Sneller Verbatim/idem
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J1626/99
2000-12-13
In the matter between
PHEELO AND OTHERS Applicant
and
LEEUDOORN GOLD MINE Respondent
________________________________________________________________
J U D G M E N T
________________________________________________________________
SUTHERLAND J: This is a matter in which certain workers were retrenched by the
Leeudoorn Gold Mine, the respondent in the principal claim. For reasons of
convenience I shall refer to the parties as the workers and as the gold mine. The
workers were aggrieved at their retrenchment, and referred the matter to the
CCMA, and ultimately to this court for adjudication. The prosecution of the matter
became protracted, and on 27 October 1999 a pre-trial conference was convened
between the legal representatives of both parties. It was not possible to conclude
the business of the pre-trial conference because the workers were unable to
furnish certain information requested by the representatives of the mine. The
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meeting was adjourned on the basis that the workers would revert. Naturally this
meant to revert through their legal representatives, a firm of attorneys. They did
not revert. In consequence, on 7 June 2000, that is to say some eight months
later, the gold mine approached the Registrar of the Labour Court to have a pre-
trial conference convened before a judge of this court. On that day a pre-trial
conference was held before Judge Pienaar. It is common cause that the invitation
by way of notice to the attorneys of the workers was received by the workers'
attorney, but on 7 June, the day of the pre-trial conference, they were not
represented. In consequence of that, Judge Pienaar handed down a judgment,
which in its corrected form read as follows:
1 There was no appearance by the applicants.
2 The applicants are barred from proceeding with the matter unless good cause is
shown.
The reference to applicants is a reference to the workers. That judgment, which
erroneously referred to the parties rather than the applicants, was corrected and
then issued on 4 July 2000, approximately a month after it was first made. On 6
July 2000 the gold mine launched an application to have the claim of the workers
dismissed, essentially for want of prosecution, and therein complained of prejudice
on account of the delay. Subsequent thereto the workers' attorneys filed, on or
about 2 August, a set of answers to the questions which had remained
unanswered on 27 October 1999. Subsequent thereto, at the instance of the gold
mine, the matter was set down on the roll of this court today, being 13 December,
in order to place before the court its application for the dismissal of the workers'
claim. Both parties are represented today by counsel, and the question arose in
regard to whether or not the bar imposed on the workers by way of the judgment
of Judge Pienaar has been satisfied.
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In support of a contention that the bar should be lifted, I was referred to a
notice of motion dated 10 August 2000 on behalf of the workers, to which is
attached the supporting affidavit of Memele Jeremiah Temane, an attorney and a
member of the firm which was the attorneys of record of the workers throughout
the entire relevant period.
It is plain from the order of Judge Pienaar that this matter may not proceed
until and unless good cause is shown. Good cause, as I understand it, means a
satisfactory explanation for the default, that is to say the non-appearance on the
day set for the pre-trial conference, and also an indication that there is at least a
semblance of a case to be prosecuted.
The concept of good cause is well known to the law, and has been in use by
superior courts and magistrate's courts for many decades. One of the places
where a useful commentary on what needs to be shown may be found, is in the
work of Herbstein and Van Winsen, The Civil Practice of the Supreme Court of
South Africa 1997 4th edition, page 540. The authors there were dealing with the
rescission application of a default judgment, and the following was stated in
regard to such a matter:
"An applicant for the rescission of a default judgment must show good cause and
prove that he at no time renounced his defence and that he has a serious
intention of proceeding with the case. In order to show good cause an applicant
must give a reasonable explanation of his default. His application must be made
bona fide, and he must show that he has a bona fide defence to the plaintiff's
claim. Where the failure to deliver a notice of intention to defend has been due to
an oversight on the part of an attorney, or to a misunderstanding in the registrar's
office, and the defendant has a bona fide defence to the action, the court will
usually give leave to reopen, but will not necessarily do so. On the other hand,
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the mere fact that the fault lies with the defendant personally is not a ground for
refusing relief, although it is a factor which will weigh with the court in deciding
whether or not to exercise its discretion in favour of the defendant."
