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IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT CAPE TOWN

CASE NO: C812/2005

In the matter between:

DARRYL BANDA ....................................................................................................Applicant

and

DAIMLER CHRYSLER SOUTH AFRICA

(PTY) LIMITED ........................................................................................1st RESPONDENT

F F J BRAND N.O. .................................................................................2nd RESPONDENT

JUDGMENT

NEL, AJ

[1] This is an application to review and set aside an arbitration award handed down by the second respondent (“the Arbitrator”) on 6 July 2006. The arbitration proceedings took place pursuant to a private arbitration agreement between the applicant and the first respondent.

[2] It was common cause between the parties that this Court had jurisdiction in respect of this application by virtue of Section 157(3) of the Labour Relations Act 66 of 1995. The review application was brought in terms of Section 33 of the Arbitration Act 42 of 1965 by the applicant nearly four months late. A substantive application for condonation was filed by the applicant and I turn to consider whether condonation should be granted to the applicant for the late filing of his application.

[3] The award under consideration was handed down on 6 July 2005. It is apparent from the applicant’s condonation application that his then attorney of record received the award the same day it was handed down and the outcome was telephonically conveyed and briefly discussed with the applicant.

[4] According to the applicant he was not satisfied with the outcome of the award and considered the arbitrator’s reasoning and conclusions to be fundamentally flawed. He accordingly instructed his attorney to consider what potential further remedies were available to him and to advise him how to proceed. Apparently the applicant’s attorney advised him that a transcript of the arbitration proceedings would first have to be obtained. On 11 July 2005 the applicant instructed his then attorney of record to obtain a quotation for the preparation of the transcript of the arbitration proceedings. On the same day the applicant’s attorneys requested a quotation for the transcript from Messrs Sneller Transcription Services (Pty) Limited (“Snellers”). The written request was marked “urgent” and the urgency of the matter was clearly conveyed to Snellers.

[5] When, by 20 July 2005, the applicant’s attorneys had not received a response from Snellers, they were telephonically approached and the quotation was there and then provided over the phone. Snellers were instructed to proceed with the preparation of the transcript.

[6] The transcript was only completed by Snellers on 30 August 2005. It is alleged that during the period 20 July to 30 August 2005, the applicant’s attorney’s secretary made numerous telephone calls to Snellers why the transcription was taking so long, every time to be advised that the typists were very busy.

[7] The applicant’s attorney at the time, Mr Daubermann, said that this transcript being some 394 pages of length took him a considerable period of time to read and to consider and to research the law on the applicant’s further remedies. He said that he also had an extremely busy practice and that he was unable to devote all his time and attention during the period 30 August to 27 September 2005 to the applicant’s matter. It was also regarded as impractical at the time to have referred the matter to another attorney as Daubermann had been involved in the matter from the outset.

[8] On 27 September 2005, Daubermann addressed a letter to the applicant advising him that in his view an application for review would not succeed and he advised the applicant against bringing such an application.

[9] The applicant says that during the delay by Snellers to provide the transcript, he contacted Daubermann on several occasions in an attempt to expedite the matter. The applicant appears not to have done anything over the period 30 August to 27 September 2005 to expedite matters.

[10] As the applicant was not satisfied with Daubermann’s advice he sought a second opinion from his present attorney of record, Mr Brivik. Applicant says that he met with Brivik in Cape Town on 29 September and 3 October 2005. Although the applicant at this stage did not have a copy of the transcribed record of the proceedings, he furnished Brivik with a copy of the award and the arbitrator’s terms of reference. Brivik furnished him with a preliminary opinion, which favoured the launching of review proceedings. This opinion was provided to the applicant on 6 October 2005.

[11] On 7 October 2005, the applicant sent an e-mail to Daubermann advising him of the second opinion he had obtained in Cape Town to the effect that the award was reviewable on the ground of bona fide gross errors of fact by the arbitrator. It would appear that Daubermann requested the applicant to provide Daubermann with copies of certain authorities which the applicant had obtained in Cape Town for Daubermann’s consideration. After receipt of these authorities, Daubermann recommended to the applicant that before launching review proceedings he should obtain senior counsel’s opinion on the question whether the award was reviewable on the ground of bona fide gross errors of fact by the arbitrator. The applicant instructed Daubermann on 20 October 2005 to brief senior counsel for an opinion.

[12] On 24 October 2005, Daubermann received senior counsel’s opinion, which was to the effect that the award was not reviewable on the ground of bona fide gross errors of fact by the arbitrator. The same day Daubermann provided the applicant with a copy of this opinion for his consideration.

