MTWU obo Nkosi and Others v Fidelity Security Services (Pty) Ltd (JS 147/2013) [2021] ZALCJHB 131 (17 June 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: JS 147/2013

In the matter between:

MTWU obo NKOSI & 2 OTHERS

Applicants

and

FIDELITY SECURITY SERVICES (PTY) LTD

Respondent

Heard:

28 January 2021

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date and time for hand-down is deemed to be on 17 June 2021 at 19:00

JUDGMENT

TLHOTLHALEMAJE, J

[1] Before the Court are three interlocutory applications, viz, applications by the respondent to rescind an order granted by this Court on 5 May 2016, and condonation for the late filing of that rescission application, and the applicants’ Rule 11 application to dismiss the rescission application.

[2] The applications come before the Court against the following background;

2.1 The individual applicants were dismissed in October 2012, on account of the respondent’s operational requirements. They subsequently referred a dispute to the Commission for Conciliation Mediation and Arbitration (CCMA), and when it could not be resolved, they then approached this Court with a Statement of Claim in March 2013.

2.2 Some twenty months since the Statement of Claim was filed and delivered, and after the respondent had failed to timeously file a Statement of Response, the applicants brought an application for a default judgment on 17 November 2014. On 5 May 2016, Moshoana AJ (as he then was) had granted a default order, finding that the dismissal of the individual applicants was unfair, and ordered their retrospective reinstatement.

2.3 Some four months after the default order was granted, the respondent had on 5 September 2016, launched an application for rescission of the above order. The application was not only belated but was also not accompanied by an application for condonation.

2.4 The applicants had on 14 September 2016, filed an opposition to the rescission application, further raising preliminary points in regards to the delay in filing the rescission application. Some three months after the respondent was advised of the delay in filing the rescission application, it had filed an application for condonation in that regard on 15 December 2016.

2.5 Almost a year since the rescission application was filed and the opposition thereto, the applicants had on 23 October 2018, launched an application in terms of Rule 11 of the Rules of this Court to dismiss that application, in view of the respondent’s failure to prosecute it timeously. On 24 October 2018, the respondent had filed a Notice of Intention to Oppose the Rule 11 application. However, as at the hearing of this application, the respondent had not filed an answering affidavit to the Rule 11 application.

[3] In dealing with the applications before the Court, and given the invariable consequences of a finding in respect of the Rule 11 application, I propose to deal with it first.

[4] As already indicated, the Rule 11 application brought by the applicants on 23 October 2018 remains effectively unopposed, other than the filing of the Notice of Intention to Oppose. It was submitted on behalf of the respondent in these proceedings that the Rule 11 application itself was moot since the applicants equally failed to prosecute it timeously, and that it was not in the interests of justice to grant it. Furthermore, it was added that the Rule 11 application was brought against an incorrect party and thus there was a misjoinder.

[5] The preliminary points raised on behalf of the respondent in regards to the Rule 11 application have no merit. The applicants had cited ‘Fidelity Security Services (Pty) Ltd’ as the respondent party, and at paragraph 4 of the founding affidavit, they had merely described the respondent as a division of ‘Fidelity Security Group (Pty) Ltd’. Unless it could be demonstrated that the respondent was indeed not a division of ‘Fidelity Security Group (Pty) Ltd’, very little turns on the fact that the applicants merely gave a full description of the respondent. The applicants had throughout the pleadings correctly cited the respondent against whom a claim was brought, and against whom the default order was sought and granted.

[6] To the extent that submissions in respect of the Rule 11 application were made from the bar, it is not clear on what basis it can be said that the application is moot. It has been held that mootness is when a matter “no longer presents an existing or live controversy”; that the doctrine is based on the notion that judicial resources ought to be utilised efficiently, and should not be dedicated to advisory opinions or abstract propositions of law; and further that courts should avoid deciding matters that are “abstract, academic or hypothetical”.[1] It has further been held that the principle of mootness is aimed at avoiding the court concerning itself with cases that no longer affect the interests of the parties concerned, and that it is relevant to cases in which the issues underlying the dispute have been resolved[2].

[7] To the extent that mootness is a possible bar to relief when there are no other triable issues in a case, the Rule 11 application in this case, which effectively remains unopposed, clearly relates to a dismissal of the respondent’s application for rescission, which remains existing, and which stands between the enforcement of the default order granted by this Court on 5 May 2016. A determination of the Rule 11 application clearly affects the interests of the applicants insofar as they are in possession of a favourable order of this Court.

