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Diane D Karras t/a Floraline v South African Scooter and Transport Allied Workers Union and Others (JA78/99) [2000] ZALAC 21 (17 October 2000)

.RTF of original document

IN THE LABOUR APPEAL COURT OF SOUTH AFRICA

held in Johannesburg


Case No: JA 78/99

In the matter between:

DIANE D. KARRAS t/a FLORALINE                      Appellant

and

SOUTH AFRICAN SCOOTER AND TRANSPORT
ALLIED WORKERS UNION AND 26 OTHERS                Respondents



JUDGEMENT



ZONDO JUDGE PRESIDENT

Introduction


A.      
Application for the dismissal of the appeal, application for Condonation of the late delivery of : (I) the record of appeal, the power of attorney and the appellant’s heads of argument.

[1]      Before us are an application brought by the respondents in this “appeal” for the dismissal of the appeal noted by the appellant, an application by the appellant for the condonation of its late delivery of the record of appeal, its power of attorney and its heads of argument. The facts and matters relevant to the application for the dismissal of the appeal overlap with those relevant to the application for condonation. For that reason it is convenient to deal with the two applications simultaneously. In fact if the application for the dismissal of the appeal fails, the application for condonation for the late delivery of the record must succeed and vice versa.

[2]      The matters relevant to the two applications are that:.

(a)      rule 5(6) requires an appellant to deliver the record of appeal within 60 court days from the date when the Labour Court granted leave to appeal;

(b)      in this matter the Labour Court granted the appellant leave to appeal on the 20th October 1999; this meant that the appellant had until the 18th January 2000 to deliver the record to the registrar of this court;

(c)      as a matter of fact the appellant delivered the appeal record on the 14th March 2000; this means that the period by which the appellant was out of time with the delivery of the record is about eight weeks;

(d)      in terms of rule 5(17), if an appellant fails to deliver an appeal record, he is deemed to have withdrawn the appeal unless he approaches the respondent for consent to an extension of time for the delivery thereof; should the respondent not grant consent to such extension, the appellant may approach the Judge President and request him to extend the period within which the record may be delivered; in this case the appellant approached the respondents for their consent but they withheld their consent; the appellant did not approach the Judge President for an extension; in fact the appellant did not even launch an application for condonation of its failure to deliver the record within the time specified by the rules of this Court - which should include an application to reinstate the appeal - until the respondents had filed an application for the dismissal of the appeal;

(e)      on the 15th November 1999 the appellant’s attorneys sent a letter to the registrar and another one to Vic and Dup Transcription Enterprises CC, the company which recorded the proceedings in the trial in the court a quo; in the letter to Vic and Dup the appellant annexed a copy of the letter to the registrar; in the letter to the registrar, the attorneys for the appellant requested the registrar to “allow Vic and Dup Transcribers to transcribe the record” in this matter; in the letter to Vic and Dup, the appellant’s attorneys said they were enclosing a letter addressed to the registrar “requesting that the record of the hearing under case number J886/97 be made available in order to enable us to proceed with an appeal in respect of which an (sic) appeal has been granted.” In the second and only other paragraph of the letter the appellants’ attorneys said to Vic and Dup: “We await your quotation as to the cost of the transcription and will forward the deposit to you immediately upon receipt of your quotation.”;

(f)      On the 30th November 1999 Vic and Dup sent a letter to the appellant’s attorneys in response to their letter of the 15th November; in that letter Vic and Dup gave a quotation estimating the costs for the transcription (and, also, I assume, preparation,) of the record at +- R 18 000,00;

(g)      On the 1st December 1999 - which was the day following upon the one on which the appellant’s attorneys had received Vic and Dup’s quotation, the appellant’s attorneys faxed a letter to the appellant requesting payment of the amount required by Vic and Dup for the preparation of the record;

(h)      the appellant has stated in her affidavit that the letter of the 1st December 1999 from her attorneys did not reach her - she says she believes that the reason why it did not reach her is the work pressure she worked under at the time;

(I)      the appellant says on the 10th December 1999 she went on holiday and did not return until about the 11th January 2000 - a period during which she was out of contact with her attorneys; in the meantime her attorneys were trying in vain to get hold of her in connection with the payment to Vic and Dup of the required deposit;

(j)      when, after she had returned from her holiday, the appellant learnt of the need for the payment of the deposit, she immediately paid the deposit within 24 hours of her return;

(k)      on the 11th January 2000 the appellant’s attorneys sent a written request to the first respondent (which is the trade union which was recognised by the appellant at the time the dispute arose which is the subject of this appeal) asking for the respondents’ consent to an extension of time for the delivery of the record; in that letter the attorneys said that as a result of the festive season, it was not going to be possible to deliver the record within the stipulated period; by way of a letter dated the 13th January the union refused to grant the extension and gave no reasons for its refusal;

