National Union of Mineworkers (NUM) v Commission for Conciliation, Mediation and Arbitration and Others (JR2377/11) [2014] ZALCJHB 429 (8 August 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case No: JR 2377/11

In the matter between:

THE NATIONAL UNION OF

MINEWORKERS (‘NUM’)

Applicant

and

THE COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION

First Respondent

N RAFEE N.O.

Second Respondent

HARMONY GOLD MINING COMPANY LTD

Third Respondent

Heard: 2 JULY 2014

Delivered: 8 AUGUST 2014

Summary: An application to dismiss a review application for failure to serve and file a complete transcribed record of proceedings.

COOK AJ

Introduction

[1] In an opposed interlocutory application in terms of Rule, the third respondent seeks an order dismissing the review application launched by the First and employees (the "Applicants") on 30 September 2011, on account of the Applicant's failure to serve and file the complete transcribe record of proceedings before the Second Respondent in compliance with rule 7A.

[2] The Third Respondent submits that the applicant has failed, either wilfully or negligently, to transcribe, alternatively reconstruct, the portion of the record of proceedings, which remains absent to date. The Third Respondent submits that the failure to provide the portion of the transcribed record of proceedings and the subsequent delay to rectify this by reconstructing the record of proceedings is egregious and vexatious and the Applicants review application falls to be dismissed as a result.

Background

[3] The Third Respondent employed the employee in the capacity of an underground surveyor and sampler from 3 March 2003 to the time of the dismissal on 31 August 2010. It is necessary for employees working on a mine to be the holder of a certificate of fitness in terms of section 13 of the Mine Health and Safety Act 29 of 1996. The employee failed a medical examination and therefore was not a holder of the valid certificate of fitness to enable her to conduct work on the Third Respondent’s mine. The employee’s employment was terminated for medical incapacitation. The employee referred and unfair dismissal dispute to the First Respondent, and on 5 August 2011, the Second Respondent found her dismissal to have been procedurally and substantively fair.

[4] The Applicant instituted a review application in September 2011. The audio recording of the arbitration proceedings conducted on 3 June 2011 could not be located. The Applicant launched an application to compel the First Respondent to comply with the Labour Court Rules by despatching the handwritten notes relating to the arbitration hearing held on 3 June 2011. The Applicant has not prosecuted this application. The Applicant has also not made any attempt to reconstruct the missing portion of the record of proceedings as it relates to 3 June 2011.

[5] The Third Respondent submits that the testimony of Dr Mpolweni and the employee supervisor Pule Kgosimmore is required for the determination of the review and their testimony was led on 3 June 2011. The Third Respondent also submits that the answering affidavit to this application was filed outside the timeframe and that the Applicant has failed to file condonation application and as a result the affidavit is not properly before this Court.

The Applicable Legal Principles

Failure to prosecute

[6] In the matter of Karan t/a Karan Beef Feedlot and Another v Randall,[1] (Van Niekerk J set out the applicable legal principles regarding applications for dismissals:

‘The rules of this court make no specific provision for an application to dismiss when a party fails diligently to pursue a claim referred to the court for adjudication. The Court has recognized and adopted the rule based on the maxim vigilantibus non dormientibus lex subveniunt, in terms of which a party may in certain circumstances be debarred from obtaining the relief to which that party would have been entitled because of an unjustifiable delay in prosecuting the claim.’

[7] In National Construction Building and Allied Workers Union and Others v Springbok (Pty) Limited t/a Summit Associated Industries,[2] the Court held that:

‘The unreasonable delay rule has received attention in a number of judgments of the Labour Court. It has generally been accepted that where a litigant delays in the prosecution of his or her claim he or she may be barred from obtaining the relief sought for that reason.

….

The factors which the court will take into account in considering whether or not to dismiss a matter due to unreasonable delay in its prosecution are the following: the length of the delay; the effect of the delay on the other party and the prejudice which the other party will suffer if the matter is not dismissed for that reason. The other factor which needs to be weighed together with these factors is the inaction or otherwise of the respondent in ensuring that the matter is brought to finality. The defence of a party opposing an application for the dismissal of a claim on the basis of unreasonable delay is quite often that the other party in not taking action to progress the matter to the next step has also contributed to the delay. In this regard often judgments relied upon are those of Bezuidenhout v Johnston NO and Others (2006) 27 ILJ 2337 (LC); [2006] 12 BLLR 1131 (LC) and Karan Beef Feedlot and Another v Randall (2009) 30 ILJ 2937 (LC). I do not read those judgments as saying that the inaction of the applicant in an application to dismiss a matter on the basis of unreasonable delay is necessarily an absolute defence. The contribution to the delay by the party seeking to have the matter dismissed for delay in prosecution must be objectively assessed with a view to evaluating the extent to which the inaction of the applicant contributed towards the excessiveness or otherwise of the delay. The inaction has to be weighed against the objective facts that may point towards loss of interest in pursuing the matter by the party opposing such an application. It may well be that the facts and the circumstances objectively point to a case where the respondent can be said to have abandoned or lost interest in the matter. In that instance I do not believe that it would be correct and fair to blame the applicant for contributing to the delay due to his or her inaction.’

Reconstruction of Record

[8] The Labour Appeal Court[3] has held:

‘A reconstruction of a record (or part thereof) is usually undertaken in the following way. The tribunal... and the representatives... come together, bringing their extant notes and such other documentation as may be relevant. They then endeavour to the best of their ability and recollection to reconstruct as full and accurate a record of the proceedings as the circumstances allow. This is then placed before the relevant Court with such reservations as the participants may wish to note. Whether the product of their endeavours is adequate for the purpose of the appeal or review is for the court hearing same to decide, after listening to argument in the event of a dispute as to accuracy or completeness.’

