IN THE LABOUR APPEAL COURT OF SOUTH AFRICA

 		HELD AT JOHANNESBURG

Case No: JA16/00

In the matter between :

The Department of Justice						Appellant

and 

Heidi Hartzenberg							           Respondent

JUDGMENT

COMRIE A.J.A:

1.	The  respondent was formerly employed as a prosecutor in the Department  of Justice.  She was stationed    in    the   specialist   commercial   branch   at   the  Pretoria Magistrates Court.   In   the   latter   part   of   September  1995   she  fell  pregnant. With   effect  from  January  1996 she  was  assigned  to  the training  post  in the   same   branch,   which  meant  that  she  was  relieved  of her duties as prosecutor. In  early   March 1996 she  resigned    from    the     public    service    on    24 hours notice. Thereafter   she    instituted  proceedings  in  the  Industrial  Court. In essence her case was that although she had resigned, she had  in reality  been  constructively dismissed in  circumstances   amounting  to an unfair   labour practice. It is not necessary  for the  purposes  of  this judgment to set out all the details. I  should  mention,  however, that  they included,  but  were not confined to  an  allegation  that  on  account  of  her pregnancy,   she   was   forced by her superiors to accept the training post, which  was much  against  her  will  and made  her  most  unhappy.

2.	The  case  eventually  came  to  trial  before  an  additional   member  of  the Industrial Court,   Mrs . Grobbelaar.   Both  sides  were  represented  by counsel.  It  was   heard in  two  stages :   first the   “merits,”  and  then  the  quantum .The  court a quo found in favour  of  the   respondent  on  the merits,  and  at  the  second  stage  awarded  the respondent   compensation  in  the  sum   of   R  70449,00.  Costs  of  two counsel and of an actuarywere allowed.

3.	The Department appealed. 

4. 	The   appeal initially came before this Court on  16 November  2000.  It  appeared   that  several  of   the   cassettes,   on which  much  of the   oral  evidence    had   been    recorded,  were missing.  In    consequence  the Department,  as  appellant,   had  failed  to place  a  proper  and   complete  record  of appeal    before   this    Court.  Furthermore,  the  Department  had  not  by  then taken steps mero motu to   put   together   a  reconstructed  record  of  the  missing   parts. The  Court made  an  order  to the effect that  the   Department   was given  one  month  within  which  to compile   a   reconstructed   record,  failing which   the   appeal   would   be deemed  to  be  dismissed  with  costs.

5. 	Despite   strenuous   effort   by   Mr.  Duvenage  of  the  State  Attorney’s  Office,  the Department   was  unable  to  comply  timeously, and an attempted  reconstruction was   only    presented   in   the    new    year.  The  sources   for the attempt were counsel’s incomplete and  cryptic notes.  Mrs.  Grobbelaar  cannot   find   her  own bench   notes;    she    has  	either    not   kept    them   or    she    has    mislaid   them. The   missing evidence   all   relates   to   the    first   stage    of    the   hearing,  ie  on  the merits. The   respondent   testified   first.  Her   evidence   in      chief  (running  to nearly  40  pages)   is   fully   recorded   and   transcribed. That is  where    it  stops. Her   cross-examination   and   re-examination  is   lost, save   for  the  reconstruction (35    less    than    closely   typed   pages). The   Department   called   four  witnesses, 	namely  Adv .Dicker,   Mr. Bezuidenhout,  Ms. Kannemeyer   and   Ms.  Humphries. Their   testimony, in   all  its  stages,  is  also  lost,  save for the reconstruction(which runs   to some  45  pages,   again   less   than   closely   typed  ). It  is   stated in the affidavits  that  the  Department’s  witnesses  gave  their  evidence  over a period  of the best  part  of  two days. Even  if  this  period  included  the respondent’s cross-examination  and  re-examination,  the  whole  reconstruction  covers  a  mere 83 widely spaced pages.

6.	It is not open to question  that  the  attempted  reconstruction  is hopelessly  inadequate for   the   proper    determination    of   this   appeal, which  turns  in  significant part on  credibility.  Mrs. Grobbelaar, who has viewed the reconstruction, is not prepared to certify  it as  true and correct. I  attach  no blame to her, or to the parties or to the legal representatives. It is  evident  that  they  have  done their best and  that  a  satisfactory version will  not  be  forthcoming.  Despite  a  diligent  search,  the  missing cassettes cannot  be  found,  and  there  is  no  suggestion that  they  will  come  to  light  in  the foreseeable future. 