(l)      On the 19th January the appellant’s attorneys sent the required cheque to Vic and Dup and requested that the preparation of the record be given urgent attention;

(m)      during the period from the end of January 2000 and the date of the delivery of the record, some further correspondence was exchanged between the appellant and the respondents as well as between the appellants and Vic and Dup in relation to the record;

(n)      as indicated earlier, the record was finally delivered to the registrar on the 14th March 2000;

Period of delay and the explanation therefor

[4]      The period of delay can be divided into two. The one is from soon after the granting of leave to appeal upto about the 12th January 2000 when the appellant provided her attorneys with the payment required by Vic and Dup. The respondents submitted that there was no justification for the appellant’s attorneys’ failure to have obtained the payment from their client sooner than they did. They made this submission because the appellant’s attorneys’ explanation for the delay during this period is that they had not obtained the necessary funds from the appellant and the appellant had not become aware of the requirement for this payment until around the 11th January. I am satisfied that the appellant has furnished a satisfactory explanation on why there was a delay upto the 11th or so of January 2000. They had requested a quotation from Vic and Dup reasonably early; within a day or two after Vic and Dup had furnished its quotation, the appellant’s attorneys immediately sent a fax to the appellant requesting payment of the amount required by Vic and Dup. The appellant had gone on holiday without being aware of the fax from her attorneys; when she returned and learnt of the requirement, she promptly paid the required amount.

[5]      The other period of the delay begins around the 12th January 2000 when the appellant made funds available to her attorneys to enable the record to be prepared. It then goes upto the date of the delivery of the record. After the appellant’s attorneys had been placed in funds by the appellant, they made payment to Vic and Dup within seven days. The relevant letter is dated the 19th January. After the appellant’s attorneys had made this payment, the delay which occurred thereafter was no longer due to anything they did or they might have done after the 19th January. The whole matter of the record was at that stage in the hands of Vic and Dup. I cannot see why it took Vic and Dup two months or so to prepare the record in this matter. Nevertheless, such fault as there may be in this regard lies not with the appellant or her attorneys, but with Vic and Dup. In all the circumstances I consider that good cause has been shown and that the late delivery of the record should be condoned. That also means that the application for the dismissal of the appeal on account of the appellant’s failure to deliver the record timeously should be dismissed.


[6]      There was also the matter of the appellant’s failure to deliver her heads of argument timeously. The heads of argument were late by a period of about 12 days. The explanation given by the appellant’s attorneys for the failure to deliver the heads of argument timeously was not satisfactory. They said that they had learnt about the judgement of this Court in Modise (which is referred to later in this judgement) which, they understood, could be relevant to this appeal and they wanted to obtain a copy thereof and to study it first before they could deliver the appellant’s heads of argument. I find this explanation unsatisfactory. I cannot understand why it would have taken about 12 days to get a copy of that judgement or why obtaining a copy of that judgement could have caused a delay of 12 days. In any event the appellant could have delivered her heads of argument before studying that judgement and complied with the time limits and could have filed supplementary heads of argument later. However, there was no prejudice to the respondents as a result of the late delivery of the heads of argument because the matter was postponed on the 6th June 2000 to the 28th June 2000. Notwithstanding the unsatisfactory explanation for the appellant’s delay in the delivery of her heads of argument, I am of the opinion that the failure should be condoned because no serious prejudice was caused to the respondents. In respect of the late delivery of the power of attorney by the appellant, there was also no serious prejudice caused to the respondents. That failure, too, should be condoned.

[7]      In the premises I make an order in the following terms:-

(a)      the respondents’ application for the dismissal of the appeal is dismissed with no order as to costs.

(b)      the appellants’s application for condonation of the late delivery of the record of appeal is hereby condoned with no

order as to costs.

(c)      the appeal is hereby reinstated and enrolled.

(d)      the appellant’s failure to deliver her heads of argument and the power of attorney timeously is hereby condoned.

I now turn to consider the merits of the appeal.        

The Appeal
[8]      This is an appeal against a judgment of the Labour Court in a dispute between the appellant and the respondents. The dispute was whether the dismissal of the second and further respondents by the appellant was fair. The Labour Court gave a judgment to the effect that the dismissal was unfair and awarded the second and further respondents compensation. No order on costs was made. With the leave of the court a quo, the appellant appeals to this court against the whole of that judgment. Although the respondents had also noted a cross-appeal, such cross-appeal was later withdrawn for reasons that are not relevant to this judgment. I set out below the facts of this appeal.


