3G Mobile (Pty) Ltd v Raphela NO and Others (JR1910/2013) [2014] ZALCJHB 417 (31 October 2014)

REPUBLIC

OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Reportable

Case no: JR 1910 / 2013

In the matter between:

3G MOBILE (PTY) LTD

Applicant

and

RAPHELA THEMBISILE N.O.

First Respondent

COMMISSION FOR CONCILIATION, MEDIATION

AND

ARBITRATION

Second Respondent

LARANJA

CARLA

Third Respondent

Heard:15 October 2014

Delivered:31 October 2014

Summary: Review application – requirements of expedition – delay in prosecution of review – consequences to review – no proper explanation provided for failure to prosecute

Practice and Procedure – Practice Manual – provisions relating prosecution of reviews – provisions considered and applied

Practice and Procedure – application in terms of Rule 11 to dismiss review - principles considered

Condonation – condonation application for the late filing of answering affidavit to Rule 11 dismissal application – no proper explanation provided and no prospects of success – condonation refused

Review application – review application dismissed for failure to prosecute and undue delay

SNYMAN, AJ

Introduction

[1] There are a number of applications that came before me, to which this judgment now relates. Firstly, the third respondent applied for the dismissal of the applicant’s review application due to a failure to prosecute the same and for the arbitration award in her favour to be made an order of Court. This application was not timeously opposed by the applicant, resulting in this dismissal application being enrolled on the unopposed roll on 15 October 2014. Just more than a week before the set down of this matter, the applicant then sprang into action and filed an answering affidavit to the dismissal application, as well as a condonation application for the late filing of the answering affidavit.In addition, an application was made for the postponement of this entire matter from the unopposed roll. Because of the belated stage at which all this process was filed by the applicant, there are no opposing papers by the third respondent to this condonation and postponement application. The third respondent, who appeared in person, did however say that she opposed all these applications.

[2] When this matter was argued before me, I stated that I would consider and determine this matter by firstly determining the applicant’s

condonation application for the late filing of the answering affidavit to the third respondent’s dismissal application.

I consider this to be the competent approach, because if the condonation application does succeed, this would be determinative of the process in this matter going forward, because then the third respondent’s dismissal application will be opposed and the applicant will have the opportunity to further prosecute its review application. In this regard, I thus indicated to the parties that if the condonation application was successful, the answering affidavit to the dismissal application would be admitted, and I would return a ruling that the matter be postponed from the unopposed roll and a directive be given to the third respondent with regard to the filing of a replying affidavit. I further indicated to the parties that if the condonation application was not successful, then there would simply be no opposing papers to the third respondent’s dismissal application, no reason for this matter to be postponed and I would return a ruling on the dismissal application as it stood. This is then the approach I will follow in this judgment.

[3] In deciding the condonation application, it is necessary for all the background facts to be considered, starting from the point when the arbitration award was handed down by the first respondent against the applicant. In recording these background facts, I will consider the entire content of the Court file (including notices), which includes the review application itself, the third respondent’s dismissal application, and the contents of the condonation founding affidavit. I now set out this factual background, hereunder.

Background facts

[4] The arbitration award giving rise to the applicant’s review application was received by the applicant on 27 August 2013.

The applicant then brought its review application on 27 September 2013, which is within the prescribed time limit in terms of section

145(1) of the LRA.

[5] But, and despite the review application having been timeously filed, a consideration of the content of the review application leaves one wondering whether it is even genuine, from the start. In particular, to call it sparse is generous. None of the background facts giving rise to the dismissal of the third respondent are set out. The actual content of the award of the first respondent was not in any way analysed, contradicted or even referred to. The award is not even attached to the review application. Under the heading of grounds of review, the applicant sets out a number of generic grounds, which are not even applied or compared to the award in order to illustrate why these grounds have substance. But worse still, the founding affidavit is not even deposed to by any person from the applicant, but by the attorney for the applicant.

[6] But what the applicant does is to in essence defer to its future supplementary affidavit in terms of Rule 7A(8) to make out a review case. The applicant says that once it has possession of the ‘full record of proceedings’, it would ‘comprehensively

deal’ with the issues.

