Government v Swaziland National Association of Civil Servants (S.N.A.C.S) (5/05) [2006] SZICA 1 (02 May 2006);

 

IN THE INDUSTRIAL COURT OF APPEAL OF SWAZILAND

 

HELD AT MBABANE                                                 APPEAL CASE NO. 5/2005

 

In the matter between:

 

SWAZILANDGOVERNMENT                                                         Appellant

 

And

 

SWAZILANDNATIONAL ASSOCIATION OF

CIVIL SERVANTS (S.N.A.C.S)                                                      Respondent

 

Coram:                         J. P. ANNANDALE ACJ

                                    J.M. MATSEBULA JA

                                    S.B. MAPHALALA JA

 

For the Applicant:      ADV L.M. MAZIYA, instructed by the Attorney-General with him Mr. D.V. Dlamini

 

For the Respondent: MR. P. R. DUNSEITH, of Dunseith attorneys, Mbabane       

 

 

J U D G M E N T 

MAY 2006

 

[1]     The appellant seeks condonation for late filing of the record of proceedings which application is vigorously and justifiably opposed.

[2]     Following its dissatisfaction with a judgement against it, the Appellant (Government) noted an appeal based on several grounds, as are enumerated below. The judgement it wants to appeal against was handed down on the 28th February 2005 by the learned former Judge President of the Industrial Court. Therein, Government was ordered to comply with a number of aspects, all relating to the position of members of the Respondent Union (SNACS – Swaziland National Association of Civil Servants)  who were about to be declared redundant and laid off.

 

[3]     The appeal was noted on the 15th March 2005, within the required period of doing so. Subsequently, the Industrial Court of Appeal had a session in November 2005, without the matter being enrolled for hearing of the appeal. The appellants did enroll it for the present session and the matter is thus before us for  the fist time, more than fourteen months after the Industrial Court ordered Government to refrain from retrenching so called temporary employees and to engage the respondent union in bona fide consultations after it had set aside letters of retrenchment.

 

[4]     In the interim, the present respondent took Government to court on alleged conduct in contempt of the initial order. The Industrial Court found the Government was not in contempt but rather that it might have misunderstood the order against it.

 

[5]     In the latter judgement of the 15th June 2006, which the appellant mistakenly filed as part of its condonation application, which is the subject of this judgement, the learned former Judge President also clarified any uncertainty that might have been had about the order of 20th February 2005.

 

 

[6]     In the “contempt judgement”, the court referred to the plan of action which was set out by the Principal Secretary of the Ministry of Public Works and Transport.  It detailed that the Ministry applied for posts for the affected employees in mid April 2005 ; funding would be applied for before the  end of April; salaries would be continued to be paid; early in May discussions were to be held with the Civil Service Board regarding permanent employment of the artisans; importantly, between the 9th and 13th May the  artisans would be employed and converted to the permanent establishment; later in the same month the  labourers would be converted to permanent terms; SNACS would then be engaged for discussions of termination process at the end of May; thereafter letters of a termination would be issued; SNPF (Pension Fund) would then be engaged concerning pension contributions; finally, the plan of action would be completed, according to the Ministry, by the last of day of service of the affected employees in the 30th June 2005.

 

[7]     Various criticisms and reservations were expressed by both the union and the Industrial Court about the proprietary of the “plan”. In my view, the Industrial Court treated Government with velvet gloves in absolving it from contemptuous conduct. No doubt, the court took various considerations into account when not imputing cynicism or an intent to subvent its order and held that  “… though the plan of action already put in place by the Respondent appear to be at cross purpose with the Order of the Court dated the 20th February 2005, there was no willful, nor malafideintent on the part of the 1st , 2nd and 3rd respondents to defy the court order and/or place the court’s dignity into contempt.  Rather, I dare say, there was a clear lack of appreciation of the full, proper and practical implication of the order the court by the respondents.”

 

[8]     I refer to this passage of the “contempt judgement” to illustrate the longstanding and ongoing conduct of the Ministry in this matter.  What it indicates is that there possibly was no real intention to strictly comply with the order against which the appeal lies. Instead, and by the grace of the court a quo, the non-compliance was rather interpreted to be a misunderstanding than willful disregard.

 

[9]     No appeal lies against this second judgment and I proceed from the perspective that after the Industrial Court clarified any misconception that may have remained, the appellant full well knew what was required of it.

 

[10]    In order to better comprehend the issue at stake, Mr. Dunseith outlined the history of the matter in argument before us.  The facts are uncontroversial and common cause between the parties.

