Sneller Verbatim/PJ
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J774/00 & J769/00
2001-04-25
In the matter between
RADEBE, A M, CERBONE, A and 15 OTHERS Applicant’s
and
CORONET EQUITIES (PTY) LTD Respondent
________________________________________________________________
J U D G M E N T
________________________________________________________________
REVELAS, J:
1.This is an application for condonation of the late filing of the
applicants’ statement of claim. The applicants in this case are Radebe
and 12 others. There is also another matter arising from the same
dispute, which occurred on the same day where the employees are A Savone
and three others. The case number in that matter is J774/00.
2.The applicants also seek an order that the application under case no
J774/00 (“the Cerbone matter”) be consolidated with the application now
before me (“the Radebe matter”) in terms of rule 23 of the Rules of
Conduct for Proceedings of the labour court.
3.In the Radebe matter the dispute about the dismissal was some four months
out of time. In the Cerbone matter the dispute was referred six months
out of time.
4.The respondent filed its answering affidavit opposing the applicant's
application for condonation, outside of the prescribed limits as well.
The respondent has also brought an application for condonation for the
late filing of this answering affidavit. Condonation was granted at the
hearing of the matter.
5.It appears to be common cause that the applicants’ services were terminated
in circumstances where their was no prior consultation as contemplated
by section 189 of the Labour Relations Act, 66/1995 ("the Act"). In
future this might be explained, by the fact that the applicant was
listed on the stock exchange and could indeed be closed overnight. There
are further indications that some of the respondent’s employees, (though
none of the applicants) were engaged in fraudulent conduct which would,
as the respondent put it, "probably" lead to the liquidation of the
application.
6.All of the aforesaid of course indicated that the prospect of success of
the applicants in pursuing their claim albeit late, are good.
7.The applicants explained their delay as set out in the respective founding
affidavits and in short the explanation is that they believed that
because the respondent was facing liquidation, pursuing their claims
might be a futile exercise. As it was put in the affidavit, they
believed that “it would be flogging a dead horse”.
8.Furthermore there are also difficulties in obtaining funds to sponsor the
litigation. One of the explanations given was, that a erstwhile director
of the respondent had promised to fund their legal representation but he
was no longer able to do so.
9.The delays in this matter are by no means insignificant. They are
substantial delays. On the other hand, they are also not excessive. It
is trite law, that the factors I have to consider would be the degree of
the delay, explanation for the delay, the prospects of success, as well
as the importance of the matter. (See: Malane v Santam Insurance Co
as the importance of the matter. (See: Malane v Santam Insurance Co
Limited 1962 (4) SA 531 (A), Mkhize v First National Bank & Another
(1998) 11 BLCR 1141 LC, Moodley v Umzinto North Town Board 1998 (2) SA
188 SCA, Potgietersrus Platinum Limited v CCMA (1999) 20 ILJ 2679 (LC),
Transnet Limited v Hospersa & Another (1999) 20 ILJ 1293 (LC), Swanepoel
v Albertyn (2000) 21 ILJ 2701 (LC), Chetty v Law Society, Transvaal 1985
(2) 750 (AD)).
10.As I have stated before the prospects of success are good. The explanation
for the delay is acceptable. The degree of lateness,
in having regard to the circumstances surrounding the matter, is not
excessive.
11.In considering this matter, I was to a great extent influenced by the
judgment of the Supreme Court of Appeal in Moodley v Umzinto North Town
Board 1998(2) SA 188 SCA at 192 EG, where MOHAMMED, C.J. held the
following:
"In the result the record is lodged some four months after the date on which it was
required to be lodged in terms of rule 5[4]. The explanation for a part of this delay
is not very persuasive, but what is clear is that the appellant was determined to
pursue which had serious consequence for him. In my view the degree of non
compliance is, in the circumstances of this case, not so substantial as to itself
justify a refusal of the application for condonation for the appellant's failure to file
a record of the proceedings timeously. [Federated Employers Fire and General Ins.
Co. Ltd and Another v McKenzie 1969 [3] SA 360 [A] 362-G; National Union of
Metal Workers of SA v Jumbo Products CC 1996 [4] SA 735 [A] 741E-I. The decisive
issue is whether the appeal has any prospects of success on the merits."
12.In my view, the aforesaid dictum covers the facts of the matter before me.
In the circumstances, condonation should be granted.
13.It is a matter of convenience that the two cases be consolidated, since
the dismissal occurred on the same day ostensibly for the same reasons
by the same employer and there is no reason why the two cases should be
pursued separately.
14.It is so, that this might have costs implications, but as counsel on
behalf of the applicants correctly pointed out, that would be an issue
to be decided by the trial judge who would then have all the facts
before him or her.
15.In respect of costs on this matter both parties have been dilatory and I
believe that each party should pay their own costs. In the
circumstances I make the following order:
1. The late filing of the applicants' statements of claim in case no
J769/00 and J774/00 is condoned.
2. The application under case no J774/00 and J769/00 are to be
consolidated.
3. There is no order as to costs.
______________
E. Revelas
On behalf of the Applicant: Adv. Leon Halgryn
Instructed by: Burt Meaden Att.
On behalf of the Respondent: Adv. Ross Hutton
Instructed by: Perrott Van Niekerk and Woodhouse Inc