IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT BRAAMFONTEIN)
CASE NO. : JS 557/02
In the matter between :
CHEMICAL ENERGY, PAPER, PRINTING
WOOD & ALLIED WORKERS UNION 1 st Applicant
S. MASHIYANE & 14 OTHERS 2 nd to 16 thApplicants
And
METAL BOX t/a M. B. GLASS Respondent
JUDGMENT
MAYA J.
[1] The applicants seek condonation for the late referral of their dispute with the respondent
about the fairness of their dismissal. They also seek costs against the respondent in the event
of an opposition. The application is opposed.
[2] I may mention at this stage that at the very end of argument, at reply stage, an attempt
had been made to hand in from the bar an affidavit which was said to have been deposed to
by a senior partner at the firm of applicants’ attorneys in confirmation of the allegations set
out in the condonation affidavit. No explanation was proffered for its lateness as, according
to the condonation affidavit, it should have been filed when the condonation application was
launched. I ruled against its filing.
[3] It was conceded on the applicant’s behalf that the delay of about nine months was
excessive. It was however argued that their case meets the other requirements which
constitute “good cause” for the grant of condonation; namely that their explanation for the
delay is good, they have strong prospects of success in the main application, the case is
important to them and they stand to suffer irreparable prejudice should condonation be
refused.
[4] The reason furnished for the delay is set out in an affidavit deposed to by one of the
applicant’s attorneys of record. It is alleged that the
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applicants had, upon unsuccessful conciliation of the dispute in July 2001, promptly
approached them on an undisclosed date to pursue the matter. On 31 October 2001 the
attending attorney, a Ms Conco, had resigned from the firm. She did not hand over her files.
It is then alleged that it transpired later that, seemingly unbeknown to the other attorneys,
she left with certain case files which included that of the applicants. When exactly this
discovery was made remains a mystery as will appear hereunder.
[5] According to the affidavit it was during a file audit conducted in May 2002 that it was
found that the applicants’ file was missing. Counsel had been briefed to prepare a statement
of case immediately thereafter. It is this counsel who then reported in a memorandum, which
was also filed in support of the application, that he had been briefed in the matter in August
2001 and had actually drawn the statement which was subsequently collected from him. On
16 May the proceedings were launched.
[6] During argument, the applicants’ attorney startlingly made various submissions which
were either not supported by and others or directly contradicted the allegations made in the
condonation affidavit. He firstly gave an explanation that his firm could not and did not
know that it had the applicants as clients in the absence of the missing file because the
matter had still been at its inception when Ms Conco left. He was however unable to explain
how the file audit could have revealed the existence of the matter if there was no other
record of the matter in their office. He also could not explain satisfactorily why his office
delayed the audit for almost seven months when it appears from the condonation affidavit
that they were aware on 31 October 2001 that “Ms Conco did not hand over the files she
was working on”.
[7] In response to a charge that the papers showed that the applicants themselves had
remained supine for a period of longer than eight months and did not bother to contact their
legal representatives, he stated that they had telephoned his office during December 2001 to
enquire about their case. Most significantly, this material averment is not made in the
condonation affidavit. Further, it contradicts the allegation made by his colleague in the said
affidavit that it is only during the file audit in May 2001 that his office became aware of the
applicants. He could not explain
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why action was taken only in May 2002 if the applicants had contacted his office in
December 2001.
[8] It is abundantly clear from the selfcontradictions in the explanation for the delay that the
applicants and/ or their attorneys have unfortunately not been candid with this court. It is
obvious also on the papers that the applicants have been as lax as their legal representatives
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in the prosecution of their claim. Even if I am wrong in this view, it seems to me that they
still would not be entitled to escape liability for their attorneys’ dilatoriness. It is well settled
in our law that there are limits beyond which the court should whose legal representative is
to blame for a delay. Restating this principle, Nicholson AJA said in Superb Meat
Supplies CC v Maritz (2004) 25 ILJ 96 (LAC) at 100H :
“In this court and the Supreme Court of Appeal there have been frequently repeated judicial
warnings that there is a limit beyond which a litigant cannot escape the results of his attorney’s lack
of diligence or the insufficiency of the explanation tendered. It has never been the law that invariably
a litigant will be excused if the blame lies with the attorney. To hold otherwise might have a
disastrous effect upon the observance of the rules of this court and set a dangerous precedent. It
would invite or encourage laxity on the part of practitioners. The courts have emphasized that the
attorney, after all, is the representative whom the litigant has chosen for himself, and there is little
reason why, in regard to condonation of a failure to comply with a rule of court, the litigant should
be absolved from the normal consequences of such a relationship, no matter what the circumstances
of the failure are.” Emphasis added
[9] I am fully mindful of the test laid down in decided cases such as that of Melane v
Santam Insurance Co. Ltd 1962(4) SA 531 (AD), which a court faced with an application
for condonation should apply. At 532CF of the judgment in this case, Holmes JA, writing
for the court, said :
“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 it 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 piecemeal approach incompatible
with a true discretion, save of course that if there are no prospects there would be no
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point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden
the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the
facts. Thus a slight delay and a good explanation may help to help compensate for prospects of
success which are not strong. Or the importance of the issue and strong prospects may tend to
compensate for a long delay. And the respondent’s interest in the finality of the matter must not be
overlooked.”
[10] It would appear that the applicants may have reasonably good prospects of success in
the main application. The respondent’s attorney did not strenuously argue otherwise, save to
highlight that, contrary to an allegation made in the applicants’ statement of case, the
respondent had held a number of meetings with them prior to their dismissal. This may of
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course have something to do with the fact that the respondent has to yet make its own
condonation application for the late filing of its response to the applicants’ statement of
claim. Be that as it may however, I must bear in mind that even where a party has decidedly
strong prospects of success, which is not the case in the present matter, that fact is not of
itself sufficient cause to grant condonation. See Torwood (Pty) Ltd v South African
Reserve Bank 1996 SA 215 (W) at 230H.
[11] Regarding the question of the importance of the matter to the applicant, it seems to me
that whilst it may be accepted at face value because it involves their livelihood that it is
indeed important, their own conduct belies that possibility. To my mind, had they considered
the matter as one of great importance, they surely would have shown more zeal and vigour
in pursuing the case and would for one thing, have kept in constant touch with their
attorneys.
[12] I accept that they may suffer prejudice upon refusal of condonation. It seems however
that the grant thereof would equally expose the respondent, whose interest in the finality of
the matter is one of the important factors which I have to take into consideration, to a not
inconsiderable degree of prejudice. This is particularly so if due regard is had to the relevant
time lapse and the practical implications thereof. See Liberty Life Association of Africa v
Kachelhoff NO & Ors (2001) 22 ILJ 2243 where the court said at 22602261 :
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“ The enquiry into whether prejudice is present or not entails comparing the present position of the
other parties involved with what it would have been instituted within a reasonable time. Prejudice
will be considered to be present if because of the delay the recollections of the parties or the person
whose decision is being reviewed have paled; persons who have to depose to affidavits or testify are no
longer available; and where documentary or other forms of evidence are no longer available”
These are some of the concerns raised by the respondent in its opposing affidavit in this
matter.
[13] I have carefully and objectively considered the relevant factors. I am nonetheless not
persuaded that the applicants have made out a case for condonation. The application is
accordingly refused with costs.
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ACTING JUDGE OF THE HIGH COURT
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FOR THE APPLICANT : Mr V. Vuza (Sihlali Molefe Inc.)
FOR THE RESPONDENT : Mr S. Hardie (Steven Hardie Attorneys)
Heard and delivered on 19 August 2004
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