[7] On 21 October 2013, the second respondent filed its notice in terms of Rule 7A(3), discovering the record of the proceedings. By simply considering the content of such notice, all that the second respondent discovered was the documentary evidence and documentary

process before the first and second respondents, and not the electronic recording of the arbitration proceedings. It is immediately apparent, therefore, that the second respondent made incomplete discovery of the record.

[8] But, and despite receiving this notification from the second respondent, the applicant’s attorneys initially do nothing

until 12 December 2013, some six weeks later. On 12 December 2013, the applicant’s attorneys wrote to the second respondent,

specifically recording that the discovery did not contain the electronic record of the proceedings. The applicant’s

attorneys called on the second respondent to discover this electronic recoding by 29 November 2013 (clearly an error) failing which an application to compel would be launched. The point however is that the applicant’s attorneys were quite aware that discovery of the electronic record had not been made and what was needed to get it.

[9] Nothing further was discovered by the second respondent. On 7 January 2014, the applicant’s attorneys again wrote to the second respondent, recording that the second respondent had still not discovered a copy of the electronic record disks. It is also specifically recorded that the applicant’s attorneys had been instructed to bring a compel application so it would not fall foul of the Court’s practice directives. The second respondent is given 5 days to comply, failing which the compel application would be brought and costs would be sought. In addition, the third respondent herself was also informed by the applicant’s attorneys on 13 January 2014 that such a compel application would be brought because the disks had not been provided.

[10] Despite the above correspondence, no compel application was ever brought. In fact, no further process of any kind is filed by the applicant’s attorneys. The next process that was filed was the third respondent’s Rule 11 application to dismiss the review, which was served and filed on 19 June 2014. The applicant’s attorneys filed a notice to oppose this dismissal application on 23 June 2014, but did not file an answering affidavit. Also, even this dismissal application did not spur the applicant’s attorneys in bringing the threatened (and in fact required) compel application.

[11] What did the applicant’s attorneys then do between January 2014 and June 2014, considering no further discovery was ever made by the second respondent? The explanation is found in the belated answering affidavit to the third respondent’s dismissal application, which is attached to the condonation affidavit. I must confess that I find this explanation rather difficult to digest, for the reasons I will later set out in this judgment. The nub of the explanation is that the applicant’s attorneys visited the Labour Court on nine individual occasions in this period to find the recordings in the Court file, but did not find them, and thus could not prosecute the review further. I add that there was a further explanation of four further visits in July and August 2014.

[12] There is also a further explanation of the applicant’s attorneys calling the second respondent about ‘the disks and the reconstruction of the record’ on six individual occasions between January and June 2014. But there are no further letters ever written, other than the two letters already referred to. I similarly consider this explanation somewhat strange, for the reasons elaborated on hereunder.

[13] The applicant has also explained that there were settlement discussions between the applicant’s attorneys and the third

respondent’s former attorneys in May and June 2014. Whilst this may be so, it must be pointed out that on the applicant’s

own version, these settlement discussions did not stand in the way of the applicant’s attorneys still making effort to obtain the recording, which its chronology showed it continued with during this time.

[14] There is no explanation of any kind as to why no answering affidavit to the third respondent’s Rule 11 dismissal application was ever filed, at the very least after settlement discussions ended by end June 2014 at the latest, on the applicant’s own version.

[15] The applicant terminated the mandate of its former attorneys on 1 September 2014. But the applicant does not take the Court into its confidence to explain how and why this came about. Further, and even more importantly, the applicant does not provide one single indication or explanation as to what it did, itself, to follow up on the litigation and the progress of the review application. As touched on above, the applicant itself did not even depose to the founding affidavit in the review application. The one and only piece of evidence of contact between the applicant itself and its erstwhile attorneys is the mandate termination on 1 September 2014.

[16] The applicant then consulted with its newly appointed attorneys and counsel on 2 September 2014, and it was resolved to obtain the file content from the applicant’s former attorneys in order to proceed further with this matter. But on 9 September 2014, the applicant’s new attorneys received a notice of set down of the third respondent’s Rule 11 application. On 15 September 2014, a copy of the Court file content was taken by the applicant’s new attorneys. A further consultation with counsel followed on 17 September 2014. Further information was then obtained from the applicant’s former attorneys on 19 September 2014.

