Zululand Anthracite Colliery v Commission for Conciliation Mediation and Arbitration (D1140/99) [2001] ZALC 6 (31 January 2001)

This is a matter in which the Second Respondent and another, V Dhlamini, both of whom were employees of the Applicant, were each found with a blood alcohol content in excess of the First Respondent’s official limit of 0,08% which had been agreed between the Applicant and the National Union of Mineworkers, of which the Second Respondent was, at all relevant times, a member. It is common course that both Dhlamini and the Second Respondent committed the offence whilst employed in a “high-risk” area of the Applicant’s mine premises. At the time of the commission of the offence, the Applicant was engaged in an acting capacity in the place of Dhlamini, who, having committed his part of the offence on a date prior to the Second Respondent’s date of commission of the offence, had been suspended from duty.

It is common course that the area where the Second Respondent and Dhlamini were stationed was a “high-risk” area, at a mine owned by the Applicant. Although Dhlamini has a previous conviction in respect of the same offence, his alcohol content was only 0,009%. On the other hand, whilst the Second Respondent’s alcohol content was 0,24%, three times in excess of the limit, he was a first offender. According to a security officer employed by the Applicant, one Sithole, being the person who apprehended both Dhlamini and the Second Respondent and later tested their blood alcohol content, the Second Respondent exhibited signs of being under the influence of liquor at the time that he was apprehended by Sithole. That is what the latter said to the Commissioner during arbitration proceedings.

Both employees were suspended in consequence of their respective alcohol blood content being above the official limit. Both employees were charged and subsequently appeared in respective disciplinary enquiries on dates that I have not been able to determine from the papers. Each of them was dismissed for the offence that he had committed. They both applied for leave to appeal against their respective dismissals, Dhlamini’s application was successful. Although a “Memorandum” from the Applicant, in which the “APPLICATION FOR APPEAL” (sic) with regard to the Second Respondent is contained, does not say so in so many words, it is common cause that the Second Respondent’s application for leave was refused, thus confirming his dismissal from duty.

The Second Respondent took the matter to the Commission for Conciliation Mediation and Arbitration (CCMA), the First Respondent herein, challenging his (the Second Respondent’s)dismissal on the basis of the Applicant’s inconsistency in its application of discipline for the offence of being found with a blood alcohol content in excess of the permissible limit, whilst on duty. This complaint was based on the fact that the Second Respondent was dismissed, whilst Dhlamini was given a written final notice and permitted to continue with his employment. The Second Respondent’s complaint ended up being dealt with within the arbitration process.

The section of the Act in terms whereof the matter was referred to arbitration does not appear in the papers and it was, by oversight, not mentioned during argument. I assumed, at the time, that it was an ordinary 134 referral. It occurs now, however, that it ought to have been a referral in terms of sec 140. Sec 140 (1) reads:

“(1) If the dispute being arbitrated is about the fairness of a dismissal and a party has alleged that the reason for the dismissal relates to the employee’s conduct or capacity, the parties ,despite sec 138(4), are not entitled to be represented by a legal practitioner in the arbitration proceedings unless-

the Commissioner and all the other parties consent; or

the Commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representation...”

There is no doubt that the essence of the Second Respondent’s grievance is that he was unfairly dismissed and that he should have been given a written final warning, as was done in Dhlamini’s case. That, therefore, placed the dispute between himself and the Applicant within the provisions of sec 140(1), which, in turn, means that the parties ought not to have been represented before the Commissioner without either the consent envisaged in sub-paragraph (a) or the Commissioner’s decision in sub-paragraph (b). In my view, where there has been such consent or decision, that fact ought to be recorded and the Court’s attention ought to be drawn thereto when the matter comes it.

In view of the circumstances of this case, I think it is only appropriate for me to assume that the dispute was dealt with in terms of either sub-paragraph (a) or (b) of sec 140(1). I do not think it is appropriate to re-open that enquiry at this stage. I must stress, however, that I am of the view that, in a case where the facts of the dispute bring it within the provisions of sec 140(1) and where the parties are, nonetheless, legally represented before the Commissioner, it is obligatory for the parties to explain how that came about, i.e. whether it was in terms of sub-paragraph (a) or sub-paragraph (b) of section 140(1) that that was done. In either event, if and when the matter does proceed to the Labour Court, that aspect will already be on record. To do otherwise would be to render sec 140, as a whole, obsolete. It should be borne in mind that sub sec 2 makes provision for the Commissioner who “finds that the dismissal is procedurally unfair” to “charge the employer an arbitration fee”. I would think that sub-sec (1) is designed to avoid an employer unwittingly paying unjustified costs of legal practitioners, in the event of the Commissioner thus charging the employer.

OUTCOME OF REVIEW PROCEEDINGS

In a 6-page judgment, in which he dealt fully with the facts and the argument by the parties, the Commissioner who arbitrated the dispute found in favour of the then Applicant, the Second Respondent in the current proceedings. I am not, at this stage, concerned with the question as to whether the Commissioner dealt with such facts and argument correctly or otherwise. The relevant portion of his finding reads;

“In the light of the surrounding circumstances, dismissal was not an appropriate sanction to impose. Especially if one considers that there was the precedent of V Dhlamini, who had not been dismissed for a similar offence.”

The award itself reads:

“I, therefore, reinstate the applicant to his former position with three months back-pay (R6985-00x3)=R20,955-00. This will convert the applicant’s sanction of dismissal of a two month suspension without pay.”(sic)

APPLICATION IN TERMS OF SEC 145,ALTERNATIVELY, 158(1)(g)

In a Notice of Motion dated 14 October, 1999, the Applicant sought to have the arbitration “decision or proceedings” before the Commissioner “reviewed and corrected or set aside”, in terms of sec 145, alternatively sec 158 (1)(g) of the Act.

Although the arbitration award was made on 2 September, 1999, it is common cause amongst the parties that it was faxed to the Applicant on 3 September, 1999.

Sec 145 is divided into four sub-sections. At this stage, only the first two are relevant and they read as follows;

“(1) Any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply to the Labour Court for an order setting aside the arbitration award -

within six weeks of the date that the award was served on the applicant, unless the alleged defect involves corruption; or
if the alleged defect involves corruption, within six weeks of the date that the applicant discovers the corruption

A defect referred to in sub-section (1), means-

that the commissioner -

committed misconduct in relation to the duties of the commissioner as an arbitrator;

committed a gross irregularity in the conduct of the arbitration; or

exceeded the commissioner’s powers; or

that an award has been improperly obtained.”

12. Although the absence of the word “or” at the end of sub-paragraph (i) suggests that both sub-paragraph (i) and sub-paragraph (ii) must be present for one type of misconduct to exist, it appears that the omission of “or” is an error. In the case of Reunert Industries (Pty) Ltd t/a Reutech Defence Industries v Naicker and Others 1997 181 ILJ, the three subsections were treated as three separate, independent and alternative requirements.

Sec 158(1)(g) reads:

“(1) The Labour Court may -

despite sec 145, review the performance or purported performance of any function provided for in this Act or any act or omission of any person or body in terms of this Act on any grounds that are permissible in law.”

