SA Post Office Ltd v Chetty and Others (D935/18) [2021] ZALCD 52 (4 August 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN

Not Reportable

Case No: D935/18

In the matter between:

SA

POST OFFICE LTD Applicant

and

THERVAN

CHETTY First Respondent

COMMISSIONER W. PAUL Second Respondent

COMMISSION FOR CONCILIATION,

MEDIATION

AND ARBITRATION Third Respondent

IN RE:

THERVAN

CHETTY Applicant

SA

POST OFFICE LTD First Respondent

COMMISSIONER W. PAUL Second Respondent

COMMISSIONER FOR CONCILIATION,

MEDIATION

AND ARBITRATION Third Respondent

Heard: 01 July 2021

Delivered: This judgment was handed down electronically by circulation to the parties and / or their legal representatives by email. The date and time for handing-down is deemed 10h00 on 04 August 2021.

Summary: Re-instatement and Condonation

JUDGMENT

GOVENDER, AJ

[1] The Applicant seeks that the review application, instituted by the First Respondent, in respect of the Arbitration Award issued by the Second Respondent, under case number KNDB 15338-17, dated the 12th of March 2018, be dismissed with costs.

[2] Further that the above Arbitration Award be made an order of the Court.

[3] The Applicant seeks to dismiss the review on the ground that, the First Respondent has unduly delayed in prosecuting the review, in that the First Respondent (being the Applicant in the Review application) has failed to date, to provide a transcribed Record of the proceedings and therefore has not complied with Rule 7A(6) of the Labour Court Rules and Clauses 11.2.2 and 11.2.3 of the Practice Manual and hence the review application is deemed withdrawn.

[4] The First Respondent, after receiving the application for dismissal of the review application, launched a counter application for the reinstatement of the review, seeking condonation for non-compliance of Clauses 11.2.2 and 11.2.7 of the Practice Manual.

Background

[5] The First Respondent was employed by the Applicant and dismissed for gross misconduct, stemming from his duties as a teller, based at the Hypermarket Post Office. He was charged for unlawfully concluding a motor vehicle transaction wherein, he issued a vehicle renewal licence for vehicle registration number ND 630409, without documents, to an unknown person who was not the lawful owner of the vehicle. The lawful owner of the vehicle was Patience Mbongwe.

[6] At the internal disciplinary hearing, the First Respondent pleaded guilty to the charges and a sanction of dismissal was imposed.

[7] The First Respondent referred an unfair dismissal to the CCMA challenging the substantiveness of his dismissal. The Second Respondent handed down the Award on the 15th of March 2018, confirming that the dismissal was substantively fair.

[8] The First Respondent thereafter launched a review application on the 26th of April 2018.

Chronology

[9] Below is a summary of the chronology of the events that transpired after the review application was launched on the 26th of April 2018. These dates and facts have been extrapolated from the affidavits filed by the parties as well as other documents forming part of the Record.

Date Detail 15 March 2018 The First Respondent received the Award. 26 April 2018 The review application was launched. 8 June 2018 The First Respondent’s attorney enquired from the Registrar on the status of the Record. The Record was not ready to be uplifted. 21 June 2018 The First Respondent’s attorney once again enquired about the availability of the Record and was informed that the same is available and he accordingly uplifted the Record. 24 July 2018 The Record was delivered to Sneller Recordings. 25 July 2018 The First Respondent confirmed an indulgence from the previous attorneys on Record i.e. Shepstone & Wylie to consent to the Record being filed outside of the 60 day period. The consent was granted. 7 August 2018 The Applicant’s previous attorney of Record Shepstone & Wylie withdrew. 17 August 2018 The First Respondent’s current attorneys Madhlopa & Thenga placed themselves on Record. 19 September 2018 The First Respondent’s attorney enquired from Sneller Recordings on the status of the transcribed Record. 20 September 2018 The First Respondent’s attorney enquired from Sneller Recordings on the status of the transcribed Record. 25 September 2018 Sneller Recordings provided the First Respondent’s attorneys with a quotation for their services. 30 October 2018 Legal Wise effected payment for the Record. 19 February 2019 Madhlopa & Thenga attorneys wrote to