[17] But what then followed was not an attempt to oppose the third respondent’s Rule 11 application or further attempts to

prosecute the review. Rather, and knowing the third respondent was unrepresented, the applicant’s attorneys sought to convince the third respondent in several items of correspondence that the Rule 11 dismissal application was the wrong process and that she was compelled to participate in the reconstruction of the record. When the third respondent refused to accede to this, and finally on 2 October 2014, the applicant’s attorneys then brought the condonation application and all the other process within a week. But the question now is – was this all too little too late?

Condonation principles

[18] In the current matter, the applicant requires condonation in respect of two issues, the first being the failure to timeously and properly prosecute the review application, and the second being the failure to timeously oppose the third respondent’s Rule 11 dismissal application. I however consider both these issues to be currently interlinked. The reason for this is that if the applicant can show proper good cause for failing to prosecute the review application, then it will go a long way towards providing an explanation for, and prospects of success in, the failure to oppose the Rule 11 application.

[19] The general principles applicable to condonation applications were set out in the case of Melane v Santam Insurance Co Ltd[1] where it was 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, save of course that if there are no prospects of success there would be no point in granting condonation.’

[20] But where it comes to review applications, the condonation test has been somewhat tightened. In dealing with an application for condonation for the late filing of a review application, the Labour Appeal Court in A Hardrodt (SA) (Pty) Ltd v Behardien and Others[2] referred with approval to the judgment in Queenstown Fuel Distributors CC v Labuschagne NO and Others[3] and said:

‘The principles laid down in that case included, firstly that there must be good cause for condonation in the sense that the reasons tendered for the delay had to be convincing. In other words the excuse for non-compliance with the six-week time period had to be compelling. Secondly, the court held that the prospects of success of the appellant in the proceedings would need to be strong. The court qualified this by stipulating that the exclusion of the appellant's case had to be very serious, ie of the kind that resulted in a miscarriage of justice.’

[21] In my view, the same considerations should apply when considering a condonation application for the failure to timeously and properly prosecute a review application, even if the review application was initially timeously brought. In all review related condonation applications, the explanation that needs to be submitted must be compelling and the prospects of success need to be strong. Where it comes to the issue of prejudice, the applicant in fact has to show that a miscarriage of justice will occur if the applicant’s case is not heard. The reason for these more stringent requirements is that review applications occur after the parties have already been heard, presented their respective cases and a finding has been made. Under such circumstances, considerations of justice, fairness and expedition require that challenges of such findings must not be delayed and must be completed as soon as possible.

[22] The Court, in Academic and Professional Staff Association v Pretorius NO and Others[4] said the following, also in the context of a matter concerning a condonation application for the late filing of a review application:

‘The factors which the court takes into consideration in assessing whether or not to grant condonation are: (a) the degree of lateness or non-compliance with the prescribed time frame; (b) the explanation for the lateness or the failure to comply with time frame; (c) prospects of success or bona fide defence in the main case; (d) the importance of the case; (e) the respondent's interest in the finality of the judgment; (f) the convenience of the court; and (g) avoidance of unnecessary delay in the administration of justice. See Foster v Stewart Scott Inc (1997) 18 ILJ 367 (LAC). It is trite law that these factors are not individually decisive but are interrelated and must be weighed against each other. In weighing these factors for instance, a good explanation for the lateness may assist the applicant in compensating for weak prospects of success. Similarly, strong prospects of success may compensate the inadequate explanation and long delay.’

Again, and in my view, the same considerations should apply to the applicant’s condonation applications in casu.

[23] As to how the explanation must be presented by an applicant in an application for condonation where it comes to reviews, the Court in Independent Municipal and Allied Trade Union on behalf of Zungu v SA Local Government Bargaining Council and Others[5] said the following:

‘In explaining the reason for the delay it is necessary for the party seeking condonation to fully explain the reason for the delay in order for the court to be in a proper position to assess whether or not the explanation is a good one. This in my view requires an explanation which covers the full length of the delay. The mere listing of significant events which took place during the period in question without an explanation for the time that lapsed between these events does not place a court in a position properly to assess the explanation for the delay. This amounts to nothing more than a recordal of the dates relevant to the processing of a dispute or application, as the case may be.’

[24] The Constitutional Court has, as a matter of fundamental principle, confirmed that review applications must be expeditiously dealt with[6] and any determination of the issue of good cause must always be conducted against the back drop of this fundamental principle in

employment law as applicable to reviews.