A lot of time was spent, almost exclusively, on whether or not the application was timeously made in terms of sub-sec 145(1), i.e. whether it was brought within six weeks, as well as on whether or not the Applicant’s application for condonation of the late filing of its Heads of Argument was timeously made. The Notice of Motion does not deal with sub-sec(2) of sec 145,i.e. whether the alleged defect in the Commissioner’s award relates to conduct that falls under sub-paragraph (2)(a)(i) or (ii) or (iii); or whether it falls under sub-paragraph (2)(b). It is, in my view, important to make that distinction because there mut be different considerations, and therefore different kinds of conduct to be considered, in arriving at a decision as to whether a defect in arbitration proceedings exists or not.

Neither counsel addressed me on the circumstances in which I may resort to sec 158(1)(g), in the alternative. Neither was I addressed as to what aspects of “the performance or purported performance” of the Commissioner qualify for review under this section, nor was I addressed on “any grounds... permissible in law” that I am required to take into account in reviewing the performance or purported performance of the Commissioner, under this section.

In my view, not only does the Applicant have to name the grounds in terms whereof the performance or purported performance has to be reviewed, but he or she also must establish that any such grounds are “permissible in law.” It should not, in my view, be left to the Court to work out what grounds are being relied upon and/or whether “any grounds(relied upon) are permissible.” An applicant must, in my view, properly define the case in respect whereof it requires the Court to find in its favour in terms of sec 158(1)(g). This is apart from the vexed question whether or not sec 158(1)(g) gives this Court jurisdiction to review commissioner’s arbitration awards , in much the same way as does sec 145, an aspect I shall deal with later in this judgment.

It is appropriate, at this stage, to set out what, precisely, is stated by the Applicant in both the Notice of Motion and its Founding Affidavit. The relevant portion of the Notice of Motion reads:

“1. Application is being made to the above Honourable Court in terms of Sec 145, alternatively 158(1)(g) to review or set aside the arbitration award of the arbitrator Seloacwe Setiloane, obtained (sic) under the 1^st respondents case number KN27679.”

The relevant portion of the (Founding)Affidavit of Mr Josef Hubert Rose Boom reads:

“ 10. The Applicant is unaware of whether the second Respondent logged/ sent his heads of argument to the arbitrator. Applicant has however been prejudiced by the fact that it did not have the opportunity to respond to the second Respondents arguments, if any and the arbitrator erred in this regard.

11. The arbitrators award makes no mention of the heads of argument and until full reasons are received, as called for, applicant is unable to deal more fully therewith.

12. The arbitrators finding (sic) that the mitigating circumstances of second respondent were not considered (sic) is cortrary (sic) to the applicants evidence led by a witness for the applicant.

13. I submit that the arbitrator has further failed to recognise and apply the principle that when the provisions of item 3(5) of schedule 8 of the Labour Relations Act 66 of 1995 are applied the decision to dismiss may differ in each case.

The circumstance (sic) of second Respondent and that of V Dhlamini were different and the fair application of the code of conduct item 3(5) of schedule 8 led to the distinction of the two cases.

14. The arbitrators finding that the dismissal was inconsistent with previous action by Applicant is contrary to the intention of the legislator as envisaged by the code of good practice in schedule 8 and cannot be upheld.

15. It is therefore submitted that the dismissal was fair and the arbitration award should be set aside.”

As can be seen from the above, no attempt is made to categorise the Commissioner’s conduct in accordance with the various sub-sections of sec 145, as discussed above. Neither is there reference to sec 158(1)(g), directly or indirectly, in the affidavit, or an indication as to why resort should be had to the latter sub-section.

An illustration of the point that it is necessary for an applicant to itemise a commissioner’s alleged defective conduct is the case of Reunert Industries (Pty) Ltd t/a Reutech Defence Industries v Naicker and Others (1997) 18ILJ 1393 (LC), the judgment of Landman,J. In that case the Labour Court was called upon to review an award to the employee by a commissioner of the CCMA on the grounds that the award was defective, in the sense that it did not comply with the requirements of sec 145 of the Labour Relations Act (the LRA), alternatively, with the provisions of sec 158(1)(g) of the same Act. A summary of the facts appears on the head note as follows:

“The parties limited the dispute to the question whether the employer has dismissed the employee on suspicion (as submitted by the employee) or whether it had proved his intoxication on a balance of probabilities (as submitted by the employer). The employee did not make the adequacy of dismissal an issue. The Commissioner found that the employee had been unfairly dismissed and reinstated him.” (My underlining).

After a detailed and careful discussion of what alleged defective conduct fell under paragraph (i) or (ii) or (iii) of sub-section (2)(a) of sec 145, the Court found that the commissioner had exceeded his powers, as contemplated in paragraph (iii). The applicant before the Labour Court, the employer, had specifically alluded to the fact that the Commissioner had improperly dealt with the question of the adequacy or otherwise of the applicant’s (the employer’s) sanction, after the employer had found the employee to have been intoxicated whilst on duty. That was an issue that had not been raised by the parties. In that regard the judgment reads, on page 1398;

“The Commissioner exceeded her powers by entering into the question of adequacy of the sanction and, in so doing, committed a gross irregularity by failing to hear the parties on the issue. Admittedly, certain background facts had been turned out but the parties were unaware that the Commissioner intended considering the adequacy of dismissal as a proper and appropriate sanction.”

The point I am making here is that the Court was specifically directed to the alleged defective conduct on the part of the Commissioner, which is not the case here. In my view, I would be entitled to dismiss this application merely on the basis that the Commissioner’s conduct in respect whereof there is a complaint has not been appropriately categorised or categorised at all - in terms of the relevant paragraph of sec 145(2) or shown to fall within the provisions of sec 158(1)(g).

Seeing, however, that this aspect was not argued before me, I think that it would be inappropriate of me to decide this matter on that basis. Similarly, it would, in my view, be inappropriate to call upon the parties to address me thereon, at this late stage. After all, the Second Respondent was legally represented during the application before me and he failed to raise that point, deliberately or unwittingly.

APPLICANT’S FAILURE TO TIMEOUSLY APPLY FOR CONDONATION CF LATE FILING OF ITS HEADS OF ARGUMENT

I find it appropriate to first deal with the Applicant’s failure to file its Heads of Argument and its application for condonation of such failure, before dealing with the Applicant’s alleged failure to timeously apply for the review of the Commissioner’s award. For reasons I shall explain, I condone the Applicants’s late filing of its Heads of Argument. I do so because it would be judicial fiction of the highest order for me to claim that I have not benefited from the Second Respondent’s detailed Heads of Argument, on the basis whereof the Second Respondent’s counsel addressed me during argument. As already pointed out, the Second Respondent failed to file its Heads of Argument timeously, just as much as the Applicant did. Consequently, if I place reliance on the former’s Heads of Argument, as I have done, it would, in my view, be extremely unfair, not to similarly rely on the latter’s Heads of Argument, to the extent that any reliance can be placed thereon. It is for this reason and because the Second Respondent himself relied extensively on his own late Heads of Argument, during argument on 20 March,2000 that I condone the Applicant’s late filing of its Heads of Argument.

