[5]
However, what is not explained is the delay in filing the application for condonation of the late
noting of the appeal. In common with other courts this Court has laid down that an application for condonation should be filed as
expeditiously as possible after the need to seek condonation arises. See, e.g., All Round Tooling (Pty) Ltd v NUMSA [1998] 8 BLLR 847 at 849H-J. The relevant notice of motion is dated 20 February 1997, itself a date considerably long after the date
by which the appeal ought to have been noted. The application was, however, not filed then. That only occurred after 15 April 1997,
the date on which the supporting affidavits were attested. No explanation for this delay was forthcoming, and it cannot accordingly
be condoned.
[6]
The power of attorney to note and prosecute the appeal was (a) filed out of time (it was dated 10
April 1997), and (b) referred to an appeal to be heard in the relevant provincial division of the former Labour Appeal Court. No
condonation for these defects was sought and accordingly none can be granted.
[7]
Condonation is, however, further sought in respect of the late filing of the record on appeal and
of the applicant’s heads of argument. The former was required, in terms of the relevant rules, to have been filed within 60
days of the noting of the appeal. It was in fact only filed during August 1998. That the delay in question was exceedingly long is
manifest. The explanation proffered therefor may be summarised as follows:
(a)
The request of the applicant (through its attorneys) for the record and tapes of the proceedings
in the industrial court was not made until more than a month after the date on which the record should have been filed. Initially
the request was directed to the wrong court.
(b)
Financial constraints prevented the applicant from being in a position to pay for the transcription of
the evidence given in the industrial court until the end of January 1998; the transcription itself was received on 10 February 1998.
(c )
The record could, however, not be filed at that stage because copies of the exhibits had to be prepared
and the applicant’s attorneys had not yet been placed in possession of the pleadings and other documents filed of record in
the industrial court. Same had to be obtained from the registrar of the industrial court in Pretoria. There followed, over a period
of some months: the filing of a record that was not bound, paginated or indexed; the retrieval thereof by the applicant’s attorneys;
delays in forwarding the record for binding and pagination and delays, after receipt of the properly prepared record, in the filing
thereof.
The heads of argument, which should have been filed by 27 November 1998, were in fact filed on 2 December 1998. The explanation therefor
was, in short, that counsel could only be briefed on 25 November 1998 to draft the heads of argument by reason of the applicant’s
failure, despite repeated requests from its attorneys, over an extended period of some months, to make the required funds available
to its attorneys. That failure was in turn ascribed to the financial constraints under which the applicant was labouring.
[8]
The application for condonation of the late filing of the appeal record and of the applicant’s
heads of argument was only filed on 5 February 1999, i.e., four court days before the date assigned for the hearing of the appeal,
and a considerable period after the need to seek condonation in both respects arose.
[9]
The following comments fall to be made:
(a)
Whatever the financial constraints under which the applicant was labouring, the inference from the
papers is that it deliberately chose the make the appeal in this matter subservient to other demands on its resources; this applied
both to its duty to file the record and to enable counsel to be briefed timeously to permit of the heads of argument to be filed
by due date. It is not unfair to hold that the applicant should bear the consequences of that deliberate decision;
(b)
While the delay in filing the heads of argument was not substantial, the delay in filing the record
can only be described as inordinate;
(c )
Included in the total period of that delay were a number of periods, of cognizable length, where the
failure to take any action was not explained at all. There are also instances where wrong action taken was not explained, viz., the
initial request to the wrong court for the record and tapes of the proceedings in the industrial court and the filing of a record
that was not bound, paginated or indexed. As already stated, what has not been explained cannot be condoned.
(d)
There is no explanation for the delay in filing the application for condonation. Again, it follows
that no condonation thereof can be granted.
[10]
The cumulative effect of all the respects in which the applicant failed to comply with the applicable
rules, in some instances grossly so, and the failure to explain same, was such that this Court was not called upon even to consider
the applicant’s prospects of success in the appeal, but was required summarily to refuse the application for condonation together
with the costs order referred to earlier.
___________
KROON JA
I agree
________________
FRONEMAN DJP
I agree
______________
CONRADIE JA
Appearance for Appellant:
Mr TALJAARD
Instructed by Smith Tabota-Barnes & Ross
Appearance for Respondent:
Mr WADE
Instructed by Marshall & Kaplan
Date of Hearing:
11 February 1999
Date of Reasons:
3 March 1999
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