Hulme v KLM Consulting Services (Pty) Ltd (JR1256/05) [2013] ZALCJHB 23; [2013] 9 BLLR 920 (LC) (26 February 2013)
- Citation
- [2013] ZALCJHB 23
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Labour Court Johannesburg
- Panel
- Steenkamp
- Case number
- JR1256/05
More details
- Court
- Labour Court Johannesburg
- Panel
- Steenkamp
- Case number
- JR1256/05
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The Court found that although there were significant delays in prosecuting the review application, responsibility for those delays was shared by both parties. The applicant failed to file an answering affidavit and did not communicate her intention regarding opposition, despite having delivered a notice of intention to oppose. The respondent complied with the order to file its supplementary affidavit, and thereafter waited for the applicant's response. The lack of communication and action from both sides resulted in the matter not being enrolled for hearing. The Court held that in these circumstances, it would not be just to dismiss the review application solely on the basis of delay attributable to the respondent. Instead, the appropriate course is to dismiss the application to dismiss and direct that the review application be set down on the unopposed motion roll.
Court disposition
Application to dismiss the review application is dismissed.
Orders
- The application to dismiss is dismissed.
- The registrar is directed to enrol the review application on the unopposed motion roll.
02
Material facts
Parties
Yvonne Merle Hulme
Applicant Counsel: Ndumiso VoyiKLM Consulting Services (Pty) Ltd
Respondent Counsel: Andrew Goldberg03
Procedural history
Posture
Review Application / Application to Dismiss Review Application Due to Delay
04
Questions and positions
Legal issues
- 01
Whether the review application should be dismissed due to unreasonable delay by the respondent in prosecuting the matter.
- 02
Whether the applicant's own conduct contributed to the delay and affects the relief sought.
- 03
Whether the review application should be set down on the unopposed roll.
Party arguments
- Applicant
- The applicant contended that the respondent failed to prosecute the review application timeously and diligently over a period of six years, and that such delay warrants dismissal of the review application. The applicant argued that the respondent's inaction prejudiced her and undermined the finality of the CCMA award.
- Respondent
- The respondent opposed the application to dismiss, arguing that delays were not solely attributable to its conduct. The respondent pointed out that the applicant and her attorneys also failed to comply with procedural requirements, such as filing an answering affidavit, and did not communicate their intention regarding opposition, thereby contributing to the delay.
05
Court’s reasoning
Legal principles
- 01
Labour Court practice
A party seeking to dismiss a review application for delay must show that the delay is unreasonable and that it was not responsible for the delay.
- 02
Labour Court practice
Both parties are required to act diligently and communicate their intentions to avoid unnecessary delays in litigation.
- 03
Labour Court practice
Where an applicant fails to oppose a review application after indicating an intention to do so, the review may be set down on the unopposed roll.
06
Ratio, limits and disposition
Ratio decidendi
The Court found that although there were significant delays in prosecuting the review application, responsibility for those delays was shared by both parties. The applicant failed to file an answering affidavit and did not communicate her intention regarding opposition, despite having delivered a notice of intention to oppose. The respondent complied with the order to file its supplementary affidavit, and thereafter waited for the applicant's response. The lack of communication and action from both sides resulted in the matter not being enrolled for hearing. The Court held that in these circumstances, it would not be just to dismiss the review application solely on the basis of delay attributable to the respondent. Instead, the appropriate course is to dismiss the application to dismiss and direct that the review application be set down on the unopposed motion roll.
Obiter and limits
- The Court noted that both parties acted in a dilatory manner and failed to exercise common courtesy in progressing the matter.
- Had the applicant or her attorney communicated their intention not to oppose, the review application could have been resolved years earlier.
Court disposition
Application to dismiss the review application is dismissed.
- The application to dismiss is dismissed.
- The registrar is directed to enrol the review application on the unopposed motion roll.