On Thursday 17 February, 2000, the Registrar telefaxed the Notice of Set Down to both the Applicant, and the Second Respondent. The Notice advised that the Application was set down for 13 March, 2000. Heads of Argument were to be filed as follows:

not less than ten court days before the hearing, in the Applicant’s case; and

not less than five court days before the hearing, in the Second Respondent’s case.

Counting backwards, from 12 March, inclusive of that date, the 10^th day, by which the Applicant should have filed its Head of Argument, is Monday 28 February, 2000, whilst the last day for the Second Respondent is Monday 6 March, 2000.

The Applicant’s Heads of Argument were, according to the Court’s date- stamp, only filed on 8 March, 2000, seven days later than they should have been delivered. In paragraph 12 of Struwig’s Affidavit, in support of an application for condonation for the late filing of the Applicant’s Heads of Argument, it is stated that the Heads of Argument “were ultimately delivered on 7 March, 2000, six days late.” If by “delivered” the Applicant meant “filed”, then that is clearly incorrect, in view of the Registrar’s date-stamp. In passing, I should also point out that, in the Second Respondent’s Heads of Argument, dated 10 March, 2000, it is contended that the Second Respondent had had no sight of the Applicant’s Heads of Argument as at that date. As there is no replying affidavit contesting this allegation. I am, therefore, obliged to accept that the Second Respondent had not received the Applicant’s Heads of Argument as at 10 March, 2000. (Plascon Evans Paints Ltd v Van Riebeck Paints (Pty) Ltd 1984 (3) SA 623 (A))

The Second Respondent’s Heads of Argument were, as already stated, only signed on Friday 10 March, 2000, the court-day preceding the date on which the Application was set down for hearing, i.e. Monday, 13 March, 2000. They were, thus, handed up in Court on 13 March, 2000. In short, both parties failed to timeously deliver their respective Heads of Argument. Although, on behalf of the Second Respondent, it is stated that he “has been unable to file his Heads of Argument without sight of the Applicant’s Heads of Argument”, I find that explanation unsatisfactory. Nothing prevented the Second Respondent from filing his own Heads of Argument without sight of the Applicant’s Heads of Argument. That, after all, is exactly what he ended up doing and there is no reason why he could not have done so earlier. There was no application by the Second Respondent for condonation of the late filing of his Heads of Argument - an untenable situation.

I now proceed to point out why the Applicant is not, otherwise entitled to indulgence regarding the late filing of its Heads of Argument and to demonstrate why I could appropriately have refused to condone the late filing of such heads. According to Struwig, who made the main affidavit in support of the Application for Condonation of the late filing of the Heads of Argument, the position is as follows:

He says that he has been involved with the matter from the outset, having given evidence at the arbitration hearing before the Commissioner.

On 20 January, 2000, he went on leave, at a stage when, according to him, “all other requirements for the prosecution of the review had been attended to”.

At the time of his departure, on leave, Struwig left the matter in the custody of Boom, an accredited representative of the Federated Employers Organisation of South Africa, of which the Applicant is a member, for his attention “ to the extent that any further action was required from the Applicant in prosecuting the Review Application.” He also instructed his assistant, one Cummins, “to keep a look out for any matters that may require attention.” Although a supplementary affidavit was prepared for Cummins to consider and to have it attested, he was not found and that document was, consequently, not attested.

Struwig returned to work on 24 February, 2000 “ to find (that) the Notice of Set Down in this matter had been telefaxed to the Applicant on 17 February, 2000.”

Because the Notice of Motion was addressed to the employers organisation, “ Cummins assumed that any aspect that required attention would be dealt with by them”, the employers organisation, notwithstanding that he had been instructed by Struwig to keep a look out for any matters that might require attention.

Struwig immediately contacted Boom, who informed him that “he had already left the employ of the Employers Organisation at the end of January, 2000 to take up employment with SASOL, and that he had neither received nor attended to the Notice of Set Down on behalf of the Applicant.”

In the circumstances, Struwig “decided to instruct new representatives on behalf of the Applicant and approached one Warren Beech, of the firm of Lepan Beech who, with local correspondence , have taken over the matter”.

Struwig “ only managed to instruct Lepan Beech properly on 29 February, 2000. Boom had taken the papers in this matter from the Employers Organisation and, fortuitously Boom, Beech and (Struwig) met on 29 February, 2000 at the Volkswagen Conference Centre in Midrand and Boom gave the papers to Beech. It has taken from then until the filing of the heads of argument on 6 March, 2000 for Lepan Beech to properly consider the matter, brief counsel to draft the heads of argument, and for counsel to draft the heads of argument.”(My underlining). “ The matter having been set down for 13 March, 2000, the heads of argument were to have been delivered by 28 February, 2000, ten days before, as required in terms of the Notice of Set Down. Given that I only returned to work at the applicant on 24 February, 2000 and still had to obtain the papers from Boom, instruct new representatives, and they then had to familiarise themselves with the matter and instruct counsel, who then had to draft the heads, it was not possible to deliver the heads of argument timeously,” so says Struwig.

“There is little if any prejudice to the Respondents as they will have had a week to consider the applicant’s heads of argument and, if necessary, in the light of such heads of argument, modify their own heads of argument. The issues are notoriously well-known to the parties and a full set of papers has been exchanged. Accordingly, the Respondent would not have been prejudiced in its preparation for the hearing in any way, and the papers being in order, and heads having been delivered, it will be submitted on behalf of the applicant that there is no reason that the matter should not proceed.” In passing, I should state that the heads of argument are 17 pages long, with reference made to 23 cases, many of which are unreported. Neither the Second Respondent’s counsel nor the Court was furnished with copies of the unreported decisions and it took me quite some time to read through and consider those cases and I expect the Second Respondent’s counsel to have spent about the same amount of time on the Applicant’s authorities. Consequently, I find it strange, to say the least, of the Applicant to say that the delay was not very long and extremely arrogant to suggest that the Second Respondent “would not have been prejudiced in its preparation for the hearing in any way.”

Struwig then deals with prospects of success on the merits of the application for review, stating reasons why that application should be successful. It is not, in my view, necessary for the Court to consider prospects or otherwise of success of an application for review when considering the question whether or not there is justification for the late filing of heads of argument. Ordinarily, argument on prospects of success is set out in the heads of argument themselves. Consequently, by the time I decide on prospects of success I shall, for all practical purposes, have permitted the use of the heads of argument.

In an affidavit which, on the face thereof, was signed and attested on 8 March, 2000, Boom supports Struwig’s allegations in so far as they refer to Boom’s own conduct.

