Banda v Daimler Chrysler South Africa (Pty) Ltd and Another (C812/2005) [2007] ZALC 201 (4 June 2007)

JUDGMENT

1

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT CAPE TOWN

CASE NO: C812/2005

In the matter between:

DARRYL BANDA ....................................................................................................Applicant

and

DAIMLER CHRYSLER SOUTH AFRICA

(PTY) LIMITED ........................................................................................1st RESPONDENT

F F J BRAND N.O. .................................................................................2nd RESPONDENT

NEL, AJ

[1] This is an application to review and set aside an arbitration award handed down by the second respondent (“the Arbitrator”) on 6 July 2006. The arbitration proceedings took place pursuant to a private arbitration agreement between the applicant and the first respondent.

[2] It was common cause between the parties that this Court had jurisdiction in respect of this application by virtue of Section 157(3) of the Labour Relations Act 66 of 1995. The review application was brought in terms of Section 33 of the Arbitration Act 42 of 1965 by the applicant nearly four months late. A substantive application for condonation was filed by the applicant and I turn to consider whether condonation should be granted to the applicant for the late filing of his application.

[3] The award under consideration was handed down on 6 July 2005. It is apparent from the applicant’s condonation application that his then attorney of record received the award the same day it was handed down and the outcome was telephonically conveyed and briefly discussed with the applicant.

[4] According to the applicant he was not satisfied with the outcome of the award and considered the arbitrator’s reasoning and conclusions to be fundamentally flawed. He accordingly instructed his attorney to consider what potential further remedies were available to him and to advise him how to proceed. Apparently the applicant’s attorney advised him that a transcript of the arbitration proceedings would first have to be obtained. On 11 July 2005 the applicant instructed his then attorney of record to obtain a quotation for the preparation of the transcript of the arbitration proceedings. On the same day the applicant’s attorneys requested a quotation for the transcript from Messrs Sneller Transcription Services (Pty) Limited (“Snellers”). The written request was marked “urgent” and the urgency of the matter was clearly conveyed to Snellers.

[5] When, by 20 July 2005, the applicant’s attorneys had not received a response from Snellers, they were telephonically approached and the quotation was there and then provided over the phone. Snellers were instructed to proceed with the preparation of the transcript.

[6] The transcript was only completed by Snellers on 30 August 2005. It is alleged that during the period 20 July to 30 August 2005, the applicant’s attorney’s secretary made numerous telephone calls to Snellers why the transcription was taking so long, every time to be advised that the typists were very busy.

[7] The applicant’s attorney at the time, Mr Daubermann, said that this transcript being some 394 pages of length took him a considerable period of time to read and to consider and to research the law on the applicant’s further remedies. He said that he also had an extremely busy practice and that he was unable to devote all his time and attention during the period 30 August to 27 September 2005 to the applicant’s matter. It was also regarded as impractical at the time to have referred the matter to another attorney as Daubermann had been involved in the matter from the outset.

[8] On 27 September 2005, Daubermann addressed a letter to the applicant advising him that in his view an application for review would not succeed and he advised the applicant against bringing such an application.

[9] The applicant says that during the delay by Snellers to provide the transcript, he contacted Daubermann on several occasions in an attempt to expedite the matter. The applicant appears not to have done anything over the period 30 August to 27 September 2005 to expedite matters.

[10] As the applicant was not satisfied with Daubermann’s advice he sought a second opinion from his present attorney of record, Mr Brivik. Applicant says that he met with Brivik in Cape Town on 29 September and 3 October 2005. Although the applicant at this stage did not have a copy of the transcribed record of the proceedings, he furnished Brivik with a copy of the award and the arbitrator’s terms of reference. Brivik furnished him with a preliminary opinion, which favoured the launching of review proceedings. This opinion was provided to the applicant on 6 October 2005.

[11] On 7 October 2005, the applicant sent an e-mail to Daubermann advising him of the second opinion he had obtained in Cape Town to the effect that the award was reviewable on the ground of bona fide gross errors of fact by the arbitrator. It would appear that Daubermann requested the applicant to provide Daubermann with copies of certain authorities which the applicant had obtained in Cape Town for Daubermann’s consideration. After receipt of these authorities, Daubermann recommended to the applicant that before launching review proceedings he should obtain senior counsel’s opinion on the question whether the award was reviewable on the ground of bona fide gross errors of fact by the arbitrator. The applicant instructed Daubermann on 20 October 2005 to brief senior counsel for an opinion.

[12] On 24 October 2005, Daubermann received senior counsel’s opinion, which was to the effect that the award was not reviewable on the ground of bona fide gross errors of fact by the arbitrator. The same day Daubermann provided the applicant with a copy of this opinion for his consideration.

