Van Niekerk v Shelfine 139 (Pty) Ltd t/a Overland Cash & Carry; In re: Shelfine 139 (Pty) Ltd t/a Overland Cash & Carry v Greyling and Others (JR1477/11) [2014] ZALCJHB 464 (26 November 2014)

REPUBLIC OF SOUTH AFRICA

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: JR1477/11

In the matter between:

JOHN DOUGLAS VAN NIEKERK

Applicant

and

SHELFINE 139 (PTY) Ltd

t/a OVERLAND CASH & CARRY

Respondent

IN RE: IN THE MATTER BETWEEN

SHELFINE 139 (PTY) LTD

t/a OVERLAND CASH & CARRY

Applicant

PIETER J GREYLING

First Respondent

CCMA

Second Respondent

JOHN DOUGLAS VAN NIEKERK

Third Respondent

Heard: 7 March 2014

Delivered: 26 November 2014

Summary: An application to dismiss a review for the applicant’s inordinate delay in prosecuting it will not be granted if there are reasonable grounds to condone the delay.

LALLIE J

Introduction

[1] This is an application to dismiss a review application owing to the respondent’s inordinate delay in prosecuting it. It is opposed by the respondent.

Factual background

[2] The applicant was employed by the respondent. Subsequent to his dismissal, he referred an unfair dismissal dispute to the Commission

for Conciliation Mediation and Arbitration (‘the CCMA’) which in an award dated 20 June 2011 found his dismissal substantively unfair and ordered the respondent to pay him compensation. On 6 July 2011, the respondent filed an application to have the award reviewed and set aside. After an exchange of correspondence between the parties regarding the pace of the prosecution of the review application, the applicant obtained a writ of execution in an attempt to enforce the award. The respondent responded by filing an urgent application to stay the execution of the arbitration award pending the finalization of the application for review. An order in the respondent’s favour was granted on 8 December 2011 and the applicant filed this application in October 2012 about ten months thereafter.

[3] In Autopax Passenger Services (Pty) Ltd v Transnet Bargaining Council and Others[1], the court referred with approval to Setsokosane Busdiens (Edms) BPK v Voorsitter, Nationale Vervoer Kommissie, en ‘n Andere[2], where, in dealing with the unreasonable delay rule in instituting review proceedings the court found that two questions need to be considered. The first is whether there was an unreasonable delay. The second is, if there was, it should in all the circumstance be condoned. The court expressed the approach to be adopted in determining whether the delay is excusable as follows:

‘In Gopaul v Subbamah 2002 (6) SA 551 (D) the approach adopted was one where the court would weigh up the period of the delay and the reasons thereof, on the one hand, and the prejudice, if any, caused to the defendant, on the other. In Sanford v Haley NO 2004 (3) SA 296 (C) a similar approach was adopted. The court held that the “… prerequisites for the exercise of such discretion are, first, that there should be a delay in the prosecution of the action; secondly, that the delay is inexcusable and, thirdly, that the [defendant] is seriously prejudiced by such delay”. It was further held that the court will exercise its power to dismiss an action on account of a delay or want of prosecution only in exceptional circumstances because the dismissal of an action seriously impacts on the constitutional and common-law right of a plaintiff to have the dispute adjudicated in a court of law by means of a fair trial (see also Kuiper & others v Benson 1984 (1) SA 474 (W) at 477A and Western Assurance Co v Caldwell’s Trustee 1918 AD 262 at 271 and 273)’.

[4] Substantiating his claim for the dismissal of the review application the applicant submitted that the respondent filed its review

application on 6 July 2011. On 10 January 2012, the applicant’s attorneys addressed a letter to the respondent reminding it of its failure to file the arbitration record on time and threatened to move the present application. In the answering affidavit, the respondent denied that it delayed in filing the arbitration record. It submitted that its supplementary affidavit and the arbitration record were submitted by hand at the Labour Court on 31 August 2011 and served on the same day on the applicant via registered mail. The package was, however, returned unclaimed. The respondent replied to the letter from the applicant’s attorney dated 10 January 2012 on 11 January 2012 by explaining that it had served the documents by registered mail on 31 August 2011. The documents were again served by registered mail on 11 January 2012. The answering affidavit was filed on 25 January 2012.

[5] The applicant submitted that as a result of the respondent’s supine attitude towards the prosecution of the review application,

his attorneys addressed a further letter to the respondent on 16 March 2012, putting pressure that active steps to pursue the review

application be taken. The respondent submitted that it filed its replying affidavit at the Labour Court on 26 January 2012. After

receiving the letter of 16 March 2012 from the applicant’s attorneys, the respondent applied for a date for the hearing of the review application via fax on 27 March 2012. Thereafter submissions were forwarded to the Labour Court via registered mail. On 11 April 2012, the applicant’s attorneys reminded the respondent to index and paginate the court file. The respondent submitted that the applicant’s allegation was untrue as the file was properly index and paginated. The respondent submitted that on 18 May 2012 and 2 August 2012, it again applied for a date for the hearing of the review application. It therefore denied that it failed to prosecute its review application diligently. The applicant submitted that no active steps were taken by the respondent to prosecute the review application after the order staying the execution of the writ of execution. When ten months lapsed after the date the order was granted, the applicant filed the present application.

[6] The applicant did not file a replying affidavit. The allegations made on behalf of the respondent of the steps it took to ensure that the review application was set down for hearing were not opposed. The answering affidavit reflects that the respondent took active steps to prosecute the review. It sent the supplementary affidavit and the arbitration record for the second time when its first attempt was unsuccessful when the documents were returned uncollected. The respondent made three requests for the review application to be enrolled, on 27 March 2012, 18 May 2012 and 2 August 2012. The applicant’s requests were not granted through no fault on its part. It cited numbers allocated to the registered items it sent to the Labour Court and the applicant as it communicated and delivered affidavits via registered mail.

[7] The respondent’s version is not far-fetched and in the absence of a replying affidavit refuting the respondent’s averments, the respondent’s version must be preferred (See Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd[3]). When the date on which the review application was filed and the date of the launching of the present application are considered, the delay is unreasonable. However, when all the circumstances of this matter are taken into account they justify the condonation of the delay. The respondent did not adopt a passive attitude in prosecuting the review application. Some circumstances like the returning of the record and supplementary affidavit which were sent by registered mail and not being allocated a date for the hearing of the review application were beyond its control. While the applicant suffers prejudice as a result of the delay, no exceptional circumstances were established which justify the dismissal of the review application. The applicant has not proved that the respondent has failed to prosecute its review application diligently.

[8] In the premises, the following order is made:

8.1 The application is dismissed

_________________________

Lallie J

Judge of the Labour Court of South Africa

APPEARANCE

For the Applicant: Mr Wising of Wissing Inc

For the Respondent: Mrs Bester of Shelfine

[1] [2007] 1 BLLR 39 (LC) at para 10..

[2] 1986 (2) SA 57 (A).

[3] [1984] ZASCA 51; 1984 (3) SA 623 A