the First Respondent informing them that they had not consented to the Record being filed outside the 60 day period. 17 April 2019 Correspondence sent to Madhlopa & Thenga enquiring if they would consent to an extension of time in terms of Clause 11.2.3. 14 May 2019 Further letter requesting an extension of time. 12 June 2019 A further letter to Madhlopa & Thenga requesting an extension of time. Further email to Sneller Recordings to enquire on progress of transcribed Records. 17 July 2019 A further letter to Madhlopa & Thenga requesting an extension of time. A further email to Sneller Recordings enquiring on progress of Record.

[10] On the 21st of August 2019, the First Respondent made enquiries from Sneller Recordings once again and was informed that the transcribed Record was in fact completed in February 2019 and that it had been emailed to a former employee, Jennifer Naicker-Chetty, of the First Respondent’s attorney of Record. The First Respondent’s attorneys accessed Naicker-Chetty’s emails and located the transcripts. Hence the First Respondent was in possession of the transcribed Record from 21st of August 2019.

[11] On the same date, a further letter was sent to Madhlopa & Thenga informing them that “we now have a copy of the Record and will be filing same”. The letter further goes on to record that “Please advise if you consent to the late filing of the Record as a matter of urgency, failing which we will have to brief Counsel to bring an application for the revival of the Application”. I note there was no response to this letter. Nor did the First Respondent launch a re-instatement application.

[12] However, on or about 12th of September 2019, the Applicant launched an application in terms of Rule 11 to dismiss the review. Only then did the First Respondent launch a counter application seeking condonation and a re-instatement of the review.

[13] The First Respondent alleged for the first time in the counter application, served as per the date stamp 1st of October 2019, that a portion of the Record was missing and that attempts will be made to reconstruct the Record.

[14] It is significant to point out that at the hearing of matter on 01 July 2021, the transcribed Record has not been reconstructed and nor were any steps taken to reconstruct the Record.

Evaluation

[15] It is trite, that if the time periods provided for in terms of Clauses 11.2.2 and 11.2.7 cannot be complied with, good cause must be shown to resuscitate the review application[3]. Showing good cause demands that the application must be bona fides, a reasonable explanation must be provided for the entire period of default, there must be demonstrable reasonable prospects in the main application an lastly the Applicant must show that it is in the interests of justice to grant the order.

[16] The operative effect of a review which has lapsed in terms of Clause 11.2.7 of the Practice Manual, is that it is no longer properly before this Court and the Court lacks the requisite jurisdiction to determine the review application unless good cause has been shown and the matter is reinstated by an order of this Court.

[17] In the case of SA Post Office Ltd v CCMA[4], Waglay DJP (as he was then) stated that:-

‘In my view, each condonation application must be decided on its own facts bearing in mind the general criteria. While the rules are there to be applied, they are not inflexible but the flexibility is directly linked to and apportioned in accordance with the interests of justice; prejudice; prospects of success; and finally, degree of delay and the explanation thereof. The issue of delay must be viewed in relation to the expedition with which the law expects the principal matter to be resolved’

Period of delay prior to the 21st of August 2019

[18] Clearly from the chronology of events, the First Respondent was diligent in seeking to obtain the transcribed Record as expeditiously as possible. The First Respondent, when he realised that the Record could not be filed in compliance with Clause 11.2.2[5] of the Labour Court Practice Manual ,he sought the consent of the Applicant for an extension. This consent was granted by the Applicant’s previous attorneys of record, Shepstone & Wylie.

[19] The delay in transcribing the Record was approximately 08 months. The Record was received on the 21 June 2018. Sneller Recordings was paid on 30 October 2018. I accept that there are possible delays when dealing with LegalWise insurers to effect payments and that is no fault of the First Respondent. However, there is no explanation before this Court as to why Sneller Recordings took nearly 04 months from 30 October 2018 to February 2019 to transcribe the Record. Again, this in all probability may have been beyond the control of the First Respondent as I have seen the emails sent to Sneller in September 2019, enquiring on the status of the transcription.