[13] The applicant says that in light of the conflicting advice that he had received from the respective attorneys and after discussing the matter with Brivik, he had also instructed Brivik on 20 October 2005 to brief counsel in Cape town to provide an opinion as to the review grounds which would be applicable to the award. Brivik apparently instructed counsel in Cape Town on 21 October 2005 to provide the applicant with an opinion concerning his prospects in principle of succeeding in any legal challenge to the award. On 26 October 2004 Brivik forwarded the applicant a memorandum drafted by counsel in Cape Town, which differed from the conclusion

reached by senior counsel. Faced with conflicting legal advice from counsel, the applicant says that he was uncertain how to proceed. He forwarded senior counsel’s opinion to Brivik and arranged to consult with him and counsel in Cape Town on 4 November 2005.

[14] On 27 October 2005, Daubermann undertook to send a copy of the available record to the applicant. The available record was thereafter transmitted to Brivik’s offices in Cape Town on 31 October 2005.

[15] On 4 November 2005, following the consultation with Brivik and counsel in Cape Town the applicant contacted Daubermann and requested him to draft an affidavit setting out the explanation for the delay in these proceedings as far as it fell within his knowledge.

[16] On 7 November 2005, the applicant instructed Brivik to proceed with the review application. Brivik in turn instructed counsel to peruse the available record of proceedings and to draft the relevant papers.

[17] Although the applicant’s review application was filed in this Court on 23 November 2005, the first respondent contends that it was only served on its attorneys in early December 2005. In further opposing the condonation application it was submitted on behalf of the first respondent that this is a substantial delay which should only be condoned in the event of the applicant furnishing a particularly good explanation together with good prospects of success. First respondent submitted that the applicant had shown neither of these. It further contended that the applicant had not in any manner or form explained or justified the need to obtain a record prior to launching the review application. First respondent further made the express proposition that the rules

of this Court pertaining to applications of this nature made provision for the application to be launched without the record and

that provision was made in the rules for the application to be supplemented in the event of further grounds becoming apparent once

the record had been obtained.

[18] Mr Wade, who appeared on behalf of the first respondent, in his very helpful heads of argument, drew attention to the fact that the applicant’s erstwhile attorneys of record were at all material times acutely aware of the time limits imposed under the Arbitration Act. This was with reference to the fact that this was expressly stated in his affidavit by Daubermann. The relevance of this of course lies particularly therein that in spite of the awareness on the part of the applicant’s attorneys that time periods applied herein, no effort was made to either apply for condonation at the time that it became apparent that condonation was going to be required or to seek an indulgence from the first respondent’s attorneys. In fact the first respondent in its answering affidavit make mention of the fact that the applicant did not indicate an intention to take the matter on review prior to him doing so at the end of November/beginning of December 2005.

[19] What I am accordingly confronted with herein is that whilst the applicant’s review application was due on 17 August 2005 it was only served during early December 2005, making it late by approximately 14 weeks. This in my view is an excessively long delay. It perhaps bears re-statement what the framework is that the legislature intended should apply in respect of review applications. In the first instance it is required of an applicant to bring his review application within six weeks from the date on which the arbitration award comes to his attention. In that review application the applicant party must, inter alia, call on the arbitrator (or the Commissioner as the case may be) and the arbitrating authorities to despatch, within ten days of receipt of the review application, to the registrar of this Court the record of the proceedings of the arbitration in question and to notify the applicant that this had been done. The applicant is then given ten days to supplement his founding affidavit or to indicate that he stands by his founding affidavit. Thereafter any opposing respondent party has 14 days within which to file its answering affidavit and in conclusion the applicant has a further ten days to file replicating papers, if any. In theory therefore the legislature intended in a worse case situation where every step along the way is taken at the very last moment, that the matter should be ripe for hearing after a period of some 12 weeks. We know that in practice the arbitration authorities would file the tape recordings of the arbitration proceedings and it is then up to the applicant party to have these tapes transcribed. It would appear that many of the delays in review proceedings occur in that the arbitration authorities fail to make the record of the arbitration proceedings available within the stipulated ten day period. The rules of this Court provide for a simple and what I believe should be an inexpensive procedure that a party may follow to compel another party to comply. If a party seeking condonation has failed to avail himself of such procedure to compel, it is in my view a factor which will weigh heavily against the granting of condonation.

[20] The second area where in the experience of this Court delays occur is that the transcription services used by the parties fail to provide the requested transcription within a reasonable period of time. Whilst it may not be open to a party to bring the defaulting transcription services before the Court in order to compel them to provide the record of the arbitration proceedings more expeditiously, I in the first instance do not believe that there is any reason why parties should regard themselves as bound to only use a particular transcription service. As far as this Court is aware it is open to a party to use any competent party willing and able to transcribe the record. It follows that it will not be any excuse if bad service is provided by a transcription service in the transcribing of the record and by reason thereof production of the record of the proceedings becomes the cause of an undue delay. Patently it remains the responsibility of an applicant party to produce a properly transcribed record of proceedings and to do so expeditiously. An applicant for condonation will have to show very clearly what steps he had taken to ensure that the transcription service he elected to use performed its services properly.