7.   	What are we to do now ? I do not think we are bound by the order that was 
granted by this   Court   on  16  November  2000.  That   order  was interlocutory in nature. It was  made  before   reconstruction was  attempted, 
and while a proper reconstruction was believed to be feasible.   It   is   true  that  the  Department  was  out  of time in filing the  attempted reconstruction, but the  delay  was  not  undue  and  in  my  view has  been  adequately explained. We  know  now  what  the  Court on 16 November did not know, that a proper  reconstruction cannot be achieved. That is the central feature, and it would be wrong  in  the circumstances  to penalise  
the Department (by dismissing the appeal or  confirming  its  dismissal)  on  	account  of  a  relatively  minor  and understandable delay. 

8.   	Rules  of  Court  commonly  provide  for  the  lodging  by  an  appellant  of  a  full  or complete  and  correct   appeal  record   within   a  specified  time.  Rule  5  (7)  of this Court requires a  copy of  the record of the  proceedings in the Court  a  quo . Rules 5(10)(f), (g) and (h) provide: 

“ Every copy of the record must -
(f)	include the judgment given by the Labour Court; 
  (g)	contain  a  correct  and  complete  index  of  the  evidence and of all the documents and exhibits  in the  case, the date and nature of the exhibits being briefly stated in the index; 

(h)	contain  only  those   documents   that   were   referred  to in  any proceedings in the Labour Court”.     	

Rule 5(15) provides:

(15)	“Any  reference   in  the   record   of   evidence  of   any  
witness  to any document  or  exhibit  contained  in  the  
appeal  record must reflect, in brackets  in  the  margin 
opposite the reference, the page number in the appeal 
record of such documents or exhibit”    

Rules 5 (12) and (16) deal with specified omissions from a record.

9.	Although not expressly stipulated, it is implicit in Rule 5 that the appealrecord to be lodged by an appellant, must be a complete and correct record 
subject to permissible omissions. Rule  5 (17)  provides  that  if  an appellant   fails   to  lodge  the  record timeously,   then  “the  appellant will  be  deemed  to  have  withdrawn the appeal”unless  an  extension  of time  is  granted. Rule 5 does  not  deal with the particular position which presents itself here, namely that a complete and correct record cannot be lodged.  In Waverley Blankets Ltd and Others; Waverley Blankets Ltd v Sithukuza and Others (1999) 20 ILJ 2564 (LAC) an application to condone the late filing  of  the  appeal  record was   refused  by  this  Court.  There  was,   however,  no suggestion  that a  proper  record could not be lodged. The decision is thus distinguishable.

10.	The position with regard  to  criminal  appeals from the magistrates courts 
was settled in S v Joubert 1991 (1) SA 119 (A), where the appeal record could not be reconstructed. It should be  borne in mind  that in criminal appeals the State has duty to safekeep the record at first  instance, and the duty to transmit it. It was held that the State’s failure  to discharge these  duties prejudiced an accused in that it frustrated this right of appeal, and that he was consequently  entitled  to  an  acquittal. The “replica” principle was enunciated at 126 A. See S v K 1991 (2) SACR 190 (B) where the frustration principle is well illustrated.