[20] I also find the explanation that the First Respondent’s attorney was not

aware that the transcribed record had been emailed to the ex-employee , Naicker-Chetty , plausible in the circumstances.

[21] However, when the Applicant’s current attorney, Madhlopa & Thenga, sent a letter on the 19 February 2019 to the First Respondent’s attorney, indicating that they had not given consent for an extension, instead of further utilising the avenues available to him in terms of Clause 11.2.3[6] and applying to the Judge in chambers for a further extension, the Applicant sent letters to Madhlopa & Thenga requesting an extension to the First Respondent. The Applicant contends that once they had informed the First Respondent that the consent was withdrawn, the First Respondent ought to have explored other avenues available to him. The First Respondent on the other hand contends that once consent was granted it cannot be revoked. I reject this contention because of the very conduct of the First Respondent’s attorney who constantly sought an extension from Madhlopa & Thenga. If indeed, the First Respondent’s attorney believed that the consent could not be revoked, it begs the question why then did they seek consent from the Applicant in all the various letters emailed to Madhlopa & Thenga.

Period of delay since 19 February 2019

[22] The conundrum for the First Respondent begins with his failure to act more diligently during this period. From April 2019 to July 2019, (approximately four months) the First Respondent’s attorney continued to send letters requesting an extension via email despite receiving no response at all to any of the correspondence.

[23] The Applicant avers that that they did not receive the correspondence, nor did they agree to an exchange of communications via email. I find that the attitude of the Applicant herein rather obstructive in this regard. Email communications are expedient especially when dealing with labour disputes which emphasize and promote the statutory imperative of expeditious dispute resolution. There were no averments that the email address utilised was incorrect. The Labour Relations Act (LRA ) 66,1995 introduces simple, quick, cheap and an informal approach to the adjudication of labour disputes. Therefore one would reasonably expect that if correspondence was emailed and received by the intended recipient, that the recipient would respond thereto, irrespective of whether or not there was an arrangement to receive correspondence via email .

[24] Irrespective, when the Applicant’s attorneys of Record did not reply to any of the letters requesting an extension, the First Respondent ought to have adopted a more ardent approach, rather than persisting to send emails which clearly were not acknowledged.

[25] The ineptness of the First Respondent since receiving the transcribed record on the 21 August 2019 is even more perplexing.

Delay after 21 August 2019

Reconstruction of the Record

[26] The First Respondent alleged that portions of the Record were missing in particular the evidence in chief of Mr Ntuli, the main witness for the employer and further that there are various instances where the cross-examination of Mr Ntuli is inaudible.

[27] The quagmire that the First Respondent finds himself in, is that there is no explanation before the court as to why no attempts were made to have the Record reconstructed from 21 August 2019 to date of the hearing.

[28] The First Respondent despite acknowledging the relief available to him in terms of Clause 11.2.4 and further alleging in his counter application, that in the event the Record cannot be reconstructed he will invoke the provisions of Clause 11.2.4, he failed to do so.

[29] In terms of Clause 11.2.4[7] of the Practice Manual, the First Respondent could have approached a Judge to have further direction on the further conduct of the review and the Record reconstruction. He could have convened a reconstruction meeting with the Arbitrator and the representative of the Applicant who attended the Arbitration to attempt to reconstruct portions of the Record that are missing or inaudible. I pause to mention that the First Respondent’s attorney were in possession of or could easily have accessed the arbitrator’s handwritten notes from 15 May 2018, as it was part of the Bundle of documents containing the CD filed by the Third Respondent and placed in the Court file. He failed to utilise these remedies and adopted a supine stance which is fatally detrimental to his case.

[30] Counsel for the First Respondent conceded and rightly so that she had no submissions as to why no attempts were made to reconstruct this Record.