[21] It is also known that many transcription services charge different rates depending on the urgency with which they are required to produce a transcribed record. If a party has the luxury of time within which a record is required to be transcribed he will have the benefit of possibly having the transcription done at a lesser price. However, if that party does not have such luxury it follows that it may be incumbent on that party to pay the higher price charged by the transcription service in order to have the transcribed record produced in a shorter period of time. At all times the applicant who bears the responsibility to produce the record of the proceedings will have to show that he took every reasonable step to ensure that time periods were adhered to and that where delays occurred it had been wholly outside of his control.

[22] I can do no better than to refer to the Labour Appeal Court decision in Queenstown Fuel Distributors CC vs Labuschagne NO and Others [2000] 1 BLLR 45 (LAC), confirming (at par. [24]) that although the power of condonation existed, strict parameters were set by the LAC for the

exercise of the discretion to condone:

“In principle, therefore, it is possible to condone non-compliance with the time limit. It follows, however, from what I have said above, that condonation in a case of disputes over individual dismissals will not readily be granted. The excuse for non-compliance would have to be compelling, the case for attacking a defect in the proceedings would have to be cogent and the defect would have to be of a kind which result in a miscarriage of justice if it were allowed to stand.”

[23] The rationale for a strict consideration of applications for condonation such as the present one was explained in the Queenstown Fuel Distributors matter (supra) in the following terms (at par. [25]):

“By adopting a policy of strict scrutiny of condonation applications in individual dismissal cases I think that the Labour Court would give effect to the intention of the legislature to swiftly resolve individual dismissal disputes by means of a restricted procedure, and to the desirable goal of making a successful contender, after the lapse of six weeks, feel secure in his award.”

[24] Mr Wade argued that the approach adopted in Queenstown Fuel Distributors (supra) was even more appropriate in circumstances where the parties willingly subjected themselves to private arbitration governed by the Arbitration Act. He contended that such private arbitration proceedings are subject to equally rigid time limits in relation to review proceedings. He expressed the view that it could safely be assumed that part of the rationale of parties in private arbitration proceedings was to ensure the final and expeditious resolution of the dispute forming the subject matter of the arbitration agreement. The further framework urged upon me within which to consider the applicant’s condonation application was that it is trite that it is incumbent upon a party to apply for condonation as soon as possible upon becoming aware of its default. This point has in fact repeatedly been stressed by the Supreme Court of Appeal. (See Saloojee and Another N.N.O. vs Minister of Community Development 1965 (2) SA 135 (AD) at 138H; Rennie vs Kamby Farms (Pty) Ltd 1989 (2) SA 124 (AD) at 129G; and Napier vs Tsaperas 1995 (2) SA 665 (AD) at 671B).

[25] The approach by the SCA has been endorsed by the Labour Appeal Court, which has held that an application for condonation ought to be launched on the same day that the default is discovered. (See, inter alia, Allround Tooling (Pty) Ltd vs NUMSA and Others [1998] 2 BLLR 847 (LAC) at 849, par. [8]; Foster vs Stewart Scott Inc [1997] 2 BLLR 117 (LAC) at 119 F – G; Librapac CC vs Fedcraw and Others [1999] 6 BLLR 540 (LAC) at 543, par. [13]; Mbatha vs Lyster & Others [2001] 4 BLLR 409 (LAC) at par. [30]; and Universal Product Network (Pty) Ltd vs Mabaso and Others [2006] 3 BLLR 274 (LAC) ).

[26] In Librapac CC (supra) the LAC commented as follows (at 543, par. [13] & [14]):

“ … the application for condonation should have been brought as soon as it became apparent that there had been a delay. ….. It did not do so and only brought the application when ordered to do so by the judge in the court below. There is no proper explanation why it was not done earlier.

It follows that the appeal against the implicit dismissal of the condonation and review applications in the court below must fail.”

[27] Yet another aspect of the legal framework within which I needed to consider the condonation application to which Mr Wade drew my attention was the fact that without a reasonable and acceptable explanation for the delay, the prospects of success an applicant may enjoy are immaterial. On the other side of the spectrum, without prospects of success, no matter how good the explanation for the delay, and application for condonation should be refused. (See, inter alia, Allround Tooling (Pty) Limited (supra) at 850A-F; Toyota S A Marketing vs Schmeizer [2002] 12 BLLR 1164 (LAC) at 1169 B-F).

[28] Yet a further aspect relevant hereto, and to which my attention was drawn by Mr Wade, was the fact that, in seeking condonation, the applicant relied heavily on the fact that he had been provided with contradictory legal advice. In addition there are also a number of delays which could be placed at the door of his legal representative.

[29] In the Saloojee matter (supra) at 141 C-H, the Appellate Division held the following:

“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. To hold otherwise might have a disastrous effect upon the observance of the Rules of this Court. Considerations

ad misericordiam should not be allowed to become an invitation to laxity. ….. 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 the Rules of Court, the litigant should be absolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are.”

