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[2019] ZALCJHB 109
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Mangaung Metropolitan Municipality v IMATU obo Dolphin and Others (JR120/2017) [2019] ZALCJHB 109 (22 May 2019)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not reportable
CASE NO: JR120/2017
In the matter between:
MANGAUNG METROPOLITAN
MUNICIPALITY Applicant
and
IMATU obo KEVIN
DOLPHIN
First Respondent
SELLO
MOPAKE
NO
Second Respondent
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING
COUNCIL
Third Respondent
Heard:
09 January 2019
Delivered:
22 May 2019
JUDGMENT
NTSHEBE, AJ
Introduction
[1]
This is an application for rescission of an
order dated 31 October 2017 granted against the applicant by Mahosi,
J wherein she dismissed
the applicant’s review application and
made the arbitration award issued by the second respondent an order
of Court.
[2]
The application is accompanied by a
condonation application by the applicant in respect of the late
service and filing thereof.
Brief
background facts
[3]
The first respondent referred a dispute to
the third respondent regarding the payment of an acting allowance.
The parties could
not resolve the dispute at conciliation and the
matter was set down for arbitration. At the arbitration proceedings,
the parties
agreed that the matter will be decided based on their
closing arguments. However, the applicant failed to submit its heads
of argument.
The arbitrator proceeded and issued an award in which he
found in favour of the first respondent and ordered the applicant to
pay
to the first respondent an amount of R107, 994. 42 (one hundred
and seven thousand nine hundred and ninety-four rands and forty
two
cents). The award is dated 6 November 2016. It is not clear when the
award was received by the applicant, but in its condonation
application for the review application, it is stated that in November
presumably, 2016, the applicant instructed its attorneys
to assist it
with the filing of a review application. The Notice of Motion dated
24 January 2017, was served on the union on 25
January 2017 and filed
with the Labour Court on 6 February 2017.
[4]
Nothing much was done by the applicant in
pursuing the review application. This is so because on its own
version, from 6 February
2017 to September 2017, the applicant’s
attorneys wrote only two letters to the Bargaining Council enquiring
about the record.
These letters are dated 27 September 2017 and 3
October 2017. Before the said dates, no action was taken in pursuing
the review
application.
[5]
As a result, on 1 August 2017, the first
respondent instituted an application in terms of Rule 11 of the
Labour Court Rules for
an order dismissing the review application and
that the award be made an order of Court. It is important to note
that the said
application was served on the applicant’s
attorneys by telefax on 1 August 2017 and by hand on 2 August 2017.
[6]
The applicant had 10 (ten) Court days
within which to serve and file its answering affidavit. This it did
not do. Not surprising,
the first respondent proceeded with its
application in terms of Rule 11 which was set down for 31 October
2017 wherein the order
dismissing the review application and making
the arbitration award an order of Court was granted. It is alleged by
the applicant
that the answering affidavit was subsequently filed
with this Court on 13 November 2017. This was two weeks after the
order had
been granted by Mahosi, J.
[7]
The applicant states that he became aware
of the order dismissing the review application on 26 November 2017
whilst the first respondent
disputes that and states that the
applicant became aware of the order on 14 November 2017.
[8]
The applicant contends that despite being
made aware of the order on 26 November 2017, it received the actual
order on 18 December
2017. It was submitted by the applicant’s
counsel that 18 December 2018 is the date upon which the applicant
acquired knowledge
of the order. In its explanation regarding the
reasons for lateness, the applicant states that because the order was
sent 1 (one)
day before the recess period of the Court, its counsel
was unavailable to deal with the matter as he was already on holiday.
The
offices of the attorneys thereafter closed for the December
holidays, two days after receiving the order and they reopened around
12 January 2018.
[9]
Another reason alleged to have occasioned
the delay was that the attorney in the firm who had been handling the
matter resigned
from its employ and was unavailable to assist on the
finalization of the application. As a result, another attorney took
over the
matter on or about 25 January 2018 and instructed a
different Counsel to draft the papers. Consultation with the new
counsel was
held on 3 February 2018.
[10]
The
law dealing with condonation applications is quite settled. In the
case of
Melane
v Santam Insurance Company Ltd
[1]
,
the court had this to say:
“
(T)here
is a further principle which is applied and that is that 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 the delay,
an application for
condonation should be refused.”
[11]
The attorneys were made aware of the order
on their own version in November 2017 and received
the actual Court order on 18 December 2017.
The
reason that
they decide to wait to be in
receipt of a typed Court order
instead of
making their own attempts such as getting a correspondent attorney to
obtain the same Court order is not acceptable.
[12]
After receiving the Court order on 18
December 2017, the applicant through its attorneys did not act
immediately. The fact that
by the time they received the Court order,
the Court was on recess, did not preclude them from proceeding with
the rescission application.
If the applicant’s explanation were
to be accepted, it would mean that every time this Court is on recess
there will be no
need for parties to exchange pleadings. Furthermore,
I believe that the attorneys would have in the absence of their
counsel and
due to the urgency of the matter, secured an alternative
counsel available at that time. This they did not do.
[13]
Even after reopening their offices on 12
January 2018, bearing in mind that they are aware of the Court order
against the applicant,
they did not show any urgency in dealing with
the matter. This is so because after 12 January 2018 the rescission
application was
only filed on 22 February 2018.
[14]
Therefore, having regard to the above and
the principles applied by the courts in dealing with condonation
applications in respect
of the applicant’s explanation and the
period of delay which is excessive, the applicant has not made out a
case for condonation
to be granted. On the explanation alone, I am
not persuaded that the applicant has furnished a reasonable
explanation for its delay
in bringing the rescission application.
[15]
Even if my conclusion regarding the
condonation is wrong, the problems of the applicant do not end there.
There is no reasonable
explanation as to what it did to pursue the
review application between January 2017 to August 2017. At best, the
applicant’s
attorneys only wrote two letters to the third
respondent enquiring about the record only in September 2017. Other
than that, the
applicant’s attorneys were content in not taking
any action to pursue the review application.
[16]
Furthermore, the explanation of the
applicant’s attorneys regarding its actions or lack thereof
after being served with the
Rule 11 application is not a reasonable
explanation. I say so because the notice of motion clearly stated
that the applicant had
to serve and file its answering affidavit
after being served with the Rule 11 application. The applicant did
not even seek an indulgence
from the first respondent to serve and
file its answering affidavit at a later date or explain the situation
to the first respondent.
[17]
Even with the rescission application, the
applicant has not satisfactorily explained its failure to pursue the
review application.
For a period of more than five months, the
applicant did not take action in pursing the review application. The
only few things
that it did was to write to the Bargaining Council
six months after it had instituted the application, enquiring about
the record.
This obviously was in reaction of the third respondent’s
Rule 11 application. Other than that, the applicant was content with
doing nothing or not taking any action in pursuing the review
application. Therefore, regardless of the Bargaining Council’s
explanation to the applicant’s attorneys as to why it did not
file the record, the applicant’s attorneys should have
acted
earlier in pursuing the matter. The fact that they waited for the
Rule 11 application to be launched before they contacted
the
Bargaining Council clearly demonstrates that it did not intend
pursuing the matter any further. Therefore, I am again not persuaded
that even in respect of the rescission application the applicant has
prospects of success.
[18]
In the premises I make the following order.
Order
1.
The application for condonation in respect
of the rescission application is dismissed;
2.
The is no order as to costs
__________________
T. Ntshebe
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Adv TJ Matshaba
Instructed
by:
Moroka Attorneys
For
the Respondent: S Van Windvogel, Union
Official
[1]
1962
(4) SA 531