[31] Counsel for the First Respondent also submitted that the Record could be filed now, in its incomplete state with the missing portions and the review be allowed to be finalised. This submission of course begs the question as to why was this not done earlier and why then the excessive delay of 22 months from the 21st of August 2019 to date of hearing.

[32] The result of this inordinately long delay is that the Record was still not filed at date of the hearing nor has the First Respondent filed a supplementary affidavit or complied with Rule 7(A)(8) of the Rules and the review is far from ready to be prosecuted some 03 years since its launch.

[33] The Labour Appeal Court, in Samuels v Old Mutual Bank supra considering the status of the Practice Manual held, that in essence the Practice Manual promotes uniformity and consistency in practice and procedure and sets guidelines on standards of conduct expected of those who practice and litigate in the Labour Court, and it promotes the statutory imperative of expeditious dispute resolution.

[34] The provisions of the Practice Manual are therefore binding and should be adhered to, it should not be ignored by parties for flimsy reasons or at their convenience.

[35] It is trite that the test for condonation was eloquently laid out in the decision of Melane v Santam Insurance Co. Limited[8] where the Court said in deciding whether sufficient cause has been shown the basic principle is that the Court has a discretion to be exercised judicially upon a consideration of all facts, in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefore, the prospects of success and the importance of the case. What is needed is an objective conspectus of all the facts and the respondent’s interest in finality must not be overlooked.

[36] In my view the delay was excessive and no explanation at all has been provided as to why the record was not reconstructed. I find the conduct of First Respondent dilatory, and he has not demonstrated good cause for the delays.

Good Prospects

[37] The First Respondent submits that it enjoys good prospects of success and therefore the application to condone should be granted.

[38] The First Respondent had pleaded guilty a charge of gross misconduct and the dispute referral pertained to substantive fairness. Despite having pleaded guilty to the charge, the First Respondent has decided to take the Award of review.

[39] The First respondent alleges that he did not wilfully and unlawfully process a licence without documents, he was not the only employee who processed the documents on the day in question and the documents could not be found and he was employed for 20 years and had always carried out his duties with honesty and integrity. I find the review somewhat puzzling , given the guilty plea tendered .I assume that the First Respondent was not satisfied with the sanction imposed.

[40] In the decision of Melane v Santam Insurance Co. Limited[9] It was held that a slight delay and a good explanation may help to compensate for prospects of success that are not strong.

[41] I find the First Respondent has not set out any facts which, if established would result in his success in the review application. Even if he had, the explanation for the delays is so unsatisfactory and unacceptable that the prospects of success are of no consequence, nor do they need to be considered. Nonetheless even on a generous consideration of the prospects of success they are not reasonable to persuade me to allow condonation.

Premature Application to Condone

[42] Further, it is improper for an application to be brought seeking condonation for non-compliance with Clause 11.2.2 when the First Respondent is still guilty of such non-compliance. An application for condonation for the non-compliance of a Rule is brought when one has in fact complied with the Rule, met the requirements of the Rule, albeit out of the prescribed time, and now seeks the indulgence of the court to condone the late compliance with such Rule.

[43] Significantly, to date the Rule 7(A)(6) of the Labour Court Rules has not been complied with as the Record is still outstanding and has not been filed. The First Respondent’s contention that the Record may now be filed even with the missing portions serves to illustrate that they had no valid reasons for non-compliance of Rule 7(A)(6) of the Labour Court Rules since 21 August 2019.

[44] Whilst I may generously give the benefit to the First Respondent that he was not dilatory in his conduct up until the 21st of August 2019 and accept that he made several endeavours to ensure that the Record was timeously filed, the same cannot be said for the period post the 21st of August 2019. The delay is excessively long, nearly two years and the prejudice that is being suffered by the Applicant cannot be overlooked.

[45] In Toyota Motors SA (Pty) Ltd v CCMA, Arbitration & Others[10] the Court expressed the following sentiments:

“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. This is so all the more in labour disputes...”

[46] I therefore, find that the First Respondent has not shown good cause to the Court for the inordinate delay of 22 months (calculated from 21 August 2019) nor am I convinced of reasonable prospects of success that may possibly have swayed me to find otherwise. Nor has the First Respondent in anyway demonstrated that it is in the interests of justice for me to allow condonation.

