National Union of Metalworkers of South Africa (NUMSA) and Others v Paint and Ladders (Pty) Ltd and Another (JA74/16)  ZALAC 41 (28 June 2017)
In an application to dismiss a claim a court must assess whether on account of delay there would be any prejudice to the parties which would impede the fair determination of the issues.
Almost 17 years previously, NUMSA on behalf of 17 employees, served and filed a statement of claim with the Labour Court. The claim concerned an alleged unfair dismissal from the services of the employer, Paint & Ladders, on account of its operational requirements. Paint & Ladders immediately filed its statement of response to the claim. The minutes of the pre-trial conference were filed almost three years later. A year later the matter was set down for trial but was postponed sine die in consequence of an agreement between the parties following an application for a postponement by Paint & Ladders.
The matter lay dormant for 10 years when a judge, in chambers, certified that the dispute between the parties was trial ready. Some 11 years later calculated from the date the dispute was referred to the Labour Court for adjudication, the Court meromotu issued the Notice of set down of the trial for 03 August 2015.
On the morning of the trial, Paint & Ladders served a Notice of Motion in terms of Rule 11 in which it sought an order that the appellants' claim be dismissed in consequence of their failure to expeditiously and/or diligently prosecute the matter. The judge adjourned the proceedings to the following dayto afford the appellants the opportunity to file their answering papers. On the scheduled day, the Court postponed the matter sine die and ordered Paint & Ladders to once more serve and file its Rule 11 application within 10 days of the order if it elected to proceed with the application to dismiss the appellants' claim.
The 10-day period within which Paint & Ladders ought to have filed its Rule 11 application lapsed on 18 August 2015. The time-frame stipulated in the Court order was not adhered to but the application was served and filed on 25 August 2015, five days late. It sought condonation on the basis that the delay was minimal and its prospects of success propitious. To demonstrate that it stood to suffer prejudice, occasioned by the inordinate delay, Paint & Ladders maintain that during the retrenchment process it was represented by its National Operations Manager, Mr Johan Conradie. He was no longer in its employ and had reported to the General Manager that he had very little recollection of the matter and would have to be subpoenaed should his attendance be required. A certain Mr C Khoza was a facilitator during the retrenchment exercise. Mr Khoza's whereabouts are unknown.
The Rule 11 application to dismiss the appellants' claim came before the Labour Court on 30 November 2015. At that stage, the claim spanned some 15 years since it was launched with the Labour Court for adjudication. Having succinctly dealt with the parties' arguments the Court a quo found that the appellants took ages to prosecute each stage of the litigation and took no further steps to facilitate that their matter be set down for trial. The Court found the argument by the appellants preposterous and their conduct inexcusable. The Labour Court was further of the view, regard being had to the 15 years' delay, that even with the aid of the pleadings and minutes of the retrenchment process the witnesses' memories would be unreliable. The Labour Court concluded that Paint & Ladders made out a case for the dismissal of the appellants' statement of claim. It granted the Rule 11 application and made no order as to costs.
The LAC dismissed NUMSA's appeal, saying that the slovenly fashion in which the appellants went about prosecuting their alleged unfair dismissal was deserving of censure. The court a quo was right in having nonsuited them. The LAC was satisfied that the Labour Court hadproperly exercised its discretion to dismiss the appellants' claim for want of timeous prosecution.
