Naphtronics (Pty) Ltd v South African Transport and Allied Workers Union and Others (JS161/07) [2010] ZALC 102 (1 June 2010)

IN THE LABOUR COURT OF SOUTH AFRICA

(Held at Johannesburg)

Not reportable

CASE NUMBER: JS161/07

In the matter between:

NAPHTRONICS (PTY) LTD Applicant

and

SOUTH AFRICAN TRANSPORT AND

ALLIED WORKERS UNION First Respondent

XELE AND 16 OTHERS Second to Further Respondents

Reasons for the order

BHOOLA J:

Introduction

[1] The applicant applied for rescission of an order of this court made on 4 June 2008, as well as for condonation of late filing of the rescission application. After hearing the parties an order was made dismissing the application with costs. These are my reasons for the order.

[2] The applicant relies primarily on Rule 16 A (1) (a) for its submission that the order was erroneously granted in its absence. On this basis it was submitted by Mr Sibuyi, applicant’s Counsel, that it was not required to show good cause and since no time periods were applicable it was not necessary to apply for condonation. In the alternative and should it fail on this first ground, it was submitted that the application is brought under Rule 16 A (1)(b), and on this ground although the rules provide for a period of 15 days within which the application for rescission should be brought, this application is not excessively out of time.

Grounds for condonation

[3] In support of its application for condonation the applicant made the following submissions

It did not receive the statement of claim filed by the respondents. Although in its pleadings both service and receipt of the statement of claim was placed in dispute, Mr Sibuyi conceded in argument that service by fax on the applicant was not disputed and that the applicant simply contends that the statement of claim was not brought to its attention. In this regard it alleges that the court order was received by the applicant's Human Resources Manager on 26 June 2008, following which he investigated the circumstances surrounding the receipt of the statement of claim in order to determine whether the applicant was in wilful default. In conducting this investigation he made enquiries from the current and former receptionists employed by the applicant to establish whether they had received the statement of claim in 2007. Despite the fact that they were required to recall something that occurred more than a year ago, they both claimed not to have received the faxed statement of claim and the former receptionist suggested that the fax register for the day in question should be consulted. This appeared to indicate that only one fax had been received by the applicant on 14 March 2007, which was a letter from the Department of Public Works. The matter was then referred to the applicant's General Manager and thereafter to its Board, which met on 15 July 2008 and resolved to appoint attorneys to seek rescission of the order. Thereafter the attorneys made attempts to brief a specific Counsel, who was not available, and alternative Counsel was briefed to prepare an application for rescission. The application was drafted on 30 July and served and filed on 12 August 2008. It is in the interests of justice to grant condonation : Brummer v Gorfield Bros Investments (Pty) Ltd & others [2000] ZACC 3; 2000 (2) SA 837 (CC). The applicant was not in wilful default. The applicant intended to oppose the claim. The applicant has a bona fide defence on the merits. It was contracted to provide security services at health institutions by the Department of Health in the

North West Province for a period of three years. The second to further respondents (“the individual respondents”) were aware of the applicant's contractual obligations with the Department of Health and were employed on fixed term contracts. At all material times each of the individual respondents was informed that the applicant's ability to provide services was determined by the contract with the Department of Health. Furthermore the contracts of employment provided for termination on one month's notice. They were therefore not dismissed but their contracts of employment terminated automatically with the effluxion of time.

Merits of the application

[4] It is trite that this court may extend any period prescribed by the rules on good cause shown. An application for condonation requires the applicant to show both a reasonable explanation for the delay and a bona fide defence which carries some prospect of success. Both requirements must be met: Lumka & Associates v Maqubela (2004) 25 ILJ 2326 (LAC). In this context the court is required to exercise its discretion in order to ensure that the interests of justice are met1. In exercising its discretion takes into account the degree of lateness; the explanation for the delay; the prospects of success as well as the importance of the case. In this matter although it cannot be said that the delay of 32 days is excessive, but considered

together with a spurious and doubtful explanation for the delay as well as the non-existent prospects of success it is clear that

refusal of condonation is justified. In any event the trite principle endorsed in Chetty v Law Society of the Transvaal 1985 (2) SA 765 (A) at 765 A-E was that where the explanation for the delay is insufficient the prospects of success are immaterial

[5] It appears from the facts that service was properly effected by fax on the applicant. However in the light of the concession this is no longer relevant. The applicant engaged in a protracted process of investigating whether employees could recall a document received more than a year ago. Given its concession as to service this process was clearly unnecessary, nor was it necessary to delay the process further by filing confirmatory affidavits from both the current and former receptionist. In any event, as was asserted by Ms Craven, it is strange that despite these efforts the respondent fails to produce the fax register it relies upon. Moreover, the current receptionist confirms that after perusing “all the faxes” received on the day in question she is able to conclude that only one fax was received that day. The applicant could simply have avoided the delay and waste of resources by requesting the pleadings from the first respondent or uplifting the court file.

[6] Moreover, there was a further delay in briefing Counsel and an unexplained delay in convening a board meeting, following which a further two weeks expired between the drafting of the application by Counsel and service and filing. Furthermore, the respondents challenged the authority of the deponent to the founding affidavit ( the Managing Director of the applicant), and in reply the applicant attaches a board resolution signed only by the deponent. There appear to be no other directors of the applicant, and if indeed there are they have not signed the resolution which implies that they did not attend the meeting. This makes it even more untenable that it would have taken about three weeks after the order came to the applicant’s attention to convene a board meeting in order to authorise these proceedings.

[7] For these reasons, in my view, the explanation for the delay cannot be said to be satisfactory or reasonable. More importantly, however, there appear to be no prospects of success. On the applicant's own pleadings there appears to be no basis for the allegation that the individual respondents were employed by the applicant for a fixed term and that their employment was conditional upon the continuation of the applicant's contract with the Department of Health. The very documents relied upon by the applicant in assertion of its claim indeed appear to prove the very opposite. Although the matter is without doubt of extreme importance to both parties, and the applicant alleges prejudice should the order stand, the individual respondents are entitled to certainty in respect of their dispute given that a period of four years has elapsed since their dismissals. Whatever financial or other prejudice the applicant claims to have suffered can only be said to have arisen from its own less than diligent conduct in this matter.

[8] In the circumstances, no good cause has been made out for the granting of condonation, and I am accordingly not required to deal with the merits of the application for rescission.

_________________

Bhoola J

Judge of the Labour Court of South Africa

Date of hearing : 1 June 2010

Date of judgment: 1 June 2010

Appearance:

For the applicant: Advocate Sibuyi

For the respondents : Union official Ms N Craven

1 See Melane v Santam Insurance Co. Ltd 1962 (4) in 531 (A) at 532 C-F as well as Labour Appeal Court authorities endorsing this approach, inter alia, Foster v Stewart Scott Inc [1997] 2 BLLR (LAC) at 118G-I; PPWAWU and others v A-F Dreyer and Co (Pty) Ltd [1997] 9 BLLR 1141 (LAC) at 1144F-H; Myiza v Putco [2002] ZACC 30; [1999] 2 BLLR 103 (LAC) at 106 E-107A.

5