It must of course be appreciated that considerations in relation to the decision of
the judgment of the court are not on all fours with the judgment of Judge Pienaar
in this matter, which is an interlocutory judgment, simply barring further
prosecution of the case until or unless good cause has been shown, but the
elements of good cause in my view remain the same, namely a reasonable
explanation of default and an indication that it is worthwhile allowing the case to
proceed, in as much as a bona fide and reasonable case can be made out in
support of the party who is barred.
The statement of claim referring the dispute to this court simply articulates
in reasonably bare terms what the workers claim were breaches of section 189 of
the Labour Relations Act. No facts of any meaningful degree can be gleaned from
that document, however generously may one read into it. The founding affidavit
for the lifting of the bar says the following, and I quote the relevant portions:
"I took over the file in this matter towards the end of April 2000. It had previously
been attended to by Mr G Nhlapo who left the services of the applicants' attorneys
at the end of April 2000. When I took over the matter, it was apparent that the
minute of the pre-trial conference which had been held on 22 October 1999 had
yet to be finalised. The difficulty in the finalising arose from two sources. First, Mr
Nhlapo had not attended the pre-trial conference. I have ascertained from the
applicants' counsel that it had been arranged between him and Mr Nhlapo that the
latter would meet counsel at the respondent's counsel's chambers at a time
appointed for the pre-trial conference, but that he, Mr Nhlapo, failed to arrive. Mr
appointed for the pre-trial conference, but that he, Mr Nhlapo, failed to arrive. Mr
Nhlapo subsequently informed applicants' counsel that he had got lost looking for
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the chambers in question. I should add here that the chambers are not at Innes or
Schreiner Chambers but in Johannesburg, in Sandton. The applicants' attorney
had not been placed in sufficient funds to incur expenses to instruct applicants'
counsel to draw the minute or provide the replies to respondent's questions. I was
well aware of the formal pre-trial conference convened on 7 June 2000 before
Acting Judge Pienaar. In fact, prior to that conference the respondent's attorney,
Mr S Nthithe, spoke to me telephonically and advised that if applicants were to
answer the questions posed by the respondent in paragraph 15 of the minute
signed on 13 November 1999, it would not be necessary to proceed with the
hearing before Judge Pienaar. Since I could only obtain those answers from
counsel, and since I had insufficient funds to instruct counsel, I was unable to
comply with this request. I might add that I had since taking over the file
requested our clients to be placed in funds in order to attend to the matter. They
being unemployed were unable to do so forthwith. I was also reluctant to advise
respondent's attorneys of this problem. Accordingly no one attended the pre-trial
conference scheduled for 7 June 2000. I was aware of the possible consequences
of this failure and advised the applicants accordingly. They were only able to
place me in funds during the middle of July 2000 and it took me until 31 July 2000
to arrange a consultation with counsel. Subsequent to that date the outstanding
answers to the respondent's questions had been provided. I am advised that it is
necessary to deal with the prospects of success. The respondents have raised the
aspect of non-compliance with the provisions of section 191(11)(a) of the Labour
Relations Act of 1995. Legal argument will be addressed to the court in this
regard. On the merits of the matter it is apparent from the answers contained in
the annexure to Annexure A hereto that the applicants allege that the whole
the annexure to Annexure A hereto that the applicants allege that the whole
retrenchment process was not conducted in good faith, since the elections with a
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view to which they were retrenched were never held. I am also further advised
that it is necessary to deal with the prejudice the respective parties caused by the
applicants' non-compliance with the rules, which has led to this application. In
paragraph 7 of the affidavit of 6 July 2000 in support of an application to cause the
applicants' application to be dismissed, the respondent's human resources
manager, Mr Andre Koen, alleges that some of the respondents, that is to say the
workers, were occupying premises owned by the respondent, that is to say the
mine, which it needs for its employees. In fact, only one such person, the
eleventh applicant, is occupying such premises. The other applicants have
vacated the premises they occupied. The respondent attempted unsuccessfully to
evict the eleventh respondent from the premises which he is occupying. The
prejudice is thus one residential unit of whose use respondent is deprived. Given
the long waiting time for a trial date in the Labour Court, the period which the
respondent has been so deprived is not excessive, so I am advised."