[25] The question now is whether the applicant, in its condonation application as aforesaid, has satisfied these requirements and made out a proper case for good cause, as a whole, to convince the Court to grant it an indulgence and thus allow it to proceed with its review application.

The issue of the explanation

[26] I will first consider the explanation provided by the applicant. Or rather, I will first consider the explanation not provided. As stated above, the applicant has provided no explanation of any kind for not actually filing an answering affidavit to the third respondent’s Rule 11 application, for the period between June 2014 when the Rule 11 application was filed and (at best for the applicant) until September 2014 when if changed attorney. This failure is exacerbated by the fact that a notice to oppose the Rule 11 application was immediately filed in June 2014, but then nothing was done thereafter. In my view, the complete failure to file an answering affidavit to the Rule 11 dismissal application and then to provide no explanation for failure counts heavily against the applicant.

[27] As to the explanation indeed provided, I consider it to be unacceptable and truth be told, misleading. What is provided is simply a chronology of the applicant’s erstwhile attorney visiting the Labour Court and CCMA to establish if the record has been filed. This is the kind of explanation criticized by the Court in Zungu[7]. This being said, I find it impossible to fathom why this explanation was even necessary, and thus I have my concerns whether it is actually truthful. I say this because in the correspondence of the applicant’s attorney in December 2013 and January 2014 referred to above, the applicant’s attorney actually confirmed that the electronic recording was not received or filed, the CCMA was called on to discover it, and it was threatened that failing such discovery a Rule 7A(4) compel application will be brought. Now we know further discovery of the record was never made by the CCMA and no Rule 7A(4) application was ever filed by the applicant’s attorney. It then simply makes no sense to go the Labour Court month after month to see if the record was there. Why would it be? Nothing was filed and nothing was done to compel it being filed. This leaves me somewhat skeptical about whether these alleged multiple Court visits actually happened. I have this same skepticism about the similar explanation relating to the alleged CCMA visits in the same period.

[28] The applicant was compelled to have brought a Rule 7A(4) application to procure the electronic recording. The applicant’s attorneys actually knew this, having said so in so many words. It should have been brought, on the applicant’s own threatened course of action, by at least the end of January 2014. There is no explanation of any kind why this was not done. Worse still, one would have expected, at the very least, that once the third respondent’s Rule 11 application hit in June 2014, the applicant would be jarred into action and such a Rule 7A(4) compel application would then promptly be filed. But still, there is nothing and still there is no explanation why not. And then, to add insult to injury, when the applicant changes attorneys, I would have expected such attorneys to immediately go into action and file such an application. But still, nothing in this regard.

[29] I also have to say that I consider part of the explanation submitted by the applicant’s new attorneys to be rather disingenuous. This explanation was that because the electronic record was lost, the third respondent was compelled to have participated in a reconstruction of such record and a complaint is made that the third respondent refused to cooperate in this regard. In fact, and as set out above, the applicant’s new attorneys actually represented to the third respondent that it was not competent to proceed with the Rule 11 application based on this reconstruction that needed to be done. This explanation however has a fundamental problem. The applicant cannot say the electronic record is lost. It has taken no steps to even establish if it is lost. The only thing that is true is that the CCMA did not discover the electronic record. But that does not mean the record is lost. The only way to determine whether or not the record is lost is by way of the Rule 7A(4) compel application pursuant to which the CCMA would either have to find and discover the electronic record, or file an explanation under oath that it is lost. The applicant, in short, places the cart before the horse. It assumes a scenario that has not been established, and then presents this to the third respondent as a fact. I consider this completely unacceptable, and this explanation has all the hallmarks of a contention designed specifically to try and defeat what is an unexplainable default.

[30] One is left with the distinct impression in this matter that the applicant had no intention of taking further action in the review until it was left with no choice but to do so because of the set down of the third respondent’s Rule 11 application. I must reiterate that the applicant did not even bring or sign its own review, and did nothing to follow up on it. This exhibits clear comparisons with the judgment in Basson v Oosthuizen No and Others,[8] where the Court held as follows, in refusing condonation:

‘… The impression that this court is left with is that once the applicant had entrusted the matter to Pitzer he adopted a laid back approach and was only prompted to do so after the sheriff had called at his premises... The applicant has therefore failed to give an adequate explanation for the delay in filing the review application timeously. Strictly speaking it becomes unnecessary to consider the issue of prospects of success. There is merit in the third respondent's contention that the applicant has attempted to mislead this court.’