Analysis of Argument

[9] The rule 11 application was served on 17 January 2013 whilst the answering affidavit was filed on 19 February 2013 (the date of serving on the Third Respondent is in dispute), when it ought to have been filed on or before 31 January 2013. The Applicant has, accordingly, filed their answer to the application to dismiss late. The Applicant has not filed a condonation for the late filing of their answering affidavit and the affidavit is not properly before Court.

[10] Ironically, the Applicant raises the argument that the respondents answering affidavit in terms of the main review application is grossly out of time and that the Third Respondent has not applied for condonation. The Court is of the view that this is irrelevant to the application to dismiss, it in any event, does not provide an explanation for the delay in prosecuting the review application.

[11] Despite the answering affidavit not been properly before Court, the Court notes that in the Applicant’s answering affidavit, the Applicant states that the record is sufficient for the applicant's case in the review. However, the Applicant, in its application to compel compliance in terms of rule 7A (4), states the following:

‘7.3 Transcribed records showed that the matter was part-heard record of the proceedings of three June 2011 were not included. The absence of the omitted record was first noticed by the Third Respondent on carefully reading the arbitration award together with the transcribed record.

5.1 [sic] Commissioner's hand written notes are critical to augment or supplement inaudible and/or missing portion of electronic recordings. The portion of missing record is one of the main piece of evidence the applicant's prospects of success is based on.’

[12] The First Applicant again contradicts what was stated under oath in a letter dated 14 May 2012, which records the following:

‘3. In view of the above the records that we have received a filed and served on you we regard as final retrievable records of the proceedings. Unless you are able to get to the records of 3rd June 2011 they do not appear to advance our case.

4. We wish to record however that the records that we based our case on are reasonable and indicate sufficient prospects of success. Thus we stand by what has been filed and served on you.’ (Annexure N2 to answering, page 58, of dismissal application)

[13] The Applicant submits:

‘Applicants will argue it received electronic record that is sufficient for its course of action. There is a difference and will always be between the absence of the whole record of the proceedings and the portion. It will be argued that relevance and prejudice must be present on unaccounted portion of record which Applicants will argue is none.’ (Paragraph 22, page 6 of supplementary heads of argument)

[14] Yet the Applicant also submits ‘[t]he Commissioner's act in this case amounted to misconduct. It will be argued that she deliberately excluded, concealed and suppressed evidence on [sic] pregnancy. She also abused her position as an arbitrator when she put undue influence or pressure to the employee and her representative not to mention pregnancy in the evidence to prove her dismissal was unfair’ At paragraph 26, page 7 of the supplementary heads of argument.

[15] It is quite clear that the Applicant has elected not to take any further steps to reconstruct the record, as they are of the view that it is not necessary. This view, however, is clearly contradicted by what was stated under oath in the application to compel. The Applicant does not explain how it is to be established that the Commissioner misconducted herself when there is an incomplete record before the Court. It cannot be seriously argued that the evidence led on 3 June 2013 is not required for a proper determination of the review.

[16] The Applicants launched the review application on about 28 September 2011. The First Respondent filed the rule 7A(3) notice on 27 September 2011. (The court is unable to ascertain why the notice predates the review application) The Applicant to date has not filed a complete record in terms of Rule 7A(6) and, by the stance it has adopted, has no intention of filing a complete record. The Applicant justify the failure to file the missing portion of the record on the basis that it is not necessary to determine the review, this position is not even supported by the Applicant's representative in the founding affidavit to compel. In the circumstances, the delay in not filing a complete record is unjustifiable.

[17] The effect of the delay on the Third Respondent is that the Third Respondent is expected to deal with the review application that cannot be properly determined due to the Applicant's refusal to file a complete record. The Court is of the view that it would be prejudicial to the Third Respondent to deal with the review application that cannot properly be determined due to a lack of record and that it should not have to waste further costs in defending a review application that is doomed to fail.

[18] The Court is of the view that the Third Respondent has not contributed towards the delay in the prosecution of this matter. The Third Respondent has informed the Applicant on numerous occasions that the record is deficient but the Applicant has chosen to ignore the advice of the Third Respondent. The Applicant on the other hand has taken insufficient steps in order to ensure at a

proper record was placed before this Court. The Applicant has not prosecuted the application to compel the First Respondent to provide the handwritten notes of the Commissioner nor has the Applicant made any attempt to reconstruct the record. The Applicant has also conveniently had a change of heart as to the importance of the testimony of 3 June 2011. It would seem from the Applicant inaction that it clearly demonstrates a lack of interest in prosecuting this matter.

[19] In terms of section 162(1), the Labour Court may make an order for the payment of costs according to the requirements of law and fairness. In the circumstances of this matter, the court finds no reason why costs should follow the result, especially in light of the Applicant’s failure to file an answering affidavit timeously and not even applying for condonation.

[20] Accordingly, the Court makes the following order:

20.1. The review application instituted by the applicant under case reference number JR 2377/2011 is dismissed, by reason of the failure of the Applicant to serve and file the complete transcribed record of proceedings in compliance with rule 7A of the Labour Court rules

20.2. The Applicant is to pay the costs of the review application as well as the costs of the application in terms of Rule 11 of the Labour Court Rules

_______________________

Cook AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant: Advocate S Mathabathe

Instructed by:

For the Respondent: Advocate K Mnyandu

[1] (2009) 30 ILJ 2937 at para 5.

[2] [2011] 32 ILJ 689 (LC) at paras 25 and 28.

[3] LIFECARE SPECIAL HEALTH SERVICES (PTY) LTD t/a EKUHLENGENI CARE CENTRE v COMMISSION FOR CONCILIATION, MEDIATION & ARBITRATION & OTHERS (2003) 24 ILJ 931 (LAC), paragraph 17, page 936.