IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NUMBER: JS1364/01
In the matter between:
First Applicant
HELGAARD HOLTZHAUSEN Second Applicant
DHENADAYALAN PADAYACHY Third Applicant
and
HUMAN SCIENCES RESEARCH COUNCIL
Respondent
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J U D G M E N T
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1 The three Applicants were retrenched by the Respondent. They filed a statement
of claim on the 5 th of December 2001. According to the Rules of Court within ten
days thereof, that is to say on the 20 th of December 2001 the Respondent was
obliged to serve a statement of defence. It did not. It filed its statement of
defence on the 25 th of March 2002. This application seeks condonation of that
late filing. The Applicants oppose such relief.
2 In an application such as this, the practice of this Court is clear. The principles as
set out in the decision Melane v Santam Insurance Company Limited 1962 (4)
SA 531 (AD) govern the exercise of a judicial discretion whether or not to grant
such relief. The two pillars of the Melane approach consist of a consideration of
whether or not a reasonable explanation is offered for the delay and whether or not
the defaulting party has reasonable prospects of advancing its case if the matter
goes to trial. In this application the Applicants oppose the Respondent’s prayer
for relief on the basis that neither of these two elements have been demonstrated.
There is also reference to the prejudice which the respective parties will suffer if
the order for condonation is or is not allowed.
3 The bare facts of the sequence of events are not materially in dispute. It is useful
to set them out before dealing with their import.
1
4 On 5 December 2001 the three Applicants filed their statement of case. The
substantive averments run to sixteen pages. Reference is made therein to the
course of a considerable restructuring exercise which took place within the
Respondent employer and how ultimately each of the three Applicants were
selected for retrenchment. The fairness of such selection, the criteria upon which
the selection was based and related matters are in issue. Reinstatement is sought
as a remedy. Annexed to the statement of case is a schedule of 46 documents,
including several minutes of meetings.
5 The Respondent appointed attorneys Bell Dewar and Hall to deal with the
litigation on its behalf. The member of that firm who was to take charge of it, was
Nigel Carman. He apparently had been the legal advisor of the Respondent
throughout the restructuring exercise.
6 On the 7 th of December, that is to say two days after the filing of the statement of
case, a telephone conversation took place in which Carman requested an extension
until the 18 th of January in order to prepare and file a statement of defence. That
same day a telefax was sent to Carman in which the following statement appears:
“We have consulted with our clients who have indicated that they are willing to
allow an extension until 11 January 2002 for the filing of the HSRC’s responding
papers in the above matter. ”
The telefax was transmitted at 13h40 on the 7 th of December 2001.
7 It is not apparent from the papers whether or not Carman had his attention drawn
to that reply before or after, as it is stated in the papers, he left for his annual
holiday on the 8 th of December.
8 However, on 10 January 2002 Carman responded to the Applicants’ attorneys
letter granting an extension until the 11 th of January. It states as follows:
1 “We acknowledge receipt of your telefax dated 7 December 2001 and refer
also to our various telephone conversations with Mr Kaapu and Ms Husemeyer
on 7 December 2001 and on 9 and 10 January 2002.
During these telephone conversations, we asked for an extension of time for the
filing of the Respondent’s response for ten days after 8 January 2002, that is, until
18 January 2002. We explained that:
(1) Your clients’ statement of case had been served on our client on 5 December
2001;
(2) Our client intended to oppose the application and had instructed us to act on its
behalf in doing so;
(3) The writer who had knowledge of the dispute, was going on holiday from 8
December 2001 and would only be returning to the office on 8 January 2002;
(4) Our client’s chief executive officer, the person from whom it is necessary to take
instructions would only returning to his office on 14 January 2002; and
(5) We would, in the circumstances, not be able to prepare the response before 18
January 2002.
Since your clients have refused to consent to the extension sought, we attach
notice of intention to oppose and give notice that we will, in due course, apply for
an extension of the time limit and condonation. Since it considers your clients’
attitude to be unreasonable in the circumstances, it intends to ask that the costs of
that application be paid by your clients.”
9 In the affidavit of Dr Mark Orkin, the chief executive officer of Respondent, it is
stated that after his return to his office on the 14 th of January 2002, he again went
abroad on the 21 st of January 2002 on business. He states that it was for that
reason that not until the first week of February was he was able to participate in
the preparation of the statement of defence. In that week a first draft of the
Respondent’s statement of defence was prepared. Counsel was briefed to settle
the draft.
10 On the 15 th of March 2002 the statement of defence was filed. The statement of
defence runs to some 23 pages of substantive averments in relation to the merits of
the matter, and annexed thereto is a schedule listing 130 documents, including
several minutes of meetings.