On the other hand, and in my view reasonably so, the third respondent gave the applicant a good 6 months to get its affairs in order before bringing the Rule 11 application, and even then the applicant was not stirred into action.

[31] It is thus my conclusion that the applicant has provided no explanation for not opposing the Rule 11 application and filing an answering affidavit thereto. The applicant has equally provided no explanation why a Rule 7A(4) compel application was never brought. The chronology of attendances at the Labour Court offered as an explanation is unacceptable. And finally, the applicant itself did nothing to follow up on this case. The only time when there was a flurry of activity was when the Rule 11 dismissal application was ultimately set down.

[32] In the end, the applicant has thus provided no explanation for what is a material delay. This should be the end of the matter for the applicant without even considering the requirement of prospects of success. It was said in Mziya v Putco Ltd[9] that ‘there is a further principle which is applied and that is that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial’. Also in NUM v Council for Mineral Technology,[10] it was said that ‘there is a further principle which is applied and that is that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial’. Finally and in National Education Health and Allied Workers Union on behalf of Mofokeng and Others v Charlotte Theron Children's Home,[11] the Court held that ‘this court has previously confirmed the principle that without a reasonable and acceptable explanation for a delay the prospects of success are immaterial’.

[33] In my view, the approach of the applicant in the condonation application is that condonation was there for the asking. This is simply not so. In this regard, I can do little better than to refer what was said in Seatlolo and Others v Entertainment Logistics Service (A Division of Gallo Africa Ltd)[12] where the Court held:

‘It is trite law that condonation should only be granted where the legal requirements have been met and is not a default option. It remains an indulgence granted by a court exercising its discretion whilst being cognizant of the criticism emanating from the Constitutional Court and the SCA and bearing in mind the primary objective of the expeditious resolution of disputes articulated in the Act.’

[34] I am thus not satisfied that the applicant has made out a proper case for condonation, and as such the applicant should not, at this stage, be permitted to oppose the third respondent’s Rule 11 application. However, and despite this being my view, I will nonetheless consider this issue in conjunction with the issue of the manner of the actual prosecution of the applicant’s review application, which I will next address.

The issue of the prosecution of the review

[35] There is a duty on the applicant to expeditiously prosecute its review application. This duty is found in the fundamental principle that all labour disputes must be expeditiously resolved. Reference is made to Khumalo and Another v Member of the Executive Council for Education: KwaZulu-Natal[13] where the Court said: ‘…. The importance of resolving labour disputes in good time is thus central to the LRA framework. ….’. Further authorities in this regard are Aviation Union of SA and Another v SA Airways (Pty) Ltd and Others[14] where it was held: ‘….Speedy resolution is a distinctive feature of adjudication in labour relations disputes ….’,

and National Education Health and Allied Workers Union v University of Cape Town and Others[15] where it was held: ‘By their very nature labour disputes must be resolved expeditiously and be brought to finality so that the parties can organize their affairs accordingly. They affect our economy and labour peace. It is in the public interest that labour disputes be resolved speedily ….’. Review applications must be prosecuted with due consideration to this

fundamental principle, as I have already touched on above.

[36] The Practice Manual also manifests the requirement of expeditious prosecution of review applications. The Practice Manual has binding force.[16] Clause 11.2.7 provides:

‘A review application is by its nature an urgent application. An applicant in a review application is therefore required to ensure that all the necessary papers in the application are filed within twelve (12) months of the date of the launch of the application (excluding heads of argument) and the registrar is informed in writing that the application is ready for allocation for hearing. Where this time limit is not complied with, the application will be archived and be regarded as lapsed unless good cause is shown why the application should not to be archived or be removed from the archive.’

I fully ascribe to these provisions of the Practice Manual. I believe 12 months is a more than reasonable period within which to at least prosecute a review application to finality, save only for the actual arguing of the case in Court remaining. Applying these provisions in casu, the applicant’s review application was brought on 27 September 2013. This matter was argued before me on 15 October 2014, clearly more than 12 months later. But all that existed with regard to the actual prosecution of the review application was nothing else but the first filing of the review application itself. Therefore, and in terms of the Practice Manual, the applicant’s review application is currently considered to be archived and lapsed.