Whereas Boom’s Supporting Affidavit is dated 8 March, 2000, Struwig’s Affidavit, which Boom’s affidavit purports to support, is dated 9 March, 2000. The Second Respondent understandably contends that Boom’s Affidavit is, consequently, irregular. In his explanation of the discrepancy, Struwig points out that he forwarded his own affidavit, (at a stage when he considered it to be a draft and had not yet signed it), to Boom, for the latter’s consideration. Simultaneously with forwarding his own draft affidavit, Struwig also sent Boom’s draft affidavit for the latter to consider and, it would seem, to comment thereon. Boom, who must have been in agreement with the draft forwarded to him by Struwig, signed his own draft and had it attested as an affidavit on 8 March, 2000. Struwig was unable to sign and attest his own affidavit on that day and, consequently, only signed on 9 March, 2000. Whilst this is unacceptable conduct on the Applicant’s part and one which should not be encouraged, I find that the explanation given by Struwig does, as a matter of fact, clearly indicate that when Boom attested his affidavit on 8 March, 2000, he had already read Struwig’s own draft, the same document that Struwig ultimately signed on 9 March, 2000. Consequently, I, with reservations, accept, as a matter of fact, that Boom was in a position, when he signed his own affidavit on 8 March, 2000, to do so in support of what he had already read in Struwig’s draft affidavit.

Tardiness on the Applicant’s part does not, however, end there. It later transpired that Boom’s and Struwig’s affidavits, respectively, were signed before a security officer employed by the Applicant and not before a Commissioner of Oaths. Consequently. Struwig’s Affidavit was only properly signed and attested on 16 March, 2000.

Struwig’s re-attested affidavit was not objected to by the Second Respondent. The fact, however, that Boom did not re-attest his affidavit was relied on for arguing that Boom had not confirmed Struwig’s allegation with regard to Boom’s conduct, which I find a valid observation. In other words, there is no explanation as to what Boom did or did not do with regard to the Applicant’s case during Struwig’s absence on leave.

In his affidavit of 9 March, 2000, as re-attested on 16 March, 2000, Struwig does not explain Boom’s tardiness and indifference towards his obligations with regard to the Applicant’s Application for Review. Boom was, for all practical purposes, acting as the Applicant’s attorney in respect of the review application at that stage and until he left the Applicant’s employ. His conduct, therefore, is not different from that of a legal representative who fails to properly attend to his/her client’s affairs.

Struwig does not explain why, having discovered on 24 February, 2000 that Boom had abandoned his obligations in respect of the Application for Review, he only instructed attorneys on this aspect on 29 February, 2000, after “fortuitously” meeting Boom and the attorney that was later to be instructed on the matter, at a conference in Midrand. Having stated that he “immediately contacted Boom” on discovering, on 24 February, 2000, that the latter had not taken appropriate steps, Struwig does not explain what happened from the time of his contacting Boom to the date when he instructed his attorneys, i.e. on 29 February, 2000. After taking over from Boom, Struwig acted in a capacity similar to Boom’s and my remarks with regard to Boom apply equally to him.

There is also no explanation from the Applicant’s attorneys as to why, having been instructed on 29 February, 2000, the Applicant’s Heads of Argument were only signed on Monday 6 March, 2000, and only filed two days thereafter, on Wednesday 8 March, 2000. It should be borne in mind that when the attorneys accepted instructions on this matter they were aware that the Heads of Argument were already out of time and that they needed to act expeditiously in explaining such lateness and assuring that there was no further delay.

It is evident that, in this regard, the Applicant was represented at the relevant times, by Boom, Struwig and its attorneys. The apparent tardiness I have referred to is, therefore, that of Boom, Struwig and the attorneys, respectively, at the relevant stages.

The Applicant, in its attempt to have the late filing of its Heads of Argument condoned, was under an obligation to fully and sufficiently explain the apparent tardiness in the handing of the Applicant’s Head of Argument.(Cf Ferreira v Ntsingila 1990 (4) SA 271, at 281G-H)

It is well-established that there has, historically, been reluctance to penalise a litigant on account of the conduct of its legal representatives. R v Chetty 1943 AD 321; Regal v African Superslate (Pty) Ltd 1962 (2) SA 18 (A), at 23; Saloojee and Another, NNO v Minister of Community Development 1965 (2) SA 135(A), at 140-1.

In Regal v African Superslate (supra), the applicant applied for condonation of the late filing of the record in an appeal from a judgment of absolution from the instance which had been given against the Applicant, in the lower court. The Appellate Division (as it then was) found that the delay in filing the application for condonation was attributable, entirely, to the conduct of the applicant’s attorneys. Dealing with that aspect, on pages 23-24, Botha,J.A., stated as follows;

“It seems to me that the delay in the present case was due entirely to the neglect of applicant’s attorney, which neglect should not, in my view, in the circumstances of this case, debar the applicant, who himself was in no way to blame, from relief. (Cf. Rose and Another v Alpha Secretaries Ltd,1947(4) SA 511(AD)). The applicant’s attorney should clearly have realised that, in view of the fact that the trial itself had lasted four and a half days, and that a very large number of photographs, plans and diagrams were handed in as exhibits by both parties at the trial, the preparation of the appeal record would take considerably longer than the time he had allowed for it. On the other hand, when the attorney finally realised that the record could not be prepared in time, he did everything he could, and with reasonable expedition, to remedy the results of his own neglect. His request to the respondent’s attorneys for an extension of time was made soon after the realisation that the record could not be prepared in time and prior to the expiration of the prescribed period of three months, and the petition to this Court was prepared and signed within three days of the respondent’s refusal to agree to an extension of time, and before the three months has expired. The essence of the attorney’s neglect seems to me therefore to have been a failure to realise, as he should in the circumstances have done, that the preparation of the appeal record would take considerably longer than the time he had allowed for it, and that he allowed himself to be kept fully engaged on other duties until it was too late to ensure compliance with the Rules relating to the appeal to this Court. Under these circumstances, it seems to me that I ought not to attribute the neglect of his attorney to the applicant and thereby debar him from the relief sought. It was suggested during argument that the applicant himself was not entirely blameless, as he himself did nothing during the relevant period to ensure compliance with the Rules relating to the prosecution of his appeal. It is difficult to know what he should have done beyond directing a reminder or an enquiry to his attorney. He had left the matter in the hands of his attorney, who had been his legal adviser for many years, and whom he had fully instructed about the appeal. It is said that a close business and professional relationship apparently existed between the applicant and his attorney. Although the applicant may have been, and probably was, anxious to know the result of counsel’s opinion and regard to the appeal, and yet took no effective steps to ascertain whether the opinion had been obtained or not, and what the advice was, he was nevertheless entitled to assume that his attorney would do everything that was necessary in connection with the prosecution of the appeal. It is unlikely that a reminder or enquiry directed to his attorney would, in the circumstances, have ensured a timely completion of the record.”