11 An affidavit was deposed to by the First Applicant, to which the Second and Third
Applicants made common cause setting out the perspective they have of the
conduct of the Respondent. In the affidavit the First Applicant refers to having
been informed by his attorneys for the request for an extension to the 18 th of
January, and states the following:
“Mr Holtzhausen, Mr Padayachy and I were prepared to grant an extension until
11 January 2002, as we believed Mr Carman will have a reasonable period, i.e
three days to prepare the Respondent’s response. ”
The First Applicant refers once again to having been informed by his attorneys of
the conversations which took place on the 9 th and 10 th of January requesting an
extension to the 18 th of January and states as follows:
“We were only prepared to grant a further extension until the 14 th of January
2002. This was conveyed telephonically to Mr Carman by Ms Husemeyer.”
The First Applicant thereupon goes on to point out, usefully, that by the 25 th of
March 2002, the statement of defence was 63 court days out of time. Emphasis is
given to the point that had the statement of defence indeed been filed by the 18 th of
January, as initially intimated by Carman, there would not have been opposition to
the application for condonation.
12 The First Applicant’s affidavit goes on to give voice to various criticisms of
Carman’s conduct. It makes the point that it is inappropriate to rely on the non
availability of a particular attorney in order to justify a delay in complying with
the Rules of Court. He states further that he and the other Applicants “ were
willing to grant an extension until 11 January 2002, being three days after Mr
Carman was due to return from his holiday. Had Mr Carman been actively
involved and had given advice in accordance with the retrenchment exercise,
giving rise to this cause of action, this time was more than sufficient to prepare
his client’s response, as detailed consultation should not have been necessary. ”
He expresses an inability to grasp why, as the request had been made for an
extension to the 18 th of January and Orkin was available between the 14 th and the
21st of January, that the statement of defence could not have been finalised during
that time. Lastly, he points to the elapse of time from the 18 th of January until the
25th of March contending that the delay is substantial and whilst being prepared to
allow that the issues of fact and law “ may be complicated ” is it wholly
inappropriate that the Respondent “ was entitled to blatantly disregard the rules of
this Honourable Court by taking more than three and a half months to deliver its
response.” The First Applicant takes the trouble to point out, that in his opinion,
the conduct of the Respondent’s attorneys in relation to the delay was “ solely due
to its negligence and gross and unjustifiable disrespect for the rules of this
Honourable Court. ”
13 In argument, in support of these averments, Mr Wesley who appears for the
Applicants in resisting the condonation application points correctly to the value
which rightly is to be attributed to expedition in labour relations litigation. There
can be no question that in the labour relations environment, where litigation is
resorted to, practitioners who engage therein must adhere to an ethic of
expeditiousness throughout. It is an open secret that delay in litigation can
unfairly change the balance of advantage between the parties. Particularly where
relief in the form of a restoration of the status quo ante is being sought, as a
general rule it may be assumed that a delay in the conclusion of the litigation
confers on the employer in a dismissal dispute an advantage which can in many
cases result in an injustice. Whatever the practical difficulties may be of
achieving expedition, the pursuit of a speedy conclusion remains a clear beacon to
guide both the Court and practitioners as to an appropriate ethos which, in turn,
informs the rigour with which the rules of court ought to be enforced.
14 Mr Wesley urged on me to take seriously the injunctions mentioned in A
Hardrodt (South Africa) (Pty) Limited v Behardien and Others (unreported)
LAC; CA 6/2001 of 30 May 2002 . In that matter Nicolson JA had occasion to
consider the considerations pertinent to the granting of condonation in respect of
the late bringing of a review to set aside an award of a commissioner of the
CCMA. He referred with approval to the decision in Queenstown Fuel
Distributors CC v Labuschagne N.O and Others (2000) 21 ILJ 166 (LAC) , in
which Conradie JA had considered the principles which should prevail. In that
decision Conradie JA pointed out that the principles of condonation should be
much stricter than those which were applied “ in normal circumstances ”. This
remark I understand to be an endeavour to distinguish the considerations pertinent
to challenging an award granted by a commissioner of the CCMA, in relation to
other litigious issues, such as for example an application for condonation of the
late referral of a statement of Case or of Defence. The policy reasons for that
distinction are clear. Once a party has an award in his or her favour, the failure to
respond within the six week period to challenge that award give rise to
considerations which are absent at the outset of litigation, where the table is being
set for debate. I am not of the view that the decision in the Hardrodt case or for
that matter the Queenstown Fuel Distributors case assists the Applicant in its
resistence to the relief sought by the Respondents in this matter, where non
compliance with a rule of court is the controversy. I prefer to draw inspiration for
the approach to be adopted in a case such as the present, from Melane v Santam (
supra) where is was held at p532 CD that:
‘In deciding whether sufficient cause has been shown, the basic principle is that
the court has a discretion, to be exercised judicially upon a consideration of all
the facts, and in essence is a matter of fairness to both sides. Among the facts
usually relevant are the degree of lateness, the explanation therefor, the prospects
of success, and the importance of the case. Ordinarily these facts are interrelated:
they are not individually decisive, for that would be a piecemealapproach
incompatible with a true discretion, save of course that if there are no prospects
of success there would be no point in granting condonation.’
