Transport and Allied Workers Union of South Africa v Algoa Bus Company (PTY) Limited South African Transport and Allied Workers Union and Others (PA 14/17) [2018] ZALAC 54; [2019] 3 BLLR 262 (LAC); (2019) 40 ILJ 827 (LAC) (12 December 2018)

IN THE LABOUR APPEAL COURT OF SOUTH AFRICA, PORT ELIZABETH

Reportable

Case no: PA14/17

In the matter between:

TRANSPORT AND ALLIED WORKERS UNION

OF SOUTH AFRICA

Appellant

and

ALGOA BUS COMPANY (PTY) LIMITED

First Respondent

SOUTH AFRICAN TRANSPORT AND ALLIED

WORKERS UNION

Second Respondent

TRANSPORT ACTION, RETAIL, AND GENERAL

WORKERS UNION

Third Respondent

Heard: 28 August 2018

Delivered: 12 December 2018

Summary: Condonation for the late filing of the notice of appeal and reinstatement of appeal – union contending that financial constraints limited its ability to brief counsel who will accept its payment condition – court held that an explanation based on the lack of funds will not automatically result in the granting of condonation and that explanation for the delay wholly unsatisfactory as union not providing financial statement proving its financial distress. Application for the reinstatement of the appeal dismissed and matter struck from the roll.

Coram: Phatshoane ADJP, Sutherland JA and Kathree-Setiloane AJA

___________________________________________________________________

JUDGMENT

KATHREE-SETILOANE AJA

[1] This is an appeal against the judgment and order of the Labour Court (Lallie J) refusing an application for condonation for the late filing of an application for rescission against a default judgment handed down by Cele J on 31 October 2014. Cele J ordered the appellant, Transport and Allied Workers Union of South Africa (“TAWUSA”), South African Transport and Allied Workers Union (“SATAWU”) and Transport Action and Retail and General Workers Union (“THOR”) as well their members to pay damages in the amount of R10 350 000,000 to the first respondent, Algoa Bus Company(Pty) Ltd (“ABC”),

arising from an unprotected strike.

[2] ABC issued warrants of execution against SATAWU, TAWUSA, and THOR on 4 March 2015. They were, however, stayed in separate proceedings by SATAWU in Port Elizabeth and by TAWUSA in Johannesburg on 26 and 27 March 2015, respectively. The warrants were stayed pending the outcome of an appeal against the default judgment by SATAWU and an application for rescission of the default judgment by TAWUSA.

[3] SATAWU did not pursue its appeal within the time frames set by the Labour Relations Act, 66 of 1995 (“Act”) and the Labour Court Rules (“Rules”). Nor did TAWUSA pursue its recission application within these timeframes. They accordingly sought condonation from the Labour Court. On 20 April 2016, the Labour Court dismissed their applications for condonation and consequently

SATAWU’s application for leave to appeal and TAWUSA’s rescission application.

[4] On or about 21 April 2017, the Labour Court granted TAWUSA leave to appeal against its refusal to condone the late filing of the

rescission application. TAWUSA did not prosecute the appeal timeously, and the matter was considered withdrawn and archived in

terms of the Rules. During this time ABC instructed the sheriff to attach TAWUSA’s bank account since there was no legal process filed by TAWUSA to suspend the damages judgment.

[5] On 3 October 2017, TAWUSA filed its notice of appeal and accompanying application for condonation. It then filed and delivered the appeal record on 24 November 2017. The record was filed and served four and a half months out of time. On 13 December 2017, TAWUSA filed an application for reinstatement of the appeal together with a condonation application for the delay in filing the record. TAWUSA must accordingly persuade this Court to condone the late filing of the record and reinstate the appeal.

[6] On 22 September 2011, ABC’s employees, who were members of TAWUSA, took unprotected strike action. (“the September strike”). They also took strike action from 20 October until 10 November 2011 (“the October strike”).

[7] ABC instituted Labour Court proceedings in which it claimed damages arising from the unprotected strike action as against SATAWU, TAWUSA and THOR and their members in their individual capacities (“the main claim”). The summons was served on TAWUSA on 13 September 2012 at its provincial office in Port Elizabeth. On 31 October 2014, the Labour Court (Cele J) handed down default judgment against the three unions and their respective members.

