Shipping General Transport Services (Pty) Ltd v National Bargaining Council for the Road Freight Industry and Others (JR2163/10) [2013] ZALCJHB 182 (8 August 2013)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Case No. JR2163/10

(Not reportable)

In the matter between:

SHIPPING AND GENERAL TRANSPORT

SERVICES (PTY) LTD .................................................................................................Applicant

and

NATIONAL BARGAINING COUNCIL FOR THE

ROAD FREIGHT INDUSTRY ..........................................................................First Respondent

K GUNASE N.O. ........................................................................................Second Respondent

TRANSPORT & ALLIED WORKERS UNION

OF SOUTH AFRICA OBO LUCKY MACHABA AND

TOBIAS NDWANDWE ...................................................................................Third Respondent

Heard: 23 April 2013

Delivered: 08 August 2013

Summary: Application to dismiss review application for want of timeous prosecution granted.

Introduction

This is an unopposed application in terms of which the third respondent seeks an Order dismissing the review application for want of timeous prosecution thereof.

Background facts

On 16 August 2010 the first respondent handed down an arbitration award in favour of the two members of the third respondent, who were previously employed by the applicant. The applicant brought an application for the review and setting aside of the arbitration award and that application was filed on 31 August 2010. Some 15 days later on 15 September 2010, the third respondent served a notice of its intention to oppose the applicant's review application.

On 17 September 2010, the first respondent filed the record of the proceedings but failed to include the mechanical recordings of the arbitration proceedings with the record. When the applicant failed to take any steps to prepare the record and make it available to the parties, the third respondent addressed a letter to the applicant on 8 November 2010 enquiring when applicant would be dealing with the record that was filed by the first respondent with the Registrar. No response was received from the applicant to this letter and nothing was done to prepare the record and make it available to the parties.

On 7 March 2011 the first respondent filed an affidavit providing an explanation why the mechanical recordings of the proceedings were not filed with the record in September 2010. In the affidavit the first respondent's disputes and delegation manager explained that due to a technical problem with the recording equipment the second respondent did not record the arbitration proceedings and accordingly no mechanical recording of the proceedings existed. The third respondent, on 14 March 2011, addressed a letter to the applicant enquiring what the applicant had done with regard to providing the record of the proceedings to the parties. The applicant did not reply to this letter.

When the third respondent did not receive a reply to its correspondence from the applicant, it addressed a further letter on 15 April 2011 to the applicant indicating that applicant's failure to respond will result in the third respondent bringing an application to dismiss the applicant's review application. When no response was received to this further correspondence, the third respondent's attorneys addressed a letter on 28 April 2011 to the applicant indicating that if the applicant failed to provide the record within 7 days after date of the letter, then the third respondent would bring an application in terms of Rule 7A(4). After the applicant failed to respond, the third respondent brought an application to compel the applicant to deliver the record of the arbitration proceedings in terms of Rule 7A (4) on 23 April 2011. When the applicant did not oppose the application, it was set down on the unopposed roll on 20 June 2012.

It was only when the third respondent's newly appointed attorneys forwarded a letter to the applicant on 11 June 2012 referring to the set down of the application to compel on 20 June 2012 that the applicant replied to the letter on 13 June 2012. In the correspondence the parties agreed to remove the matter from the roll in light of the fact that the applicant apparently did not

receive notice of the set down of the application. In the replying letter, the applicant also undertook to co-operate with the third respondent for the reconstruction of the record and that the parties should communicate a date for such reconstruction. On this basis therefore, the application to compel was removed from the roll on the 20th and at the court the applicant was represented by an attorney to ensure that the matter was dealt with in accordance with the agreement reached by the parties in the correspondence.

When the parties' legal representatives met at the Labour Court to ensure that the matter was removed from the roll, the applicant's attorneys confirmed the arrangements made between the parties and recorded in the correspondence that dates would be set for the reconstruction of the record. In accordance with this arrangements made by the parties and the discussions between the attorneys at the Labour Court, the third respondent's attorneys addressed a letter to the applicant's attorneys confirming the discussion at the Labour Court and proposing three dates in June 2012 for the parties to meet to reconstruct the record. This letter was sent to the applicant's attorneys on the same day that the application to compel was removed from the roll. When the third respondent received no response to the letter, the third respondent's attorneys addressed a further letter to the applicant's attorneys on 19 July 2012 requesting the applicant's attorneys to provide the third respondent's attorneys with an alternative date for a reconstruction meeting. No response was received from the applicant's attorneys nor the applicant and the third respondent

accordingly filed this application on 30 January 2013.

Legal principles

The legal principles dealing with an application to dismiss a review for want of prosecution has been succinctly set out in the case of Frans Meintjies New Tyre Manufacturers v Bargaining Council & 2 Others1, where the Court stated the following:

"Unreasonable delay rule

30. It is trite that a court has discretion to bar an applicant who fails to provide a reasonable and satisfactory explanation for the delay in timeous prosecution of his/her review application. The approach to be adopted in dealing with the issue of unreasonable delay has received attention in a number of both Labour and Appeal Court cases. The courts in considering whether to uphold an application for the dismissal of review on the ground of wanted prosecution take into account the following2:

(a) Is delay in the prosecution of the matter excessive;

(b) Is there a reasonable explanation for the delay;

(c) What prejudice will the other party suffer if the dismissal is not granted; and

(d) Are there prospects of success in the main case.

