NOT REPORTABLE/ OF INTEREST
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
CASE NO D179/2001
In the matter between:
UKD MARKETING CC & 5 OTHERS Applicants
and
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
COMMISSIONER PAT STONE Second Respondent
BARGAINNG COUNCIL FOR THE FURNITURE
MANUFACTURING INDUSTRY Third Respondent
AND
In the matter between:
SAXON JOINERY AND 4 OTHERS Applicants
and
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
COMMISSIONER PAT STONE Second Respondent
BARGAINNG COUNCIL FOR THE FURNITURE
MANUFACTURING INDUSTRY Third Respondent
______________________________________________________
JUDGMENT
______________________________________________________
PILLAY J 30 APRIL 2002
[1] The application for condonation is dismissed.
[2] The first and second applicants in the first matter and the first and fifth
applicants in the second matter, and the attorney of record is ordered to
pay the third respondent's costs jointly and severally on the appropriate
High Court scale, including the costs of preparing the record.
[3] The applicants' attorney of record is given leave to deliver an affidavit within
seven days setting out why this order should
not be granted against him. The third respondent is given an opportunity
to respond to that affidavit within seven days of receipt thereof. The Court
having considered the affidavits, thereafter will determine whether this
order, in relation to the applicants' attorneys should be varied.
[4] My further reasons for this order will be delivered ex tempor é in the course of
the week.
______________________________________________________
REASONS FOR JUDGMENT 2 MAY 2002
PILLAY, D
[1] This application for review is prefaced by an application for condonation of a
late delivery of the review. As the review proceeds in terms of Section 145
to set aside the award of the second respondent Commissioner, it is
common cause that the award was served on the fifth applicant, Saxon
and Joinery Works CC in the second application on 21 November 2000.
The review should have been launched within six weeks from that date.
An incomplete application was only delivered about six weeks later on 13
February 2001.
[2] The application for condonation was made by the applicant's attorney. There
are no supporting or confirmatory affidavits by any of the applicants to the
application for condonation. The application was delivered on 18 April
2002 without any explanation for that delay.
[3] Mr Bezuidenhout, for the applicants, requested an opportunity to call his
instructing attorney to testify about the reasons for the late application for
condonation. Mr Acker objected. I refused the request, firstly because
that is not how an application for condonation is made for the late filing of
another application for condonation. Counsel ought to have known better
than to make such a request. Secondly, the applicants' conduct, and
possibly that of their attorney, was dilatory, inept and grossly negligent, as
will become evident hereunder. Thirdly, the bargaining council, that is the
second respondent, had pointed out in the heads of argument filed on its
behalf that the condonation application was late and without an
explanation therefor. The applicants did not attempt to remedy this
situation before the hearing.
[4] The first reason for the delay in launching the application for review was that
the award had not been served on all the applicants. The submission was
irrelevant since the applicants had not challenged the fact that they had
allegedly not been served with the award. They were all aware of it before
they participated in consultations in early December 2000. The second
reason for the delay was the availability of counsel during December and
January. He was briefed "during the course of December 2000". He fell
ill "during early January 2001". It was decided not to withdraw the brief
from counsel as there would have been no significant timesaving, having
regard to the length of the arbitration. Who made that decision is not clear
from the attorney's affidavit.
[5] The period of delay is substantial, especially since the explanation therefor is
incomplete. The explanation for the delay is wholly unacceptable. No
precise dates were furnished about when counsel was briefed, when he
went on leave, when he fell ill and when the applicants and their attorney
became aware that counsel would not be able to react timeously to the
brief. What steps counsel took in December when he had received the
brief to ensure that he prepared the papers timeously for filing on or about
2 January 2001, is also not explained. The affidavit also does not disclose
who was at fault in causing the delay. It is not alleged that the applicants
were unaware of the date for launching the review. They had regular
interaction with Mr Hamilton, the attorney for the bargaining council, about
the review. Above all, Mr Hamilton made it clear to the applicants that the
bargaining council required a formal application to be made. The
applicants' attorney did not disclose in his affidavit what application was
being referred to here, nor does he specify when the discussion with
Mr Hamilton occurred.
[6] The affidavit opposing the application for condonation had attached to it a
letter from Mr Hamilton to the applicants' attorney dated 24 January 2001,
informing him that it was his firm instructions not to agree to a
condonation. It seems to me that the applicants' attorney deliberately
avoided taking the Court into his confidence about very pertinent issues.
This calls for an explanation from the attorney.
[7] The applicants' woes do not end with the wholly inadequate application for
condonation and the absence of an application for condonation of that
application. They failed to deliver their heads of argument timeously.
That delay is not explained, nor is there an application to condone it. Their
application for condonation is not indexed and paginated. Not all the
applicants are properly before this Court. In so far as confirmatory
affidavits were filed by some of the applicants, none of them confirm that
they were authorised to bring the application for review on behalf of the
entities they represent. Only Mr Premraj, the second applicant in the first
matter, delivered a substantial affidavit. However, nowhere does he testify
that he was authorised to bring the application on behalf of the other
applicants. Nor does his founding affidavit disclose who the other
applicants are. The only applicant who is properly before this Court is
Premraj, the second respondent. As it happens, no relief was granted by
the Commissioner against him.
[8] Although the responsibility for preparing the record rested with the applicants,
this was left to the bargaining council to complete. Correspondence calling
on the applicants to prepare the record went unanswered. Hence Mr
Hamilton had to complete the preparation of the record himself.
[9] Finally, the applicants and their representatives demonstrate utter lack of care
and diligence in the preparation of the affidavits. As the matter was the
consolidation of two cases, special care had to be taken to ensure the
proper citation of the parties throughout the pleadings. The inattention of
the applicants and their representatives in this regard has further
inconvenienced the Court and no doubt the second and third respondents.
[10] The conduct of the applicants and their representatives manifest a blatant
and unashamed disregard for the rules of Court. They labour under the
serious misapprehension that condonation is a mere formality to be
granted on the mere asking.
[11] Against the background of such shoddy preparation, the Court was
expected to prepare itself with a record of more than 1166 pages. In these
circumstances the applicants do not deserve to have the merits of the
application for condonation to be considered. Furthermore, as regards the
merits of the application for condonation itself, the applicants' attorney
makes the bald allegation that there were good prospects of success.
Neither the applicants, nor their representatives, took the trouble to
summarise the facts on which that allegation is made in the affidavits in
support of the application for condonation.
[12] For these reasons I granted an order on 30 April 2002 on the following
terms:
[i] The application for condonation is dismissed with costs.
[ii] The first and second applicants in the first matter and the first and fifth
applicants in the second matter and the applicants' attorneys are to pay
the bargaining council's costs on the appropriate High Court scale jointly
and severally, the one paying the other to be absolved.
[iii] The applicants' attorneys of record are given leave to deliver an
affidavit within seven days from the date hereof to show cause why this
order should not stand as regards the attorneys of record.
[iv] The third respondent, the bargaining council, is given leave to respond
to the applicants' attorneys' affidavit within seven days of receipt thereof.
[v] The Court, having studied the affidavits, will determine whether this
order should be varied.
[13] It follows from the aforegoing that the application for review is
also dismissed.
D PILLAY
JUDGE OF THE LABOUR COURT
______________________________________________________
30 APRIL 2002
30 APRIL 2002
2 MAY 2002
3 JUNE 2002
ADV W F BEZUIDENHOUT
ON BEHALF OF RESPONDENTS: ADV B A ACKER SC
______________________________________________________
VARIATION OF ORDER 3 JUNE 2002
Having considered the submissions by the applicants’ attorneys,
the order of costs against them is withdrawn.
Pillay D, J