Sneller Verbatim/P
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J4412/01
Date of Hearing 2003-03-27
In the matter between :
SEBENZA SHIPPING CONSULTANCY Applicant
and
P Phakane Respondent
_________________________________________________________
J U D G M E N T
__________________________________________________________
PILLAY J:
[1] This is an application for condonation which prefaces an
application for the rescission of an order granted by this court
in terms of Section 158 (1) (c) of the Labour Relations Act No.
66 of 1995 ( LRA) on 04 December 2001.
[2] The applicant became aware of the order on 7 December
2001. It launched the rescission application on 23 September
2002 i.e more than eight months after the application ought
to have been made. This is an extremely long period of delay,
a fact which is conceded by counsel for the applicant.
[3] The explanation for the delay in a nutshell is that the applicant
believed in good faith that it had settled the matter with the
respondent and that it was therefore not required to either
oppose the application in terms of section 158(1)(c) or launch
a rescission application. That it held with such a belief is
purportedly on the basis that the applicant was naive in
dealing with this matter throughout.
[4] The first difficulty with the application for rescission and this
condonation application is that there are periods of delay for
which there are absolutely no explanations. The general
submission of the applicants being of the bona fide belief that
the matter was settled and that the applicant was na ïve are
simply unconvincing reasons for explaining the period of
delay.
[5] The delay per se and the explanation such as it is, also do not
convince the court as to the merits of the applicant's defence.
The applicant's defence is that the application in terms of
section 158(1)(c) ought not to have been granted because the
matter had been settled finally. The more probable conduct
one would expect of a business which is what the applicant is,
is to assert its stance at the earliest possible moment, that is
whem it became aware that there was an application pending
in terms of section 158(1)(c). It did nothing to oppose that
application. The applicant began settlement discussions only
after having received notice that the sheriff was about to
attach its goods.
[6] A previous attempt at settling the matter was made on 1
February 2002 in terms of which the respondent was given 24
hours to accept the offer failing which it would be withdrawn.
The respondent did not accept that offer. Nothing further was
done between 1 February and 6 March when the sheriff was
instructed to effect an attachment.
[7] Even if I were to view the applicant's case sympathetically, the
applicant has not said in its application that it was not aware
that the application for rescission had to be brought timeously
or had to be brought within a reasonable period. It also does
not say what steps if any, it took, to obtain an indulgence
from the respondent, whilst the alleged settlement discussions
were continuing.
[8] In these circumstances I find that the period of delay in
launching the application for rescission is inordinate. The
explanation to the extent that there is an explanation is
inadequate. The probabilities of success on the merits are
unconvincing. I disgress to point out that there appears to be
a dispute of fact as to whether there was or was not a
settlement of the dispute. The finding I make that the
probabilities of success on the merits is unconvincing, is
based on the fact that there has been such an inordinate
delay.
[9] I have not considered or investigated whether the
respondent's version or the applicant's version is more
credible on the evidence that has been presented. However,
in view of my finding that the delay in itself causes me to take
a negative view of the probabilities of success does not
require me to go into the respective versions of the parties as
to whether the dispute had in fact been settled. As stated
above, a party who is pursued in litigation in a dispute which it
believes in good faith was resolved is likely to protest
vehemently and firmly at the first opportunity. This the
applicant did not do.
[10] In the circumstances the application for condonation is
refused with costs.
D PILLAY D, J
30 May 2003
ON BEHALF OF THE APPLICANT : ADV P J JOOSTE
INSTRUCTED BY
: LEONARD
SINGER ATTORNEYS
ON BEHALF OF THE RESPONDENT : ADV C ORR
INSTRUCTED BY : CHEADLE THOMPSOM AND
HAYSOM