[30] Yet again the reasoning of the Appellate Division in this regard has been expressly endorsed by the Labour Appeal Court. (See A Hardrodt (SA) (Pty) Ltd v Behardien and Others (2002) 23 ILJ 1229 (LAC) at 1233, paras. [16] to [17]; NCBAWU and Another vs M F Woodcraft (Pty) Limited [1997] 1 BLLR 43 (LAC) at 45 A-B; and Universal Product Network (Pty) Limited vs Mabaso and Others [2006] 3 BLLR 274 (LAC)). [31] Turning to consider the facts herein within the framework of the applicable law, the first aspect which I wish to deal with is the fact that the essential reason why the applicant herein failed to file his review application within the prescribed time period related to the fact that his then instructing attorney wanted to first obtain the record of the arbitration proceedings before taking the next step. Whilst this may be an acceptable approach, the fact that the applicant’s lawyer wanted to first obtain the record before he could provide the necessary legal advice to his client does not in any way release the applicant from his obligation to conduct himself within the law. That being the case it follows that it was incumbent upon the applicant or his legal representative to ensure that the transcript be obtained well in advance of the expiry of the time period by which he had to lodge his review application. All that I am told as far as steps taken by the applicant, or his legal representative, to expedite the transcription of the record herein is that the applicant says that during the period 11 July 2005 to 30 August 2005 he contacted Daubermann “on several occasions in an attempt to expedite the matter”. (32) The applicant himself states that it took an inordinately long time for the transcription of the record. How many times are “several occasions”? Clearly it is relevant to be advised of every occasion, as best the applicant could recall, that he took steps to expedite the transcription of the record. I am only provided with one example of the contents of the applicant’s efforts by way of a copy of an e-mail which he had sent to Daubermann Attorneys on 12 August 2005. The contents of this e-mail reads as follows: “I contacted your offices yesterday and was advised that the transcription has not been completed as a result of another action taking precedence over my case. As a non-legal person I fail to see how this can occur and further delay my proceedings, especially as I have paid for this service up front. I am unaware of the number of tapes involved and simply ask that my issue be attended to and not neglected in favour of another as this process has become exceedingly taxing on me ….” [33] Daubermann says that the first delay (from 11 to 20 July 2005) apparently was as a result of the fact that Snellers experienced some difficulty in finding out from the arbitrator, for the purposes of giving a quotation, how many tapes there were which had to be transcribed. He requested the quotation on 11 July 2005 and only appears to have made the first effort to expedite matters in respect of the quotation when he instructed his secretary, on 20 July 2005, to phone Snellers about the quotation. The quotation was immediately provided and Snellers was requested to proceed with the preparation of the transcript. As we know, Snellers only completed the transcript on 30 August 2005. What did the applicant or his attorney do to expedite the completion of the transcription? I have already indicated what the applicant himself did. His attorney says that during the period 20 July to 30 August 2005 his secretary made numerous telephone calls to Snellers. On every occasion the secretary was advised by Snellers “that their typists were very busy.” How many times are “numerous”? We are talking of a period of six weeks. Why could the Court not be advised in more exact terms when these telephone calls were made? Why does the applicant elect to only advise the Court that he “on several occasions” contacted his lawyer and that his lawyer’s office “made numerous telephone calls” in respect of the inordinate long time it took for Snellers to complete the transcription. Certainly the Court was entitled to more information as to what the steps were taken by the applicant or on his behalf to procure the record. [34] The next issue of course is that the applicant’s legal representative at all times knew of the time period involved, namely that on or before 17 August 2005, if the applicant were going to file an application to review the arbitration proceedings, he would have had to file such application. Patently the applicant herein has failed to apply for condonation as soon as was possible upon him becoming aware of his default. No explanation is provided whatsoever for the applicant having failed to timeously bring his condonation application. The question was raised by Mr Wade in argument before me why the applicant could not simply have timeously filed a “skeleton” review application, advancing broad grounds of review, and thereafter, with reference to the full transcript of the arbitration proceedings, then utilised the provisions of Rule 7A(8) of the Rules of this Court to properly plead his complete course of action. It is so that the very structure of the rules of this Court relating to review applications is designed to accommodate the fact that applicants in review proceedings are not expected to recall the evidence with complete clarity. That obviously is why Rule 7A(8) of the Rules of this Court affords a party an opportunity, once it has received the record, of amplifying its application papers. [35] It must be remembered that the applicant availed himself of the services of no less than senior counsel, counsel, and two attorneys. Daubermann expressly confirmed in the papers before this Court that he at all material times was aware that an application for the setting aside of the award had to be brought within six weeks after the publication of the award. I believe that I am entitled to assume that Brivik and counsel also at the time of them becoming involved, which was clearly at a time that the applicant was already late in the bringing of any application to review, alert to and aware of the fact that it was incumbent upon a party who requires condonation that an application to that effect had to be brought without delay. This did not happen. I have no explanation why the applicant failed to bring his application for condonation earlier herein. [36] In addition I believe it a very relevant factor to consider that at no stage whatsoever was the applicant’s erstwhile employer, or its legal representatives, advised of the applicant’s intention to possibly review the award and of the reasons why he had delayed in doing so. Likewise no effort was made either by the applicant or his legal representative to seek an indulgence from the applicant’s erstwhile employer or its legal representative in terms of the applicant’s lateness in bringing any possible review application. [37] It is fairly trite that a party’s interest in finality of a matter is a relevant factor which should not be overlooked in the consideration of condoning the lateness by a party in taking steps to overturn an award made in favour of another party. I am of the view that a party’s failure in the first instance to disclose to his opponent his intention to seek to overturn an order made in favour of his opponent is in and by itself a factor to consider in determining whether to grant condonation or not. Likewise, I am of the view that the timeous approach by an applicant for condonation of his opponent to seek that party’s indulgence is equally a material consideration. Ignoring your opponent entirely, as the applicant and his legal representatives did herein, and then simply to seek condonation at the time of launching review proceedings, is a relevant consideration in determining whether to grant condonation or not. [38] The conduct of the applicant and/or his legal representatives herein leaves one with the distinct impression that they operated under the believe that condonation of the late filing of the applicant’s review application was a mere formality there for the asking. If this was not so, then clearly one would have expected an application for condonation to have been filed much earlier. Either that, or one would have expected some kind of an approach being made earlier to the relevant opposing party to inform it that the applicant was considering his rights and that he was experiencing difficulties in arriving at a final determination what those rights were and whether he was going to take action or not. If I am mistaken in my aforementioned conclusion the other alternative conclusion in my mind then is that he applicant and/or his legal representatives did not regard the time periods applicable herein to be of great importance to comply with. Support for this conclusion is to be found in the fact that, late as the applicant’s review application in and by itself was, it required of the second respondent, as it is duty bound to

