IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN)
CASE NO: C6/98
DATE: 21-9-1999
In the matter between:
FOOD AND ALLIED WORKERS UNION Applicant
and
FOODTOWN INCORPORATED (PTY) LIMITED Respondent
J U D G M E N T
BRASSEY, AJ:
1. This an application for the condonation of the
late filing of an application for leave to appeal to
the Labour Appeal Court against a judgment of mine
which was given orally on 27 August 1998.
2. At the outset of the application, Mr Dhlamini
notified me of a point in limine relating to the status
and validity of the opposing affidavit. I indicated
to him that I would seek argument on that question
insofar as I considered that the answering affidavit
took the matter further, but my concern was whether a
proper case had been made out in the founding papers.
I shall deal with the matter by reference to the
founding papers exclusively. By doing so I do not
mean to suggest that the answering affidavit was
unnecessarily filed.
3. In order for condonation to be granted, it is
necessary for me to conclude that there has been a
proper explanation for the delay in filing the
application for leave to appeal has been placed before
me. Secondly, that there are reasonable prospects of
success on the application for leave to appeal.
Insofar as the latter is concerned that requires me to
consider to what extent there are reasonable
4.59 prospects /...
JUDGMENT
prospects of success in the appeal.
4. The question was, to an extent, debated before me
as to when the DA(?) commenced to run in circumstances
where a judgment is given ex tempore, as mine was in
this case, and the written version of that judgment is
subsequently handed down. In my view, the time begins
to run from the moment that the oral judgment is given.
The fact that the prospective appellants have no
writing with which to work is a factor that can
properly be taken into account either in considering
whether it is permissible for the appellants to amend
their notice of application for leave to appeal, or
insofar as a subsequent application, such as this one
for condonation, is brought. As I say, the operative
date appears to me to be the date when the oral reasons
are given.
5. For the purposes of this judgment, however, I will
assume that the concession on behalf of the respondent
is rightly made and that the operative date is in fact
the date when the oral reasons are reduced to writing
and made available to the parties.
6. That date was 19 October 1998. No application
was launched until 23 March 1999 when the application
for leave to appeal was filed and simultaneously the
application for condonation of the late filing thereof
was made. The explanation, such as it is, in the
founding affidavit relies essentially on three factors.
Firstly, that there are a parality(?) of individual
applicants in this matter, some 67 in all. That is
certainly a factor to be taken into account. There is
no doubt that there are practical difficulties in
marshalling 67 applicants to join in an appeal and to
join in the application that is attendant
4.163 thereon /...
JUDGMENT
thereon. Decisions have to be made, not only by the
individuals, but also by the individuals within their
collective sphere. That does take time and it is a
factor to be taken into account in favour of the
applicants in this matter.
7. The second point to note is that the applicants
had to have dealings with the trade union whom they
expected to act on their behalf in the bringing of the
appeal. The trade union in turn had to consider to
what extent it would be willing and financially able to
continue to act on their behalf. For the purpose it
was necessary for the trade union to consult with its
attorneys and take their views. Those matters take
time and exacerbating the delay is the difficulty of
communicating as between a trade union and so many
individuals. That factor too must be taken into
account in favour of the applicants.
8. The third factor that must be taken into account,
and it was much pressed before me, was the fact that
the applicants are lay people in a poor financial
position. The extent to which their ignorance or
otherwise of the law can be taken into account is not
explored on the papers and, it seems to me, that it
would be improper for me to assume in the absence of
allegations pertinently directed at that fact, that
they have no knowledge of the law whatever. In fact,
the objective indications are somewhat the other way.
It is clear for instance that the individual applicants
certainly communicated at the time of this dispute a
set of legal attitudes and subsequently, were alive to
the kinds of challenges to the handling of the matter
by the union that they in fact surmounted.
9. However, that, it seems to me, the question of
their
4.248 knowledge /...
JUDGMENT
knowledge or otherwise of the law is properly a matter
that
I should leave out of account, save to conclude that
they are indeed lay people.
10. Insofar as the financial position is concerned,
there are some suggestions on the papers that the
applicants have had to - as it is put - "fundraise" in
order to finance the litigation. There is nothing on
the papers to suggest that they approached the Legal
Aid authorities, or that had they done so, their
application for Legal Aid would have been turned down.
I do not make much of that fact, it does seem to me
that if they wish to act autonomously, it was entirely
proper and legitimate to seek to raise the money from
their own resources in order to pay for their lawyers.