In an often-quoted passage, in Saloojee and Another,NNO v Minister of Community Development 1965(2) SA 135(A), at 141C-E, Steyn,C.J, states the following, on the question of penalising a litigant, on account of blameworthy conduct of its legal representative, or otherwise;

“In Regal v African Superslate (Pty) Ltd 1962 (3) SA 18(AD), at p.23, also, this Court came to the conclusion that the delay was due entirely to the neglect of the applicant’s attorney and held that the attorney’s neglect should not, in the circumstances of the case, debar the applicant, who was himself in no way to blame, from relief. I should point out,however, that it has not at any time been held that condonation will not in any circumstances be withheld if the blame lies with the attorney. There is a limit beyond which a litigant cannot escape the results of his attorney’s lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the Rules of the this Court. Considerations ad misericordiam should not be allowed to become an invitation to laxity. In fact, this Court has lately been burdened with an undue and increasing number of applications for condonation in which the failure to comply with the Rules of this Court was due to neglect on the part of the attorney. The attorney, after all, is the representative whom the litigant has chosen for himself, and there is little reason why, in regard to condonation of a failure to comply with the Rule of Court, the litigant should be absolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are (Cf Hepworths Ltd v Thornloe and Clarkson Ltd, 1922 TPD 336; Kingsborugh Town Council v Thirlwell and Another, 1957 (4) SA 533 (N)). A litigant, moreover, who knows, as the applicants did, that the prescribed period has elapsed and that an application for condonation is necessary, is not entitled to hand over the matter to his attorney and then wash his hands off it. If, as here, the stage is reached where it must become obvious also to a layman that there is a protracted delay, he cannot sit passively by, without so much as directing any reminder or enquiry to his attorney (cf .Regal v African Superslate (Pty) Ltd. supra at p.23 i.f.) and expect to be exonerated of all blame; and if, as here, the explanation offered to this Court is patently insufficient, he cannot be heard to claim that the insufficiency should be overlooked merely because he has left the matter entirely in the hands of his attorney. If he relies upon the ineptitude or remissness of his own attorney, he should at least explain that none of it is to be imputed to himself. That has not been done in this case. In the circumstances, I would find it difficult to justify condonation unless there are strong prospects of success (Melane v Santam Insurance Co. Ltd., 1962(4) SA 531 (AD) at p.532)”.. (My underlining.)(Cf. PE Bosman Transport Works Committee and Others v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (AD); Theron v AA Life Assurance Association Ltd. 1995 (4) SA 361 (AD), at 365)

It seems evident, from the above two Appellate Division cases, that a litigant will not be penalised in circumstances where it is clear that it is not, itself, responsible for the failure to comply with the Rules of Court.

After the warning given in Saloojee(supra), there has developed a practice which, in my view, gradually emphasises less and less the aforementioned reluctance to penalise a litigant on account of the conduct of its legal representative, a practice I find regrettable. This is more so in a society where the large majority of litigants are entirely ignorant when it comes to legal aspects and requirements and who tend to, justifiably, rely entirely on their legal representatives to do, on their behalf, that which is required by the law.

In PE Bosman (supra) counsel for the applicants contended that the applicants, themselves, were not responsible for the late noting of their appeal and the late filing of the record of appeal with the Registrar of the Appellate Division. Without making a finding on that aspect, however, Muller, J.A.,went on to say the following, on page 799, after quoting from the above passage in Saloojee (supra), at 141C-E;

“In the present case the breaches of the Rules were of such a nature, and the explanation offered in many respects so unacceptable or wanting that, even if virtually all the blame can be attributed to the applicant’s attorneys, condonation ought not, in my view to be granted.” (My underlining).

In my view, this went further than Saloojee (supra), in stating that a litigant can be penalised for its legal representative’s negligence.

Although condonation was granted for delays in complying with the Rules, in Theron (supra), it does not appear that that was on the basis of the applicant not having been found to be, personally, to blame for such delays. The Court repeated the warning that a litigant cannot always escape the results of his/her attorneys negligence. In granting condonation, Vivier, J.A., stated the following;

“This Court has often warned that there is a limit beyond which a litigant cannot escape the results of his attorney’s remissness and ineptitude or the insufficiency of the explanation tendered and that condonation may be refused whatever the merits of the appeal.(See Fibro Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein, and Others 1985 (4) SA 773 (A) at 787G-H; Ferreira v Ntshingila 1990 (4) SA 271 (A) at 281D-H; Tshivhase Royal Council and Another v Tshivhase and Another 1992 (4) SA 852 (A) at 859E-F.) The question is whether the present is such a case. In favour of the application it can be said that the delays in complying with the Rules were not excessive; the application for condonation was made as soon as the appellant’s attorney realised that the Rules had not been complied with; and that the administration of justice had not been delayed. (Cf. Federated Employers Fire and General Insurance Co. Ltd and Another v McKenzie 1969 (3) SA 360 (A) at 362F-G.) In all the circumstances, it cannot be said, in my view, that this is a case in which the Court should refuse the application irrespective of the prospects of success (see Blumenthal and Another v Thompson NO and Another 1994 (2) SA 118 (A) at 121I-122B).” (My underlining)

The question whether or not a litigant can be penalised on account of conduct by its legal representative has, on numerous occasions, been dealt with in this Court, in its predecessor, the Industrial Court and in the Labour Appeal Court. In National Union of Metal Workers of South Africa on behalf of Mabunda v Manganese Metal Co. (Pty) Ltd (1995) 16 ILJ 219 (IC), the following was stated by De Kock ,SM, on page 219;

“A failure on the part of the party’s representative may constitute good cause, although it is not in all the circumstances good cause. It will amount to good cause if the ineptitude or remissness is not imputed to the applicant.” (My underlining)

Whilst I think that the legal position ought to be as stated in the underlined portion of this excerpt, I do not share the learned Judge’s optimism that that will always be the case, in the light of the cases I have cited above, more especially Bosman(supra). Neither am I certain that that will always be the case in the Labour Appeal Court. In National Construction Building and Allied Workers Union and Another v MF Woodcraft (Pty) Ltd (1997) 18 ILJ 165 (LAC), Cameron,J., in delivering the unanimous decision of the Court, stated, on page 167;

“The mere fact that a legal representative has failed to attend properly to his or her client’s affairs will not always furnish ‘a reasonable and acceptable explanation’ for a default in relation to a time-limit. A lawyer’s neglect of his or her client’s affairs cannot be relied upon by the client without more to procure an indulgence in relation to time limits. Whether an indulgence will be granted depends inter alia on the period of the delay; on the lawyer’s explanation for it; and on whether the delay was such as might suggest that the client was itself lax in insisting on due service from the lawyer.” (My underlining)

On my reading of the Labour Appeal Court’s decision in the matters of Glansbeek v JDG Trading (Pty) Ltd, an unreported judgment given on 13 February, 1998, in Case No. JA76/97, and Allround Tooling (Pty) Ltd v NUMSA, an unreported judgment given on 15 June, 1998, in Case No. DA2//97, however, the absence of fault on the Applicant’s part did not persuade the Court to grant condonation. I propose to refer in detail to the reasoning in both cases, in order to demonstrate why I am of the view that it does not appear that the delay, in each case, was due to the conduct of the applicant(s).

