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[2019] ZALCPE 4
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Coca-Cola Fortune (Pty) Ltd v Food & Allied Workers Union and Others (PS56/2013) [2019] ZALCPE 4 (26 March 2019)

IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not reportable
Case No: PS 56/2013
In the matter between:
COCA-COLA FORTUNE
(PTY) LTD

Applicant
And
FOOD & ALLIED
WORKERS UNION

First Respondent
ERIC TATI & 72
OTHERS

Second – Further Respondents
Heard:
14 June 2018
Delivered:
26 March 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
The applicant (the respondent in the Main Claim) seeks an order in
terms
of Rule 11 of the Rules of this Court to have the respondents’
claim of an alleged unfair dismissal be dismissed for want
of timeous
and diligent prosecution. The applicant further seeks condonation for
the late filing of replying affidavit in the Rule
11 application. The
respondents opposed both the Rule 11 and condonation applications.
Condonation:
[2]
The parties at the commencement of these proceedings had agreed that
condonation
was no longer an issue except for the issue of costs in
that regard.  However, to the extent that costs in that regard
remains
an issue, it is noted that the Rule 11 application was
delivered on 6 December 2017. The respondents’
answering
affidavit was served on 20 December 2017 in the
afternoon, after the applicant’s attorneys of record’s
offices
were closed on the same day for the holiday season. The
replying affidavit was filed and served on 17 January 2018.
On
25 January 2018, the respondents filed a notice of
objection to the late delivery of the replying affidavit, thus
compelling
the applicant to file an application for condonation.
[3]
The delivery of the replying affidavit was some 12 days out of time.
Given
the timing and serving of the Rule 11 application and the
answer thereto, I failed to appreciate the strenuous nature of the
objection
to the late filing of the replying affidavit and opposition
to the condonation. Ordinarily, condonation would have been granted.
Background
and the basis of the Rule 11 application:
[4]
The individual respondents were on 25 April 2013 charged
with
embarking on unprotected strike action on 16 April 2013.
Following a collective disciplinary hearing held on 24 May 2014,

the individual respondents were dismissed on 19 July 2013.
[5]
Having referred a dispute to the Commission for Conciliation
Mediation
and Arbitration (CCMA), a certificate of non-resolution was
issued on 12 August 2013. The respondents’ statement

of claim was then delivered on 20 January 2014, some two
months outside of the statutory time frames. An application
for
condonation for the late delivery of the statement of claim delivered
on 13 February 2014 was granted by this Court
on
19 February 2015. The applicant however contends that the
respondents have delayed the prosecution of the claim based
on the
following;
5.1
On 6 June 2015 the respondents’ erstwhile attorneys
of record
(B Macingwane Attorneys) withdrew from the matter. When no
further steps were taken in regard to the matter, the applicant’s

attorneys of record (Kirchmanns) addressed correspondence to the
respondents’ new attorneys (Brett Purdon Attorneys) to
ascertain whether they were on record. They were then advised that
the respondents’ current attorneys (Gray Moodliar Attorneys)