The facts

[9]      The appellant, an adult woman, runs the business of importing, manufacturing, selling and distributing artificial silk flowers under the name Floraline. The first respondent is a registered trade union. The second and further respondents are members of the first respondent and are former employees of the appellant who were dismissed from the appellant’s employment on or about 1 September 1997.

[10]     In July or so of 1997 the appellant and the first respondent concluded a recognition agreement in terms of which the appellant agreed to recognise the first respondent as the sole collective bargaining agent of its members. On the afternoon of the 6th August 1997 the second and further respondents walked out of their workplace before the normal knock-off time. This was at about 16h00. They alleged that they had been threatened by one Mr Nkuna that they would be killed. Apparently Mr Nkuna had a younger brother who had assumed duty as a temporary employee of the appellant that same morning. Mr Nkuna was apparently a taxi driver. According to the respondents, the source of the problem between themselves and Mr Nkuna was demanding that they should stop making all kinds of demands he understood them to be making on the appellant. Apparently he threatened that he and other taxi-drivers would return at 17h00 when the respondents would be knocking off and shoot them dead; hence the second and further respondents’ departure from the workplace before knock-off time. They did not report for duty for the rest of August.

[11]     After the second and further respondents had left their workplace, they proceeded to the union office. The union office was apparently closed for the day when they arrived. They returned to the union office the following morning. They reported what had occurred to the general secretary of the union, a Mr Sibiya. As a result of the report made to Mr Sibiya by the second and further respondents, the alleged threat by Mr Nkuna was reported to the local police station. It would appear that the report to the police also included an allegation of a pointing of a firearm by Mr Nkuna. Mr Sibiya also wrote a letter to the applicant on the matter. In that letter, which was dated the 7th August 1997, Mr Sibiya stated in effect that the second and further respondents had left the premises of the appellant before knock-off time because they feared for their safety or lives after a threat had been made that at 17h00 taxi-drivers would come and shoot them. In part he said the following in that letter: “We are unable to send them back to your premises until such time that police (sic) and the relevant authorities including CCMA are notified and they have deliberated on this matter.” After accusing the appellant of long having wanted to find a way to rid itself of all union members, Mr Sibiya concluded his letter by suggesting that a meeting be held to find a “speedy resolution which will guarantee the safety of our members.”


[12]     The appellant testified that on the afternoon of the 7th August Mr Sibiya came to the gate of its premises and caused “havoc.” She testified that she was called to the gate where she found Mr Sibiya. She testified that, when she heard that Mr Sibiya was at the gate, she thought that Mr Sibiya was there in order to discuss with her the problem relating to the previous day. She testified that she welcomed what she thought was an opportunity to discuss the problem. However, when she came to the gate, said the appellant, Mr Sibiya threatened her, called her a criminal, thief and liar and said that she was going to be arrested and sent to jail. The appellant said Mr Sibiya was not open to discussion but demanded to see one of her employees called Anna. Anna refused to come to the gate and meet Mr Sibiya. The appellant had to call in the security before Mr Sibiya could leave. This evidence by the appellant stands uncontradicted because Mr Sibiya did not testify in the Court below.

[13]     The appellant responded to the union’s letter by way of a letter dated the 8th August. In that letter the appellant stated that she had no knowledge of the allegations contained in the union’s letter. The appellant accused the union and the second and further respondents of threatening management. She sought an “urgent written guarantee” from the union and the second and further respondents “concerning the safety of non-union members, management and staff including Miss D. Karras.” That letter was on the letterheads of a certain advocate M. Beän who appears to have acted as a legal adviser to the appellant on labour matters at the time.

[14]     On the 11th August the appellant decided to supplement its earlier reply to the union’s letter of the 7th August. It did so by way of a letter dated 11th August. In that letter the appellant accused the union of distorting facts in its letter of the 7th August in order to “keep your members away from work.” The appellant said she had no objection to the police being present on its premises in order to ensure everyone’s safety. The appellant then said in the letter: “We wish to advise you that your members’ absence is illegal and serious and you are requested to instruct them to return to the premises under the protection of the police.” It also said: “If [the second and further respondents] fail to return we intend to institute appropriate action.” The appellant’s letter of the 11th August did not succeed in getting the second and further respondents back at work. In the meantime the union had also referred the matter of the threats allegedly made to the second and further respondents to the Commission for Conciliation, Mediation and Arbitration (“the CCMA”).

[15]     On or about the 19th August the appellant lodged an urgent application in the Labour Court for an interdict. The main complaint of the appellant in the urgent application was that the conduct of the second and further respondents constituted an unprotected strike. Accordingly it sought, among others, an order restraining them from continuing with their strike. The appellant’s urgent application