The first point to note is that no serious attempt is made to put the court in a
position to assess the merits or demerits of the case which the workers seek to
place before a trial court. It is true, of course, that reference is made to answers
that were given to the pre-trial conference, initially held on 22 October 1999. A
reading of those answers indicate that the information is so rudimentary that it
makes no impact at all upon the consciousness of one endeavouring to decide
whether there is a fact which if proven would support the applicants', that is to say
the workers' case. I have nothing before me to indicate that there is a plausible
case to be advanced.
I turn to deal with the explanation for the non-appearance on 7 June before
Judge Pienaar. I do not regard the explanation tendered by the workers' attorneys
as satisfactory in the least regard. It appears that he did not do anything in his
as satisfactory in the least regard. It appears that he did not do anything in his
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capacity as attorney of record because he was not placed in cover. He also did
not withdraw as an attorney of record and he did not bother to inform his
opponents, the attorneys of the gold mine, of that fact, that he was not going to
attend the meeting. He simply ignored them, and I must infer from the affidavit
that he did so deliberately.
Secondly, if the deponent to this affidavit is to be believed, he told some or
all of the workers that he was not going to attend the meeting before Judge
Pienaar, and told them of what the consequences were likely to be of such failure.
They in turn must be taken to have deliberately decided not to attend, one or any,
on that day.
The upshot of these circumstances is that notwithstanding the attorney and
the workers knowing that there was a pre-trial conference convened for 7 June,
each of them, albeit it for slightly different reasons, deliberately abstained from
attending.
The plea is made ad misericordiam, that the individuals are unsophisticated
working people, unfamiliar with the workings of the court, lacking in proficiency in
the languages employed in the business of the court, and as such wholly in the
hands of their attorneys, and that these things should weigh with me in an
understanding of why no attendance took place on that day, and in consequence
inure to their benefit in determining good cause. There can be no question that
such facts elicit sympathy, and indeed understanding, but it has never been part
of the way in which the courts of this land operated, that it is sufficient for an
attorney or for a litigant to say, I did not or could not comply with my obligations
as a litigant because I was impecunious. An attorney in particular who is placed in
the embarrassing situation where he cannot fulfil his mandate, is duty bound to
make disclosure of that fact and withdraw, not leave his opponent in the court in
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the dark. Where, as I am to accept, at least on face value, full disclosure was
made to the litigants that he was unable to fulfil his mandate, regardless of how
unfamiliar one is with the affairs of the court, the very least that must be expected
of a litigant in such a position is to endeavour to present himself in person and
invite the presiding officer in the forum where he is required to attend, to give
consideration to his circumstances. This simply was not done. The explanation,
as I alluded to earlier on, emerging from the affidavit of Mr Temane, is simply
unsatisfactory.
Had there been some basis before me upon which I could assess the merits
of the claim sought, I might have been in a position to conclude that
notwithstanding the unsatisfactory features of the explanation for the non-
appearance, that an excellent case would have so mitigated that deficiency that
the bar should be lifted. Alas, there is nothing before me into which I can reach in
order to achieve such a solution. I must find that on the papers and facts placed
before me, good cause has not been shown as contemplated in the order of Judge
Pienaar.
The mine, on the other hand, press an application for the matter to be
dismissed. They rely on the facts which I have already alluded to, and on the fact
that the matter has been protracted and has given rise to prejudice in one way or
another. It seems clear to me that once I have determined that no good cause
has been shown for the lifting of the bar, there is no reason why this matter should
languish on the current roll in perpetuity. No attempt has been made, other than
the application I have already referred to, in response to the judgment of Judge
Pienaar, to answer or to rebut the application launched by the gold mine to have
this matter dismissed. It is difficult also to imagine what else might have been
said, had such a formal resistance been launched.
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The workers were retrenched in 1998. They continued to live on the
premises of the gold mine for some time, although I should accept for the
purposes of this judgment that at the time of this hearing only one remained in de
facto occupation, and that the rest have returned to homes or have gone to live
elsewhere in the countryside. In my view a proper case has been made out to
have this matter dismissed for want of prosecution, and in the circumstances I
propose to make the following order:
1 No compliance has been demonstrated with the order of Judge Pienaar of 7 June
2000, as amended.
2 The application for the dismissal of the matter is granted.
3 Given the respective parties' economic standing and the practicalities in relation
to such matters, I propose that I shall make no order as to costs.
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