[8] Central to TAWUSA’s explanation for the delay in prosecuting the appeal is that it was facing financial challenges. It says that during 2017, it was in arrears with the payment of legal fees to more than one firm of attorneys including its current attorneys of record and some advocates. During July 2017, both TAWUSA and its current attorneys of record, Lennon Moleele and Partners (“Lennon Moleele”), were sued by a Johannesburg advocate for the payment of just under R2 million of arrear fees dating back to July 2014. Summary judgment was sought against them but on 20 October 2017, the application was refused.TAWUSA alleges that as a result of this action, Lennon Moleele were only prepared to brief counsel who was familiar with TAWUSA’s precarious financial circumstances and was willing to accept the brief on condition that they would not sue them for outstanding fees.

[9] The Labour Court faxed its judgment in the application for leave to appeal to TAWUSA on 21 April 2017, but TAWUSA did not receive notice of it until 19 September 2017. On 20 September 2017, Mr GSB Lennon of Lennon Moleele (“Mr Lennon”) requested Mrs Moyo (“Ms Moyo”) of his Port Elizabeth correspondents, Pumeza Bono Inc (“Pumeza Bono”), to draw the court file to ascertain why TAWUSA was not notified of the leave to appeal judgment. Ms Moyo went to the Labour Court on 20 September 2017, but could not access the court file because the Labour Court was in the process of moving to the High Court building in Port Elizabeth.

[10] On 26 September 2017, Ms Moyo visited the Labour Court again to ascertain whether the move was completed. Although it was not, she

managed to obtain a copy of the leave to appeal judgment from the Registrar. Ms Moyo furnished Mr Lennon with a facsimile transmission

report from the Registrar indicating that the leave to appeal judgment was faxed by the Registrar to 086 536 6192 on 21 April

2017. Mr Lennon believed this to be the correct facsimile number of Pumeza Bono and had used it on all his pleadings. However, upon further investigation, it transpired that the facsimile number was not correct. That notwithstanding, TAWUSA says that Mr Lennon had always received correspondence and notices from the Labour Court in Port Elizabeth through Pumeza Bono.

[11] Unable to ascertain when the court file could be accessed, Mr Lennon decided to file the notice of appeal and the application for condonation for its late filing ahead of the record of appeal. After the leave to appeal judgment came to his attention, Mr Mankge together with Mr Lennon discussed the matter with Mr F. Wilke, who practised at the Johannesburg Bar (“Mr Wilke”). Mr Wilke had argued the condonation application in the Labour Court. TAWUSA owed Mr Wilke a substantial amount for long overdue fees, but because Mr Mangke knew Mr Wilke for about 25 years, he was prepared to settle the notice of appeal and accompanying condonation application for its late filing on the terms required by Lennon Moleele. The notice of appeal and application for condonation was filed on 3 October 2017.

[12] During Lennon’s telephonic interaction with Ms Moyo, she had flatly refused to incur any further disbursements on behalf of TAWUSA because of long overdue fees. In the circumstances, Mr Lennon was not in a position to request her to obtain a copy of the court file and send it to him. On 13 October 2017, Mr Lennon requested ABC’s attorneys, Joubert Galpin Searle, to furnish him with certain documents that were missing from his file. They responded on 13 October indicating that they would endeavour to extract the required documents and advise Mr Lennon of the copying charges in due course.

[13] In the meantime, Mr Lennon requested Mr Tiso of TAWUSA Provincial Office in Port Elizabeth to visit the Labour Court and make copies of the contents of the court file. The court file became available on 17 October 2017. TAWUSA furnished Mr Lennon with a copy of the court file on 25 October 2017.

[14] The record comprising 481 pages was prepared under the supervision of Mr Lennon by 7 November 2017. However, Mr Lennon was not prepared to incur further disbursements on TAWUSA’s behalf by making the required number of copies of the record at his own expense. Mr Mankge then arranged for him to make the copies at the Bargaining Council.

[15] Mr Lennon visited the office of the Bargaining Council on 8 November 2017 to make the copies, but the person appointed to assist him was not available. Mr Lennon returned to his office with the record and made arrangements with Mr Mankge to attend to the copying and binding of the record. On 14 November 2017, copies of the record were forwarded to Ms Moyo in Port Elizabeth.