11.	In civil  appeals,  however,  the  position   is    less   than   clear. With the 

exception of Beaumont v Anderson  1949   (3)  SA   562   (N), I have  not  found a case directly in point. The case law establishes that it is the duty of an appellant’s attorney to  lodge a  complete and correct record timeously; and to ensure that the evidence is fully transcribed,  and the  exhibits  and  judgment   included. Upon actual or contemplated failure to  comply in  time, the appellant is expected to bring a substantive application for  condonation  as  soon as possible. It is normally a requirement that the appellant’s prospects of success  on  appeal  be  canvassed.  Failing  such  application,  or  if  it  is refused,  the  usual  order is that the appeal be struck from the roll, although some rules  (including Rule  5(17)  of  this  Court) provide that the appeal is deemed to be withdrawn.  A  punitive costs order is sometimes granted. See Kahn v Radyn 1949 (4) SA  552 (C); Nicol’s Motor Works v Breytenbach 1953 (4) SA 1 (T); Anastassiades v Argus Printing and Publishing Co. Ltd 1955 (2) SA 349 (T); Bekker v Dawkins Steenmakery 1959 (1) SA 32 (T); Mashaba v Engelbrecht 1959 (1) SA 34 (T); Van Der Riet v Rheeder 1965 (3) SA 712 (O); Senator Versekerings Maatskappy Bpk v Lawrence 1982 (3) SA 132 (A); Rennie NO v Gordon and Another NNO 1988 (1) SA 1 (A); Rennie v Kamby Farms (Pty) Ltd 1989 (2) SA 124 (A); SA Broadcasting Corporation v Corrective Action Holdings (Pty) Ltd t/a Mass Media Marketing 1999 (3) SA 601 (W) and the case cited at 602;Dos Santos v Unibank Ltd 2000 (1) SA 801 (W); Mamabolo v Rustenburg Regional Local Council 2001 (1) SA 135 (S C A). In the numerous cases which I have cited, there  is  not  a  single instance where it was suggested that material portions of the record had been lost and could not be reconstructed.        
12.	Beaumont v Anderson, supra, was an appeal from the magistrates  court. The  pages  of  the  handwritten  record  of the plaintiffs evidence in chief were lost, it  would  seem   irretrievably, with the consequence that the magistrate was unable to furnish his  reasons for judgment. Broome J  pointed out that the appellant had a statutory right of appeal which had been frustrated through no  fault  of  his  own. On  the other hand the respondent had a judgment in his favour. The Court  declined  to   remit  the   case  for hearing de novo, which it thought would be  unfair  to  the  respondent, who  had   a   judgment  in  his   favour. It  continued:

“His  alternative  prayer is that the case be remitted to the 
magistrate to re-hear the evidence of the plaintiff, and that 
is, in my opinion, the  best way  out  of  the  difficulty. A 
similar course was followed in the case of EX PARTE 
FIRTH (46 LT 120)”.      

13.	While that   course  may  have  commended  itself  to  the  Court  on  the 
facts of that case,  it would   in   my  opinion  be  entirely  inappropriate   in  	the   present   matter. It  would  mean  re - hearing  most   of   the   evidence  including,   it   seems  to me, the cross-examination  of  the   respondent. 
Credibility was important in this case, and her credibility  was as   much  at  	stake  as that of the Department’s witnesses. It may also be asking too much  	of   Mrs . Grobbelaar to disabuse her mind of the perceptions which she  has  	already  formed  of  the witnesses. And it may perhaps be asking too much 
of the Department to  expect  it  to have confidence in her ability to do so. 
It is, of course, not  feasible  to remit only part  of  the  case  on the merits for re - hearing before a differently constituted court.    

14.	An  alternative  course  advanced  by  Mr. Pretorius, who led for the appellant, would be  to   remit   the   matter   to    Mrs. Grobbelaar   for a  “reconstruction” hearing. The  object of this exercise, he explained, would 
be to ascertain a complete and correct reconstruction.  There  was  little,  if  	any dispute about what each of the Department’s four  witnesses  said  in  	chief.  So  the  respondent,  and  each  of   the  Department’s witnesses, 	would be  taken through their    previous  cross-examinations   and re-	examinations  within  the   parameters  disclosed by the various  handwritten 
notes. No  “new”  cross-examination  would  be permitted, but only questions relating to their previous  testimony.  Mr.  Pretorius   pointed  out that  all  five  witnesses   were   still available, and that the Department’s  witnesses have  deposed  to  affidavits  in which they comment on the attempted reconstruction. There would thus be little or no scope for them 

to tailor their evidence. The  course  proposed  by counsel is thus a variation on and extension of what was done in Beaumont v Anderson, supra.

15.	I   fear   that     such     an     endeavour    is    likely    to    prove   counter  productive. There   is   every    prospect    that    it    will    produce a host   of   new   disputes. Moreover, there is a real prospect that  at the end 	of the enquiry Mrs . Grobbelaar may still  find   herself unable   to certify. Even if she does certify, it may not be possible to  eliminate   all disputes, in which event  this  Court may be asked to resolve them. I am  persuaded that  the proposal is too risky, and that it would be inadvisable for us to adopt it in the circumstances of this case. 

