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[2019] ZALCJHB 255
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Anglo Operations (Pty) Ltd (Klienkopje Colliery) v Maduna and Others (JS845/16) [2019] ZALCJHB 255 (7 August 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
CASE
NO:JS845/16
In
the matter between:
ANGLO OPERATIONS (PTY)
LTD
(KLEINKOPJE
COLLIERY)
Applicant
And
MAXWELL
MADUNA
First
Respondent
PRECIOUS
MASEKO
Second
Respondent
TUBATSI
DLALDLA
Third
Respondent
CAIPHUS
MATHEBULA
Fourth Respondent
LUCKY
MASILELA
Fifth
Respondent
Heard: 2 August 2019
Judgment
delivered: 7 August 2019
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to condone the late filing of a statement of
response, brought by
the respondents in the main proceedings. I refer
to them for present purposes as ‘the applicants’. The
applicants were
dismissed by the respondent on 11 October 2016. They
were found to have committed various acts of misconduct, including
the promotion
of unlawful industrial action, willfully challenging
the respondent’s authority, insolence, defiance of the
respondent’s
authority, disruptive, dangerous and unlawful
behavior, and the like. The applicants were dismissed on the
recommendation of an
independent chairperson who conducted an enquiry
over some 25 days in circumstances where both parties were
represented by counsel.
[2]
The applicants challenged the fairness of their dismissal. The
dispute between the
parties was referred to this court consequent on
a ruling by the CCMA made in terms of s 191 (6) of the LRA. On 27
February 2017,
the respondent filed a statement of claim in terms of
Rule 6 (2), seeking a ruling to the effect that the dismissal of the
applicants
was substantively and procedurally fair. The applicants
delivered their statement of response on 26 April 2017, approximately
six
months after it was due. The present condonation application was
filed only on 12 May 2017.
[3]
The court has a discretion, to be exercised judicially, to grant
condonation. Among the
factors usually relevant for
consideration are the degree of lateness, the explanation therefor,
the prospects of success, the
prejudice that parties will suffer if
condonation is granted or refused, and the importance of the case.
None of these factors
are individually decisive and the court must
consider all the facts. In the final analysis, it is a matter
of fairness to
the parties. Condonation applications require a court
to balance various interests and factors, having regard to all of
them with
none of them being decisive. (See
Melane
v Santam Insurance Co. Ltd
1962 (4) SA
531
(A) at page 532;
NEHAWU obo Mafokeng
and Others v Charlotte Theron Children’s Home
[2004] 10 BLLR 979
(LAC).
[4]
In
Foster v Stewart Scott Inc.
(1997) 18
ILJ
367(LAC), the Labour Appeal Court noted the following as factors
which have to be considered or taken into account in a condonation
application:
the degree of lateness or
non-compliance with the rules;
the explanation therefor;
the prospects of success;
the importance of the
case;
the respondent's interest
in the finality of the judgment;
the convenience of the
court; and
the avoidance of
unnecessary delays in the administration of justice
[5]
The principles were also summarised in
South
Africa Post Office Ltd v CCMA & Others
[2012] JOL 28463
(LAC). In this case, the court recognised that
ultimately the test is whether it is in the interests of justice to
grant condonation.
The court accepted that in matters where
importance is placed upon the speedy and expeditious resolution of a
dispute, even a short
delay may not be excusable, unless an
explanation is proffered that sets out the reasons for the delay
which the court should find
acceptable. The court further held
that:
Where it is evident that
the party seeking condonation has no prospects of succeeding in his
principal claim or opposition, no purpose
is served in granting
condonation and the Court must in such circumstances refuse to grant
condonation irrespective of the degree
of delay or the explanation
provided.
[6]
In
National Union of Mineworkers v Council for Mineral Technology
[1998] (2) ZALAC 22
, the LAC established the principle that given the
extent of the delay and the poor explanation for the delay, it was
not necessary
to consider the applicant’s prospects of success
in the main application. This was affirmed more recently in
Collett
v Commission for Conciliation, Mediation & Arbitration
[2014]
6 BLLR 523
(LAC) where the court stated as follows:
There are overwhelming
precedents in this court, the Supreme Court of Appeal and the
Constitutional Court for the proposition that
where there is a
flagrant or gross failure to comply with the rules of court,
condonation may be refused without considering the
prospects of
success. In NUM v Council for Mineral Technology
(1999) 3 BLLR 209
(LAC) at para 10, it was pointed out that in considering whether good
cause has been shown the well-known approach adopted in Melane
v
Santam Insurance Co Ltd
1962 (4) SA 531
(A) at 532 C-D... should be
followed but:
‘
There
is a further principle which is applied and that is 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.’
The submission that the
court a quo had to consider the prospects of success irrespective of
the unsatisfactory and unacceptable
explanation for the gross and
flagrant disregard of the rules is without merit.”
[7]
It is trite that condonation is not a mere formality and there for
the taking; rather, the applicant
for condonation must provide a
proper and full explanation for the period of the delay. In
Independent Municipal and Allied Trade Union on behalf of Zungu v
SA Local Government Bargaining Council and Others
(2010) 31
ILJ
1413 (LC) at para 13, the Court held:
In explaining the reason
for the delay it is necessary for the party seeking condonation to
fully explain the reason for the delay
in order for the court to be
in a proper position to assess whether or not the explanation is a
good one. This in my view requires
an explanation which covers the
full length of the delay. …”
[8]
In
eThekwini Municipality v Ingonyama Trust
2013 (5) BCLR 497
(CC) at para 28, the court said the following where the explanation
furnished did not cover the entire period and part of the delay
was
unexplained:
As stated earlier, two
factors assume importance in determining whether condonation should
be granted in this case. They are
the explanation furnished for
the delay and prospects of success. In a proper case these factors
may tip the scale against the
granting of condonation. In a case
where the delay is not a short one, the explanation given must not
only be satisfactory but
must also cover the entire period of the
delay. Thus in
Van Wyk v Unitas Hospital and Another (Open
Democratic Advice Centre as Amicus Curiae),
this Court said in
this regard:
“
An
applicant for condonation must give a full explanation for the delay.