In Glansbeek (supra), the following was stated, in respect of the conduct of the applicant’s attorney;

“[6] The same cannot be said for her explanation why she did not realise the appellant heads had to be served and filed by 1 December, 1997. She admits that she received the notice of the Registrar to that effect timeously, but entered the date on her diary as 15 December, 1997. She candidly says that she cannot give a reason for this, except that she must have ‘misread’ the telefax. She only realised her mistake when telephoned by the respondent’s attorney on 8 December, 1997. She does not say that on becoming aware of this she informed counsel of the fact that the heads were late. Counsel indicated from the bar that he was told, which makes his failure to complete the heads expeditiously even less acceptable.”

With reference to counsel’s conduct the following is stated;

“[7] Counsel’s further explanation for delivering the heads on 15 December, 1997, is equally unsatisfactory. He said he planned to work on them between 8 and 13 December, 1997, but was precluded from doing so because he accepted a later brief to draw a petition for leave to appeal which had to be delivered by courier to Bloemfontein on 13December, 1997. He says he could not refuse this brief because of his earlier involvement in that matter in the labour appeal court. Apparently he anticipated that one day would be sufficient time to complete the appellant’s heads. On 14 December, 1997, however, because his computer malfunctioned, he was unable to do so. He had that particular problem seen to on 15 December, 1997, but then a difficulty with the Tab key of the computer caused further delays. One must assume that these problems persisted for another two days, because he only completed his heads on 18 December, 1997. Why he could not take other steps to have the heads typed by his attorney or some else is not explained at all.”

The Court goes on to state;

“[9] The conduct of the appellant’s attorney and counsel fell short of what I consider to be reasonable standards for their respective professions.” (My underlining)

The Court then concludes as follows;

“[11] It is trite law that a requirement for any condonation for non-compliance of the rules in an explanation for that non-compliance. I do not consider that there is any explanation for the non-compliance in respect of the late noting of an appeal and the defective notice of appeal itself. I would, therefore, dismiss the application for condonation of the late noting of the appeal, the application for leave to amend, notice of appeal and the application for the reinstatement of the appeal for this reason alone. In that event there is no appeal before us and the necessity for dealing in detail with other applications falls away. In consequence they should also be dismissed.”

Seeing that there were explanations by both the attorney and counsel, I take it that the Court meant, in the expression “I do not consider that there is any explanation...”, to say that the explanations were inadequate. It is clear that the explanations were unsatisfactory. They do, however, clearly indicate that the delays were due to the remissness of both the attorney and counsel and certainly not to the applicant’s conduct. If my interpretation is correct, then the litigant was penalised for its legal representatives’ ineptitude.

In Allround Tooling (supra), after the attorney, one Tanner, had given a lengthy explanation for the delays, in filing the application for condonation and the late filing of the respondent’s heads of argument, the application for condonation was refused. The following is some of what was stated by Myburgh,J.P, in his judgment, with which Froneman,D.J.P and Nicholson, A.J, concurred;

“[8] Tanner was obliged to apply for condonation, without delay, as soon as he realised that the respondent’s heads of argument were late; cf. Croeser v Standard Bank 1934 AD 77 at 79; R v Mkize 1940 AD 211 at 213;Reeders v Jacobsz 1942 AD 395 at 397; Commissioner of Inland Revenue v Burger 1956 (4) SA 446 (A) at 449G; Meintjies v HD Combrinck (Edms) Bpk 1961 (1) SA 662 (A) at 264B; Rennie v Kamby Farms (Pty) Ltd 1989 (2) SA 124 (A) at 129G; Napier v Tsaperas 1995 (2) SA 665 (A) at 671B-D. Tanner knew by no later than 21 April that the respondent’s heads of arguments were three weeks late. He should have filed the application for condonation no later than on that day. Instead the application was filed six weeks later on the day of the appeal. The only explanation for his failure to make timeous application for condonation is that he forgot to do so. It goes without saying that that is not a reasonable nor acceptable explanation. It is an explanation which borders on contempt for the Court and is manifest of an unprofessional and irresponsible attitude towards the interests of the respondent, of which more later.

[9] It is accepted that Turner was able to commence working on the heads of argument only after disposal of the industrial court case on 10 February, 1998. He then had six weeks in which to prepare the heads of argument. He said he took nine weeks to do so.

[10] What Tanner failed to do was to allocate time to the preparation of the heads of argument. Instead work on the heads of argument competed - unsuccessfully - with the other demands of his practice. The respondents’ interests were ranked below those of other clients. It is not an acceptable explanation for delay that a practitioner is too busy. If the nature or size of a practitioner’s practice renders it impossible for him to render a professional service and to comply with the provisions of the Labour Appeal Court Rules, he must not take on the work; Sennet v Wessels (Pietersburg); BK v Prins, LAC Judgment JA 72/97 para 18. In the absence of an acceptable explanation for non-compliance with the Rules of Court, condonation will not be granted; Classiclean (Pty) Ltd v CWIU a.o., LAC Judgment JA 60/97 para 5; Joerning and Sons (Pty) Ltd t/a Joernings Pharmacy a.o. v Coetzee, LAC Judgment CA14/94 para 22. Tanner did not provide an acceptable explanation for not timeously filing heads of argument. In the result the application for condonation is refused.” (My underlining)

Apart from my interpretation of the judgment being that it nowhere shows any fault on the respondents’ part, this is a case which practitioners would do well to read, appreciate and heed. Although the Court clearly stated that the respondents suffered from the omissions by their legal representatives, that did not spare the respondents from the penalty of having their application for condonation refused.

I am of the view that the approach adopted by the Labour Appeal Court in Glansbeek and Allround Tooling is different from that which that Court adopted in National Construction Building and Allied Workers Union and that the LAC should clear that position. In my view, Allround Tooling, to the extent that the Court penalised the applicants without any fault on their part, is without precedent. In spite of the warning in Saloojee (supra) and many other cases that have reiterated that warning, none of the cases that I have come across has actually penalised an innocent applicant for condonation. I have already underlined the aspects in the quotation from Steyn,C.J’s judgment in Saloojee that indicate that the Court, on the facts of that case, found that the applicants themselves were not without blemish. On page 139, for instance, the Court found that the Applicants had been untruthful in their explanations for the delays, in a number of instances.

For instance, whereas there was an explanation that the delay was due to lack of funds, the Court found that

“the reason given to the State Attorney when his consent to a late filing of the record was sought, was not any lack of funds but that the record was voluminous. In these circumstances any suggestion that the delay, after 8^th October, in making the application, was due to financial consideration, cannot carry any conviction, and, if anything discloses a lack of candour.”

Another instance is the fact that, despite the fact that it had been alleged that “the petition was to be lodged together with the record”, when the petition was actually lodged, it was not accompanied by such record.

Thirdly, the Court found, on ultimately seeing the record, that it comprised a mere 120 pages and the Court “would not describe it as voluminous.”

The Court also found that a number of aspects, with regard to the delays, had either not been explained or sufficiently explained.(Pages 139-140). The Chief Justice, stating the unanimous view of the Court, concluded thus;

“In the result, I find it impossible to hold that the delay in preparing the record and in bringing this application has been explained in a manner which is even remotely satisfactory. page 140.

