(REPORTABLE)
IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN DURBAN
CASE NO D1368/02
DATE 2003/08/06
In the matter between:
JUSTIN N NYAMOMBO Applicant
and
Mondi Kraft First Respondent
PIET VAN HEERDEN Second Respondent
BEFORE THE HONOURABLE MR ACTING JUSTICE GERING
ON BEHALF OF APPLICANT:
IN PERSON
ON BEHALF OF RESPONDENTS :
MR CHADWICK
TRANSCRIBER
SNELLER RECORDINGS (PROPRIETARY) LTD - DURBAN
CASE NO D1368/02
DATE 6 AUGUST 2003
In the matter between
J N NYAMOMBO
and
MONDI KRAFT AND ANOTHER
GERING AJ I don't want to look at any other papers because it's a
very simple issue at this stage. The simple issue is the certificate of
outcome, that's common cause. The certificate of outcome is dated
the 24th January. The 90-day period ended on the 24th April. You
didn't even serve it on the other side, but I am accepting that the
other side got it in the end, so I'm not making a point of that, but
the earliest that you can be said to have made the referral is the 5th
November. What I propose to do is this, I don't want to give a final
order against you without giving you an opportunity, as you've got
legal advisers, to file papers within 21 days of today - within 21 days
of today to file papers in which you apply for condonation for the
late referral and if you got some advice at the CCMA you'd better
set out who advised you and why you didn't realise that the matter
had to come to the Labour Court and why, when you read this
document at page 84, you didn't apply earlier for condonation. It
may be that another Judge hearing the matter will say that you
haven't made out a sufficient case, but I am not going to close the
door completely today to you. So Mr Chadwick, what I propose to
do is this, and I'm going to order that your costs - today' costs -
you're entitled to today's costs.
MR CHADWICK As the Court pleases.
GERING AJ In the exercise of a discretion, it's not easy to do this
but I am going to order today that you are given 21 days from today
to file and to serve on the other side an application for condonation,
explaining why the 90-day period was not complied with, what
advice you got from the CCMA, why it is that you waited for so long
to file the papers on the 5th November. I'm going to order because
they've come to court quite justifiably. They've incurred costs. I'm
going to order that you are responsible for the wasted costs of
today. It doesn't mean you have to pay them before the matter is
heard but you are responsible for the costs of today and in your
papers you can deal with the matter but I tell you right now, within
the 21 days you must do this and there must be a proper
application for condonation. The heads of argument you filed, the
42 pages, they are not heads of argument at all. You must deal
specifically and clearly, and you'd better get advice from your legal
advisers, specifically and clearly with the question of condonation,
why you delayed, why you waited until the 13th August, why when
you read these papers, you didn't file an application for condonation
earlier. You must set out the papers clearly, in such a way that a
Court will be sympathetic and you'd better show that you have
Court will be sympathetic and you'd better show that you have
reasonable prospects on the merits. I must tell you - I don't know
who your legal advisers are and I don't know whether they gave you
some assistance in this 42-page document but this 42-page
document is not going to take you anywhere. It's not heads of
argument at all. You're going into the evidence that you might want
to lead at the trial but before you come to the trial you've got to
show that you're entitled to get condonation for the late referral.
MR NYAMOMBO Yes, M'Lord.
GERING AJ I am going to hand back these papers that you handed
in. I don't think they are in any way relevant and I don't really like
to take papers handed in, so they can go back to you. If there are
any papers that you want to refer to, you must annexe them to your
condonation application.
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ORDER 6 AUGUST 2003
GERING AJ
[1] Within 21 days you must file and serve on the respondents a
proper application for condonation for the non-compliance
with the 90-day limit, and you must make it clear also what
your prospects are on the main action, to show you have got
prospects of success.
[2] I order that you are liable for today's wasted costs.
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MR CHADWICK I am not quite clear, M'Lord, as to whether what
you said earlier has to be part of the order, what has to be dealt
with in the application.
GERING AJ That's really more advice. Maybe what I said should be
typed out. What I intended to do is to just give him some advice,
that he must file a proper application for condonation but I'm telling
him now that he must make it very clear why it is that he delayed
for so long, why it is that he did not, once he read page 84, why he
didn't make an application, and he must deal adequately with the
prospects of success on the merits. It's more advice from the
Court.
MR CHADWICK No, I just wasn't clear whether that was to be part
of the order or not.
GERING AJ It shouldn't be part of the order. The order itself is
simply that within 21 days of today you must file with the Court and
serve on the other side a proper application for condonation for the
point in limine raised on page 84 of the papers, but I'm advising you
that when you get your legal advisers to draft the document you
must deal fully with who it is from the CCMA who gave you advice
that the matter should go to arbitration and not come to the Court
and what steps you took and why you didn't deal with the matter
expeditiously once you read page 84. That's just some advice. It
doesn't bind you or anybody else. It's just I feel that when
somebody who is not a lawyer comes to this court and it's quite
obvious that he's got a grievance he'd like the matter to be heard
by the Court. He's got a grievance. The respondents have behaved
completely properly and that's why they're entitled to today's costs.
