J1724/99-D K DE JAGER 1 JUDGMENT
2002-02-28
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IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO : J1724/99
2002-02-02
NOT REPORTABLE
In the matter between
NATIONAL UNION OF METALWORKERS
OF SOUTH AFRICA Applicant
LIST OF INDIVIDUAL APPLICANTS Second to F urther Applicants
And
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DORBYL LIMITED First Respondent
CLIDET 453 (PTY) LIMITED Second Respondent
___________________________________________________ ______
J U D G M E N T
___________________________________________________ ______
PILLAY D, J
:
This is an application for condonation of the appl icant’s late delivery of its
statement of case. The reasons for the delay were firstly, that the
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applicant had difficulty obtaining a case number fr om the registrar of the
Labour Court. The case number was allocated after the expiry of the time
for the delivery of the statement of case. Secondl y, the first applicant
union, NUMSA, had internal difficulties with its st aff. The official originally
dealing with the matter left the union. Another em ployee who was
J1724/99-D K DE JAGER 2 JUDGMENT
2002-02-28
engaged on probation was found not to be suitable; in the meantime he
had mismanaged this matter to the extent that there were further delays.
He assumed that the matter had been referred to the applicant’s attorneys
to attend to. He misread correspondence that had b een filed, which led to
this assumption. In any event, the matter was not referred to the
attorneys to file the statement of case. On his de parture, the regional
secretary, Mr Mosepe, became involved in the matter . He realised that
there had not been a statement of case filed and at tended to it. By that stage
there was a delay of some 10 months after the state ment of case fell due.
Thirdly, there was a further delay from the time t he statement of 10
case was filed and the application for condonation was made. The
explanation for that delay was that the officials w ho dealt with the matter
within the union and who had left were unco-operati ve and it was difficult
to get affidavits from them.
One of the officials who did sign an affidavit als o failed to provide
an address which suggests that there must be some s upport for the
applicant’s submission that there were difficulties in getting the former
employees’ cooperation for the application for cond onation.
In any event, the application for condonation had to be brought
within a reasonable time. In the circumstances con fronting the applicant, I
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found that the application for condonation was brou ght within a
reasonable time.
Returning to the main application for condonation, the explanation
for the delay is in essence the ineptitude and orga nisational difficulties of
the representative of the individual applicants. T hat explanation is not too
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2002-02-28
different from the explanation tendered on behalf o f the respondent in its
own application for condonation. The one similarit y is that both
representatives appear to have misread communicatio ns. for instance, the
attorney for the respondent did not realise that he ads of argument had to
be delivered. He obviously did not read the notice of set down properly,
which he acknowledged having received. The represe ntative for the
applicants also did not read correspondence suffici ently carefully and
concluded that the matter had been referred to the applicant’s attorneys.
A feature that favours the applicant’s substantial ly is that the
officials were at all times under the bona fide but erroneous belief that the 10
matter was being attended to. There is no suggesti on that their conduct
amounted to anything more than negligence. However , comparing the
degree of care that one might expect of a junior of ficial of the union and
an attorney, a higher degree of care can reasonably be expected of the
attorney than of a junior official of the union.
In all of this, none of the applicants could be he ld personally
responsible for the delays. If they were under the impression as they
might reasonably have been that the matter was bein g attended to, then it
is not likely that they would have taken any steps to expedite the matter.
It is not uncommon for labour matters to take a con siderable period of
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time and the delays in this matter are not unusual.
The proposition that the union ought to have filed a statement of
case timeously, despite not having being issued in advance with a case
number, has this difficulty: The evidence is that a senior official had to
confer with the registrar about a general problem o f not being allocated
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2002-02-28
case numbers. I cannot assume that the registrar wo uld have allocated a
case number if the statement of case was before her without a case
number on the day on which it was due. Without a ca se number no further
steps in the proceedings could take place. The res pondent would not be
able to file its statement of defence and the matte r would have to stand
still until a case number was allocated.
In the circumstances, I find that the explanation for the delay is
acceptable. The period of delay of 10 months is su bstantial; however this
court has granted condonation in circumstances wher e the delay has
been longer. When considering the period of delay, the court takes into
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account the explanation for it and the importance o f the case to the
parties.
The importance of the matter to the applicants is quite obvious;
there are 176 applicants. They have maintained an interest in the matter
throughout. They reported regularly for feedback o n progress. There is
no indication that they abandoned the case whatsoev er. They are from a
community where unemployment of 176 people could af fect that
community. In the circumstances the case is import ant.
I also take into account the prospects of success. I am not
required to try the prospects of success on the ple adings. However, I find
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that the applicant had set out sufficient facts whi ch if at the trial are found
to be proved, could result in the applicants’ succe ss. Therefore, there are
reasonable prospects of success.
In the circumstances,
the application for condonation is
granted with no order as to costs.
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2002-02-28
____________
Pillay D, J
Date of Editing: 16 June 2009
Appearances
On behalf of the Applicant: Mr van der Riet instruc ted by Cheadle,
Thompson and Haysom 10
On behalf of the Respondent: Mr Buirski instructed by Pienaar Swart
Nkaisang Inc