Extract from the judgment:
 The general drift of the appellants' argument is that the Court a quo did not consider the Labour Court's authoritative jurisprudence when dismissing their claim. They contended that the principle established through case law was that the aggrieved party ought to place the dilatory party on terms to issue the Notice of enrolment prior to moving an application to dismiss a claim. Mr Lengane, for the appellants, in support of his argument, referred to Karan t/a Karan Beef Feedlot and Another v Randall which concerned the dismissal of the statement of claim on the basis of an unreasonable delay in pursuing a claim. In that case, subsequent to the closing of the pleadings, there had been a delay of approximately two years and three months in delivering the pre-trial minutes.Van Niekerk J pronounced that Rule 6 of the Rules for the Conduct of Proceedings before the Labour Court established a model of case management in terms of which cases referred to the Labour Court, at least after the conclusion of a pre-trial conference or the lapse of the period allocated for a pre-trial conference, are to be managed by a judge rather than the registrar, the parties, or their representatives. The Court further held that the clear intention was to ensure that judges assumed control of matters at an early stage, and that they actively managed cases to ensure that they were expeditiously and efficiently dealt with during the pre-trial phase and beyond. Van Niekerk J further held:
' In summary: despite the fact that the rules of this court make no specific provision for an application to dismiss a claim on account of the delay in its prosecution, the court has a discretion to grant an order to dismiss a claim on account of an unreasonable delay in pursuing it. In the exercise of its discretion, the court ought to consider three factors: The view expressed by Van Niekerk J inKaran Beef Feedlot(supra) was echoed in Member of the Executive Council, Department of Sport, Recreation, Arts& Culture, Eastern Cape v General Public Service Sectoral Bargaining Council and Otherswhere Prinsloo AJ held that an application to dismiss a review application is a drastic remedy and should not be granted unless the dilatory party has been placed on terms, and where appropriate, after any further steps as may have been available to the aggrieved party to bring the matter to finality, have been taken.
This is subject to the consideration that an application to dismiss is a drastic remedy, and should not be granted unless the dilatory party has been placed on terms, and when appropriate, after any further steps as may have been available to the aggrieved party to bring the matter to finality have been taken. Theoretically, in the case of referrals to this court in terms of Rule 6, matters ought never to get to this point - unlike the rules of other courts, the Labour Court Rules contemplate a system of active case management by a judge in the pretrial phase. Properly applied, Rule 6 ought to ensure that tardy parties and representatives are held to account, and that matters are prepared and enrolled for trial without delay.'
- the length of the delay;
- the explanation for the delay; and
- the effect of the delay on the other party and the prejudice that that party will suffer should the claim not be dismissed.
 As correctly argued by Mr Lengane, Rule 6(5) to (8) contemplates a system of judicial case-flow management by a judge in respect of matters referred to the Labour Court for trial. However, case-flow management does not divest the dominuslitis of its responsibility to ensure speedy finalisation of its case. A litigant cannot remain supine and allow years to go by in the hope that the Court would in the unknown future date put its matter through judicial case-flow management. The fact that the appellants were ready for trial 2004 is no excuse for a period of a decade-and-a-half of inertia which followed thereafter. There is a dearth of explanation of what the parties did between 2004 when the trial was postponed to April 2015 when the Court decided, on its own accord, to set the matter down for trial. The exception is the appellants' unsubstantiated claim that in September 2010, upon an enquiry at the registrar's office, they were informed that the file had been misplaced. They do not say who had attended the Court and neither did they attach any formal Notice of enrolment. They also did not detail any steps they took to trace the file; what enquiries (if any) they directed to the Registrar in a quest to obtain her assistance; or whether they at any stage attempted to compile a duplicate file. There is no semblance of a credible excuse proffered for the delay.
 What can be observed from the long line of decisions in the Labour Court on applications for dismissal of the claims for want of timeous prosecution is that although the rules of the Labour Court make no specific provision for an application to dismiss when a party fails diligently to pursue a claim referred to it for adjudication, the court has recognised and adopted the rule based on the maxim vigilantibus non dormientibuslexsubveniunt. In terms of this maxim, a party may in certain circumstances be debarred from obtaining the relief to which that party would have been entitled to on account of an undue delay in prosecuting its claim because: Firstly, an unreasonable delay may cause prejudice to the other parties. Secondly, it is both desirable and important that finality be reached within a reasonable time in respect of judicial administrative decisions.
 An aggrieved party's conduct is a factor to be taken into account in the exercise of the discretion whether to dismiss a statement of claim. In National Construction Building & Allied Workers Union & others v Springbok Box (Pty) Ltd t/a Summit Associated Industries, Molahlehi J correctly held, in my view, that the contribution to the delay by the party seeking to have the matter dismissed for delay in prosecution must be objectively assessed with a view to evaluating the extent to which the inaction of the applicant contributed towards the excessiveness or otherwise of the delay. The inaction has to be weighed against the objective facts that may point towards loss of interest in pursuing the matter by the party opposing such an application. It may well be that the facts and the circumstances objectively point to a case where the dilatory party can be said to have abandoned or lost interest in the matter.