were on record.
5.2
In a response dated 3 November 2015, Kirchmanns advised
Brett Purdon
that two years had gone by since the claim was lodged
and no further steps were taken on the matter including that a
pre-trial
meeting had not been convened, and further that urgent
steps needed to be taken to address the delay.
5.3
On 8 December 2015, Gray Moodliar advised Kirchmanns that
they were
acting on instructions of Brett Purdon and indicated an
intention to seek an amendment to the statement of claim. On the same
day,
Kirchmanns addressed correspondence Gray Moodliar and
inter
alia
complained about the delays in finalising the matter,
further pointing out that six months had gone by since the attorneys
were
seized with the matter and that no steps were taken to advance
the matter.
5.4
Despite undertakings to file a notice to amend, nothing was done in
that regard.
5.5
On 26 May 2016, Kirchmanns then addressed correspondence to
Gray Moodliar,
outlining the history of the matter and further
warning that an application to dismiss the main claim may be brought
if the matter
is not finalised.
5.6
It was only on 29 June 2017 that Gray Moodliar formally
placed themselves
as the respondents’ attorneys of record. Six
months later, and despite an undertaking having been made on
8 December 2015,
the notice of intention to amend the
statement of case was delivered on 6 December 2017, and
this was after the Rule
11 application was launched.
5.7
When the applicant objected to the intended amendment, the
respondents’
raised an objection to that objection.
The
legal framework:
[6]
As at the hearing of this matter, it was five years since the
individual
respondents were dismissed. Central to the determination
of the Rule 11 application are the steps taken or lack of thereof,
after
the respondents were granted condonation for the late delivery
of the statement of claim on 19 February 2015.
[7]
The
principles applicable in circumstances where a party unreasonably
delays the prosecution of a claim are well established. Thus,
a Court
in the exercise of its discretion may dismiss a claim which has not
been timeously prosecuted  having considered a
variety of
factors including but not limited to the extent  of the delay,
whether the delay was unreasonable; whether acceptable
reasons have
been proffered for the delay, and the effect or prejudiced caused by
the  delay on the other party. At the end,
the issue is whether
the interests of justice demand that a matter that was prosecuted in
a dilatory manner be dismissed or not.
[1]
[8]
In some
instances, an inordinate or unreasonable delay in prosecuting an
action may constitute an abuse of process and warrant the
dismissal
of an action
[2]
. An application
to dismiss is a drastic remedy, and should not be granted unless the
dilatory party has been placed on terms, and
when appropriate, after
any further steps as may have been available to the aggrieved party
to bring the matter to finality have
been taken
[3]
.
[9]
The respondents contend that the matter should be allowed to proceed
to
trial on the basis that they had at all material times engaged
with their legal representatives in the active and continuous
preparation
of the matter.
Evaluation:
[10]
As at the hearing of the Rule 11 application, the delay in
prosecuting the respondents’
claim in the light of the
dismissal having taken place some five years ago is inordinate in the
extreme. The issue however as already
indicated remains what steps,
if any, were taken by the respondents upon being granted condonation
for the late filing of the statement
of claim on 19 February 2015.
What follows below are the explanations for the delays as proffered
by the respondents
and a consideration of whether they are reasonable
and acceptable or not:
10.1
The first explanation is that after Macingwane Attorneys withdrew
from the matter on 18 May 2015,
correspondence was
exchanged between Brett Purdon, Gray Moodliar and Kirchmanns between
7 July 2015 and 28 September 2015
regarding the
convening of a pre-trial conference and the possibility of amending
the statement of claim.
10.2
The difficulty however with the above explanation is that no effort
is made by the respondents
to explain the initial delay between
19 February 2015 and 18 May 2015. Furthermore, no
effort was made to explain
in full, the delay between the appointment
of Brett Purdon and Gray Moodliar, and the delay in filing the
amended statement of
claim despite having indicated on
8 December 2015 that that such an amendment would be
sought.
10.3
Other explanations pertaining to the delay after the appointment of
Brett Purdon included that
between 7 July 2015 and
28 September 2015, there were various exchanges between
Brett Pardon and Gray Moodliar
regarding the convening of a pre-trial
conference and the possibility of amending the respondents’
statement of case.
10.4
Even then however, that explanation pertains to mere exchange of
correspondence between the two
attorneys, and as at the hearing of
this application, the pre-trial conference had not been convened, and
the amended statement
of claim was only delivered on 8 December 2017,
some two years since the exchanges, and at about the same time that
the
Rule 11 application was served and delivered.
10.5
The explanation of the delay between 30 September 2015 and
8 December 2015
as being due to an exchange of
correspondence between Brett Pardon, Gray Moodliar and Kirchmanns
about confirmation of who the
instructing attorneys were or whether
an amended statement of case was to be filed, is hardly a reasonable
one based on the ground
that when Macingwane Attorneys withdrew on
6 June 2015, they had indicated that Brett Purdon had been
appointed as the
respondents' attorneys of record. Only on
1 October 2015 did Brett Purdon confirm that they were the
respondents’
attorneys of record, but that they had appointed
Gray Moodliar as correspondent. No explanation is proffered in regard
to the period
6 June 2015 and 1 October 2015.
Even then, Gray Moodliar despite being involved in the matter only
placed themselves
formally on record on 8 December 2015. As
to the reason confirmation of the attorneys of record could not have
been made
in June/July after Brett Purdon became attorneys of record
is however not explained.
10.6
The respondents further attributed the delays commencing from
December 2015 leading to the
ultimate filing of the notice of
amendment on 8 December 2017 to various exchanges of
correspondence and communications
between the  respondents’
attorneys, or with Union officials and/or with the respondents’
counsel regarding instructions
and consultations; the passing of one
of the union officials involved in the matter; arranging of
consultation dates with counsel
or other union officials; and/or the
respondents’ attorney (Ms Roberts) being busy with other
matters.
10.7
The above excuses as correctly pointed out on behalf of the applicant
are clearly not adequate,
particularly since they point to the
respondents’ own engagements with either their own attorneys,
or with their counsel
or union representatives, without outlining
what urgent steps were taken in the course of all these consultations
and correspondence,
to ensure that the matter was timeously
prosecuted.
10.8
Significant in this case however is that as far back as
November 2015, Kirchmanns had advised
Brett Purdon that there
was a delay in prosecuting the matter and that despite Gray Moodliar
being the correspondent attorneys,
nothing was heard from the latter.
Brett Purdon was advised to take urgent steps on the matter to
address the delay.
10.9
Similar correspondence followed on 8 December 2015 in which
complaints were made against
the delays. A year later in May 2016,
Kirchmanns advised Brett Purdon and Gray Moodliar that an application
to dismiss the
claim was to be brought unless the matter was brought
to finality. In my view, those were the available steps that the
applicant
could take at the time to ensure the expedited prosecution
of the dispute. One would have thought that such correspondence would