In addition, the explanation must cover the entire period
of delay.
And, what is more, the explanation given must be reasonable. The
explanation given by the applicant falls far short of
these
requirements. Her explanation for the inordinate delay is superficial
and unconvincing.”
[9]
To the extent that the applicants seek to place blame on their legal
representatives, a litigant
cannot hide behind the tardiness of his
representative. In
Saloojee
and another v Minister of
Community Development
1965 (2) SA 135
(A) at paragraph 141C-E,
the court said "
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 .
."
[10]
In
Mngomezulu and Another v Mulima NO
and Others
(JR2744/12) [2017] ZALCJHB
415 (7 November 2017I) the court stated the following, at paragraph
12:
…
In
National Union of Metal Workers v Kroon
Gietery and Staal
the court refused a
condonation application wherein the deponent attributed the delay to
his representative. The court quoted in
approval the case of
Regal
v African Superstate (Pty) Ltd
where
the court held that 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. A litigant is not entitled
to hand over his matter to his attorney and wash his
hands of it.
[11]
In the present instance, the delay in filing the statement of
response is excessive. In
DHL Supply Chain (South Africa) (Pty)
Ltd v Association of Mineworkers and Construction Union
(ZALCJHB
494, 5 December 2017), a case where the employer had filed the
statement of claim and the employees filed a statement
of response
some 100 days late, the court refused condonation primarily on the
basis of the inordinate delay. The time periods
prescribed by the
Rules are intended to expedite the process of litigation in this
court, and thus fulfil the statutory promise
of expeditious dispute
resolution. The degree of delay is thus a factor that counts against
the applicants.
[12]
The explanation for the delay amount to the assertions that the
transcript of the disciplinary
hearing was voluminous and that it was
necessary for the applicants’ attorney to pursue the transcript
prior to any consultation
and secondly, that the applicants’
counsel (who had represented them in the disciplinary hearing) was
incapacitated for a
protracted period. Mr. Snider, who appeared for
the respondent, accepted without qualification the fact of counsel’s
indisposition,
and accordingly that is not a matter in issue in the
present proceedings. Mr. Snider submitted however that the
explanation centred
on a voluminous record and the difficulty that
this posed for the preparation of a statement of case is
unsatisfactory. In essence,
he submitted that there was a
comprehensive set of heads of argument drafted after the transcript
was produced) and a comprehensive
award made by the chairperson that
would have enabled any legal practitioner (including the applicant’s
attorney) to prepare
a response within the permitted time period. In
any event, nothing prevented the applicant’s from briefing
another counsel
to settle the statement – by his estimate
(which was not disputed) it would have taken an entirely new counsel
a week to
assimilate all of the material and prepare a proper
response. There are two factors that weight against the applicants.
The first
is that their attorney did not at any stage after the
filing of the statement of case seek any extension of the period
within which
to file a response. In fact, the response was filed
shortly before the pre-trial conference. Further, the present
application was
filed only on 12 May 2017, pursuant to a ruling by
the court at the pre-trial conference. Secondly, by its very nature,
a statement
of response is a brief summary of the factual and legal
issue on which a respondent party intends to rely. In the present
instance,
the statement of response comprises mainly a summary of the
factual background (all of which was available to the applicants’
attorney by way of the heads of argument filed in the disciplinary
hearing and the chairperson’s report, a 278-page document)
and
a recordal of the charges against each of the applicants. The legal
issues raised by the applicants are stated in some two
and a half
pages, with double spaced typing. In short, there is nothing
disclosed in the statement of response to suggest that
the matter was
inherently complex, or that the relevant facts were unknown or had
not been recorded elsewhere. This is not a matter
where instructions
had to be obtained from scratch – on the contrary, all of the
factual and legal submissions were a matter
of record. In any event,
it is not disputed that the applicants’ attorney had by 26
October 2016 perused the relevant documentation
and consulted with
the applicants. At that stage, the statement of response was only
days late, in circumstances where the attorney
must have been aware
of this fact. Why the applicants’ attorney failed to seek an
indulgence from the respondent’s
legal representative is simply
not explained.
[13]
In my view, the explanation for the delay is not compelling, and
given the excessive period of
delay, the application for condonation
stands to be refused on that basis alone. In accordance with the
authorities referred to
above, it is not necessary for me to take any
view on the applicants’ prospects of success, and I make no
finding in that
regard.
[14]
In so far as costs are concerned, the interests of the law and
fairness are best satisfied by
each party bearing its own costs. The
present application, although unsuccessful, does not disclose any
malice or mala fides on
the part of the applicants.
I make the following
order:
1.
Condonation for the late filing of the
applicant’s statement of response is refused.
2.
There is no order as to costs.
André van Niekerk
Judge
REPRESENTATION
For
the applicant: Adv. A Snider instructed by Cliffe Dekker Hofmeyr Inc.
For the respondent: Adv.
S.K. Hassim SC, instructed by Maleboa Attorneys