[37] The reality is that currently, the applicant is actually confronted with a Rule 11 dismissal application. It is so confronted at a point in time when more than year has lapsed after the applicant brought its review application and where no actual procedural step has been taken in its prosecution other than filing the application itself. That being the case, I consider what the Court said in Moraka v National Bargaining Council for the Chemical Industry and Others[17] to be particularly apposite to the case of the applicant in casu, in particular where the Court said the following:

‘A party defending itself against an application to dismiss a review on account of undue delay is effectively asking the court to condone its dilatoriness and similar considerations which apply to the evaluation of applications for condonation ought to be relevant in the evaluation of these applications. In this instance, the long delay of nearly two years between the incorrect filing of the transcript and the filing of the supplementary affidavit which added nothing to the merits of the review, is unexplained. A significant consideration in deciding whether or not to dismiss this review application is the casual approach adopted to the litigation by the applicant which indicates that he viewed it as a matter that could be returned to from time to time when he or his representatives chose to do so. Such long periods of inactivity cannot be reconciled with the conduct of a party that has a consistent interest in pursuing a case and takes the necessary steps to do so without undue delay. Thus, as far as the extent and unreasonableness of the delay are concerned, the applicant's conduct is found seriously wanting in both respects.’

I consider the current applicant’s conduct to be similarly wanting.

[38] The problem I have with the applicant’s conduct in this case, especially considering that it was legally assisted from the outset, is its complete failure to heed the clear warning not only provided by the Practice Manual, but in several reported authorities dealing with delays in the prosecution of review applications by review applicants. To give the proper and complete picture in this regard, once and for all, I will now refer to several pertinent authorities:

38.1 Sishuba v National Commissioner of the SA Police Service[18]: ‘The issue of delays in prosecuting disputes in the Labour Court has become an issue of concern and judges have expressed their concern at a trend that seems to have emerged in this regard. The trend seems to be developing into a practice or a norm in cases involving reviews of arbitration awards’;

38.2 Bezuidenhout v Johnston NO and Others[19]: ‘… If applicant parties have unduly delayed prosecuting their applications, and fail to provide acceptable reasons for the delays, the ultimate penalty of dismissing such applications should be used in appropriate cases. This will hopefully help creating a culture of compliance and ensure that disputes are expeditiously dealt with’;

38.3 Autopax Passenger Services (Pty) Ltd v Transnet Bargaining Council and Others[20]: ‘… [T]he rule that the court has the power to dismiss proceedings due to a delay in the prosecution thereof lies in the court's inherent power to prevent an abuse of its own process. Despite these differences, the reasoning underlying the principle

that a delay may be fatal to a review application must in my view equally apply to both an applicant who delays in initiating review

proceedings and one who thereafter delays in the finalization of the matter’;

38.4 Karan t/a Karan Beef Feedlot and Another v Randall[21]: ‘In summary: despite the fact that the rules of this court make no specific provision for an application to dismiss a claim on account of the delay in its prosecution, the court has a discretion to grant an order to dismiss a claim on account of an unreasonable delay in pursuing it….’.

[39] I will also have regard to the conduct of the third respondent pertaining to the prosecution of the applicant’s review. In National Union of Mineworkers v Commission for Conciliation, Mediation and Arbitration and Others[22] the Court said:

‘In my view, the position in respect of undue delay is as follows:

24.1 The practice when an applicant has delayed unduly in prosecuting a review application is for a respondent to bring an application dismissing the review proceedings under rule 11 of the Labour Court Rules.

24.2 This court has a discretion to grant an order to dismiss an application on account of an unreasonable delay in pursuing it.

24.3 In the exercise of its discretion, the court ought to consider three factors:

(i) the length of the delay;

(ii) the explanation for the delay; and

(iii) the effect of the delay on the other party and the prejudice that that party will suffer should the claim not be dismissed.

24.4 An application to dismiss is a drastic remedy and should not be granted unless the dilatory party has been placed on terms, and when appropriate, after any further steps as may have been available to the aggrieved party to bring the matter to finality, have been taken. This means that the conduct of the aggrieved party is to be considered.’