have prompted the respondents to act on their claim with some
urgency. This however was not to be so.
10.10
The
respondent’s approach as advanced by counsel is that there are
no time periods within which such claims ought to be prosecuted.
In
the alternative, a submission was made that the applicant had not
carried out its threats to bring this application until a
year later.
These submissions however lose sight of the fact that central to the
main objectives of the LRA is expeditious resolution
of disputes
[4]
,
which can only be realised if parties on their own ensured that their
matters are timeously and properly before the court and
ready for
determination.  Furthermore, Rule 6 of the Rules of this Court
regulates trial matters and procedures to be followed
in order to
ensure that matters are properly placed before the Court and
allocated trial dates. These provisions are further augmented
by
those of Paragraph 10 of the Practice manual of this Court.
10.11   The
applicant had indeed placed the respondents on terms as it was
required of it. There was no need for it to
bring an application to
compel the respondents to do what they were required to do, i.e., to
expedite the prosecution of the matter.
10.12
Furthermore, the mere fact that the threats to bring the Rule 11
application were not carried out until a year
later cannot be
construed as latitude to the respondents to be more dilatory, or
condonation of inaction. The threats, even carried
out a year later
were meant to jolt the respondents into action and to make them
appreciate and act urgently on the matter. In
any event, there is no
prescribed time periods within which a Rule 11 application can be
brought, as was evident from
National Union of
Metalworkers of South Africa (NUMSA) and Others v Paint and Ladders
(Pty) Ltd and Another,
where such an
application was moved on the day of the trial. Accordingly, the
respondents cannot hang on to the applicant’s
failure to carry
out a threat to bring this application as an excuse for their
dilatoriness.
[11]
Having had regard to the particular circumstances of this case and
the explanations proffered
by the respondents, it is apparent that in
two years and ten months, the latter did very little to prosecute
their claim. The delay,
which is wholly excessive, with some parts
not explained and others inadequately explained , was unreasonable. I
still fail to
appreciate the reason it could have taken the
respondents that long to settle an amendment to a statement of case
or convene a
pre-trial conference.
[12]
Whether the
respondents’ statement of claim ought to be dismissed on
account of the excessive and unreasonable delay, and
the failure to
adequately give an explanation for that delay is further dependent
upon considerations surrounding the effect of
that delay or prejudice
caused by that delay. In other words,  whether on account of the
inordinate delay, there would be
any prejudice to the parties which
would impede the fair determination of the issues
[5]
.
[13]
In this regard, the applicant’s contention was that delays in
prosecution of claims
are associated with inherent prejudice. To this
end, it was submitted that one of the primary witnesses, Lynette
Knoesen left the
applicant’s employ in September 2016, and
further that with time, memories of available witnesses may have
faded.
[14]
The respondent’s response to the issue of prejudice was that
factors such as memories
of witnesses fading or witnesses having left
the applicants employ were not a bar to the matter proceeding to
trial, particularly
as Knoesen, who had intimate knowledge of the
dispute was readily available and could recall the events of the
matter.
[15]
The respondents’ dismissive approach to the prejudice caused by
the delay to the
applicant is misplaced. In the same vein, it was
appreciated on their behalf that generally, delays in the prosecution
of labour
matters are undesirable and potentially prejudicial. To
reinforce this appreciation, the Labour Appeal Court in
National
Union of Metalworkers of South Africa (NUMSA) and Others v Paint and
Ladders (Pty) Ltd and Another
had stated that;
“
In
Mohlomi v
Minister of Defence
, the Constitutional Court observed;
‘
Rules that limit
the time during which litigation may be launched are common in our
legal system as well as many others. Inordinate
delays in litigating
damage the interests of justice. They protract the disputes over the
rights and obligations sought to be enforced,
prolonging the
uncertainty of all concerned about their affairs. Nor in the end is
it always possible to adjudicate satisfactorily
on cases that have
gone stale. By then witnesses may no longer be available to testify.
The memories of ones whose testimony can
still be obtained may have
faded and become unreliable. Documentary evidence may have
disappeared. Such rules prevent procrastination