 

[11]    The respondent union represented a number of workers employed by the Ministry of Public Works and Transport, on a “temporary basis”. Some of them were employed as such for over 20 years, some for more than 30 years. It was of concern to them, as well as to their trade (SNACS) and also to Government, that being “temporary”, they were not entitled to any terminal benefits.

 

[12]    In 1995 a consultancy advised on the matter, which resulted in an agreement that inter alia had it that they would qualify to be pensionable if they had 10 years service remaining before retirement and if they contributed to a pension fund.  This category of workers were under the age of 50 at the time of the agreement.  They were then transferred to the permanent and pensionable staff category.

 

[13]    The remainder of the workers were by then too old to serve another 10 years before retirement age and terms were to be negotiated and agreed upon. Some of them were then retrenched but the remainder, some 300 workers, did not reach an agreement.

 

[14]    Thereafter, and that is when the present issue came into being, these remaining “temporary” workers received letters of retrenchment, ten years after the date of the agreement that their plight would be addressed. In the event that the Industrial Court did not intervene as it did, they would have been retrenched without any terminal benefits and without any retirement pensions, despite their long years of service. The effect of the order, against which the appeal lies, was to interdict Government from retrenching them until such time that they have been converted into permanent and pensionable employees, in accordance with the agreement of ten years earlier, entered into between the Appellant and Respondent.

 

[15]    The effect of the order was thus that the intended retrenchment, prior to adherence to the agreement, was unlawful.

 

[16]    In the result, Government continued to pay their monthly salaries but it did not give them any work to do. The respondent’s attorney brought it to our attention that the situation is such that tax payer’s money is being used to pay a large number of people to just sit around, day in and day out, doing literally nothing but just to sit.

 

[17]    It was in an attempt to address the equal inactivity by the appellant that the contempt proceedings were instituted as the workers as by that time, months after the judgment they had still not been reinstated into gainful employment, with no negotiations or consultations entered into between Government and SNACS, with the order essentially not adhered to.

 

[18]    The respondents brought their plight to the attention of the Ministry at diverse times, notably by way of a letter from their attorney, dated the 3rd November 2005.

 

[19]    Annexure “QD3”, filed with the respondents affidavit to oppose the present application  for condonation, was sent a day after the appellant wrote to seek their indulgence for  filing the record out of time, to avoid moving an application for condonation thereof.

 

[20]    In this letter, the following is recorded, with the contents thereof confirmed on oath by the Secretary General of the Respondent:-

 

1.        The Government has entirely ignored the Order of the Industrial Court with regard to the so-called Daily Paid Employees, and is in willful contempt of the Court Order.

2.         These unfortunate employees have been reporting for work and sitting on the grass for a period of eight (8) months. My client S.N.A.C.S. has not yet been contacted for negotiations on their future, as prescribed by the Court order.

3.         The Government cannot approach the Court with unclean hands.

4.         I am instructed that the appeal has lapsed and the failure to lodge the record timeoulsy cannot be condoned.

5.         An application instituted to revive the appeal shall be opposed, and all my client’s rights are reserved”.

 

[21]    When viewed in context of the matter at hand, the attitude of the Respondent is not unreasonable.

 

[22]    Rule 21 of the Industrial Court Rules regulates the aspects relating to the record which is to be filed for purposes of an appeal that lies from the Industrial Court.

 

Rule 21 reads that:

 

“The appellant shall (my emphasis) prepare the record on appeal in accordance with sub rules (5) and (6) hereof and shall within one month (my emphasis) of the date of noting of the appeal, lodge a copy thereof with the Registrar of the Industrial Court for certification as correct”.

 

[23]    The appellant noted the appeal herein on the 15th March 2005, serving a copy of the notice on the Respondent three days later and filing the notice with the Registrar also three days later. The record was filed with the Registrar on the 28th day of October 2005, almost seven months later.

 

[24]    Because of the inordinately long delay, the respondent refused the indulgence sought by the appellant, relying on Rule 21 (4) which provides that:

 

“Subject to Rule 16(4), (which provides for an extension of time, anapplication)if an appellant fails to note an appeal to submit or resubmit the record for certification within the time provided by this Rule, the appeal shall be deemed to be abandoned (my emphasis) ”.