do, that he should have within ten days of receipt of the review application despatched to the Registrar of this Court the record of the proceedings of the arbitration. [39] The record reflects that the second respondent only complied with this obligation of his on or about 13 March 2006. It must of course be remembered that at this point in time the tape recordings had been retrieved from the second respondent and the transcription thereof had now long taken place. No explanation whatsoever is provided for the reasons why the applicant simply idly stood by under circumstances where the second respondent had to comply with his obligations in respect of the record of the proceedings by early the middle of December 2005, but instead only did so on or about the middle of March 2006 – some three months late. This in turn had the result that the applicant’s supplementary founding affidavit was only served on 28 March 2006, whereas it could in theory have been filed in late December 2005. [40] In dealing with this matter on the papers before this Court, the applicant was called to task for filing his supplementary affidavit four months after the review application had been launched and some six months after he had as a matter of fact received the record of the proceedings. The applicant’s response was that the registrar had only made the record of the arbitration proceedings available to him on 13 March 2006. The applicant clearly missed the point in its entirety. What has not been addressed before me is, as I have said, under circumstances where the applicant’s application was already excessively late, he did not take any steps whatsoever to get the second respondent to comply with the legally prescribed time period within which he had to provide the record. This lackadaisical approach by the applicant and/or his legal representatives in my mind indicates an attitude as I have already said, that it would present no problem to the applicant that he took the steps herein at a leisurely pace and in total disregard of the very strict time periods prescribed by the rules of this Court. I have no explanation whatsoever before me for the reasons why the applicant did not take timeous and firm steps to compel the arbitrator to make the balance

of the record of the arbitration proceedings available when he failed to do so within the prescribed ten day period from the date

on which he had received the applicant’s review application. The rules of this Court provide a party with a simple procedure in terms of which it may compel a party to comply with the rules of this Court. In the present matter, with the applicant already having been seriously out of time by the time that he launched his review application, the obligation on him to ensure that the matter be proceeded with due haste thereafter ought to have been taken far more seriously by the applicant and his legal advisors. [41] In summary, I find the applicant and/or his legal representative’s conduct in relation to the time that it took to obtain the record herein totally inadequate and in fact unacceptable. The applicant leaves no doubt about the fact that the was patently unhappy with the award and wanted something to be done in respect thereof. Under these circumstances, and of course