and those harmful
consequences of it. They thus serve a purpose to which no exception
in principle can cogently be taken.’”
[6]
[16]
In the light of the above, there is no merit in the contention that
the applicant would
not suffer any prejudice as a result of the
failure to diligently prosecute the respondents’ claim. The
prejudice is self-evident.
Seventy three employees were dismissed on
19 July 2013. Five years later and as at the hearing of
this application, the
pleadings and Pre-trial minutes had not been
completed, and the matter was clearly nowhere to being ripe for a
hearing.
[17]
Other than the fact that the individual respondents are entitled to a
speedy resolution
of their dispute, the applicant is equally entitled
to same, in order to plan for any eventuality arising from the
outcome of the
trial proceedings. Other than these considerations,
the prospects of witnesses on both sides not having a proper
recollection of
events is not remote, nor is the unavailability of
witnesses. These issues on their own have a detrimental effect on the
proper
adjudication and fair trial of the dispute. These are
realities that the respondents cannot wish away with their dismissive
approach.
To this end, I am satisfied that the applicant has
demonstrated that the effect of the delay in prosecuting the
respondents’
claim is to prejudice it, and the overall fair
determination of the dispute.
[18]
In regards to prospects of success, and without dwelling too much
into the merits of the
claim, on the applicant’s version, the
individual respondents were dismissed in circumstances which emanated
from a complaint
lodged by FAWU as far back as November 2011
against the applicant’s Distribution team Leader, who was
accused of having
used racially offensive language or assaulted an
employee. Following various interventions and meetings between the
parties, and
an investigation into the allegations against the team
leader, central to the issue for determination is whether the
dismissal
of the individual was as a result of their participation in
an unprotected strike on 16 April 2013.
[19]
The applicant’s contention was that on 16 April 2013,
it was not business
as usual contrary to the respondents’
contentions that they were not on strike. It was submitted that the
issue of sanction
was not a consideration whether the prospects of
success existed or not, and that the principal issue was whether the
respondents
had embarked on an unprotected strike, which in this case
the facts demonstrated that there was.
[20]
The respondents’ contention on the other hand was that their
claim enjoyed more than
reasonable prospects of success in that they
never embarked on a strike on 16 April 2013, It was further
submitted on
their behalf that since there were factual disputes
surrounding whether an unprotected strike took place or not, those
were factual
issues which ought to be properly ventilated before the
Court.
[21]
As already indicated, it is not for the Court to determine the merits
of the respondents’
claim, particularly in the light of the
material disputes of facts as to whether the strike took place or
not. The issue of prospects
of success on the merits is not in any
event primary, and I agree with the submissions made on behalf of the
applicant that this
issue is to be considered when having regard to
the concepts of fairness or justice.
[22]
To conclude, the respondents failed to timeously prosecute their
claim against the applicant.
The delay in that regard was excessive
in the extreme and thus unreasonable. The explanations proffered in
regards to the delay
were wholly inadequate, and by all accounts,
merely point to dilatoriness on the part of either the respondents’
attorneys
or union officials. In circumstances where there was
inaction on the matter in the sense of ensuring that it was ripe for
hearing,
the failure to expeditiously prosecute the claim is the
primary cause of prejudice should the matter proceed to trial. In the
end,
having taken into account the overall facts and circumstances of
this case, it is my view that the overall interests of fairness
or
justice cannot be better served by having the matter proceed to
trial. This is so in that there is a substantial risk that a
fair
trial of the issues will not be possible as a consequence of the
inexcusable inordinate delays in prosecuting the matter.
[23]
I have had regard to the question of costs, and upon a consideration
of the requirements
of law and fairness, I am of the view that a
costs order is not warranted in this case.
[24]
Accordingly, the following order is made;
Order:
1.
The applicant’s Rule 11 application is successful and the
respondents’ (Applicants in the
main) claim of an alleged
unfair dismissal is dismissed.
2.
There is no order as to costs.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:

MC
Kirchmann of Kirchmanns INC
For
the 1
st
and 2
nd
– Further Respondents: L
Voultsos
Instructed
by:

Gray Moodliar Attorneys
[1]
See
Molala
v Minister of Law and Order & Another
1993
(1) SA 673
(W);
NUMSA
obo Nkuna & Others v Wilson Drills-Bore (Pty) Ltd
(2007) 28 ILJ 2030 (LC);
Member
of the Executive Council, Department of Sport, Recreation, Arts &
Culture, Eastern Cape v General Public Service Sectoral
Bargaining
Council and Others
[2012]
12 BLLR 1224
(LC);
Karan
t/a Karan Beef Feedlot and Another v Randall 4
(2009)
30 ILJ 2937 (LC);
National
Union of Metalworkers of South Africa (NUMSA) and Others v Paint and
Ladders (Pty) Ltd and Another
(2017) 38 ILJ 2285 (LAC);
[2017] 11 BLLR 1105
(LAC) at para [17],
where it was held that;
‘
[17]
What can be observed from the long line of decisions in the Labour
Court on applications for dismissal
of the claims for want of
timeous prosecution is that although the rules of the Labour Court
make no specific provision for an
application to dismiss when a
party fails diligently to pursue a claim referred to it for
adjudication, the court has recognised
and adopted the rule based on
the
maxim vigilantibus non dormientibus lex subveniunt
. In
terms of this
maxim
, a party may in certain circumstances be
debarred from obtaining the relief to which that party would have
been entitled to on
account of an undue delay in prosecuting its
claim because: Firstly, an unreasonable delay may cause prejudice to
the other parties.
Secondly, it is both desirable and important that
finality be reached within a reasonable time in respect of judicial
administrative
decisions.’
And,
‘
[20]
In the end, it all comes down to the question of
whether, in light of the delay, there would be a fair trial
of the
issues in this case. Put differently, whether on account of the
delay there would be any prejudice to the parties which
would impede
the fair determination of the issues.’
‘
[21]
The statutory obligation in respect of expeditious
resolution of labour disputes exists for a good reason: Any

delay undermines the primary object of the Labour Relations
Act. As illustrated in
Toyota SA
Motors (Pty) Ltd v Commission for Conciliation, Mediation &
Arbitration and Others,
failure to
prosecute timeously labour disputes is detrimental not only to the
workers who may be without a source of income pending
the resolution
of the dispute but, ultimately, also to an employer who may have to
reinstate workers after many years. See also
Colett
v Commission for Conciliation, Mediation & Arbitration and
Others
(2014) 35 ILJ 1948
(LAC);
CUSA v Tao Ying Metal
Industries and Others
[2008] ZACC 15
;
2009 (2) SA 204
(CC) at 223 para 63’.
[2]
See
Cassimjee
v Minister of Finance
2014 (3) SA 198
(SCA) at para [10]
[3]
Member
of the Executive Council, Department of Sport, Recreation, Arts &
Culture, Eastern Cape v General Public Service Sectoral
Bargaining
Council and Others
at 2899 para 27.
[4]
See
Toyota
SA Motors (Pty) Ltd v CCMA and Others
(2016)
37 ILJ 313 (CC) at para [34] where it was held that;
“
Toyota
did not challenge the proposition that the Labour Court had the
power to dismiss its review application if it unreasonably
delayed
in pursuing the review.  It needs to be stressed that when
assessing the reasonableness of a delay, sight must not
be lost of
the purpose of the LRA. This purpose was articulated by Ngcobo J
in
CUSA
:
“
The
LRA introduces a simple, quick, cheap and informal approach to the
adjudication of labour disputes.  This alternative
process is
intended to bring about the expeditious resolution of labour
disputes.  These disputes, by their very nature,
require speedy
resolution.  Any delay in resolving a labour dispute could be
detrimental not only to the workers who may
be without a source of
income pending the resolution of the dispute, but it may, in the
long run, have a detrimental effect on
an employer who may have to
reinstate workers after a number of years.  The benefit of
arbitration over court adjudication
has been shown in a number of
international studies.” (Footnotes omitted.)”
[5]
National
Union of Metalworkers of South Africa (NUMSA) and Others v Paint and
Ladders (Pty) Ltd and Another
At
para [20]
[6]
At
para [22]