16.	What remains is a choice: either to let the judgment in the respondent’sfavour stand, or to  set  it  aside and  to  refer the  matter  for hearing de novo . If the judgment is allowed  to  stand, then the Department’s right of 
appeal will be completely frustrated, thereby prejudicing it. A  remittal,  on  	the  other hand, will deprive the respondent of her judgment and will lead  	to   the  parties   incurring   more   costs.  This  may  be  especially  hard  on  	the respondent,  who  is  an  individual and who may not be possessed of 
adequate funds. Mr Bam,  who  led for the respondent, submitted that  his  	client   would be unduly prejudiced by a remittal. He mentioned the matters 
to  which  I  have  referred, as  also  the need for finality and, in labour cases, expedition. He   pointed  to   some  delay on the part of the Department’s attorney in attempting to rectify the position prior to thehearing of the appeal on 16 November 2000, though an appropriate  costs 
order  was made on that occasion. Counsel pointed to the possibility that a 

trial de novo may lead to another appeal. He suggested that in having totestify again, the respondent  would undergo further “trauma”. Finally,  he borrowed from  the criminal appeals and submitted that it was the State’s fault  that  the  tapes  were  missing.  In  evaluating  prejudice,  he said, such fault was a weighty consideration.  

17.	I deal  with  the last  point first. It was not the appellant Department’s fault 
that the tapes were lost. The  responsibility  for their  safekeeping rested on 
the Department of Labour.  It would  be too  far  reaching,  in  my opinion,  to  carry any such fault from one department  of State  to   another. Moreover,  we  do  not   know  the circumstances  of  the  loss,  so  that   it  is  difficult   to  assess   fault   or  its extent. Certainly, the State should not be blamed for the fact that Mrs. Grobbelaar’s notes are no  longer extant.  There is no merit in the “trauma” argument, but the other points raised by Mr. Bam  are  not  without  force.  On  balance,  however,  it  appears  to  me  that  the Department’s  right  of  appeal  is  the overriding consideration. 
As has been pointed out, all the witnesses are available. If the matter is 	remitted for re - trial the respondent may prove her case once again, in 	which event her position in regard to costs will be safeguarded. But if the 
appeal is dismissed, the Department will lose the opportunity of persuading 
this Court that the trial Court erred. It will be fixed with liability in the sum 
of R 70449,00 (plus costs) and with a finding that it constructively dismissed the respondent, results which might have not been sustained on 
appeal. It is always unfortunate when a re - trial has to be ordered, but it seems to me to represent the lesser inequity. A re -trial in this respect means a re-hearing on all aspects of the case.

18.	The Industrial Court no longer operates save to finalise part-heard matters 

In other pending matters that court’s functions are now performed by the Commission for Conciliation, Mediation and Arbitration. See item 22 A of schedule 7 to the Labour Relations Act 66 of 1995 read with Government Notice no.R214 promulgated in Government Gazette dated 19 February 1999.I do not regard the present matter as part-heard. It follows that the case must be remitted to the Commission. In a letter before the Court, the National Senior Commissioner expresses regret for what has happened and offers to make available a commissioner who is experienced in Industrial Court matters to try the case de novo. 

19.	With regard to costs, Mr Pretorius properly conceded that the Department 
should be liable for the costs of the hearing on 16 November 2000, which 
were in a sense wasted. For the rest, I am of the view that it would be fair 
to order that the costs at first instance and on appeal be in the cause of the 
re-trial.

20.	The following order is made:

1.	The judgments and orders of the Court a quo are set 
aside and the matter  is referred  to the Commission for Conciliation, Mediation and Arbitration for re-hearing de novo before a commissioner (other than Mrs Grobbelaar); 

2.	The appellant is to pay the costs of the hearing before this Court on the 16 November 2000 on the basis then ordered. All other costs at first instance and on appeal are to be costs in the re-hearing contemplated in para 1 above.

____________________
R.G. Comrie
Acting Judge of Appeal

I agree

_________________
RMM Zondo
Judge President

I agree

_________________
K. van Dijkhorst
Acting Judge of Appeal

For the Appellant:		Adv. G.C. Pretorius SC and Adv. L. Bolt

Instructed by:		The State Attorney, Pretoria

For the Respondent: 	Adv. A.J. Bam SC and Adv. C. Pretorius

Instructed by:		Messrs Maartens & Huysamen, Pretoria.	

Date of Argument:	5 June 2001

Date of Judgment: