---

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

            Case no: J3242/12

In the matter between:

NEHAWU obo VUYO PEACH                                                                                    Applicant

and

DEPARTMENT OF AGRICULTURE AND

RURAL DEVELOPMENT (FREE-STATE)                                                              Respondent

Heard            : 21 August 2014

Order             : 21 August 2014    

Judgment    : 29 September 2014

Summary      :  Inordinate delay in prosecuting a review. Arbitration award made an order of Court.

JUDGMENT-REASONS FOR ORDER

AC BASSON. J

[1] This was an application in terms of section 158(1)(c) of the Labour Relations Act[1] for an order making an  arbitration award dated 21 April 2011 an order of Court.

[2] A dispute about the unfair suspension of the applicant was referred to the General Public Service Sectoral Bargaining Council (hereinafter referred to as “the Bargaining Council”). The suspension of the applicant was found to be unfair. The respondent was ordered to pay the applicant compensation equivalent to six month’s salary (amounting to R 326 286.00) no later than 31 May 2011.

[3] The respondent filed a review application with this Court on 8 July 2011. On 29 July 2011 the Bargaining Council filed a notice of compliance in terms of Rule 7A(2)(b) dispatching the record of the arbitration proceedings. According to the review papers the respondent received the arbitration award on 12 May 2011. The review application was filed on 8 July 2011.

[4] Since the respondent filed the review application, no steps have been taken to prosecute it to finality. Although the record was filed on 20 October 2011.The respondent has failed to file the Rule 7A(8) Notice and only filed a condonation application for the late filing of this notice on 23 July 2013 after this application in terms of section 158(1)(c) was launched.

[5] In the answering affidavit, the respondent admits that it received the Notice of Compliance on or about 2011. The deponent, however explains in paragraph [33] et seq of the answering affidavit that, at the time when the record of the proceedings was filed with this Court, the respondent was represented by another attorney and that this attorney had “mistakenly thought” that she had filed a notice in terms of Rule 7A(8) of the Rules. This unidentified attorney then later became aware of the fact that she had not filed the Rule 7A(8) Notice. According to the deponent to the answering affidavit, the delay “was as a result of a bona fide human error”.  I have the following concerns with this explanation tendered on behalf of the respondent: Firstly, the alleged attorney referred to in the affidavit is unidentified. In other words, the deponent places all the blame on someone who is not even identified in the papers. At the very least the despondent should have identify the person who is allegedly to be blamed for the mistake.  Secondly, a bold statement is made that this attorney only became aware of the fact that she had not filed the Rule 7A(8) Notice when the section 158(1)(c) application was filed. No confirmatory affidavit is filed rendering this statement completely inadmissible. There is, as far as this application is concerned, therefore no substantiated explanation for the delay in not filing the record.

[6] The respondent does, however, state in the opposing affidavit that an application for condonation for the failure to file the Rule 7A(8) Notice will be filed in due course.  I have perused the file.  Such an affidavit is indeed attached to the papers.  I have also perused this affidavit.  This affidavit also refers to this unidentified attorney and the fact that this notice was allegedly also not brought to her attention and that the Rule 7A(8) Notice was still outstanding. Again, no confirmatory affidavit is attached to the condonation application and moreover, this attorney is still not identified.  In short, although the condonation application is not before this Court, it is still attached to the papers and this Court can still have regard to it in exercising its discretion in respect of the present application.  The explanation for the delay is in effect non-existent and leads this Court to come to the irresistible conclusion that the delay must be attributed to the inefficiencies in the state attorney’s office in adhering to Court procedures.

[7] It is trite that this Court has a discretion to make an arbitration award an order of court and that various considerations will be taken into account in exercising this discretion. The prospects of success is but one of these considerations. See Ntshangane v Speciality Metals CC[2]  where Mlambo,J (as he then was) held as follows:

“[13.] Mr Snyman’s pending review argument is similar to stay applications. He argued that this application should be stayed pending the finalisation of the review. To succeed in stay proceedings the applicant must satisfy the Court that there are good prospects of success in the pending matter, that the balance of convenience is in his favour and that it would be fair to stay the present proceedings.

See Kerbel v Kerbel 1987 (1) SA 562 (W); and Osman v Hector 1933 CPD 507.

[14.] Indeed it is so that the mere fact of a pending review is not a bar to this Court making an award an order of Court. It is for whoever relies on the pending review argument to instil a well-grounded conviction in the mind of the Court that the prospects of success of the review are reasonably good.

See Dickinson v South African General Electric Co (Pty) Ltd 1973 (2) SA 620 (A) at 630F–H.”

See also NEHAWU obo Vermeulen v Director General: Department of  Labour[3]

“[24] Even if I am mistaken in this, and ought rightfully to take cognisance of the papers filed by the respondent in its late review application and to conclude that a bona fide case, with reasonable prospects of success, has indeed been made out, that is not the only consideration. The power to make an award an order of court under section 158(1)(c) of the LRA (or concomitantly to stay enforcement of an award under section 145(3)) is a discretionary power to be exercised judicially, and in general should be applied in favour of lending enforceability to an award in the interests of bringing finality to labour disputes. The prospects of success are therefore only one consideration. Equally important are the balance of convenience and the requirements of fairness.

[25] In Khoza v Sasol Ltd [2002] 9 BLLR 868 (LC) Ntsebeza AJ for instance gave particular consideration to the prejudice likely to be suffered by each of the parties if the award were made an order. In Professional Security Enforcement v Namusi [1999] 6 BLLR 610 (LC) Grogan AJ held that where a party had not protected its interests for six months and only sought to oppose it on hearing that the other party was pursuing its application to have the award made an order of court (much like the respondent in this case), the conduct was so tardy that it did not warrant further frustrating the other party’s bona fide attempts to have the award made an order of court. As he put it:

“The object of expeditiously resolving labour disputes would certainly be compromised were employers to be permitted with impunity to ignore awards indefinitely without taking action under section 144 or 145, and then block the employee when he ultimately seeks to have the award enforced under section 158(1)(c).”

In other words, the discretion of the court under section 158(1)(c) when faced with a pending review application, which has not been conscientiously prosecuted, must be exercised taking account of the prospects of success, the balance of convenience, the parties, conduct in litigation, the policy of the Act, the interests of the administration of justice and the general tenets of fairness.”

[8] As far as the so-called unsubstantiated “human error” is concerned, it is trite that there is a limit beyond which a litigant can hide behind the tardiness and inefficiency of its legal representatives. I am of the view that this is one of those cases – especially where the blame is placed on an unidentified person. See Saloojee And Another, NNO v Minister of Community Development[4]

“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 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 a 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 T.P.D. 336; Kingsborough Town Council v. Thirlwell and Another, 1957 (4) S.A. 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 of 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.*.) 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 these circumstances I would find it difficult to justify condonation unless there are strong prospects of success (Melane v. Santam Insurance Co. Ltd., 1962 (4) S.A. 531 (A.D.) at p. 532).”

[9] In light of the aforegoing and especially in light of the dilatory conduct of the respondent, I have decided that it is in the interest of justice to bring finality to this dispute. I have also taken into account the balance of convenience and the requirements of fairness in arriving at a decision to have this award made an order of court. I have also taken into account the fact that despite the fact that the record was eventually filed on 20 October 2011 nothing was done to enrol the review application.

Order

[10] In the event the order is made:

10.1 The arbitration award dated 21 April 2011 and handed down by Panellist Charlton Rex, under case number GPBC807/2010 is made an order of court in terms of Section 158(1)(c) of the LRA.

10.2 The Respondent is ordered to pay the Applicant within ten (10) days of the granting of this order, three hundred and twenty six thousand, two hundred and eighty six rand (R326 286.00) in terms of the GPSSBC award, together with interest of 15,5% calculated from the date of the award to the  date of the granting of this order.

10.3   The Respondent is ordered to pay the costs of this application. 

______________

AC Basson

 Judge of the Labour Court

Appearances:

For the Applicant           : Advocate Maunatlala

Instructed by                   : Thaanyane Attorneys

For the Respondent      : The State Attorney

---

---