particularly in light of the fact that the is as a matter of law compelled to bring any application he wanted to within six weeks of becoming aware of the award, it is simply unacceptable that the applicant deemed it sufficient to make a number of calls to his attorney enquiring about the availability of the record and for the applicant’s attorney, through his secretary to have made a number of calls to the transcription services. It is simply not acceptable that parties allow the bad service of the transcription services to become the reason behind which to hide in order to obtain condonation. The Court is entitled to demand and expect more effort by parties to keep within the laid down time periods within which to institute their actions and take the necessary steps to bring these matters to finality. [42] It is secondly totally unacceptable, with the applicant and/or his lawyers having been aware at all times of the strict time period applicable herein, to have failed to seek first an indulgence from the first respondent and secondly to have timeously brought an application for condonation. [43] It is further inexcusable that the applicant and/or his lawyers did not take the course of action of filing the broad framework of a review application and thereafter to have taken such steps as the applicant may have deemed necessary to ascertain what his true legal strengths and weaknesses were herein. [44] Viewed in its totality, the applicant has approached the Court herein providing an inadequate explanation for the lateness of his application. He has failed to timeously apply for condonation and in addition he has left unexplained the failure to take appropriate steps to ensure the expeditious filing of the complete record of the arbitration proceedings. His excuse for his numerous failures to comply is anything but compelling. I am duty bound to adopt a policy of strict scrutiny of the condonation application of the applicant who is an individual in a dismissal case. It has now often been stated, but is worth repeating. Parties must be left under no illusion that condonation of their failure to comply with the rules of this Court, particularly in respect of time periods, is not there simply for the asking. Parties must in the first instance make every effort, and take every reasonable and necessary step, to ensure that they conduct themselves in compliance with the prescripts of both the Labour Relations Act and the Rules of this Court. They are all designed to give effect to the intention of the legislature, namely to swiftly resolve disputes by means of prescribed procedures and further to achieve the desirable goal of making the successful contender in the proceedings not only feeling secure in his award, but also enjoying the benefit thereof or the security of the certainty thereof. It is trite that finality must be achieved in litigious matters at the earliest possible opportunity. [45] This is accordingly a matter where I am of the view that I need not even entertain the applicant’s prospects of success, because however good they may be, the applicant in my view has not made out a case sufficiently so to satisfy me that he is deserving of the granting of an indulgence from this Court to condone his failures to comply with the relevant rules of this Court in respect of the bringing of his review application. I do nevertheless wish to mention that I have considered the merits of the applicant’s matter and mention that had I been persuaded to grant condonation herein, the applicant would also have failed on the merits. This being a review, and not an appeal, I do not believe that the applicant in any event has made out a case on the merits that the award herein should have been reviewed and set aside. [46] Under all these circumstances, the application for condonation is refused. [47] As far as costs are concerned, no special circumstances have been placed before me which may compel this Court, in the exercise of its discretion, not to order that the costs should follow the result. [48] Accordingly the following order is made: The application for condonation of the late filing of the applicant’s review application is refused.

The applicant is ordered to pay the first respondent’s costs of suit herein. DEON NEL ACTING JUDGE OF THE LABOUR COURT Date of hearing: 24 May 2007 and 4 June 2007 Date of Judgment: Appearances: For the applicant: Advocate G A Leslie instructed by Malcolm Lyons & Brivik Inc. For the first respondent: Advocate R W Wade instructed by Kirchmanns Inc.

[30] Yet again the reasoning of the Appellate Division in this regard has been expressly endorsed by the Labour Appeal Court. (See A Hardrodt (SA) (Pty) Ltd v Behardien and Others (2002) 23 ILJ 1229 (LAC) at 1233, paras. [16] to [17]; NCBAWU and Another vs M F Woodcraft (Pty) Limited [1997] 1 BLLR 43 (LAC) at 45 A-B; and Universal Product Network (Pty) Limited vs Mabaso and Others [2006] 3 BLLR 274 (LAC)).

[31] Turning to consider the facts herein within the framework of the applicable law, the first aspect which I wish to deal with is the fact that the essential reason why the applicant herein failed to file his review application within the prescribed time period related to the fact that his then instructing attorney wanted to first obtain the record of the arbitration proceedings before taking the next step. Whilst this may be an acceptable approach, the fact that the applicant’s lawyer wanted to first obtain the record before he could provide the necessary legal advice to his client does not in any way release the applicant from his obligation to conduct himself within the law. That being the case it follows that it was incumbent upon the applicant or his legal representative to ensure that the transcript be obtained well in advance of the expiry of the time period by which he had to lodge his review application. All that I am told as far as steps taken by the applicant, or his legal representative, to expedite the transcription of the record herein is that the applicant says that during the period 11 July 2005 to 30 August 2005 he contacted Daubermann “on several occasions in an attempt to expedite the matter”.

(32) The applicant himself states that it took an inordinately long time for the transcription of the record. How many times are “several occasions”? Clearly it is relevant to be advised of every occasion, as best the applicant could recall, that he took steps to expedite the transcription of the record. I am only provided with one example of the contents of the applicant’s efforts by way of a copy of an e-mail which he had sent to Daubermann Attorneys on 12 August 2005. The contents of this e-mail reads as follows:

“I contacted your offices yesterday and was advised that the transcription has not been completed as a result of another action taking precedence over my case. As a non-legal person I fail to see how this can occur and further delay my proceedings, especially as I have paid for this service up front. I am unaware of the number of tapes involved and simply ask that my issue be attended to and not neglected in favour of another as this process has become exceedingly taxing on me ….”