[16] When the appeal record was ready to be filed in the Labour Court, Mr Lennon approached Mr Wilke to prepare the application for the

reinstatement of the appeal. Advocate Wilke was not available and advised Mr Lennon to brief other counsel, but promised to contact Mr Lennon should he become available. Mr Lennon was unable to find counsel (to prepare a reinstatement application) who was amenable to not suing his firm in the event of non-payment by TAWUSA.

[17] Mr Lennon fell ill on 21 November 2017, consulted a medical doctor the following day and was admitted for emergency surgery on 23 November 2017. He was only discharged from hospital on 27 November 2017. Mr Lennon returned to work on 4 December 2017. His attempts to find suitable counsel were, therefore, interrupted by his absence from work. He, however, managed to arrange for the record to be filed on 24 November 2017, despite being on sick leave.

[18] On the afternoon of Friday 8 December 2017, Mr Wilke became available to accept the brief to draft the reinstatement application and advised Mr Lennon of this. Mr Lennon then briefed Mr Wilke to prepare the application for condonation for the late filing of the record and reinstatement of the appeal.

Application for Reinstatement of the Appeal

[19] Rule 5(8) of the Rules of the Labour Appeal Court provides that the record must be delivered within 60 days of the date of the order granting leave to appeal. Rule 5(17) provides that if an appellant fails to lodge the record within the prescribed period, the appellant shall be deemed to have withdrawn the appeal unless the respondent or the Judge President, on proper application, has consented to an extension. TAWUSA did not seek an extension from ABC nor did it make application to the Judge President. The appeal was therefore regarded as withdrawn, and could only be reinstated by order of the Labour Appeal Court in terms of a substantive application for reinstatement.

[20] In United Plant Hire v Hills[1] the Appellate Division, in considering the factors that a court will look at in an application for reinstatement of a lapsed appeal stated (at 720F-G) that:

‘It is well settled that, in considering the application for condonation, the court has a discretion, to be exercised judicially upon a consideration of all the facts, and that in essence it is a question of fairness to both sides. In this enquiry, considerations may include the degree of non-compliance with the rules, the explanation therefor, the prospects of success on appeal, the importance of the case, the respondent’s interests in the finality of the judgment, the convenience of the court and the avoidance of

unnecessary delay in the administration of justice. The list is not exhaustive. These factors are not individually decisive but are interrelated and must be weighed one against the other; thus a slight delay and a good explanation may be held to compensate for prospects of success which are not strong.’

[21] According to the records of the Registrar, the leave to appeal judgment was sent to TAWUSA on 21 April 2017. It was faxed to Mr Lennon’s correspondents on a facsimile number that Mr Lennon used on all his pleadings – and believed to be correct. There is, however, no explanation why on this particular occasion the facsimile number was incorrect when Mr Lennon had “always in the past” received correspondence and notices from the Labour Court through Pumeza Bono Inc on this facsimile number.

[22] In the absence of a proper explanation for this state of affairs, the Court must accept that Mr Lennon was notified of the judgment on 21 April 2017. In the circumstances TAWUSA filed its notice of appeal almost 96 days late and the appeal record approximately four months late with no application for condonation and reinstatement of the appeal. The Court takes note that at least a month of this delay was occasioned by the move of the Labour Court to the High Court premises in Port Elizabeth. TAWUSA was, as a result, only able to uplift the record in mid-October 2017 from the Registrar. Save for this, TAWUSA’s explanation for not filing an application for condonation and reinstatement of the appeal is essentially that it could not find suitable counsel to draft the application on the payment terms required by Lennon Moleele, and the unavailability of Mr Wilke until 8 December 2017.

[23] An explanation based on the lack of funds will not automatically result in the granting of condonation. That explanation would require

assessment in the context of the facts of a particular case. In the current matter, TAWUSA has averred that it lacked funds to brief counsel timeously, but it has not disclosed its financial status to this Court. The Court also notes that TAWUSA had funds to file a notice of appeal and an application for condonation for its late filing, as well as an application to stay the warrants of execution which were struck off the roll by the Labour Court on 19 December 2017. These applications were misguided, as the proper course would have been for TAWUSA to use those funds to apply for reinstatement. But the reinstatement application was only filed on 13 December 2017, some weeks after TAWUSA was advised by ABC to bring a reinstatement application.