[47] Considering all the above, condonation is refused and the application for re-instatement is dismissed.

Application to dismiss the review

[48] On the main application, I am convinced that the Applicant has illustrated the wilful and dilatory conduct of the First Respondent in failing to timeously prosecute the review. It is certainly unfair for the Applicant not to have finality on this issue. The review is long outstanding and is to date not ripe for hearing.

[49] It is noteworthy that the First Respondent only launched their counter application when the Applicant had brought the application to dismiss the review. It appears until then the First Respondent was content to simply fall by the wayside and make no attempts from August 2019 to have his review prosecuted and finalised.

[50] An Applicant who does nothing for 22 months in prosecuting a review, should not be surprised when a court takes a robust approach and dismisses the review on the grounds of grossly excessive delay. In Matsha and others v Public Health and Social Development Bargaining Council and Others , it was held that [2] It seems to be a trend that courts are being inundated by application brought in terms of Rule 11 of the Labour Court Rules to dismiss review application for a lack of diligent prosecution thereof by litigants. Clearly this results in an unnecessarily clogging of the Court rolls but further it leaves a dispute which was always intended to be expeditiously resolved hanging in the air. The danger with this kind of practice is that it creates a situation of uncertainty. It may compound liability and certainly serve to disappoint parties who seek nothing else but justice from the courts.”[11]

[51] To allow this matter to prevail any further, given the egregious delay, is contrary to the important interests of finality of litigation and of not simply having litigation hanging in the air between parties indefinitely without justification.

[52] I am therefore satisfied that the Applicant has made a case for the relief sought in the dismissal application.

Costs

[53] I am not convinced that it will be fair to make a costs order against the First Respondent herein. He was always represented by his attorneys, and it is logical to conclude that when it comes to the application of the Rules and Practice Manual, he would have been largely reliant on his attorneys having engaged them through LegalWise. I do not find it fair in the exercise of judicial discretion ,to hold the First Respondent liable for costs, costs which if granted clearly emanate and result from non-compliance with Rules and the provisions of Practice Manual and of which it is safe to assume he would not be familiar with in the circumstances.

Order:

I accordingly make an order in the following:

a) The application for condonation and re-instatement of the review in the counter application is dismissed.

b) The application to dismiss the review is granted.

c) The Arbitration Award handed down on the 15th of March 2018, is hereby made an order of the Court.

d) There is no order to costs.

N Govender

Acting Judge of the Labour Court of South Africa

APPEARANCES:

APPLICANT: Adv L Nyangiwe instructed by Madhlopa & Thenga Incorporated

RESPONDENTS: Adv C Jaipal instructed by the State Attorney

[3] Samuels v Old Mutual Bank (2017) 38 ILJ 1790 (LAC ) at para 14

[4] [ 2012] 1 BLLR 30 (LAC) at para 23.

[5] For the purposes of Rule 7A(6), records must be filed within 60 days of the date in which the Applicant is advised by the Registrar that the record has been received.

[6] If the Applicant failed to file a record within the prescribed period, the Applicant will be deemed to have withdrawn the application, unless the applicant has during that period requested the respondent’s consent for an extension of time and consent has been given. If consent is refused, the applicant may, on notice of motion supported by affidavit, apply to the Judge President in chambers for an extension of time…..

[7] If the record of the proceedings under review has been lost, or if the recording of the proceedings is of such a poor quality to the extent that the tapes are inaudible, the applicant may approach the Judge President for a direction on the further conduct of the review application. The Judge President will allocate the file to a judge for a direction, which may include the remission of the matter to the person or body whose award or ruling is under review, or practicable, a direction to the effect that the relevant parts of the record be constructed.

[8] (1962) 4 SA 531 A.

[9] (1962) 4 SA 531 A.

[10] (2016) 37 ILJ 313 (CC) at para 45

[11] (2019) 40 ILJ 2565 (LC ) at para 2