[33] Daubermann says that the first delay (from 11 to 20 July 2005) apparently was as a result of the fact that Snellers experienced some difficulty in finding out from the arbitrator, for the purposes of giving a quotation, how many tapes there were which had to be transcribed. He requested the quotation on 11 July 2005 and only appears to have made the first effort to expedite matters in respect of the quotation when he instructed his secretary, on 20 July 2005, to phone Snellers about the quotation. The quotation was immediately provided and Snellers was requested to proceed with the preparation of the transcript. As we know, Snellers only completed the transcript on 30 August 2005. What did the applicant or his attorney do to expedite the completion of the transcription? I have already indicated what the applicant himself did. His attorney says that during the period 20 July to 30 August 2005 his secretary made numerous telephone calls to Snellers. On every occasion the secretary was advised by Snellers “that their typists were very busy.” How many times are “numerous”? We are talking of a period of six weeks. Why could the Court not be advised in more exact terms when these telephone calls were made? Why does the applicant elect to only advise the Court that he “on several occasions” contacted his lawyer and that his lawyer’s office “made numerous telephone calls” in respect of the inordinate long time it took for Snellers to complete the transcription. Certainly the Court was entitled to more information as to what the steps were taken by the applicant or on his behalf to procure the record.

[34] The next issue of course is that the applicant’s legal representative at all times knew of the time period involved, namely that on or before 17 August 2005, if the applicant were going to file an application to review the arbitration proceedings, he would have had to file such application. Patently the applicant herein has failed to apply for condonation as soon as was possible upon him becoming aware of his default. No explanation is provided whatsoever for the applicant having failed to timeously bring his condonation application. The question was raised by Mr Wade in argument before me why the applicant could not simply have timeously filed a “skeleton” review application, advancing broad grounds of review, and thereafter, with reference to the full transcript of the arbitration proceedings, then utilised the provisions of Rule 7A(8) of the Rules of this Court to properly plead his complete course of action. It is so that the very structure of the rules of this Court relating to review applications is designed to accommodate the fact that applicants in review proceedings are not expected to recall the evidence with complete clarity. That obviously is why Rule 7A(8) of the Rules of this Court affords a party an opportunity, once it has received the record, of amplifying its application papers.

[35] It must be remembered that the applicant availed himself of the services of no less than senior counsel, counsel, and two attorneys. Daubermann expressly confirmed in the papers before this Court that he at all material times was aware that an application for the setting aside of the award had to be brought within six weeks after the publication of the award. I believe that I am entitled to assume that Brivik and counsel also at the time of them becoming involved, which was clearly at a time that the applicant was already late in the bringing of any application to review, alert to and aware of the fact that it was incumbent upon a party who requires condonation that an application to that effect had to be brought without delay. This did not happen. I have no explanation why the applicant failed to bring his application for condonation earlier herein.

[36] In addition I believe it a very relevant factor to consider that at no stage whatsoever was the applicant’s erstwhile employer, or its legal representatives, advised of the applicant’s intention to possibly review the award and of the reasons why he had delayed in doing so. Likewise no effort was made either by the applicant or his legal representative to seek an indulgence from the applicant’s erstwhile employer or its legal representative in terms of the applicant’s lateness in bringing any possible review application.

[37] It is fairly trite that a party’s interest in finality of a matter is a relevant factor which should not be overlooked in the consideration of condoning the lateness by a party in taking steps to overturn an award made in favour of another party. I am of the view that a party’s failure in the first instance to disclose to his opponent his intention to seek to overturn an order made in favour of his opponent is in and by itself a factor to consider in determining whether to grant condonation or not. Likewise, I am of the view that the timeous approach by an applicant for condonation of his opponent to seek that party’s indulgence is equally a material consideration. Ignoring your opponent entirely, as the applicant and his legal representatives did herein, and then simply to seek condonation at the time of launching review proceedings, is a relevant consideration in determining whether to grant condonation or not.

[38] The conduct of the applicant and/or his legal representatives herein leaves one with the distinct impression that they operated under the believe that condonation of the late filing of the applicant’s review application was a mere formality there for the asking. If this was not so, then clearly one would have expected an application for condonation to have been filed much earlier. Either that, or one would have expected some kind of an approach being made earlier to the relevant opposing party to inform it that the applicant was considering his rights and that he was experiencing difficulties in arriving at a final determination what those rights were and whether he was going to take action or not. If I am mistaken in my aforementioned conclusion the other alternative conclusion in my mind then is that he applicant and/or his legal representatives did not regard the time periods applicable herein to be of great importance to comply with. Support for this conclusion is to be found in the fact that, late as the applicant’s review application in and by itself was, it required of the second respondent, as it is duty bound to

do, that he should have within ten days of receipt of the review application despatched to the Registrar of this Court the record of the proceedings of the arbitration.

[39] The record reflects that the second respondent only complied with this obligation of his on or about 13 March 2006. It must of course be remembered that at this point in time the tape recordings had been retrieved from the second respondent and the transcription thereof had now long taken place. No explanation whatsoever is provided for the reasons why the applicant simply idly stood by under circumstances where the second respondent had to comply with his obligations in respect of the record of the proceedings by early the middle of December 2005, but instead only did so on or about the middle of March 2006 – some three months late. This in turn had the result that the applicant’s supplementary founding affidavit was only served on 28 March 2006, whereas it could in theory have been filed in late December 2005.