[24] Significantly, in this regard, on 3 October 2017 ABC had received TAWUSA’s notice of appeal and application for condonation. On 9 October 2017, ABC’s attorneys advised TAWUSA of the need to apply, in terms of the Rules of this Court, for the re-enrolment of the appeal and condonation for the late filing of the record. Despite this caution, TAWUSA responded by saying that it intended to pursue the route it had chosen. By then, the filing of the notice of appeal was already 96 days late, and no record had been filed. Hence the appeal had lapsed.

[25] Although TAWUSA did nothing further to prosecute the appeal, ABC filed a notice of opposition. In response, TAWUSA simply delivered the appeal record on 24 November 2017. Only on 13 December 2017, the day before it unsuccessfully sought a further stay of execution in the Labour Court (14 December 2017), did TAWUSA bring its application for the reinstatement of the appeal.

[26] In the absence of proper disclosure of its financial status, I find TAWUSA’s explanation for the delay in filing the record and the reinstatement application unsatisfactory.

Prospects of success in the Appeal

The explanation for the delay

[27] In the light of TAWUSA’s unsatisfactory explanation for the delay in filing its condonation and reinstatement application, it is necessary to consider whether it has strong prospects of success in the appeal. As you will recall, the appeal lies against the Labour Court’s refusal to grant condonation for the late filing of TAWUSA’s rescission application, which was four months out of time. In Melane v Santam Insurance,[2] the Appellate Division articulated the test for condonation as follows:

‘The basic principle is that the court has a discretion, to be exercised judicially upon a consideration of all the facts, as in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success, and the importance of the case. Ordinarily these factors are interrelated: they are not individually decisive, for that would be a piece-meal approach incompatible with the true discretion, save of course if there are no prospects of success, there would be no point in granting condonation … What is needed is an objective conspectus of all the facts. Thus, a slight delay and a good explanation may help to compensate for prospects of success which are not strong. On the importance of the issue and strong prospects of success may tend to compensate for a long delay and respondent’s interest in finality must not be overlooked. …’

In NUM v Council for Mineral Technology,[3] the Labour Court endorsed Melane as follows:

‘There is a further principle which is applied, and that is without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success no matter how good the explanation for the delay, an explanation for

condonation should be refused.”

[28] In dismissing the condonation application for the late filing of the rescission application, the Labour Court reasoned as follows:

‘The first respondent argued that the 65-day delay which the third respondent acknowledged is excessive although its true extent is even more. Whether the third respondent was required to have brought its application within 15 days of becoming aware of the judgment or within a reasonable time 65 days is excessive in the circumstances of this matter. I accept the first respondent’s argument that the explanation proffered by the third respondent that the delay was due to logistical and financial constraints is unreasonable. The third respondent had an obligation to explain the full extent of the delay. It did not. It omitted essential dates and left portions of the delay unaccounted for. The third respondent’s difficulty to provide a reasonable explanation for the delay is consistent with the first respondent’s version that the third respondent filed the application on 17 March 2015 having been jolted into action by receiving the writ of execution on 13 March 2015. The absence of a reasonable explanation for the inordinate delay constitutes sufficient grounds for the refusal of a condonation application.’

[29] TAWUSA ascribes the delay in launching its rescission application to the fact that the default judgment was brought to the attention of its main office in Johannesburg during November 2014, when a journalist sought comment from Mr Mankge. A copy of the judgment was obtained, and Mr Wilke was briefed. He was, however, based in Johannesburg and TAWUSA had insufficient funds in their account to enable him to travel to Port Elizabeth to consult with witnesses. Mr Wilke, therefore, prepared a document that contained an overview of applicable legal principles as well as a merger of the allegations contained in the founding and answering affidavits. This document was forwarded to potential witnesses in Johannesburg, Durban and Port Elizabeth but the responses provided insufficient particulars.

[30] In January 2015, TAWUSA was placed in funds to bring counsel to Port Elizabeth for extensive consultations with potential witnesses. Mr Wilke consulted with the witnesses from 21 January 2015 until Saturday 24 January 2015. Due to prior commitments, Mr Wilke was

unable to commence work on the preparation of this application during the week of 26 to 30 January 2015. On 13 February 2015, he forwarded a draft affidavit to TAWUSA for perusal and comment by witnesses in Johannesburg, Durban and Port Elizabeth. Some 10 days later on 26 February 2015, counsel was furnished with the outstanding information and advised of the necessary amendments to the affidavit.