15 Lastly, in respect of the importance of expedition in labour litigation, it is useful to
weigh the remarks of Comrie AJA in
RADEMAN v CONTAINERLINK (UNREPORTED) PA 5/2000; 29 June
2001, at para 14, where he observes:
“Reasonable expedition is no doubt laudable in all litigation, and the more so in
labour disputes. It is not however an end in itself. Circumstances arise where
expedition must yield to other considerations, if justice is to be done. ... ”
16 The truthfulness of the account furnished on behalf of the Respondent in support
of its prayer for relief is not in dispute. What is in dispute is its adequacy and
reasonableness.
17 In my view the explanation given for the failure of the Respondent to file its
statement of defence within the period prescribed by the Rules, and for the time
taken until it was filed on 25 March 2002 is reasonable.
18 The fact that the Rules of Court furnish ten days to a respondent in which time to
file a statement of defence does no more than create a prima facie reasonable
time within which that task is to be completed. Some time period must be laid
down, and the policy choice is that ten days will be that period. This establishes
no more than a default period by which the other party can expect a reply.
However, it is a matter of practical experience in litigation that from time to time
matters are of such complexity that a practitioner cannot prudently perform his
professional duties within the time periods prescribed, or particular circumstances
arise which it make unreasonably difficult to comply. When that occurs in
practice practitioners liaise with one another and arrange on a common sense basis
extensions and indulgences in relation to the Rules, in order for them to attend to
their professional responsibilities with the appropriate degree of diligence and
prudence. Independently of such practical arrangements which take place, a party
who is unable for good cause to comply with the ten day period, is left with the
option to seek condonation upon proper explanation of its reasonable incapability
of complying with the ten day period.
19 A distinction of importance is that whereas the Labour Relations Act prescribes a
period within which a statement of case must be filed, and failure to do so requires
formal condonation, the time period for the filing of a statement of defence is
regulated solely by the rules. The act regulates the initial referral because the
referral is a jurisdictional event. The rules exist to facilitate disciplined litigation
and their role as servant of that process is the point of departure for any
examination of non compliance.
20 In this particular matter it is selfevident from a reading of both the statement of
case and of the statement of defence that the matter is one of complexity. I have
taken the trouble to read both these documents to determine whether or not it is
apparent that the volume of space used to set out the issues was the result of an
undue loquaciousness on the part of the pleaders. In my view that conclusion
cannot be reached of either the attorneys of the Applicants or of the Respondent.
The very fact that the issues are pleaded in such detail, and that it is apparent that
there is voluminous documentation relevant to the dispute, is all key evidence
pointing in the direction that it was not imprudent of the Respondent to take more
than ten Court days in order to prepare an appropriate statement of defence.
21 According to the correspondence which was exchanged between the attorneys and
later verified under oath by the First Applicant, I am to believe that it was the
Applicants themselves, who having been consulted by their attorneys on the
request for indulgences, took the view, ( with or without advice we are not told ),
that a matter of three days was sufficient for Carman to do his job properly. In
my view the contents of the pleadings show convincingly that this attitude was
wholly unreasonable and farfetched.
22 It is further contended that the Respondent’s attorney manifested a highhanded
manner in stating to the Applicants’ attorneys when the indulgence he sought had
been refused, that is to say an indulgence until the 18 th of January, that he would
seek condonation and file in due course and thereupon took a further two months
to conclude that exercise. I do not agree. The reply of Carman in the letter of the
10th of January was wholly appropriate to the obdurate and unreasonable stance
adopted, as I am made to understand, at the express instructions of the Applicants
themselves.
23 The criticism of the further time consumed by the respondent between 18 January
and 25 March when the the statement of defence was filed, is in my view
inapposite. It is never possible, even ex post facto , to determine whether a week
less or even a fortnight less time could have been taken up in doing the work
which has been performed. In this particular case it is clear from the explanation
furnished by the Respondent that they did not spend two months working solidly
on the preparation of the statement of defence.The elapse of time was in part
attributable to the collection of documents which had to be collated and then
examined by attorney and counsel, and their implications considered in relation to
preparing an appropriate statement of defence. In determining whether or not the
time taken is reasonably explained, it is neither possible nor necessary for a court
to try to guess how it could be done. All that is necessary is to determine on a
common sense basis whether there is any evidence of conduct on the part of the
attorney in question which can be described as dilatory. On the explanation
before me I find no evidence of such conduct.