[13] The applicant says that in light of the conflicting advice that he had received from the respective attorneys and after discussing the matter with Brivik, he had also instructed Brivik on 20 October 2005 to brief counsel in Cape town to provide an opinion as to the review grounds which would be applicable to the award. Brivik apparently instructed counsel in Cape Town on 21 October 2005 to provide the applicant with an opinion concerning his prospects in principle of succeeding in any legal challenge to the award. On 26 October 2004 Brivik forwarded the applicant a memorandum drafted by counsel in Cape Town, which differed from the conclusion reached by senior counsel. Faced with conflicting legal advice from counsel, the applicant says that he was uncertain how to proceed. He forwarded senior counsel’s opinion to Brivik and arranged to consult with him and counsel in Cape Town on 4 November 2005.

[14] On 27 October 2005, Daubermann undertook to send a copy of the available record to the applicant. The available record was thereafter transmitted to Brivik’s offices in Cape Town on 31 October 2005.

[15] On 4 November 2005, following the consultation with Brivik and counsel in Cape Town the applicant contacted Daubermann and requested him to draft an affidavit setting out the explanation for the delay in these proceedings as far as it fell within his knowledge.

[16] On 7 November 2005, the applicant instructed Brivik to proceed with the review application. Brivik in turn instructed counsel to peruse the available record of proceedings and to draft the relevant papers.

[17] Although the applicant’s review application was filed in this Court on 23 November 2005, the first respondent contends that it was only served on its attorneys in early December 2005. In further opposing the condonation application it was submitted on behalf of the first respondent that this is a substantial delay which should only be condoned in the event of the applicant furnishing a particularly good explanation together with good prospects of success. First respondent submitted that the applicant had shown neither of these. It further contended that the applicant had not in any manner or form explained or justified the need to obtain a record prior to launching the review application. First respondent further made the express proposition that the rules of this Court pertaining to applications of this nature made provision for the application to be launched without the record and that provision was made in the rules for the application to be supplemented in the event of further grounds becoming apparent once the record had been obtained.

[18] Mr Wade, who appeared on behalf of the first respondent, in his very helpful heads of argument, drew attention to the fact that the applicant’s erstwhile attorneys of record were at all material times acutely aware of the time limits imposed under the Arbitration Act. This was with reference to the fact that this was expressly stated in his affidavit by Daubermann. The relevance of this of course lies particularly therein that in spite of the awareness on the part of the applicant’s attorneys that time periods applied herein, no effort was made to either apply for condonation at the time that it became apparent that condonation was going to be required or to seek an indulgence from the first respondent’s attorneys. In fact the first respondent in its answering affidavit make mention of the fact that the applicant did not indicate an intention to take the matter on review prior to him doing so at the end of November/beginning of December 2005.

[19] What I am accordingly confronted with herein is that whilst the applicant’s review application was due on 17 August 2005 it was only served during early December 2005, making it late by approximately 14 weeks. This in my view is an excessively long delay. It perhaps bears re-statement what the framework is that the legislature intended should apply in respect of review applications. In the first instance it is required of an applicant to bring his review application within six weeks from the date on which the arbitration award comes to his attention. In that review application the applicant party must, inter alia, call on the arbitrator (or the Commissioner as the case may be) and the arbitrating authorities to despatch, within ten days of receipt of the review application, to the registrar of this Court the record of the proceedings of the arbitration in question and to notify the applicant that this had been done. The applicant is then given ten days to supplement his founding affidavit or to indicate that he stands by his founding affidavit. Thereafter any opposing respondent party has 14 days within which to file its answering affidavit and in conclusion the applicant has a further ten days to file replicating papers, if any. In theory therefore the legislature intended in a worse case situation where every step along the way is taken at the very last moment, that the matter should be ripe for hearing after a period of some 12 weeks. We know that in practice the arbitration authorities would file the tape recordings of the arbitration proceedings and it is then up to the applicant party to have these tapes transcribed. It would appear that many of the delays in review proceedings occur in that the arbitration authorities fail to make the record of the arbitration proceedings available within the stipulated ten day period. The rules of this Court provide for a simple and what I believe should be an inexpensive procedure that a party may follow to compel another party to comply. If a party seeking condonation has failed to avail himself of such procedure to compel, it is in my view a factor which will weigh heavily against the granting of condonation.

[20] The second area where in the experience of this Court delays occur is that the transcription services used by the parties fail to provide the requested transcription within a reasonable period of time. Whilst it may not be open to a party to bring the defaulting transcription services before the Court in order to compel them to provide the record of the arbitration proceedings more expeditiously, I in the first instance do not believe that there is any reason why parties should regard themselves as bound to only use a particular transcription service. As far as this Court is aware it is open to a party to use any competent party willing and able to transcribe the record. It follows that it will not be any excuse if bad service is provided by a transcription service in the transcribing of the record and by reason thereof production of the record of the proceedings becomes the cause of an undue delay. Patently it remains the responsibility of an applicant party to produce a properly transcribed record of proceedings and to do so expeditiously. An applicant for condonation will have to show very clearly what steps he had taken to ensure that the transcription service he elected to use performed its services properly.