 

[25]    Thus, instead of filing the record within one month, the appellant did so about six months out of time. The application before this court is to condone the late filing of the record and precede with hearing the appeal on the merits. The appellant attached an incorrect judgement to its application for condocation, not the judgement against which it wants to appeal

 

[26]    Of course the court will always consider condonation of non-compliance with the Rules.  The Rules of Court are not there to hinder and obstruct litigants, or to use mere technicalities in order to deprive litigants of their good right to appeal against an adverse order that is perceived to be incorrectly made.  Good cause needs to be shown by the Applicant that seeks condoncation for late filing of record, or an extension of time to file.  See Gool v Policansky 1939 CPD 386 at 390 and 391; Smith  NO v Brummer NO  1954 (3) (3) SA 352 (0) at 358;Du Plooy v Anwes Motors (Edms) BPK 1983 (4) SA 213 (0) at 216-7 for this general principle.  The applicant is to place facts before the court which could reasonably be expected to affect the court’s discretion with regard to the granting of such relief.

 

[27]    Principally, but not solely, the applicant must file an affidavit in support of its application for condonation to satisfactorily explain the delay.  The court needs to be appraised of why the delay was occasioned, furnishing a reason or explanation of his default, sufficiently so for the court to understand how it came about, to asses his conduct and motives (Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) 345 (A) at 353 –A).

 

[28]    The court, inorder to exercise its discretion properly, needs to know that amongst other factors, at least that there has not been a reckless or intentional disregard of the rules of court and that the reasons given for the delay are reasonable. See for instance the dictum in Smith NO v Brummer (supra) at 358-A, which deals with removal of bar but is equally opposite to condonation for late filing of an appeal record.

 

[29]    This court has the inherent right to grant condonation of late filing of the record, as is sought, where principles of justice and fair play or equity demand it, and when the reasons for non-compliance with the one month time frame required under Rule 21 (1) have been explained satisfactorily – See SA Shipping Co Ltd v Liquidators 1918 CPD 606 as one of many authorities in this regard.  It is well settled law and was not argued to be otherwise either.

 

[30]    The principles to be considered are also settled in so far as to what the court should consider in order to exercise its discretion.

 

[31]    In United Plant Hire (Pty) Ltd v Hills 1976 (1) SA 717 (A) at 720 E-G the South African Court of Appeal held as follows:

 

It is well settled that, in considering applications for condonation, the court has a discretion, to be exercised judicially upon a consideration of all the facts; and that in essence it is a question of fairness to both sides.  In this enquiry, relevant considerations may include the degree of non-compliance with the rules, the explanations therefor, the prospects of success on appeal, the importance of the case, the respondent’s interest in the finality of his judgment, the convenience of the court, and the avoidance of unnecessary delay in the administration of justice.  The list is not exhaustive. These factors are not individually decisive but are interrelated and must be weighed one against the other; a slight delay and a good explanation may help to compensate for prospects of success which are not strong”.

 

[32]    In order to decide whether the appeal shall be deemed to have lapsed under the provisions of Rule 21 (4) (supra), I now turn to the explanation proffered by the appellant.

 

[33]    In his affidavit, the Principal Secretary of the Ministry of Public Works and Transport in the Government of the Kingdom of Swaziland submits that the delay – of six months – in filing the record was not willful but that it occurred unwittingly as a result of human error. He brazenly says that:

 

“(He is) advised by (his) legal representatives that they took it that there was no need to expediently prepare and have the record filed in the same way as is the case with records of appeal in the Court of Appeal of Swaziland on matters appealed against from the High Court since there was no record of proceedings properly so-called but a set of pleadings which was readily available to all parties until such time that they had recourse to the Rules of this Honourable Court”.   

 

[34]    If this proposition is not wanton disregard of the Rules and the importance of the matter, let alone the deprecating of the Industrial Court of Appeal, one can only speculate what else it is. The disdain that oozes from the “explanation” is tainted with the same attitude that the Appellant seemingly has for the plight of the workers who have held “temporary” posts for 20 and 30 years, to be retrenched before they become entitled to terminal benefits.

 

[35]    In order to try and absolve itself from any blame for the careless and casual approach to the Rules, the appellant seeks to impute and transfer blame to its legal representative, the office of the Attorney- General.

 

[36]    In the course of arguement before us, advocate Maziya gallantly and diligently tried to explain that the Attorney-General’s office, as legal representative of the appellant, falls to be measured with a different yardstick that in the ordinary course where an attorney acts for a non-governmental client. In the latter case the attorney could be held liable for dilatory and inexcusable conduct by the instructing client should a situation like the present arise. As matters are now, he had to argue, government cannot readily sue itself, in the event that the Ministry were to hold the Attorney-General responsible for malpractice or wrong advice.

