IN THE LABOUR COURT OF SOUTH AFRICA
Held in Durban
Case No : D135/98
In the matter between :
Applicant
and
First respondent
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent
JUDGEMENT
ZONDO J:
[1] This is a review application which came before me on the 5th
February 1999. At the commencement of the hearing, it transpired tat
the applicant should have made an application for condonation in
respect of its failure to file its heads of argument timeously. The
matter had previously been set down for hearing on the 6th August
1998. The applicant had been required to file its heads of argument on
the 17th July 1998 and the first respondent was to have filed its heads
of argument on the 28th July 1998.
[2] The applicant failed to file its heads of argument within the time
stipulated. Instead on the 31st July 1998 the applicant filed an
application for an adjournment of the matter for the reasons that I do
not propose dealing with. The matter was adjourned on the 6th August
1998. The first respondent filed its heads of argument timeously. The
applicant only filed its heads on the 21st December 1998 which was a
period of six months after they were supposed to have been filed. They
were not accompanied by any application for condonation of the late
filing thereof.
[3] When, on the day of the hearing, the above transpired, I agreed to hear
argument on the merits of the application on condition that the
applicant was going to file an application for condonation for the late
filing of its heads of argument within a certain period. I also stipulated
the period within which the first respondent was going to file its
opposing affidavits if it decided that it was going to oppose the
condonation application. All those periods lapsed without any
condonation application reaching me. I then asked my assistant to
enquire from the registrar in Durban if any condonation application
had been filed. It was then reported to me that no condonation
application had been filed. To date no condonation application has
been filed despite the fact that the deadline for doing so lapsed some
time in February. Not only that but the applicant’s legal
representatives have not even had the basic courtesy of informing the
Curt about such difficulties, if any, as there might have arisen in
complying with the deadline. It must be so that there were no
difficulties. I regard this conduct as being a flagrant disregard of
directions and orders of this Court conduct which has obviously
prejudiced the respondent as well.
[4] If the applicant did not want to pursue this application, it should have
notified the Registrar as well as the attorneys for the respondent. But
more than that, the applicant is represented by a firm of attorneys. Its
attorneys should have ensured that one way or another the
respondent’s attorneys and I were not simply left in limbo not
knowing what the applicant’s intentions were with regard to this
review application. The conduct of the applicant’s attorneys in this
regard is totally unacceptable. The time that has been taken up by this
matter is court time which could have been used for another matter of
other more deserving litigants.
[5] I would be failing in my duty if I did not show my strong disapproval
of this kind of conduct by an appropriate order of costs against both
the applicant and its attorneys. Although the applicant is not entitled to
a judgement on the merits of the review application, it seems to me
that, because, having heard argument on the merits already, I am of the
view that the applicant’s case on the merits is hopeless, the order that
would serve the interest of justice best would be one dismissing the
application altogether. Accordingly I make the following order :
1. The applicant’s application is dismissed with costs on the scale as
between attorney and client.
2. The applicant’s attorneys are ordered to pay 20% of the costs referred
to in 1 above and the balance is to be paid by the applicant.
3. The fees payable to the first respondent’s attorney for appearance in
court may be charged as if they were fees for Counsel of the level of a
Senior Junior.
4. As the applicant and its attorneys have not had an opportunity to be
heard on why the Court should not mark its disapproval by way of a
costs order such as the one I make above they are hereby given up to
12 March 1999 to make representations on whether the said costs
order should be altered, amended or withdrawn. Should they fail to
submit representations, the above costs order will become final.
Should they submit representations, the Court will make a decision
thereon and communicate it to the parties.
R. M. M. ZONDO
Judge in the Labour Court of South Africa
Date for Argument : 5 February 1999
Date for Judgement : 5 March 1999
For the Applicant : Mr B. Van Heerden
Instructed by : K Swart & Company
For the Respondent : Mr D. Farrell
Instructed by : Shepstone & Wylie