[31] Counsel furnished his instructing attorney with the amended founding affidavit on 27 February 2015. However, certain documents and details about TAWUSA’s financial position remained outstanding. Subsequent searches for these documents came to naught. The

unavailability of these documents as well as certain witnesses, in particular, the intended deponent to the affidavit, Mr Dyante, caused further delays. In the light of Mr Dyante not being found, the founding affidavit had to be amended.

[32] On Friday 13 March 2015, Mr Wilke was advised of a writ of execution that was served upon TAWUSA’s banker, Standard Bank, and was furnished with a copy of the writ on Monday, 16 March 2015. Counsel finalised the affidavit on the same day and forwarded it to Mr Lennon and to his Port Elizabeth correspondent.

[33] Quite apart from the fact that the contents of the founding affidavit that purport to explain the delay in filing the rescission application are hearsay, the remainder of the explanation is unconvincing and lacking in particularly. For instance, when exactly in November 2013 did the (unnamed) journalist allegedly inform Mr Mangke, at TAWUSA’s head office in Johannesburg, of the default judgment is not made clear in the explanation. Assuming that this was early in November, TAWUSA does not explain why it took nearly a month to obtain a copy of the judgment and the court file. It is furthermore improbable that either Mr Mankge or other TAWUSA officials or shop stewards would not have heard of the default judgment from SATAWU shop stewards, against whom the order also operated.

[34] TAWUSA states that it took the whole of December to obtain comments from unidentified “potential witnesses” due to its lack of funds to send counsel to Port Elizabeth to consult with witnesses. Which witnesses TAWUSA’s counsel finally consulted during his visit to Port Elizabeth, in late January 2015, are not identified in its founding affidavit.

[35] Mr S.B Mkosi, the deponent to the founding affidavit in the condonation application, refers in his explanation to some outstanding documents but does not explain their relevance. Nor do they appear to have any bearing on TAWUSA’s financial position as claimed, and nor have they been delivered as promised. Instead of obtaining the annual financial statement for the period in question, TAWUSA obtained an income statement and a trial balance. The relevance of these documents is not explained yet a country-wide search was made for them.

[36] I also have difficulty comprehending how a draft affidavit was prepared on the assumption that it could be deposed to by a Mr Dyante, who had suddenly disappeared. Even more astonishing is that it took counsel between November 2014 and March 2015 to prepare a founding affidavit. TAWUSA’s legal representatives would have been aware of the rule that a defaulting party must seek condonation as soon as the need becomes apparent. It seems to me that TAWUSA was finally jolted into action when it received a writ of execution on 13 March 2015. The timing could not have been coincidental and must be viewed against the background of TAWUSA’s supine reaction to the main application which led to the default judgment.

[37] I am not convinced that logistical and financial constraints made it impossible for TAWUSA to bring the condonation application sooner. Such constraints are not an adequate basis for delay beyond the point where a litigant becomes aware of its default.

[38] The Labour Court’s conclusion that TAWUSA did not provide a satisfactory explanation for the delay is, therefore, beyond question. This Court has repeatedly held that where the explanation for a delay is weak in a condonation application, it is unnecessary

to consider the prospects of success.[4] Thus, given the absence of a satisfactory explanation for the delay, it was unnecessary for the Labour Court to consider the prospects of success of the rescission application.

Prospects of success in the Rescission Application

[39] I will, nevertheless, examine the prospects of success of the condonation application because it is central to whether TAWUSA has

prospects of success in the appeal. The appeal lies against the Labour Court’s refusal of the condonation application for

TAWUSA’s delay in filing its rescission application. Hence, its prospects of success in the recission application need to be assessed as well.

[40] TAWUSA seeks rescission under Rule 16A(1)(b) of the Rules of the Labour Court, which provides that the Labour Court may rescind any order or judgment granted in the absence of a party. It is trite law that a party relying on this provision is required to show good cause and a bona fide defence.