[21] It is also known that many transcription services charge different rates depending on the urgency with which they are required to produce a transcribed record. If a party has the luxury of time within which a record is required to be transcribed he will have the benefit of possibly having the transcription done at a lesser price. However, if that party does not have such luxury it follows that it may be incumbent on that party to pay the higher price charged by the transcription service in order to have the transcribed record produced in a shorter period of time. At all times the applicant who bears the responsibility to produce the record of the proceedings will have to show that he took every reasonable step to ensure that time periods were adhered to and that where delays occurred it had been wholly outside of his control.

[22] I can do no better than to refer to the Labour Appeal Court decision in Queenstown Fuel Distributors CC vs Labuschagne NO and Others [2000] 1 BLLR 45 (LAC), confirming (at par. [24]) that although the power of condonation existed, strict parameters were set by the LAC for the exercise of the discretion to condone:

“In principle, therefore, it is possible to condone non-compliance with the time limit. It follows, however, from what I have said above, that condonation in a case of disputes over individual dismissals will not readily be granted. The excuse for non-compliance would have to be compelling, the case for attacking a defect in the proceedings would have to be cogent and the defect would have to be of a kind which result in a miscarriage of justice if it were allowed to stand.”

[23] The rationale for a strict consideration of applications for condonation such as the present one was explained in the Queenstown Fuel Distributors matter (supra) in the following terms (at par. [25]):

“By adopting a policy of strict scrutiny of condonation applications in individual dismissal cases I think that the Labour Court would give effect to the intention of the legislature to swiftly resolve individual dismissal disputes by means of a restricted procedure, and to the desirable goal of making a successful contender, after the lapse of six weeks, feel secure in his award.”

[24] Mr Wade argued that the approach adopted in Queenstown Fuel Distributors (supra) was even more appropriate in circumstances where the parties willingly subjected themselves to private arbitration governed by the Arbitration Act. He contended that such private arbitration proceedings are subject to equally rigid time limits in relation to review proceedings. He expressed the view that it could safely be assumed that part of the rationale of parties in private arbitration proceedings was to ensure the final and expeditious resolution of the dispute forming the subject matter of the arbitration agreement. The further framework urged upon me within which to consider the applicant’s condonation application was that it is trite that it is incumbent upon a party to apply for condonation as soon as possible upon becoming aware of its default. This point has in fact repeatedly been stressed by the Supreme Court of Appeal. (See Saloojee and Another N.N.O. vs Minister of Community Development 1965 (2) SA 135 (AD) at 138H; Rennie vs Kamby Farms (Pty) Ltd 1989 (2) SA 124 (AD) at 129G; and Napier vs Tsaperas 1995 (2) SA 665 (AD) at 671B).

[25] The approach by the SCA has been endorsed by the Labour Appeal Court, which has held that an application for condonation ought to be launched on the same day that the default is discovered. (See, inter alia, Allround Tooling (Pty) Ltd vs NUMSA and Others [1998] 2 BLLR 847 (LAC) at 849, par. [8]; Foster vs Stewart Scott Inc [1997] 2 BLLR 117 (LAC) at 119 F – G; Librapac CC vs Fedcraw and Others [1999] 6 BLLR 540 (LAC) at 543, par. [13]; Mbatha vs Lyster & Others [2001] 4 BLLR 409 (LAC) at par. [30]; and Universal Product Network (Pty) Ltd vs Mabaso and Others [2006] 3 BLLR 274 (LAC) ).

[26] In Librapac CC (supra) the LAC commented as follows (at 543, par. [13] & [14]):

“ … the application for condonation should have been brought as soon as it became apparent that there had been a delay. ….. It did not do so and only brought the application when ordered to do so by the judge in the court below. There is no proper explanation why it was not done earlier.

It follows that the appeal against the implicit dismissal of the condonation and review applications in the court below must fail.”

[27] Yet another aspect of the legal framework within which I needed to consider the condonation application to which Mr Wade drew my attention was the fact that without a reasonable and acceptable explanation for the delay, the prospects of success an applicant may enjoy are immaterial. On the other side of the spectrum, without prospects of success, no matter how good the explanation for the delay, and application for condonation should be refused. (See, inter alia, Allround Tooling (Pty) Limited (supra) at 850A-F; Toyota S A Marketing vs Schmeizer [2002] 12 BLLR 1164 (LAC) at 1169 B-F).

[28] Yet a further aspect relevant hereto, and to which my attention was drawn by Mr Wade, was the fact that, in seeking condonation, the applicant relied heavily on the fact that he had been provided with contradictory legal advice. In addition there are also a number of delays which could be placed at the door of his legal representative.

[29] In the Saloojee matter (supra) at 141 C-H, the Appellate Division held the following:

“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. ….. 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 Rules of Court, the litigant should be absolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are.”

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