[8] There is nothing abstract, academic or hypothetical about the Rule 11 application that is properly before the Court, and clearly the interests of justice demand that before the rescission application can even be looked at, at the very least, the respondent must have demonstrated that it took all necessary and reasonable steps in ensuring that it is expeditiously disposed of. Furthermore, the practical effect of the determination of the Rule 11 application would either pave the way for the rescission application to be heard, and where granted, the matter proceeds to trial, or in the alternative, and where not granted, for the applicants to enforce the default order without more.

[9] In determining whether the rescission application ought to be dismissed for lack of timeous prosecution, it needs to be pointed out that subsequent to the default order having been obtained, the respondent through its erstwhile attorneys of record (Crafford Attorneys) filed an application for rescission on 5 September 2016, and an opposition thereto was served on the same attorneys, who were further advised of the delay in launching the application. As already indicated, an application for condonation was subsequently filed some three months after the delay was pointed out.

[10] The Rule application was also served on Crafford Attorneys, and as already indicated, no opposition was filed in that regard, other than a Notice of intention to oppose filed on 24 October 2018. Since that Notice, the respondent took no further steps in respect of the rescission application. At the most, that application ought to have spurred the respondent to take some steps, especially given the protracted history of this matter, the delays in filing the rescission application, and the belated application for condonation in that regard.

[11] As correctly pointed out on behalf of the applicants, it was long stated in Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[3] that excessive delays in litigation may induce a reasonable belief, especially on the part of a successful litigant, that the order or award had become unassailable, and that this was so all the more in labour disputes. Clearly there were grounds for the applicants to harbour such belief. Equally so, it was held in National Education Health and Allied Workers Union v University of Cape Town and Others[4] that by their very nature, labour disputes must be resolved expeditiously and be brought to finality so that the parties can organize their affairs accordingly, and that it is in the public interest that labour disputes be resolved speedily.

[12] In this case, it appears that the respondent was content with simply filing its rescission application and folding its arms. It is appreciated that given the nature of backlogs in this Court, parties may not readily obtain a set-down date when their matters are ripe for a hearing. The issue however is whether any steps have been taken in securing a set-down date. Thus, it would have been expected of the respondent, if it indeed sought the expeditious resolution of the matter, to at least, demonstrate some urgency by approaching the Registrar of the Court in terms of Rule 7(6)(a) of the Rules of the Court or Clause 10.3.2 of the Practice Manual of this Court, to set its rescission application down if it was ripe for a hearing. No such steps were taken, despite the Rule 11 being properly before the Court. It does not therefore, assist the respondent’s case to merely contend that the applicants were equally to blame for the delay. In the light of the rescission application preceding the Rule 11 application, clearly the onus was on the respondent to first approach the Registrar of the Court to obtain a set-down date.

[13] In the end, in circumstances where the respondent had over a period of twenty months failed to file a statement of response even after an application for a default judgment was launched, and further where the respondent took a another seven months (inclusive of the filing of the rescission application and condonation in that regard), and where the respondent had failed to file an answer to the Rule 11 application, this clearly cannot demonstrate a desire on the part of the respondent to expedite the finalisation of this matter. The applicant are entitled to have their dispute expeditiously resolved, and the interests of justice dictate that they be entitled to finality. The respondent did not at all assist in this regard with its egregious nonchalant approach to this matter.

[14] In the light of the above observations and conclusions, it follows therefore that the Rule 11 application should succeed, and there is therefore no need to consider other applications in this matter. I have further had regard to the requirements of law and fairness insofar as an award of costs is concerned, and having had regard to the circumstances of this case, the prejudice to the applicants as a result of the delays caused by the respondent in finalising this matter, it is deemed appropriate that the applicants should be entitled to their costs.

[15] Accordingly, the following order is made;

Order:

1. The Applicants’ application in terms of Rule 11 of the Rules of this Court is granted.

2. The Respondent’s application to rescind the Default Order granted by the Court on 5 May 2016 is dismissed on account of lack of timeous prosecution.

3. The Respondent is ordered to pay the costs of the Rule 11 application.

___________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

Appearances:

For the Applicants:

L Mosala, instructed by Matlatle Attorneys

For the Respondent:

R Atcherson, of Hinrichsen Attorneys

[1] Normandien Farms (Pty) Limited v South African Agency for Promotion of Petroleum Exportation and Exploitation (SOC) Limited and Others (CCT195/19) [2020] ZACC 5; 2020 (6) BCLR 748 (CC); 2020 (4) SA 409 (CC) at para 47

[2] See Loots C: “Ripeness and Mootness” in S Woolman, M Bishop (ed) Constitutional Law of South Africa p 7-19; Skelton A “Constitutional Protection of Children’s Rights” in Boezaart T (ed) Child Law in South Africa (2017) p 331

[3] (2016) 37 ILJ 313 (CC) at para 45.

[4] (2003) 24 ILJ 95 (CC) at para 31