 

[37]    Counsel for the Appellant submitted that there was a communication breakdown between the Ministry and the Attorney-General that resulted in the delay. He concedes that generally the action of a legal representative is binding upon the instructing client, but that in the unique situation such as the present, where both are part of Government, it would be unfair and not equitable to visit the wrong of one to the other.

 

[38]    The appellant relies on two authorities in order to avoid the binding of the Ministry by the conduct, or absence of action to file the record, of the office of the Attorney-General. These are Klopper v Van Rensbrug 1920 EDL 239 and Matthews and Another v Munster 1886-96 ALL ER 251.  Despite an undertaking to file the authorities he relies on by the end of the day of the hearing, only one of these were filed, the following day. This court does not have access to the All England Reports of 1886-96 and counsel was made aware of the lack of resources. It is thus impossible to consider the English law authority on which the appellant wants reliance to be placed, in order to avoid the Ministry to be bound by clear and incorrect advice, as is pleaded, by the Attorney-General’s chambers.  In any event, the Attorney-General cannot be found to be in such an elevated position as to excuse it from bad advice held out to Government Ministries, and the subsequent results thereof. The case of Klopper does not lend supooirt for the proposition by advocate Maziya.

 

[39]    It is inconceivable that the Ministry of Public Works and transport should be excused from complying with the Rules, in so far as filing of a record for purposes of hearing an appeal noted by Government, based on the incorrect advice it obtained from its legal representatives.

 

[40]    For present purposes, it has by necessity to be presumed that the chambers of the Attorney-General is au fait with the Rules of Court. I do not think it is necessary to say why this is so. Whether it is fault of the Appellant or the Attorney-General, who nevertheless saw it fit to instruct private counsel to argue a hopeless position, or whether it is the deponent of the supporting affidavit who is either ignorant of the law of hides behind the shoulder of his counsel, doesn’t matter. The blatant statement that they did not deem it necessary to file a record for purposes of hearing their appeal, with or without a transcript of evidence and with or without the pleadings, if no evidence was heard, does not auger well.  The pattern of non-compliance with Orders of the Court and the Rules when an appeal against the same order is noted, is all too obvious. Seemingly, it smacks of wanton disregard for the judicial process in tandem with the same attitude towards the plight of the “temporary” employees who have worked 20 and 30 years, without becoming entitled to terminal benefits, and who the appellant sought to make redundant without further ado.

 

[41]    The case of Klopper v Van Rensbrug (supra), in which reference is made to Matthews v Munster (supra) (20 QBD [4]), is in any event not applicable to the present case. There, counsel made a tender on behalf of the client, to secure costs of a sale to be conducted in the face of an application to stop it. The instructing client seemingly was at odds with the tender proffered on its behalf. There is no authority in this case to support the contention of the present appellant that the ill advice it obtained from the Attorney-General, if it was indeed so, excuses it from compliance with the Rules of Court  not to file a record for purposes of hearing its appeal.

 

[42]    Instead of filing a copy of Matthews v Munster, appellant’s counsel filed a copy of Andile Nkosi and Another v The Attorney-General, unreported Appeal case No. 51/99. Therein, advocate Maziya also represented the Attorney-General. This case also does not advance the position of the appellant at all. The Court of Appeal held that an offer to settle a matter is subject to approval of the instructing client, also, if an advocate of the Attorney-General were to tender on behalf of a litigant, proper authorization needs to be in place.  It is no authority to claim that a lack of diligence by the offices of the Attorney-General, giving bad advice to a Government Ministry, should absolve the Ministry from complying with the Rules of Court, nor to compel the Court of Appeal to bend over backwards, to the detriment of the respondent, to excuse it from doing so, on the mere pretext that the advice it received proved to be wrong.  This matter is not concerned with the making of an offer of settlement by counsel, without the client’s mandate.

 

[43]    It is the disregard of filing the requirement to file a record, for the purpose of an appeal, within the required limits of time, which is the issue. Despite having been properly and clearly reminded by the respondent’s attorney of its obligation to file a record, the appellant persisted it refraining from complying with the prescribes of issues pertaining to noting and having an appeal heard.  The appellant cannot be found, as it seeks, to be absolved from compliance merely because it was advised that there is no need to adhere to the Rules of Court, as all other litigants are required to do.  Also, it is not only the adversial party that needs to know what is going to be placed before a Court of Appeal.  It is also the court itself that by utmost necessity has to be appraised, in the form of a record, of the material placed before a lower court and which material forms the very foundation of an appeal. It is inconceivable that the Attorney-General could have advised otherwise, if any measure of diligence and interest in legal affairs were to be attributed to that office.

