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IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT PORT ELIZABETH

CASE NO: P 173/97

In the matter between:

Building Construction and Allied First Applicant

Workers Union

Peli and 61 Others Second and Further Applicants

and

B & E Quarries (Pty) Ltd First Respondent

Port St Francis (Pty) Ltd Second Respondent

JUDGMENT

BASSON,J

1. The respondent who appeared in this matter (the first respondent) raised a point in limine to the effect that the applicants did not apply for condonation of their alleged late filing of a statement of case.

2. The conciliation proceedings that preceded this matter being referred to the Labour Court closed with a certificate being issued that the matter cannot be resolved in January 1997. The applicants served and filed their statement of case only some 11 months later.

3. The Labour Relations Act 66 of 1995 (“the Act”) does not contain prescription provisions in regard to prescribed time periods within which such statements of case have to be filed.

4. However, one has to have regard to (a) one of the fundamental objects of the Act, that is, to expedite the resolving of disputes (in terms of section 1(d)(2) - “the effective resolution of labour disputes”); (b) the fact that section 191(1) of the Act requires a dispute such as the present to be referred to conciliation within 30 days of the date of dismissal; and (c) the fact that section 191(5) of the Act requires the period of conciliation to last only 30 days (whereafter the employee or employees concerned may refer the dispute to the Labour Court for adjudication).

5. This is so also when the reason for dismissal is (as in the present case) the employees’ participation in a strike that does not comply with the provisions of Chapter IV of the Act (see the provisions of section 191(1)(5)(b)(iii) of the Act).

6. It is clear that the Act envisages the expeditious resolving of labour disputes.

7. In the event, claims such as the present, must be instituted within a reasonable time, even in the absence of specific prescribed time limits.

9. In this regard it was held in the judgment of L.F. Boshoff Investments (Pty) Ltd v Cape Town Municipality 1971 (4) SA 532(c) at 535H-535D that the Court:

“... in the exercise of its inherent power to prevent the abuse of its processes can and should set a term to the time within which the applicant is required to act and may do so within the time that is, regard being had to all the circumstances, reasonable. Should an opponent object at the time of the hearing of the application to its being heard on the ground that the applicant has failed to act timeously, it will be for the Court to decide whether or not the applicant’s delay was unreasonable... There is little doubt that this lengthy period of delay on the facts presently known to us is unreasonable and that in the absence of a condonation by this Court of the delay, the present application should not be entertained”.

10. In my view, taking into account the abovementioned provisions of the Act, this principle should be applied where unfair labour dismissal disputes are referred to the Labour Court in terms of the provisions of section 191 of the Act.

11. In order to ascertain whether the delay in the present matter was unreasonable, I believe that one should adopt an objective test.

12. In this regard, a factual investigation of the abovementioned provisions of the Act show that a period of 11 months, such as the period of delay in casu can be regarded as an unreasonable period of delay. In the event, an application for condonation is required.

13. The applicants have failed to lodge an application for condonation with the Court.

14. The applicants seek an indulgence for a postponement in order to lodge a proper application for condonation. The respondents oppose such application for postponement.

15. It must be noted that in terms of Rule 6 of the Rules of Court points in limine must be identified in the pre-trial minutes.

16. The pre-trial minutes in casu was defective for a variety of reasons and, in fact, it was only this morning that a proper pre-trial minute was filed with the Court.

17. The pre-trial minute was defective also until 7 November 1998 in that it did not mention the point in limine that was to be taken by the respondents today.

18. The other side of the coin is that the applicants were, in fact, given notice as from 17 November 1998 that such points in limine would be raised.

20. Also, in taking into account the possible prejudice that may be caused to the respondents by a further postponement, it would appear that, should the Labour Court eventually grant an order for compensation, it may take any unreasonable period of delay that was caused by the applicants in initiating the claim into account in terms of the provisions of section 194(1) of the Act. The Labour Court can, in the same vein, order that reinstatement (which may be from the date of dismissal in terms of section 193(1)(a)) be from a date later than the date of dismissal in order to express its dissapproval of the actions of the applicants due to the unreasonable delay.

21. I further believe that the prejudice caused to the respondents in postponing this matter in order for the applicants to file a proper application for condonation can be overcome by a proper costs order.

22. Taking into account the actions of the applicants until now, especially the fact that they were given notice of this point in limine beforehand, I believe that it would be fair to award such costs for today on attorney and own client scale.

23. In the event, I am of the view to grant the indulgence prayed for by the applicants and postpone the matter.

24. The applicants are to bring a proper application for condonation within two weeks of today’s date.

25. The applicants are to pay the respondent’s costs for today on the attorney and own client scale, the one paying the other to be absolved.

___________________________

BASSON J

DATE OF HEARING : 3 DECEMBER 1998

DATE OF JUDGMENT : (EX TEMPORE) EDITED VERSION

APPEARING FOR THE APPLICANT : MR LM MALAN

INSTRUCTED BY : SNYMAN,VANDEN HEEVER & HEYNS INC

APPEARING FOR THE RESPONDENT : ADV R WADE

INSTRUCTED BY : RQUSHMERE,NOACH ATTORNEYS

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