24 Mr Wesley contends that a generous indulgence had already been granted to the
Respondent in respect of the period from the 20 th of December 2001 to the 14 th of
January 2002. This period accommodated the month during which Mr Carman
was out of his office on holiday. When I invited Mr Wesley to consider that
traditionally South African culture resulted in the entire country virtually coming
to a standstill during the December/January holiday period, he reminded me that
the Rules of this Court do not provide for dies non as is the case in the High Court.
In my view the omission of such an institution in the Rules of this Court is a
lamentable. It is not necessary for one to approve of the near complete collapse
of national enterprise during the traditional year end holiday period, but is seems
to me to manifestly obvious and sensible that any legal practitioner who institutes
an action in the first week of December must appreciate that there will be
considerable hardship, done unnecessarily, if individuals who are required to
respond have, at the last moment, to rearrange their family and other
commitments. An attorney who in December seeks an indulgence until he returns
from holiday in the new year, is not acting unreasonably and should not be left to
believe that his request for such an indulgence is in the least degree
unprofessional. No case is made out in this matter that the relief sought by the
Applicants is required on a genuinely urgent basis that would require personal
sacrifice from not only the practitioners involved, but also from other individuals
on the other side.
25 It is apparent that the initial anticipated time for the filing of the statement of case,
estimated by Carman to require until the 18 th of January 2002 was incorrect. It is
not improbable that had a collegial interaction been possible between him and the
attorneys for the Applicants he would have explained his further difficulties and
requirements to do his job diligently and sought and motivated a further
extension. However, in the face of the obduracy which, I am led to believe was
of the instance of the Applicants themselves, Carman did not act inappropriately
by not seeking any further indulgences and preferring to rely wholly on an
approach to this Court to seek condonation in the application which is now before
me.
26 In my view the explanation for the delay in filing the statement of defence was
wholly reasonable and has been properly explained. By contrast, the attitude of
the Applicants at the outset was wholly inappropriate. Doubtless every litigant is
keen to get on with the case. However, attorneys who act for plaintiffs and
applicants should take care not to be bullied by impatient clients and thereby make
themselves complicit in uncollegial conduct which vainly consumes effort and
time from not of themselves but also of the court and ultimately, selfishly
consumes resources contributed by the taxpayer.
27 The Applicants advance a case that the Respondent’s statement of defence raises a
case so weak that it is wholly without merit. That conclusion is not one which I
am able to reach on a reading of the material before me. It seems plainly evident
that there is a substantial case to be tried and, more particularly, in the context of
terminations of employment for operational reasons, it must be seldom that a
controversy truly is determined on a single element of the case. It cannot
therefore be said that the Respondent’s case is one that is without merit. It is
useful to be reminded by the further remarks of Comrie AJA in Rademan v
Containerlink ( supra) in which he observes:
1 “The prospects of success were addressed in the statements of case and
response and also in the affidavits. They were in dispute. It is not possible on the
papers to resolve that dispute or to hold that the appellant’s prospects are
excellent. Equally however it is not possible to hold that the appellant’s
prospects are poor or slender. It is not that the appellant’s case on the merits
disclosed a glaring weakness or that the respondent adduced deadly piece of
evidence. It is accordingly fair to conclude on the papers the appellant’s
prospects are reasonable. ”
28 In my view, that common sense dictum appropriately articulates the threshold for
the evaluation of circumstances in this class of case.
29 As to the arguments relating to the importance of the case and to the relevance of
prejudice, it is plain that if the retrenchments of the Applicants are undone the
impact on the restructured organisation of the Respondent will be prejudicial to it,
no less than the denial of an appropriate remedy for any material shortcomings in
the restructuring exercise would be prejudicial to the Applicants. In these factors
lies the manifest importance of the case.
30 In respect of the costs of this application, I am guided by my finding that the
opposition of the Applicants was unreasonable. Even if it can be said in their
favour that it was appropriate to require the Respondent to file an affidavit for
them to consider before deciding whether or not to oppose, upon a reading of the
affidavit, and a consideration of the statement of defence, it seems to me that it
would have been appropriate for them to have consented to the application for
condonation. That would have obviated a need for a full blown debate before
court. In the circumstances it is in my view appropriate that the Applicants bear
the Respondent’s costs. Mr Wesley has contended that the costs should not
include the costs of two counsel. I agree.
31 Accordingly I make an order as follows:
31.1 Condonation is granted in respect of the late filing of Respondent’s
statement of defence.
31.2 The Applicants shall pay the costs of this application, including the costs of one
counsel.
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ROLAND SUTHERLAND
ACTING JUDGE OF THE
LABOUR COURT OF
SOUTH AFRICA
2 July 2002