Wiesenhof Coffee Roastery (Pty) Ltd v Raffee NO and Others (JR854/06) [2013] ZALCJHB 186 (8 August 2013)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case No. JR854/06

In the matter between:

WIESENHOF COFFEE ROASTERY (PTY) LTD .......................................................Applicant

and

NAMISA RAFFEE N.O. ................................................................................First Respondent

COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION ..........................................................Second Respondent

ARNOLD LOUW ..........................................................................................Third Respondent

Heard: 23 April 2013

Delivered: 08 August 2013

Summary: Application to dismiss review application granted.

VISAGIE, AJ

Introduction

[1] This is an unopposed application by the third respondent in terms of Rule 11 of the Labour Court Rules to dismiss a review application of an arbitration award due to unnecessary delay. The parties are referred to as they appear in the review application.

Background facts

[2] On 30 January 2006, the second respondent issued an arbitration award in favour of the third respondent after it found that the applicant constructively dismissed the third respondent on 25 October 2005. Not being happy with the outcome of the arbitration proceedings and the award, the applicant filed an application to review the award on 11 April 2006. The founding affidavit supporting the review application is no more than four pages long and it simply recounts the applicant's view that the first respondent erred in respect of various findings. There is no substantiation in the founding affidavit on what basis the applicant alleged that the first respondent erred in respect of his findings.

[3] On 30 November 2006, the third respondent filed an application in terms of Rule 11 seeking to compel the applicant to deliver a full and proper copy of the transcription within 10 days alternatively, seeking to compel the applicant to reconstruct the record. The third respondent also requested that the time periods for the delivery of the third respondent's answering affidavit and notice of opposition be suspended pending the delivery of a full and proper record of the proceedings. In support of the application, the third respondent contended that the applicant provided a transcript of the proceedings that was generally illegible as there were large tracks of the transcript which were recorded as inaudible. The third respondent stated that as a result, the text of the transcript did not make sense and was completely useless. On 5 December 2006, the applicant filed a notice opposing the third respondent's Rule 11 application.

[4] This Court then made an order on 1 February 2008 wherein the Court stayed the writ of execution issued on 8 January 2008 in respect of the award of 30 January 2006.

[5] On 29 January 2008, the third respondent filed an opposing affidavit. In it, the respondent stated that the applicant did not transcribe the record as required after filing the Rule 7A (8) notice on 5 November 2006. The third respondent filed a further affidavit in opposition on 25 February 2008 to which the applicant replied on 10 June 2008. In the reply, the applicant attempted to expand on the grounds for review after admitting that they were not properly framed in its original founding affidavit. In a

supplementary answering affidavit filed on 20 June 2008, before replying to the averments, the third respondent contended that the replying affidavit of the applicant was out of time, irregular and not accompanied by a condonation application.

[6] In dealing with an allegation made by the applicant in his replying affidavit that the applicant's attorneys have tried to reconstruct the record and have been unable to do so because of the non-co-operation and participation of the third respondent, the third respondent denied this allegation and referred the applicant to correspondence in that regard. In the correspondence, the applicant was informed that the record was badly transcribed and that the applicant should send the recordings to a reputable transcribing service. The third respondent's attorneys also informed the applicant's attorneys that the third respondent would hold off the prosecution of the application to compel for a period of 30 days in order to enable the recordings to be properly transcribed by the applicant. This correspondence was sent to the applicant on 18 January 2007.

[7] On 20 April 2010 and 5 May 2010, the Registrar of the above Honourable Court sent both parties directive letters requesting the parties to advise whether they were still interested in the matter being set down for hearing. The applicant ignored both directives and simply failed to take further steps. Since the granting of the order in 2008, applicant has taken no further steps in the prosecution of the review.

[8] At the hearing of the matter, the third respondent's representative handed up a copy of a letter received from the applicant and dated 22 April 2013 wherein the applicant stated that it will not be opposing the third respondent's application to dismiss

the review and set aside the order and that the applicant will not be attending the court on the hearing of the matter.

Legal principles and analysis

[9] In the case of Frans Meintjies New Tyre Manufacturers vs Bargaining Council and Others,1 the court set out the approach to be adopted in dealing with an application to dismiss a review application for want of timeous prosecution thereof. The court stated the following:

‘It is trite that the Court has discretion to bar an applicant who fails to provide a reasonable and satisfactory explanation for the delay in timeous prosecution of his or her review application. The approach to be adopted when dealing with the issue of unreasonable delay has received attention in number of both the Labour and Appeal Court cases. The Courts in considering whether to uphold an application for the dismissal of a review on the ground of want of prosecution take into account the following :( footnote omitted)

(a) is the 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.

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 the review application progresses expeditiously towards its finalisation. It has been held in this regard that when confronted with the delay in prosecution of a 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.’

It is apparent from the facts of this matter that the delay is largely due to the applicant not taking any steps to further the prosecution of the review after the order that was granted on 1 February 2008. Although the applicant filed a replying affidavit in June 2008, it was simply in order to reply to the answering/opposing affidavit filed by the third respondent wherein the third respondent pointed out shortcomings in the applicant's review application. It was therefore an attempt to address those shortcomings in reply. This was the last process filed by the applicant in pursuing the review. It has therefore been more than 4½

years to the date of the hearing of this matter that the applicant has not done anything with regard to the review application. If there was any doubt as to whether or not the applicant intended to proceed with prosecuting the review application, the letter received from the applicant the day before the hearing of this application makes it absolutely clear that the applicant has no intention to prosecute the review any further.

There has, therefore, been an extra ordinary long period of delay and on that basis alone, the applicant's review application should be dismissed for want of prosecution. The third respondent was unfairly dismissed in 2005 and the arbitration award was issued on 30 January 2006. Had it not been for the order staying the execution of the writ that was issued in respect of the

arbitration award, the third respondent would have been able to pursue the compensation that was awarded to him in the arbitration

award. The third respondent has been severely prejudiced by the conduct of the applicant. In my view, due to the extra ordinary long period of delay by the applicant in prosecuting the review, on that basis alone, the third respondent's application to dismiss the review application filed by the applicant on 11 April 2006 must succeed as well as the setting aside of the order dated 1 February 2008.

Order

The third respondent's application to dismiss the review application filed by the applicant on 11 April 2006 is granted and the order dated 1 February 2008 is set aside.

______________

Visagie, AJ

Judge of the Labour Court

APPEARANCES

For Applicant: Advocate PMW Botha

Instructed by: Fairbridges Attorneys

1 [2012] 6 BLLR 558 (LC) at paras 30-31.