Pending the hearing of the
Rule 11 application on 29 August 2016, Mofokeng delivered
an answering
affidavit, further indicating that the review
application was deemed to have been withdrawn in terms of the
provisions of paragraph
11.2.3 of this Court’s Practice Manual.
[22]
On 29 August 2016, despite being granted a postponement to
deliver an answer
to the Rule 11 application, this was still not
done. The applicant failed to make an appearance at all, resulting in
the order
being granted in its absence. As if that was not enough,
the applicant again failed to observe the rules of this Court in
approaching
it with this belated application for rescission. Despite
concerns raised by Mofokeng, the applicant hardly bothered to file an
application for condonation.
[23]
Taking into account all the delays and failures to comply with the
rules of this Court
and its Practice Manual, and further taking into
account that the rescission application is not properly before the
Court, it is
doubted that any court, even if inclined to consider the
rescission application, would have granted it. Other than these
flagrant
and egregious failures to comply with the rules
of this Court throughout the prosecution of the review and rescission
applications, the applicant, for good measure, did not even bother to
attend to the indexing and pagination of the Court’s
bundle,
which responsibility Mofokeng’s attorneys had to take over. In
the light of these factors, I see no reason either
on the basis of
law or fairness, why Mofokeng should be burdened with the costs of
this application. Mofokeng only sought that
the application be
dismissed with costs. Had a punitive costs order been sought, I would
not have hesitated in awarding such an
order.
[24]
Accordingly, the following order is made.
Order:
1. The
application to rescind the order of this Court dated 29 August 2016
is dismissed with costs.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
S. Narian of Sunil Narian Incorporated
For
the Respondents:
S. Collet, instructed by Kramer Weihmann & Joubert Incorporated
[1]
Act 66 of 1995 (as amended)
[2]
Rule 16A:
(1)
The court may, in addition to any other powers it may have-
(a)
of its own motion or on application of any party affected, rescind
or vary any order or judgment-
(i)
erroneously sought or erroneously granted in the absence of
any
party affected by it;
(ii)
in which there Is an ambiguity or a patent error or omission, but
only to the extent of such ambiguity, error or omission;
(iii)
granted as the result of a mistake common to the parties, or
(b)
on application of any party affected, rescind any order or judgment
granted in the absence of that party.
[3]
Sub-rule 16A(2):
Any party desiring any relief under-
(a)
subrule 1(a) must apply for it on notice to all parties whose
interests may
be
affected by the relief sought.
(b)
subrule 1 (b) may within 15 days after acquiring knowledge of an
order or
judgment
granted in the absence of that party apply on notice to all
interested parties to set aside the order or judgment and
the court
may, upon good cause shown, set aside the order or judgment on such
terms as it deems fit.