The third respondent as aggrieved party gave the applicant a reasonable period of time to prosecute its review, and then brought her Rule 11 dismissal application. But even when the third respondent did this, the applicant still did not prosecute the review. In the applying the above three factors as part of exercising a discretion as to the dismissal of the applicant’s review application, I find that the delay is lengthy, there is no proper explanation for it, and the third respondent is certainly prejudiced. There is no reason not to dismiss the review application, exercising a discretion based on these factors.

[41] I also consider that there is no evidence or indication of what the applicant itself did to follow up on its own review application. The applicant appears to have left the matter entirely up to its attorneys, took no active interest in the review, and never followed up on its prosecution. This is also a factor that heavily counts against the applicant and mitigates in favour of the dismissal of its review application.[23] In Superb Meat Supplies CC v Maritz[24] the Court held as follows:

‘.... I also am of the judgement that the appellant through the agency of its member Schreiber was negligent in not monitoring progress of its case from the time of the service of the claim in August 1999 to the set down for the trial on 12 March 2001, a period of nearly 18 months. The appellant appointed new attorneys and the file was available to them and would have indicated what contact took place between Majola and Schreiber during that period. The court has not been informed of any communication and it can be inferred that the appellant took no active interest in its own litigation, a further reason to conclude that it was negligent.

As I have indicated Trengove AJA held in the De Wet case that disinterest and failure to keep in touch with an attorney barred relief. ….’

And in Saloojee and Another NNO v Minister of Community Development[25] it was said:

‘If, as here, the stage is reached where it must become obvious also to layman that there is a protracted delay, he cannot sit passively by, without so much as directing any reminder or enquiry to his attorney and expect to be exonerated of all blame; and if, as here, the explanation offered to this court is patently insufficient, he cannot be heard to claim that insufficiency should be overlooked merely because he has left the matter entirely in the hands of his attorney. If he realises upon the aptitude or remissness of his own attorney, he should at least explain that none of it is to be imputed to himself. That has not been done in this case.’

[42] In short, there has been a material delay in this case wherein the applicant failed to prosecute its review application. The applicant has no proper explanation for not doing so. The third respondent properly asserted her rights, and even this did not spur the applicant into action. The applicant’s review application falls to be dismissed.

Concluding remarks

[43] As I have already said, the third respondent was entirely justified in bringing her Rule 11 application. In considering this matter, I was left with the distinct impression that the applicant was simply seeking to wear the third respondent out, hoping she would go away. The Court in Khoza v Sasol Ltd[26] dealt with a delay in the prosecution of a review application in a manner that I believe to be particularly applicable in casu, where the Court said:

‘I am satisfied that Mr Hinds and his office were grossly remiss, and that the employee, who all of this time was wallowing in poverty and in unemployment, was more than justified in approaching this court for relief rather than wait for the rusty old train of Sasol that takes its own time in its delivery of justice. I have yet to encounter a worse case where there is a more callous disregard of the prejudice that an employee suffers when the wheels of justice are deliberately slowed down by a resort of obfuscation by those who flaunt their financial muscle in what appears to be an obscene game of cat and mouse in which the only loser can be the employee. In the unequal contest between a multibillion rand empire that the employer is, and an unemployed person, as was submitted by Mr Spoor, all you have to do is to wear down the resolve of your less endowed opponent, tire him out and hope that he will go away, his quest for justice abandoned. Delay the day when he can get justice, and you can then thereby deny him justice.

I disagree. As long as the courts are open and as long as they purport to be the arbiters of fairness and justice, between the powerful and the relatively powerless, so long will they not allow the sort of conduct displayed by the employer in this case to go without

consequences.’

I cannot describe the current matter better. The applicant’s conduct in the current matter cannot be without consequence. The third respondent, who was reinstated, has been languishing in unemployment. There is no end in sight to the review, which is more than a year old. In fact, its proper prosecution has not even started. It is an injustice to the third respondent that must be brought to an end.

[44] I will have final regard to the merits of the applicant’s review application, even as it stands. The applicant, in a nutshell, has said that the commissioner awarded reinstatement when the third respondent did not ask for it. The problem to the applicant is that this is the only proper ground of review made out. Even if the applicant may have case in this regard, when one has regard to all else set out above, this still cannot save the applicant. In Ferreira v Die Burger[27] it was said that:

‘I am sympathetic to the fact that the applicant may have a case but, were we to grant this application, this court would subvert a crucial principle in matters which deal with personal relationships, namely labour relations, that these disputes have to be dealt with expeditiously and finalized as quickly as possible. Where in a case such as this, there has been so flagrant of violation of the rules, then, as Myburgh JP correctly decided, a lack of any explanation at all shrugs off other considerations.’