11. The fact that they are indigent is a further fact
that I consider should be taken into account in their
favour. 12. Nevertheless there are periods on the
papers in which a delay goes unexplained. It is
necessary, and the Courts have repeatedly stressed
this, to set down in the founding affidavit a proper
chronicle with the requisite explanation, presenting
excuses where necessary, of precisely what happened at
each stage in the proceedings. The founding papers do
not do that with sufficient clarity to enable me to be
confident as to why the delays which were identifiable,
occurred. There is no point in my considering each of
the delays in turn and the extent to which they have
been the subject of explanation. Suffice it to say
that at the very least from the period some time during
January to the time when the application was launched,
there is an hiatus of some - at best for the applicants
- some seven weeks that goes completely unexplained and
that should have been explained, in the
4.331 circumstances /...
JUDGMENT
circumstances.
13. The Courts repeatedly stress that the question of
the explanation for the delay must be weighed in the
balance with the prospects of success on the merits;
the stronger the prospects of success the weaker can be
the explanation for the delay and the more the
culpability of the parties in relation to the delay,
will be excused.
14. In the present matter had the prospects of success
been strong, I would have been inclined to grant
condonation, but I cannot conclude that they are
strong. If there is little point in my rehearsing the
reasons that I gave in my initial judgment, it is
always invidious for a Judge sitting in this position
to come to the conclusion that he is confident that he
to come to the conclusion that he is confident that he
was right the first time round. It is equally
invidious for a Judge to abrogate his responsibilities
by leaning over and saying that it is proper to allow
another Court to decide the matter in circumstances
where he is satisfied that his original judgment is
unlikely to be upset on appeal. That is the attitude
that I have in the present matter.
15. The facts very briefly are that an agreement was
concluded between the respondent and the trade union at
the Commission for Conciliation Mediation and
Arbitration (CCMA) relating to the rehiring of the
individual applicants and their wages for the ensuing
year. No sooner had that agreement been concluded
than correspondences ensued which ran completely
counter to both the spirit and the letter of that
agreement. The agreement was premised on the notion
that there was an acceptance of the fact of the
dismissal and the need for re-engagement of the
workers, yet the correspondence set up that dark things
had happened at the
4.425 (CCMA) /...
JUDGMENT
(CCMA) and that in fact the concession that there had
indeed been a dismissal, was improperly and
unjustifiably made.
16. There was, furthermore, an understanding as to the
manner in which the wages would be increased over the
coming year. An option was delineated by the
agreement and it was understood that the individual
applicants and the trade union could choose between the
two, and yet if one looks at the correspondence, one
sees that it sets out demands for financial information
such as would indicate to a person reading the
correspondence an indication to go behind the terms
relating to that option. In both respects there was,
at very best for the individual applicants, objectively
speaking an indication of an intent to quarrel with the
terms of the agreement. In those circumstances, as I
found previously, it was permissible for the respondent
to seek an affirmation of the agreement from the
individual applicants who, one must recall, had not
been party to its conclusion in their own name.
17. They refused to give that affirmation, either by
signing the agreement itself, or by signing an
undertaking in lieu of that signature. In consequence
the respondent was entitled, as I found previously, to
conclude that the individual applicants had no
intention to be bound by the agreement concluded on
their behalf by the trade union.
18. In respect of that finding I asked Mr Dhlamini to
point out in what respects my judgment might be found
to be wrong; to what extent could there be any quarrel
with the fact of the repudiation. Nothing that he
placed before me suggested to me that my original
evaluation of the facts had been in any respect
misdirected.
19. In the circumstances I conclude that there are
few, if
4.522 any /...
JUDGMENT
any, prospects of success on the merits on appeal and
certainly no reasonable prospects of success.
20. As a result I decline to condone the late filing
of the application for leave to appeal.
21. Mr Wessels, appearing on behalf of the respondent,
pressed for costs against the applicants in this
application. I can see no reason why the applicants
should not pay the costs of the application, as Mr
Wessels has said his clients were brought here by them
in circumstances where a judgment had already been
given. They had been given an opinion by their
original attorneys on the merits and the substance of
that opinion is recited in the correspondence that is
attached to the application for condonation. They
were alert to and aware of their rights and the
difficulties that they faced. Then nonetheless
proceeded with this application. It seems to me that
they must pay the costs
occasioned by the application.
22. In the circumstances I make the following order:
1. The application for condonation of the late filing
of the application for leave to appeal is dismissed.
2. The applicants must pay the respondent's costs.
BRASSEY, AJ