[41] TAWUSA seeks rescission on specified grounds. The first is that default judgment was erroneously sought in the absence of the individual

judgment debtors who are not also recipient shop-stewards as they were not properly notified of the proceeding that gave rise to the default judgment. Mr Mkosi, the deponent to the founding affidavit in the rescission application, purports to speak for the individual judgment debtors but provides no proof of authority to act on their behalf. Crucially, however, he admits to receiving a copy of the notice of the application as did the other named shop-stewards.

[42] Shop-stewards act as representatives of the unions and are impliedly authorised to act as agents on their behalf. Service on the shop-steward is generally considered service on the union. Service was furthermore properly effected on every one of the respondents. Notably, Mr Mkosi does not allege that any of the cited respondents were not made aware of the main application.

[43] The second defence raised by TAWUSA is that the default judgment was erroneously sought in TAWUSA’s absence as the founding

affidavit does not disclose a cause of action against TAWUSA. The cause of action appears clearly from the founding affidavit in the default application: it is the participation by three unions and their members in an unprotected strike which caused ABC loss. This also appears clearly from the founding affidavit in the main application.

[44] TAWUSA’s involvement in the September strike is manifest from the involvement of Mr Mkosi (chief shop steward) and its alternative shop-steward in a meeting during that strike. They were specifically requested together with the representatives of the other two unions to report back to their members. They were also handed a copy of the unprotected strike notice, dated 22 September 2011, which ABC issued on that day.

[45] Relating to the October strike, all three unions including TAWUSA’s representatives were issued with a communication on 20 October 2011, that “the unprotected strike action has far-reaching consequences and that their members must resume work immediately,

failing which ABC would have no choice but to bring an urgent application interdicting the strike action.” The shop stewards

(including those of TAWUSA) persisted in their refusal to engage at any level with management and did not attempt to persuade their

members to return to work.

[46] TAWUSA’s shop stewards were also involved in the discussions concerning ABC’s proposed sale of the business that purportedly triggered the strike. TAWUSA’s members and its shop-stewards, in particular, Mr Mkosi, supported the demand that led to the strike. Mr Mkosi, in fact, signed the strike demand. When TAWUSA’s members refused to resume duties, none of the three unions including TAWUSA gave ABC any indication of their willingness to procure the return to work of their members.

[47] The proposition advanced during argument that TAWUSA was not obliged to take steps to ensure the return of its members to work because there was no bargaining relationship between ABC and TAWUSA, during the period of the two strikes, is factually and legally untenable. This is because there is no requirement that a union must have a formal bargaining relationship with an employer before it assumes

responsibility for controlling members employed by that employer.

[48] TAWUSA contended that the default judgment was erroneously sought in the absence of the individual judgment debtors, as the founding affidavit disclosed no cause of action against them in relation to the September strike. There is no merit in this argument as the founding affidavit in the main application makes it clear that the further respondents were all engaged in unprotected strike action that caused ABC loss.

[49] TAWUSA sought to argue that due to an administrative oversight at its office in Port Elizabeth, the summons was lost and its head office in Johannesburg was not informed about the damages claim against it. What happened to the summons on receipt by TAWUSA’s Port Elizabeth office can hardly be described as mere “administrative oversight. What is clear is that its employee (Ms Mzembe) in its Port Elizabeth received the application papers on 13 September 2012, and acknowledged receipt by signing for it. She could, however, not say with certainty what happened to them after she had placed them on her desk. On TAWUSA’s version, the failure to forward the application papers, to its office in Johannesburg was the result of the inexcusable negligence of officials in its Port Elizabeth office. What this equates to, is administrative ineptitude. Administrative ineptitude can hardly, in my view, demonstrate “good cause.”

[50] TAWUSA’s members embarked on two unprotected strikes in close succession over spurious demands that could and should have been resolved by lawful means or abandoned. They then defied the Labour Court’s order to return to work for several days. Moreover, nowhere in its rescission application does TAWUSA challenge the finding that the strike caused ABC, a non-profit organisation performing a vital public service, damages of more than R10 million.

[51] TAWUSA claims that it did not instigate or support the September and October strikes and its members were not willing participants. It claims that it made numerous attempts to discourage its members from participating in the September 2011 and October 2011 strikes. This defence is unsupported by any factual allegations.