I feel as a matter of justice I don't want to close the door finally, but
Mr Chadwick has made out a sufficient case which would justify
dismissal and I can assure you that if the matter comes to court and
another Judge hears the matter he or she will want to see a very
well-drafted application for condonation, otherwise the case will be
dismissed at that stage.
MR NYAMOMBE I am sorry. I understand about, Your Worship, the
part where you say why I was late. I ...[indistinct]... go back to
CCMA and say that, but there is a part I don't understand where you
say why did I serve the documents with their client because I have
proof ...[intervention]
GERING AJ I don't know whether you did serve or you didn't but if
you look at page 84, and I'm simply going on page 84, on the basis
that in the end the company has got the papers and what we really
need to deal with is the point in limine, as such, and the point in
need to deal with is the point in limine, as such, and the point in
limine is on page 83 to 84 and then, having set out the times, it
states:
"... The referral to this Honourable Court, a
copy of which has never been served upon
the respondent ..."
That's stated on affidavit. Now, whether you did serve or you didn't
serve, we're not making a point of that now. It took place, at the
earliest, on the 5th November 2002 when the statement of claim
was filed in this court. So you have to explain the delay from the
24th April, when the 90 days expired, until the 5th November, and
you also have to explain why you did not apply for condonation
earlier because it was pointed out to you in paragraph 8 that the
referral is accordingly more than six months late and the applicant
has failed to make condonation - that should really read, "The
applicant has failed to apply for condonation". Even experienced
lawyers and counsel sometimes don't get the language quite right.
The language is, "And the applicant has failed to make condonation
for non-observance of the timeframe prescribed in terms of the
Act". I read that as meaning, "And the applicant has failed to make
an application for condonation for non-observance of the timeframe
prescribed in terms of the Act". And you'd better make - and I order
that you are liable for today's costs, the wasted costs caused by this
hearing because you did not file papers - you didn't file an
application for condonation and your heads of argument are not
proper heads at all. So I'm giving you this advice from the Bench
just to assist you. By the time it comes to another Judge who will
hear the matter, he or she will have to be satisfied that in terms of
the law relating to condonations for late referrals, and this is a very
late referral, six months is very late, that you've made out a case.
MR NYAMOMBE In my condonation letter ...[intervention]
GERING AJ It's not a letter, it's an application for condonation.
You'd better get your lawyers or your legal advisers to assist you. I
don't think you yourself can do this adequately.
MR NYAMOMBE Very well. But I just wanted to make it clear, can I
put answers like, "Here is proof I filed it in time. Here is proof"?
GERING AJ I'm not here to give you advice as to how you should
draft. I gave you from the Bench a few words of advice, so you
won't be able to say at the end you didn't know what to do but I
can't tell you how to draft papers. What I'm saying to you is it must
be a proper application for condonation. Lawyers know the sort of
things that need to be put out in an application for condonation, so
if you've got legal advisers they should be able to help you. The
point is that you've got to deal with the point in limine on pages 83
and 84 of the papers and you have to both have a condonation
application for the delay beyond the 90 days and, secondly, you
have to have some explanation as to why you didn't file an
application for condonation before today. You should have filed an
application for condonation as soon as it was drawn to your
attention that the matter was late. So that's what your application
for condonation must include. I would suggest that ...[intervention]
MR NYAMOMBE M'Lord, I also wrote a letter to them for ...
[intervention]
GERING AJ No, I'm not going to get into a discussion with you.
What you did or what you didn't do must appear on affidavit. It
must be a properly-drafted affidavit. Understand? I will direct that
my remarks in this matter could be transcribed. It may assist both
parties. The 21 days starts running from today but you can, if you
want, get from the Court a copy of what my remarks are but even
want, get from the Court a copy of what my remarks are but even
without that it should now be sufficiently clear - I've emphasised it
sufficiently clearly to you what you must do. It must be a proper
application for condonation for the reason why you did not comply
with the 90-day period and why you did not apply for condonation
when you read pages 83 and 84 of the papers. That's what your
application must deal with. Mr Chadwick ...[inaudible] ...
[intervention]
MR NYAMOMBE Yes, I was just going to say ...[intervention]
MR CHADWICK Yes, I think so, M'Lord.
MR NYAMOMBE I was just going to say I also wrote to them but
they were late by six months.
GERING AJ That's got nothing to do with the issue. The issue is you
must apply for condonation. You can put whatever you want into
your document but what you've got to deal with is a proper
application for condonation of your late referral. it may be that the
Court might be sympathetic when it hears certain things but they
must be put in your affidavit and if you're going to say that you got
advice from the CCMA, then you'd better state clearly who gave you
the advice and what the advice was. Understand?
MR NYAMOMBE Only that?
GERING AJ Not only that. It must be a proper application for
condonation and I'm not going to spell it out more clearly than that.
It's not for the Court to advise litigants what to do. I'm just giving
you some advice to make it easier for you to deal with the matter
because you appear to have great difficulties in handling this
matter. It's not a question of tactics. You've come to the court late.
You've got to get the Court's permission for proceeding further with
the case and unless your condonation application is approved by
the Court that'll be the end of the matter and you are responsible
for today's wasted costs. Thank you, Mr Chadwick for your
assistance.
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