31. The other principle which the courts have taken into account in considering whether an undue delay warrants dismissal of a review application is that there is a mutual obligation on both parties to ensure that review application progresses expeditiously towards its finalisation. It has been held in this regard that when confronted with a delay in prosecution of review application, the respondent needs to place the offending party on terms or seek the intervention of the Registrar or file an application to compel [See Sishuba vs National Commissioner of SAPS 2007 10 BLLR 988, and Bezuidenhout vs Johnson N.O. & Others 2006 12 BLLR 1131 (LC)."3

From the facts of this matter it is clear that the applicant's conduct in processing the review application has been occasioned with delay at each stage of prosecuting the review application. In September 2010 when the first respondent provided the record of proceedings to the parties, it was the applicant who failed to take any steps to repair the record and make it available to the parties. When the third respondent addressed correspondence to the applicant enquiring why the applicant was not making the

record available, there was no response to this correspondence.

When in March 2011, the first respondent explained why a copy of the ?? recordings could not be made available, it was again the third respondent that had to write to the applicant to enquire from the applicant what the applicant had done with regard to providing the record of the proceedings to the parties. Again, this correspondence was met with no reply. It was only when the

applicant brought an application to compel the third respondent to deliver the record of the proceedings in terms of Rule 7A(4) after threatening of doing so in two earlier letters which again the applicant did not reply to, the application was not opposed and was set on the unopposed role. Literally a few days before the hearing of the unopposed matter and quite fortuitously for the applicant because the third respondent appointed new attorneys and the new attorneys enquired in correspondence to the applicant about the hearing of the matter, that the applicant replied to this correspondence for the first time. This was in June 2012 and it meant that the applicant did nothing further in prosecuting the review after filing the application for review on 31 August 2010.

Despite the fortuitous reminder of the review application that was outstanding in this court to the applicant when the third respondent's new attorneys dealt with the set down of the unopposed Rule 7A(4) proceedings, after the parties agreed in their correspondence and their attorneys agreed at the Rule 7A(4) proceedings at court to try and reconstruct the record, the applicant failed to do anything further in an attempt to reconstruct the record. The third respondent's attorneys, in accordance with the undertakings of the parties that they would exchange dates for the reconstruction to take place forwarded these dates to the applicant the same day that the applicant's attorneys at court confirmed the undertakings. No response to the dates was provided by the applicant

to the third respondent's attorneys. When a further letter was addressed to the applicant's attorneys on 19 July 2012 requesting

the applicant's attorneys to provide an alternative date, no response was received from the applicant's attorneys.

In analysing the delay in the prosecution of the review application, it is clear to this court that the applicant has shown and continues to show very little interest in prosecuting the review. At every point at which the applicant was required to do something in the process of prosecuting the review, the applicant failed to do so. When prompted by the third respondent to proceed and prosecute the review in correspondence the applicant failed to respond to the correspondence of the third respondent. The arbitration award was issued in August 2010 and the applicant failed to do anything with regard to the review up until June 2012 when the unopposed Rule 7A(4) application was set down. This period was almost 2 years after the applicant filed the review application.

Despite this long period, the applicant received a further opportunity to continue prosecuting the review when, in correspondence with the third respondent, it was agree that the parties would provide each other with dates for the reconstruction of the record and that the unopposed Rule 7A(4) application be withdrawn. When the third respondent complied with all of these undertakings and the applicant's attorneys at court during the Rule 7A (4) proceedings confirmed these undertakings, the applicant still failed to do anything further let alone abide by the undertakings for the parties to try and reconstruct the record.

The above facts and circumstances are such that the review application stands to be dismissed for unreasonable delay. I have also taken account of the fact that the application to dismiss of the third respondent was also met with no response or opposition by the applicant.

In the premises, the applicant's review application is dismissed for want of prosecution.

Order

The application for review of the applicant is dismissed due to lack of prosecution.

________________________________

VISAGIE, AJ

Acting Judge of the Labour Court

APPEARANCES

For Applicant: Advocate Maumatlala, instructed by Motaung Attorneys

1Case No. P137/07, judgment delivered 17 January 2012, paras 30 and 31

2[See Solidarity & Others vs Eskom Holdings Limited (2008) 29 ILJ 1450 (LAC); Associated Institutions Pension Fund & Others vs Van Zyl & Others 2005 2 SA 302 (SCA); Sishuba vs National Commissioner of the South African Police Service 2007 28 ILJ 2073 LC; NOPTOSA & Others vs Minister of Education, Western Cape & Others (2001) 22 ILJ 889 (C) and Autopaks Passenger Services (Pty) Ltd vs Transnet Bargaining Council & Others 2006 27 ILJ 2574 (LC)]

3Paras 30 and 31