 There had been in this case no reaction from Paint & Ladders to put the appellants on terms to expedite finalisation of their claim up until 03 August 2015, the morning of the trial, when it suddenly brought the application to dismiss the appellants' claim. Its conduct is therefore not above reproach. However, it is clear that in the situations such as the present, where the delay spans some 15 years, Paint & Ladders' conduct ought not to be viewed in isolationfrom the appellants' failure to expeditiously prosecute their claim...
 In the end, it all comes down to the question of whether, in light of the delay, there would be a fair trial of the issues in this case. Put differently, whether on account of the delay there would be any prejudice to the parties which would impede the fair determination of the issues.
 The statutory obligation in respect of expeditious resolution of labour disputes exists for a good reason: Any delay undermines the primary object of the Labour Relations Act, 66 of 1995. As illustrated in Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration and Others, failure to prosecute timeously labour disputes is detrimental not only to the workers who may be without a source of income pending the resolution of the dispute but, ultimately, also to an employer who may have to reinstate workers after many years. See also Colett v Commission for Conciliation, Mediation & Arbitration and Others (2014) 35 ILJ 1948 (LAC); CUSA v Tao Ying Metal Industries and Others  ZACC 15; 2009 (2) SA 204 (CC) at 223 para 63.
 In Mohlomi v Minister of Defence, the Constitutional Court observed:
' Rules that limit the time during which litigation may be launched are common in our legal system as well as many others. Inordinate delays in litigating damage the interests of justice. They protract the disputes over the rights and obligations sought to be enforced, prolonging the uncertainty of all concerned about their affairs. Nor in the end is it always possible to adjudicate satisfactorily on cases that have gone stale. By then witnesses may no longer be available to testify. The memories of ones whose testimony can still be obtained may have faded and become unreliable. Documentary evidence may have disappeared. Such rules prevent procrastination and those harmful consequences of it. They thus serve a purpose to which no exception in principle can cogently be taken.' (My own emphasis) It can hardly be argued that Paint & Ladders would not suffer prejudice due to the lack of timeous and diligent prosecution of the claim. As matters currently stand its deponent says it had not been able to locate one of its witnesses while the other witness is no longer in its employ and had allegedly reported that his memory or recollection of the facts or events has faded. The appellants' contention to the contrary about Paint & Ladders' witnesses is without substance. Mr Lengane also sought to argue that the Court a quo erred in not considering that Paint & Ladders, when it sought a postponement of the trial in 2004, submitted that a certain Mr Roy Fouche was its key witness whereas in its founding papers it submitted that Mr Conradie was the principal witness. He contended that Paint & Ladders proffered no explanation why Mr Fouche could not be called to testify. No basis for this argument was established by the appellants in their papers serving before us, save for counsel's submission in the heads of argument. The Court a quo's conclusion that the fair determination of the issues, in this case, will be severely compromised cannot be faulted. To my mind, the interest of justice will not be served.
 The appellants have a right of access to justice as contemplated in s 34 of the Constitution of the Republic of South Africa. However, that right is subject to the limitation permitted in s 36 of the Constitution. In Beinash and Another v Ernst & Young and Others, the Court held:
' The right of access to courts protected under s 34 is of cardinal importance for the adjudication of justiciable disputes. When regard is had to the nature of the right in terms of s 36(1)(a), there can surely be no dispute that the right of access to court is by nature a right that requires active protection. However, a restriction of access in the case of a vexatious litigant is in fact indispensable to protect and secure the right of access for those with meritorious disputes. Indeed, as the respondents argued, the Court is under a constitutional duty to protect bona fide litigants, the processes of the Courts and the administration of justice against vexatious proceedings' (footnotes omitted). The slovenly fashion in which the appellants went about prosecuting their alleged unfair dismissal is deserving of censure. The court a quo was right in having nonsuited them. I am satisfied that Whitcher J properly exercised her discretion to dismiss the appellants' claim for want of timeous prosecution thereof. The upshot of all this is that the appeal must fail.
 The requirements of law and fairness dictate that costs should follow the result of this appeal. Resultantly I make the following order.
- The appeal is dismissed with costs.