The matter did not end there, in that the Court went to deal with prospects of success on appeal after a very thorough analysis of the likely scenario in the event of the applicants being granted leave to appeal. Steyn C.J, stated, in that regard;

“While, therefore, I would not hold that applicants have no prospects of success on this issue, I cannot regard it otherwise than doubtful and uncertain.” Pages 142-143.

Finally, the following passage makes it quite evident, in my view, that the refusal of the Court to grant condonation in that case is not an instance of an innocent applicant being penalised for the ineptitude of its legal representatives;

“But, having regard to the uncertainty of the prospect that the issue of delay and prejudice raised in the respondent’s petition in the Court below will be resolved in favour of the applicants, and the wholly unsatisfactory features of the delay in preparing the record and in bringing this application, and of the explanation thereof to which I have referred, I am not disposed to grant the indulgence sought.” page 143

I have already stated that in Bosman (supra) no finding was made as to whether or not the applicants, themselves, were in any way at fault. The reasons given for the dismissal of the applicants’ application for condonation are related to failure to explain the delay. Muller,J.A., stated the following in that regard;

“From what has been stated above, especially with regard to the late filing of the record with the Registrar,the following seems to be clear:

(a) There is no explanation why instructions to prepare a record were only given by the applicants’ Johannesburg attorneys in November 1978, after more than three months had expired from the date of judgment.

(b) ...

(c) There is indeed no explanation why, after the record was completed in May 1979, the requisite number of copies were not, as soon as possible, lodged with the Registrar of this Court, but were only lodged on 23 July, 1979.” Page 798 cf page 799 (My underlining)

Despite repeating the warning that “there is a limit beyond which a litigant cannot escape the results of his attorney’s remissness and ineptitude or the insufficiency of the explanation tendered and that condonation will be refused whatever the merits of the appeal”, the Court, in Theron (supra), granted the application for condonation and proceeded to deal with prospects of success. (365A.)

In reiterating the warning stated above, Vivier, J.A., cited, as authority for that proposition, the cases of Finbro Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein, and Others 1985 (4) SA 773 (A), at 787G-H; Ferreira v Ntshingila 1990 (4) SA 271 (A) at 281D-H; Tshivhase Royal Council and Another v Tshivhase and Another 1992 (4) SA 852 (A) at 859E-F. I have read all three decisions.

In Finbro Furnishers (supra) the Court found, as a fact, that the applicant had not established that it was its attorneys’ fault that was responsible for the delay. Quoting, with approval, from the remarks of the learned Judge in the court a quo, Vivier, J.A. proceeded to say;

“‘The question arises who caused the delay? On the papers it is suggested that Messrs Goodricks and Franklin caused the delay. If so, why was the Court left in the dark about the identity of the attorney responsible for the delay and why was no affidavit filed by the attorney concerned, offering an acceptable explanation for his suggested inordinate delay to notify the applicant of the judgment? Counsel for the applicant, however, contended in this Court during argument that Dale was the person who caused the delay, although Dale in his supporting affidavit does not admit such a fact...” 787E-F

The Court then referred to a hypothetical situation dealt with by the learned Judge in the court a quo, viz. what would have happened “had Finger sought to fasten the blame for late notification of the result of the main application on a particular attorney”, and enquiring whether “such a direct accusation would have improved the appellant’s chances of gaining condonation”. It was with regard to that hypothetical situation that Hoexter,J.A, stated;

“The answer to this question against the appellant the learned Judge found in the oft-repeated judicial warning that there is a limit beyond which a litigant cannot escape the result of his attorney’s lack of diligence or the insufficiency of the explanation tendered (See Saloojee and Another NNO v Minister of Community Development 1955 (2) SA 135 (A) at 141C-E; Immelman v Loubser en Ander 1974(2) SA 816 (A) at 823 G-824B;PE Bosman Transport Works Committee and Others v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A) at 799E-H).” 795G-H

In Ferreira (supra), Friedman,A.J.A stated;

“The explanation given in the present case was neither full nor satisfactory. I might add that, although there was gross negligence on the part of the Defendant’s attorney, the Defendant himself was not entirely blameless.” p281 H

In Tshivhase (supra), Nestadt,J.A. referring to the applicants, stated;

“Neither Kennedy nor Ligege can, in any way, be blamed for what has happened. Mr Coetzee, on their behalf, rightly emphasised that they have at all stages demonstrated a firm intention to appeal. Their disquiet at the way their case has been dealt with is a factor to be taken into account and is shown by their terminating the mandate of Mr Gous and De Vander Attorney and appointing new attorneys in their stead.” 860D

In Webster and Another v Santam Insurance Co. Ltd 1977 (2) SA 874 (A) the question arose as to whether the appellants’ legal representatives’ failure to comply with a provision of the compulsory Motor Vehicle Insurance Act, 56 of 1972, could be relied upon by the applicants, as constituting “unusual or unexpected circumstances, as envisaged in the Act.” In his judgment, to which Trollip, J.A, Corbett, J.A, Hofmeyer, J.A and Miller, J.A. concurred, Kotze, J.A. stated;

“I consider the answer to this question to be in the affirmative for the reasons that follow. A lay client, like each of the appellants, is ordinarily entitled to regard an attorney duly admitted to the practice of the law as a skilled professional practitioner. Ordinarily he places considerable reliance upon the competence, skill and knowledge of an attorney and he trusts that he will fulfil his professional responsibility. It is, of course, not unknown for an attorney or his firm to be negligent in carrying out professional duties, but that is not usual, and a fortiori to the lay client it would be a most unusual and unexpected occurrence. Consequently, in considering whether the neglect of an attorney constitutes a special circumstance within the meaning of that phrase in sec. 24(2)(a) of the Act, the correct approach should always be to regard it as a relevant factor and to recognise that such neglect by an attorney may frequently be a special circumstances on its own vis-a-vis his client. To hold, without qualification... that a client is bound by the negligence of his legal adviser is, in my respectful view, wrong... It may be that to attribute to a client the negligence of his attorney would be justifiable in cases he “the client” is partly to blame through his supineness or otherwise for his attorney’s dilatoriness. There is, however, no need to express an opinion with regard to this question in the present case as the appellants cannot be identified with the negligence of the firm and its servants.” 883G-884A

The above passage in Webster and Another (supra) was referred to with approval, by the same Judge of Appeal, in Bezuidenhout v AA Mutual Insurance Association 1978(1) SA at 712 D-E, in a judgment with which Wessels,J.A., Rabbie, J.A., Diemont,J.A., and Joubert, J.A concurred.