[52] Lastly, TAWUSA’s defence that the relief granted is incompetent because it does not specify what portion of the damages awarded, the three respondent unions are liable for. The relief granted here by the Labour Court was the alternate relief sought by ABC in its notice of motion. The judgment is for R10 million plus interest. It is clearly understood from their joint and several liability that each of the three unions is liable for a 33.3% share of the damages awarded. In any event, if there is any issue that arises from the nature of the order, that must surely be dealt with at the execution stage and not at the recission stage.

[53] All in all, the application for rescission was aimed solely at staying off the inevitable. It is no coincidence that it was made at around the same time that its bank account was attached. Had that not occurred, the application would never have been brought as TAWUSA would have continued to labour under the ill-conceived view that ABC was not serious about recovering some of the losses caused by the strike.

[54] TAWUSA has failed to show that it has a bona fide defence. Its members embarked on two unprotected strikes in close succession over spurious demands that could and should have been

resolved by lawful means or abandoned - and for several days defied an order of the Labour Court to resume work. For these reasons, I am not persuaded that TAWUSA has no prospects of success in its rescission application.

Importance of the Issue

[55] TAWUSA contends that the matter is of importance to it solely because it has been held liable for a significant judgment debt. TAWUSA’s case appears to be somewhat overstated because, as made clear by ABC, it sought and still seeks to recover only a portion of that debt from each of the three respondent unions. SATAWU has, in fact, agreed to pay its share. The predicament in which TAWUSA finds itself was, however, due to its conduct during the strike and that of its members.

[56] TAWUSA’s submits that the rescission application raises issues about the liability of unions under section 68(2) of the Act, and its meaning and scope. The meaning of section 68(2) of the Act is plain in so far as interdictory relief is concerned in terms of section 68(1)(a) of the Act. The Labour Court made an order interdicting the three unions and its members from striking, but they openly defied the order for several days before ending the strike.

[57] In so far as the order of “just and equitable compensation” in terms of section 68(1)(b) is concerned, the factors that the Labour Court was required to consider when fixing the amount of compensation were dealt with in the main application. TAWUSA and the other judgments debtors had their opportunity to persuade the Labour Court why they should not be ordered to compensate ABC the full amount of its loss. They lost the opportunity to do so, and TAWUSA cannot do so now.

[58] It is manifest from the history of this matter that TAWUSA was only jolted into action when ABC took steps to satisfy its judgment debt. The issuing of warrants of execution and the attachment of TAWUSA's bank account was yet another step which jolted TAWUSA into bringing a reinstatement application.

Prejudice

[59] TAWUSA contends that ABC would have suffered no prejudice if the Labour Court granted condonation for the late filing of the rescission

application because the judgment remains binding on SATAWU and THOR. There is no merit in this contention. As contended for by ABC, the prejudice that it has suffered from TAWUSA’s late intervention is self-evident. It waited for more than a year for the satisfaction of the judgment debt. TAWUSA caused a further year’s delay by forcing ABC to defend an attempt to stay execution against TAWUSA. The appeal was lodged four years after the rescission application was launched and six years after the default judgment was granted. In my view, ABC’s interests in finality far outweigh TAWUSA’s interest in having the rescission application determined.

[60] For all these reasons, I consider TAWUSA to have failed to demonstrate that it has prospects of success in the appeal against the Labour Court’s dismissal of its condonation application. Accordingly, its reinstatement application must fail.

Costs

[61] I consider this to be a matter where no costs order should be made.

Order

[62] In the result, I make the following order:

1. The application for condonation and reinstatement of the appeal is dismissed.

2. The appeal is struck from the roll.

___________

Kathree-Setiloane AJA

R.Sutherland JA and M.V Phatsoane ADJP concur

APPEARANCES:

FOR THE APPELLANT:

Mr Wilke

Instructed by Lennon Moleele & Partners

FOR THE FIRST RESPONDENT: Mr G. Fourie SC

Instructed by Joubert Galpin Searle

[1] 1976 (1) SA 717 (A),

[2] Melane v Santam Insurance Co. Limited 1962 (4) SA 531 (A) at 532C-F (Melane).

[3] NUM v Council for Mineral Technology (1999) 3 BLLR 209 (LAC) at 211G-I.

[4] Moila v Shai NO and Others [2007] 3 BLLR 432 (LAC) at paras 34-37; NUM v Council for Mineral Technology (1999) 3 BLLR 209 (LAC) at 211G-I.