This ratio must find application in the current matter.

[45] Therefore, I determine that the applicant has failed to provide good cause in order to be granted condonation. In the absence of condonation being granted, there is nothing that stands in the way of the third respondent’s Rule 11 dismissal application being granted, and the applicant’s review application being dismissed. All that then remains is for the arbitration award in favour of the third respondent to be made an order of Court.

Costs

[46] The third respondent was not represented when this matter was argued. I also consider that the applicant recently changes

attorney who at least tried to remedy the predicament that the applicant was already in. I therefore do not consider it appropriate to make a costs order, and exercise my discretion as to costs accordingly.

Order

[47] In the premises, I make the following order:

1. The applicant’s condonation and postponement application dated 6 October 2014 is dismissed.

2. The applicant’s review application is dismissed.

3. The arbitration award issued by commissioner Raphela Thembisile under case number GAEK 4039 – 13 and dated 27 August 2013, is made an order of Court.

4. There is no order as to costs.

____

Snyman, AJ

Acting Judge of the Labour Court

APPEARANCES:

For the Applicants:

Advocate L Franck

Instructed by:

Ian Levitt Attorneys

For the Third Respondent: In person

[1] 1962 (4) SA 531 (A) at 532C-E.

[2] (2002) 23 ILJ 1229 (LAC) at para 4.

[3] (2000) 21 ILJ 166 (LAC).

[4] (2008) 29 ILJ 318 (LC) at paras 17–18.

[5] (2010) 31 ILJ 1413 (LC) at para 13.

[6] See Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and Others (2010) 31 ILJ 273 (CC) at para 46; Strategic Liquor Services v Mvumbi NO and Others (2009) 30 ILJ 1526 (CC) at paras 12–13.

[7] (supra).

[8] (2008) 29 ILJ 1875 (LC) at para 11.

[9] (1999) 3 BLLR 103 (LAC).

[10] (1999) 3 BLLR 209 (LAC) at 211G-H.

[11] (2004) 25 ILJ 2195 (LAC) at para 23.

[12] (2011) 32 ILJ 2206 (LC) at para 27.

[13] (2014) 35 ILJ 613 (CC) at para 42.

[14] (2011) 32 ILJ 2861 (CC) at para 76.

[15] (2003) 24 ILJ 95 (CC) at para 31.

[16] See Tadyn Trading CC t/a Tadyn Consulting Services v Steiner and Others (2014) 35 ILJ 1672 (LC) at paras 10 – 11.

[17] (2011) 32 ILJ 667 (LC) at paras 20 – 21.

[18] (2007) 28 ILJ 2073 (LC) at para 8.

[19] (2006) 27 ILJ 2337 (LC) at para 31.

[20] (2006) 27 ILJ 2574 (LC) at para 14.

[21] (2009) 30 ILJ 2937 (LC) at para 14.

[22] (2013) 34 ILJ 2913 (LC) at para 24.

[23] See Arnott v Kunene Solutions and Services (Pty) Ltd (2002) 23 ILJ 1367 (LC); Parker v V3 Consulting Engineers (Pty) Ltd (2000) 21 ILJ 1192 (LC); Independent Municipal and Allied Trade Union on behalf of Zungu v SA Local Government Bargaining Council and Others (2010) 31 ILJ 1413 (LC); GIWUSA obo Heynecke v Klein Karoo Kooperasie BPK (2005) 26 ILJ 1083 (LC); Theron v AA Life Assurance Association Ltd [1995] ZASCA 61; 1995 (4) SA 361 (A) at 365; Swanepoel v Albertyn (2000) 21 ILJ 2701 (LC); Chemical Energy Paper Printing Wood and Allied Workers Union and Others v Metal Box t/a MB Glass (2005) 26 ILJ 92 (LC) at paras 7 – 8.

[24] (2004) 25 ILJ 96 (LAC) at para 27.

[25] 1965 (2) SA 135 (A).

[26] (2002) 23 ILJ 1567 (LC) at paras 15 – 16.

[27] (2008) 29 ILJ 1704 (LAC) at para 8.