“It was also contended that appellant cannot be relieved of his legal representatives’ neglect. I do not know that it can be said, firstly, that Mr Hazell was negligent. But if he was, in R v Chetty 1943 AD 321 and Regal v African Superslate (Pty) Ltd 1962(3) SA 18(A) at 23, both referred to in Saloojee’s case at 141A-B, the Appellate Division concluded that neglect by an attorney should not necessarily debar an applicant, who was himself in no way to blame, from relief (see also Louw v Louw [1965(3) SA 852 (E)], (...854B)). It is true that in Saloojee’s case Steyn,C.J said that there was a limit beyond which a litigant cannot escape the results of his attorney’s lack of diligence or the insufficiency of an explanation offered. The learned Chief Justice, however, made it clear that this was where the applicant could not show that the ineptitude or remissness of the attorney could not be imputed to himself (see at 141G-H). In the present case there is no question of Mr Hazell’s delay being imputed to the appellant who has always,it would seem, sought to prosecute his appeal. Mr Du Toit also sought to compare Mr Hazell’s delay with the failure to prosecute timeously a claim under the compulsory Motor Vehicle Insurance Act 56 of 1972. Under sec 24(2) of that Act where a claim has become prescribed by reason of a failure to prosecute it within the period laid down by the Act, application can be made to the Court to grant leave to bring the claim if it can be shown that ‘special circumstances’ existed as to why it was not brought timeously. In terms of a definition of ‘special circumstances’ introduced into the Act by an amendment in 1978, they are defined as not to include ‘any neglect, omission ignorance.’ There is no such limitation of ‘special circumstances’ under the Court Notice, if that be held applicable, nor would such a limitation apply to the words ‘good cause shown.’ Moreover, before the 1978 amendment it was held that the neglect of a third party’s attorney had to be regarded ‘as a relevant factor’ and that it may frequently of itself be a special circumstance (see Webster and Another v Santam Insurance Co. Ltd 1977(2) SA 874 (A) at 883H. In Webster’s case previous decisions that an attorney’s neglect could not be a special circumstance ‘eg Mapela v Marine and Trade Insurance Co. Ltd and Another 1977 (1) SA 568 (E); Synman v Santam Versekeringsmaatskappy 1976 (4) SA 145 (T)) were dissented from. Those cases are, therefore, in my view, not authoritative support for Mr Du Toit’s argument nor can the Act be called in aid for his submission. They have, in my view, no bearing on the test of ‘ good cause’ required under Rule 27(15).” 412E-413B.

To the extent, therefore, that Allround Tooling (supra) seems to have penalised an innocent litigant for his legal representative’s negligent conduct, it is, in my respectful view, without precedent. All the cases that I have referred to above, in which applications for condonation were refused or a warning in line with the Saloojee decision was given, were, in my view, obiter. Some of them were given before Webster and Another(supra), whilst in those that were given after Webster, there is no reference to that case. It would seem that the Court, in Allround Tooling, was not aware of the latter decision.

It remains, however, a matter that, in my view, which calls for clarification by the Labour Appeal Court. On the facts of the case before me, however, I am not called upon to decide which of the conflicting views of the Labour Appeal Court I should follow.

Coming back to the facts of the present case, I am of the view that I am entitled to refuse condonation of the late filing of the Applicant’s Heads of Argument in that the Applicant itself was at fault, in my judgment. It should be borne in mind that, unlike Boom and the Applicant’s attorneys, Struwig was an employee of the Applicant. His omissions were the omissions of the Applicant itself and his failure to explain tardiness in the respects I have already alluded to, is the Applicant’s own failure.

As already stated herein, I am, however of the view that it would be inappropriate, in the exercise of my discretion, for me to refuse condonation of the late filing of the Applicant’s Heads of Argument. I have given my reasons for that decision. The Second Respondent himself, has not taken the trouble to apply for condonation for the late filing of his Heads of Argument. It may even be that I have erred in permitting his Heads of Argument to remain as though they were appropriately filed in terms of the Rules of Court. I did not deem it appropriate to take the easy option of dismissing both Heads of Argument - which I could have done. Although the Applicant’s Heads of Argument are silent on the question of the alleged late filing of the Application for Review, Mr Snider, the Applicant’s Counsel, like Mr Dutton, the Second Respondent’s Counsel, addressed me at length on the question of condonation of the late filing of the Applicant’s Heads of Argument and the alleged late filing of the Application for Review. What I am trying to explain is that it would be too artificial of me to ignore what Mr Snider had spent so much time putting across to me during argument. He, in a sense, supplemented the Respondent’s Heads of Argument. It so happens that that argument does not make out a case for condonation of the delay in filing the Heads. I have, however, condoned the late filing, for reasons I have stated.

CONDONATION OF THE LATE FILING OF THE APPLICATION FOR REVIEW IN TERMS OF SECTION 145 OF THE ACT

In the light of the Applicant’s attitude that the Application for Review was timeously filed, in spite of the postponement of the application of 13 March, 2000 as well as its purported Application for Review, the only issue to determine here is whether, indeed, the Application for Review was timeously filed.

Although the Notice of Motion refers to the Application for Review being, alternatively, in terms of sec 158(1)(g), Mr Snider did not, at any stage, in the course of his detailed address during argument, deal with sec 158(1)(g). Neither did Mr Dutton do so. In paragraph 10 of Boom’s affidavit of 16 March, 2000, in support of the Applicant’s Application for Condonation, it is stated;

“It is ,therefore, the submission of the Applicant that the application for review has in fact been brought within the time period contemplated in section 145 of the LRA...” (My underlining)

That is a further indication that sec 158(1)(g) is furtherance from the Applicant’s mind, right now. I am, therefore, spared the arduous task of dealing with an aspect that the Labour Appeal Court is still to deal with, i.e. just precisely what is intended in sec 158(1)(g) and whether it can, in fact, be relied on as a basis for an application for review of an arbitration award, independently of sec 145.

APPLICATION FOR CONDONATION OF THE LATE NOTING OF THE APPLICATION FOR REVIEW.

The only delay alluded to in sub-paragraph 5.6.4 of Myeni’s affidavit, in support of the Second Respondent’s opposition to the application for the late filing of its Heads of Argument timeously. It is apparent from the Order made on 13 March, 2000 that the parties discussed the alleged late filing of the Review Application and that they must have been in agreement thereon, because that Order reads as follows:

“IT IS ORDERED THAT:-

By agreement this matter is adjourned to the 20^th March 2000.

The Applicant is to file an application for condonation for late filing of review application.

The Applicant tenders the Respondent’s costs.”

That is how I became seized with the application on 20 March, 2000.

In apparent compliance with the Order of 13 March, 2000, the Applicant made the following application, by way of Notice of Motion dated 16 March, 2000 and entitled;

“APPLICATION FOR CONDONATION IN TERMS OF RULE 7, READ TOGETHER WITH RULE 12(3) OF THE RULES OF THE LABOUR COURT.”

The first paragraph of that Notice of Application reads;

“KINDLY TAKE NOTICE that the Applicant intends applying to the above Honourable Court at a date and time fixed by the Registrar for an Order in respect of the filing of a (sic) Application for Review of an award of (sic) the Second Respondent dated 2 September, 1999.”

It will be realised that the Applicant does not, in the above paragraph, refer to an application for condonation of the late filing of its application.

In an affidavit by Boom, on 16 March, 2000, that document is

South Africa: Labour Court

Zululand Anthracite Colliery v Commission for Conciliation Mediation and Arbitration (D1140/99) [2001] ZALC 6 (31 January 2001)