 

[44]    Following the noting of the appeal, which the present Appellant seems to regard as a licence to preclude it from dealing with the plight of the “temporary” workers, it eventually managed to lodge a record with the Registrar on the 27th October 2001. This was out of time by about six months. The very following day, Respondent’s attorney diligently and ex abundanti cautela reminded Government of this fact, also that under the Rules (Rule 21 (4)) the appeal is considered to have been abandoned (annexure “QD1”).

 

[45]    Again, in prompt response the day after a relaxation was sought, Respondent’s attorney advised the appellant that it would not indulge a compromise, as instructed, and that “the appeal has lapsed”.

 

[46]    Despite these timely reminders, the Appellant refrained from any further effort to address the issue until some months thereafter when it eventually, five months later, filed an application for condonation, holding forth the lame excuses referred to above.

 

“Nevertheless it must have become obvious to the Appellant’s attorney that it was necessary to apply without delay for condonation of the late filing of the Notice of Appeal and of the preparation of the record if only because of Dunseith’s letter of (28 October 2005).  The courts have often held that whenever a prospective appellant realizes that he has not  complied with the Rules of Court, he should, apart from remedying his fault immediately also apply if condonation without delay”. (my emphasis). See Moraliswani v Mamili 1989 (4) SA 1 at 9 E-F; andCommissioner for Inland Revenue v Burger 1956 (4) SA 446 (A) in which at 449-C Centirres CJ said: “Whenever an appellant realizes that he has not complied with  Rules of Court he should, without delay, apply for condonation”.  The need for an early application  for condonation applies a portion where the non-compliance is long standing”. (See Unitrans Swaziland Ltd v Inyatsi Construction Limited (unreported) judgement of the Court of Appeal of Swaziland in case (not legible) dated the 7th November 1997 at pp 10-11).

 

[47]    It couldn’t be more apposite than to find the Appellant in the same situation – many months after having been made aware of the need to formally and substantively apply for condonation for late filing of the record.  It is enjoined to file the record within one month after noting an appeal (Rule 21 (1)) and being reminded that the appeal is therefore deemed to have been abandoned (Rule 21 (4)) it refrained from doing anything whatsoever about the predicament. It is literally at the last minute, already too late to prepare and file heads of argument in what is held out to be a hopeless appeal.

 

[48]    Neither Mr. Dunseith nor advocate Maziya prepared themselves to argue the merits of the appeal.  Both counsel, being experienced lawyers au fait with law, legal precedent and principle, must have known (the former lawyer unequivocally stating so) that there is no chance whatsoever of the appeal being heard.  Advocate Maziya in the best traditions if the profession, at least tried as best as he could to rescue an already sinking ship, so to speak.

 

[49]    When regard is being had to the facts of the matter and the lame excuses by the Appellant in the application to condone the inordinately long delay in filing the record for hearing the appeal which Government noted, also considering the plight of the “temporary” workers who seemingly are of very little concern to their Principal Secretary, the “misunderstanding” that was held out to be the cause for frustrating an Order of Court, thereafter, following clarification of any perceived uncertainty and over and above this, the wholly unacceptable explanation as to why no record was thought to be expeditiously filed, despite the ongoing plight of “temporary” workers having served for as much as more than  30 years now to be declared “redundant”, this Court would gravely err in granting condonation.  Inevitably it would lead to yet another few months before the appeal could be heard.

 

[50]    Due to the aforestated reasons, I have no hesitation at all to propose a refusal of the Appellants application to condone late filing of the record.  Rule 21 (4) is in place for precisely such a situation, namely that in circumstances like this, the appeal shall be deemed to have been abandoned.

 

[51]    It would logically follow that the Appellant be ordered to forthwith comply with the judgement against it, handed down in February 2005 and clarified in June the same year.

 

[52]    In view of the facts set out above, with the Appellant in willful an wanton disregard of the Rules, jeopardizing the plight of many workers and failing to appreciate its duty when clearly timeoulsy reminded in writing by Mr. Dunseith, then coming to court with the lamest of excuses for its dilatory conduct, justifies the costs to be awarded on the punitive scale, as was properly argued by the Respondent’s attorney.

 

[53]    Accordingly, I propose that the appeal is to be found as deemed to have been abandoned, with costs in favour of the Respondent on the attorney and client scale and that the Appellant be ordered to forthwith comply with the judgement of the Industrial Court against it.

 

 

 

_________________________

JACOBUS P. ANNADALE JP

 

I AGREE

 

_________________________

J. M. MATSEBULA JA.

 

I AGREE

 

_________________________

S. B. MAPHALALA

 

It is so ordered.