[40] In dealing with this matter on the papers before this Court, the applicant was called to task for filing his supplementary affidavit four months after the review application had been launched and some six months after he had as a matter of fact received the record of the proceedings. The applicant’s response was that the registrar had only made the record of the arbitration proceedings available to him on 13 March 2006. The applicant clearly missed the point in its entirety. What has not been addressed before me is, as I have said, under circumstances where the applicant’s application was already excessively late, he did not take any steps whatsoever to get the second respondent to comply with the legally prescribed time period within which he had to provide the record. This lackadaisical approach by the applicant and/or his legal representatives in my mind indicates an attitude as I have already said, that it would present no problem to the applicant that he took the steps herein at a leisurely pace and in total disregard of the very strict time periods prescribed by the rules of this Court. I have no explanation whatsoever before me for the reasons why the applicant did not take timeous and firm steps to compel the arbitrator to make the balance

of the record of the arbitration proceedings available when he failed to do so within the prescribed ten day period from the date

on which he had received the applicant’s review application. The rules of this Court provide a party with a simple procedure in terms of which it may compel a party to comply with the rules of this Court. In the present matter, with the applicant already having been seriously out of time by the time that he launched his review application, the obligation on him to ensure that the matter be proceeded with due haste thereafter ought to have been taken far more seriously by the applicant and his legal advisors.

[41] In summary, I find the applicant and/or his legal representative’s conduct in relation to the time that it took to obtain the record herein totally inadequate and in fact unacceptable. The applicant leaves no doubt about the fact that the was patently unhappy with the award and wanted something to be done in respect thereof. Under these circumstances, and of course

particularly in light of the fact that the is as a matter of law compelled to bring any application he wanted to within six weeks of becoming aware of the award, it is simply unacceptable that the applicant deemed it sufficient to make a number of calls to his attorney enquiring about the availability of the record and for the applicant’s attorney, through his secretary to have made a number of calls to the transcription services. It is simply not acceptable that parties allow the bad service of the transcription services to become the reason behind which to hide in order to obtain condonation. The Court is entitled to demand and expect more effort by parties to keep within the laid down time periods within which to institute their actions and take the necessary steps to bring these matters to finality.

[42] It is secondly totally unacceptable, with the applicant and/or his lawyers having been aware at all times of the strict time period applicable herein, to have failed to seek first an indulgence from the first respondent and secondly to have timeously brought an application for condonation.

[43] It is further inexcusable that the applicant and/or his lawyers did not take the course of action of filing the broad framework of a review application and thereafter to have taken such steps as the applicant may have deemed necessary to ascertain what his true legal strengths and weaknesses were herein.

[44] Viewed in its totality, the applicant has approached the Court herein providing an inadequate explanation for the lateness of his application. He has failed to timeously apply for condonation and in addition he has left unexplained the failure to take appropriate steps to ensure the expeditious filing of the complete record of the arbitration proceedings. His excuse for his numerous failures to comply is anything but compelling. I am duty bound to adopt a policy of strict scrutiny of the condonation application of the applicant who is an individual in a dismissal case. It has now often been stated, but is worth repeating. Parties must be left under no illusion that condonation of their failure to comply with the rules of this Court, particularly in respect of time periods, is not there simply for the asking. Parties must in the first instance make every effort, and take every reasonable and necessary step, to ensure that they conduct themselves in compliance with the prescripts of both the Labour Relations Act and the Rules of this Court. They are all designed to give effect to the intention of the legislature, namely to swiftly resolve disputes by means of prescribed procedures and further to achieve the desirable goal of making the successful contender in the proceedings not only feeling secure in his award, but also enjoying the benefit thereof or the security of the certainty thereof. It is trite that finality must be achieved in litigious matters at the earliest possible opportunity.

[45] This is accordingly a matter where I am of the view that I need not even entertain the applicant’s prospects of success, because however good they may be, the applicant in my view has not made out a case sufficiently so to satisfy me that he is deserving of the granting of an indulgence from this Court to condone his failures to comply with the relevant rules of this Court in respect of the bringing of his review application. I do nevertheless wish to mention that I have considered the merits of the applicant’s matter and mention that had I been persuaded to grant condonation herein, the applicant would also have failed on the merits. This being a review, and not an appeal, I do not believe that the applicant in any event has made out a case on the merits that the award herein should have been reviewed and set aside.

[46] Under all these circumstances, the application for condonation is refused.

[47] As far as costs are concerned, no special circumstances have been placed before me which may compel this Court, in the exercise of its discretion, not to order that the costs should follow the result.

[48] Accordingly the following order is made:

The application for condonation of the late filing of the applicant’s review application is refused.

The applicant is ordered to pay the first respondent’s costs of suit herein.

DEON NEL

ACTING JUDGE OF THE LABOUR COURT

Date of hearing: 24 May 2007 and 4 June 2007

Date of Judgment:

Appearances:

For the applicant: Advocate G A Leslie instructed by Malcolm Lyons & Brivik Inc.

For the first respondent: Advocate R W Wade instructed by Kirchmanns Inc.