Source and reliance status
Labour Court Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Labour Court Johannesburg
Judgment
Not reportable
Of interest to other judges
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
case no: JR 1256/05
In the matter between:
HULME, YVONNE MERLE Applicant and KLM CONSULTING SERVICES (PTY) LTD Respondent
Heard: 24 January 2013
Delivered: 26 February 2013
Summary: Application to dismiss review application on account of unreasonable delays. Both parties acted in dilatory manner. Review application set down for hearing on unopposed roll.
judgment
STEENKAMP J
Introduction
The applicant, Ms Yvonne Hulme, seeks an order dismissing a review application brought by the respondent, KLM, 7 ½ years ago.
Background facts
The dispute has a long and unhappy history, characterised by delays on both sides and a lack of common courtesy.
It arises from a dispute whether Hulme resigned or was dismissed. A CCMA arbitrator found that she had been dismissed and ordered KLM to pay her compensation equivalent to 12 months’ remuneration. That was on 22 April 2005.
KLM brought a review application on 13 July 2005. Hulme delivered a notice of intention to oppose the review application on 4 October 2005. KLM delivered the CCMA record in terms of rule 7A(6) on 27 January 2006. However, the record was not complete. The review application was set down for hearing on 20 September 2006 but was postponed pending an application by KLM to compel the CCMA to comply with rule 7A(3) and to deliver the complete record. On 15 November 2008 this Court ordered the CCMA and the Commissioner to file the missing records and the commissioner’s notes within 14 days.
In the meantime, on 5 March 2008, Hulme brought an application to dismiss the review application (the first application to dismiss).
That application served before Basson J on 26 March 2009. She dismissed Hulme’s application to dismiss and ordered KLM to deliver its final supplementary affidavit in terms of rule 7A(8). KLM did so; but despite her having delivered a “notice of intention to oppose”, she did not deliver an answering affidavit in terms of rule 7A(9).
Instead, 2 ½ years later, on 14 November 2011, Hulme again brought an application to dismiss the review application (the second application to dismiss). That is the application that now serves before this Court. KLM opposes the second application to dismiss.
Evaluation / Analysis
Hulme argues that the review application should be dismissed because of KLM’s failure to prosecute it timeously and diligently over the last six years.
Outrageous as the delay appears at first blush, the lady doth protest too much. Her own actions – or lack thereof –
and that of her attorneys also need to be scrutinised.
Some of the initial delays were occasioned by KLM as well as the CCMA. By March 2009, though, Basson J had put the proceedings back on track. She ordered KLM to comply with rule 7A(8) by filing its supplementary affidavit. KLM did so. Hulme and her attorneys, on the other hand, did not file an answering affidavit as required by rule 7A(9). At the hearing of this application, Mr Voyi submitted that the reason for his inaction was that Hulme was not opposing the review application. That came as a surprise to the Court and to KLM’s attorney. It is at odds with Hulme having delivered a “notice of intention to oppose” the review application. Hulme and her attorney never wrote to KLM’s attorneys to advise them that she no longer intended to oppose the review application. Had they done so, the review application could have been enrolled on the unopposed motion roll three years ago.
Voyi replaced Hulme’s previous attorney, Ashley Slamat, in September 2009. On 29 September and 7 October 2009, he wrote to KLM enquiring whether it had complied with the order issued by Basson J on 26 March 2009, i.e. to file its supplementary affidavit in the review application within 14 days. On 9 October 2009, KLM responded and confirmed that it had complied with the order; and it included “for ease of reference” a copy of the final supplementary affidavit. Voyi did not respond, despite having placed himself on record as Hulme’s attorney in the review application. He did not deliver an opposing affidavit; nor did he write to or phone KLM and inform it that Hulme did not intend to oppose the review application, despite her earlier indications to the contrary.
In these circumstances, it is understandable that KLM was waiting for Hulme to deliver her answering affidavit. What is not, is that neither party bothered to ascertain from the other what the state of play was and to then take steps to have the review application enrolled, either on an opposed or unopposed basis.
Order
The application is dismissed. The registrar is directed to enrol the review application on the unopposed motion roll.
_______
Steenkamp J
APPEARANCES APPLICANT: Ndumiso Voyi. RESPONDENT: Andrew Goldberg.
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