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IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT DURBAN CASE NO. D127/98

In the matter between :

MR ZONDI & 20 OTHERS Applicants

and

MIDLANDS RECYCLING C.C. Respondent

JUDGEMENT

MLAMBO J :

1. In this application the Court is requested to condone the late filing of a statement of defence by Respondent in the main application. The application is opposed.

2. The Applicants’ caused their statement of case to be transmitted by telefax to the Respondent on 11 March 1998. One Mandisa Eunice Dahm who is employed by the Applicants’ attorneys, performed this task and filed an affidavit as confirmation. Attached to her affidavit is a copy of the telefax transmission report which confirms that the transmission was successful.

3. The Respondent states that on 25 May 1998 it received a notice of set down presumably of an application for default judgement. After soliciting advice Respondent initiated an investigation seeking to establish if any Court papers had been received. This was in terms of the advice solicited. Respondent states that a manageress in its employ advised that no Court papers had been received. Respondent’s explanation in simple terms is that it never received the statement of defence transmitted by Applicants’ attorneys by telefax.

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4. A party seeking condonation must show good or sufficient cause. In deciding whether good or sufficient cause has been shown the Court has a discretion which must be exercised judicially upon a consideration of all the facts. The exercise of this discretion must also be fair to both sides. Of relevance to the Court will be the degree of lateness, the explanation therefor, the prospects of success and the importance of the case. These factors are usually interlinked and a Court should be slow to adopt a piecemeal approach. MELANE v SANTAM 1962 (4) SA 531 (AD).

5. The Labour Appeal Court, has affirmed the existing principles. It has stated that : “There is a further principle which is applied and that is that without a reasonable and acceptable explanation for the delay, the prospects for success are immaterial, and without prospects for success, no matter how good the explanation for the delay, an application for condonation should be refused.” See NATIONAL UNION OF MINEWORKERS v COUNCIL for MINERAL TECHNOLOGY. Unreported Labour Appeal Court case no : JA 94/97.

6. My view is that the injunction to provide an explanation, amongst others means that the explanation must be reasonable and acceptable. This would be an explanation that is bona fide. It stands to reason that the explanation should not be a dishonest one. Should the Court find it to be dishonest, condonation should be refused without even considering the other factors relevant.

7. The Respondent’s explanation is that it never received the statement of case sent by telefax transmission. The notice of set down received by Respondent was sent via the same telefax number used by the Applicant’s attorneys. It is not Respondent’s case that its telefax machine was not operational during March 1998 when the statement of case was telefaxed. It is also not Respondent’s case that the statement of case was received and misplaced. The explanation is simply that it was never received which would explain why a response was not filed until after receipt of the default judgement set down.

8. I have serious misgivings about this explanation. The fact that there is no challenge to the authenticity of the telefax transmission report must mean that the document was received. An explanation that says the document was not received cannot be acceptable, simply because it is not honest. I cannot therefore accept such an explanation. This being my view, prospects of success and the other factors are immaterial. The application for condonation must fail on the basis that the explanation tendered is not reasonable and acceptable.

9. The application for condonation is therefore dismissed with costs.

MLAMBO J

JUDGE OF THE LABOUR COURT

1. Date of application : 3 September 1998

2. Date of judgement : 8 September 1998

For the Applicant (Respondent in main Miss Singh of van Tromp & application): Associates

For the Respondent (Applicant in main Mr Zondi of Chennells,

application): Albertyn & Tanner

This judgement is available on the internet at www.law.wits.ac.za/labourcrt

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