IN
THE INDUSTRIAL COURT OF APPEAL
OF
SWAZILAND
CASE
NO. 17/06
HELD
AT MBABANE
USUTHU
PULP COMPANY t/a SAPPI APPELLANT
Vs
SWAZILAND
AGRICULTURAL
PLANTATIONS
WORKERS UNION RESPONDENT
CORAM: BANDA
JP
MAPHALALA
J
MAMBA
J
FOR
APPELLANT: ADV. FLYNN
FOR
RESPONDENT: MR MAZIYA
RULING
28th
January, 2008
MAMBA
JA,
[1]
The respondent successfully filed an application against the
appellant in the court a
quo and
that case was concluded on the 23rd
August 2006. Not being satisfied with the result; the appellant filed
its appeal and the grounds thereof on the 14th
November 2006.
[2]
This was followed ten (10) days later by a Book of Pleadings,
containing the Founding Affidavit, answering affidavit and replying
affidavit and the attachments thereto. The judgement of the court was
also included.
[3]
The Book of Pleadings was served on the respondents attorneys on the
27th
November, 2006. It is common cause that the appellant was obliged to
prepare and file the record of the proceedings. By letter dated the
5th
June, 2007, respondent's attorneys requested appellant's attorney's
to furnish them with their heads of argument "so as to enable us
to prepare our client's heads/7
They also made a request for the record of the proceedings in the
court a
quo.
[4]
The response from the appellant's attorneys came two days later and
they informed the respondent's attorneys that the record of the
proceedings had been served on them in the form of the Book of
Pleadings referred to above and such record had been approved as
correct by the respondent's attorneys. Appellant's attorneys further
stated that as there had been no witnesses who gave viva
voce evidence,
there was no further material to include and the Book of Pleadings
was "sufficient for the purposes of the appeal."
[5]
The appellant eventually filed its heads of argument on the 14th
June 2007 and these were served on respondent's attorneys on the same
date.
[6]
Again on the 24th
September 2007, respondent's attorneys wrote yet another letter to
appellant's attorneys demanding that they be given the appellant's
heads of argument so that they could file theirs. They were reminded
by the appellant's attorneys that such heads of argument were served
on them on the 14th
June 2007.
[7]
The appeal was set down by the Registrar of this court for hearing on
the 15th
November 2007. In terms of the rules of this court, the respondent
was obliged to file its heads of argument with the Registrar of this
court and serve same on the appellant's attorneys by the 9th
November, 2007. On the 5th
and 6th
November 2007 appellant's attorneys requested respondent's attorneys
yet again to file their heads of argument. This was not done until
the 14 November 2007; just one court day before the hearing of the
appeal.
[8]
In its heads of argument the respondent takes the point that inter
alia, the
appeal should be struck off the roll with costs as the appellant has
failed to file a complete record of the proceedings in the court
below. It is argued that, the appellant ought to have caused the
submissions by counsel in the court a
quo to
be transcribed and filed as part of the record of the proceedings for
purposes of this appeal. The respondent submitted further that it
would be prejudiced in the conduct of this appeal if the record of
the arguments by counsel were not filed because one of the
appellant's grounds of appeal is that the trial court was in error in
raising the issue of the involvement or non involvement of the Safety
and Health Committee without affording the parties the chance to
address the court on the issue. The record
of
the submissions, so the argument went, would reveal that this is not
true and therefore dispose of this ground of appeal.
[9]
This contention by the respondent is misconceived. The appellant's
complaint about the court's dealing with the involvement or non
involvement of the Safety and Health
Committee
is not that such a matter was not dealt with in argument but that it
was not at all contended or pleaded by the respondent as part of its
case in the court a
quo and
therefore "the appellant was accordingly not afforded any
opportunity to address this issue in its answering affidavit."
(See para 8.3.3 of the notice of appeal.) There is therefore no merit
in this contention and it therefore cannot be the bases for calling
for the filing of the said submissions by counsel.
[10]
In application proceedings, the record of the proceedings comprises
the evidence that is contained in the affidavits and the annexures
thereto and the judgement of the court. There may also of course be
cases wherein the evidence may also include concessions made by the
parties in the course of the proceedings. As a rule submissions by
Counsel do not form part of the court record. They are not pleadings
and the courts have always frowned upon their inclusion in an appeal
record. They burden the court record and unnecessarily increase the
costs of litigation. We refer to the case of LEVCO
INVESTMENTS (PTY) LTD v
STANDARD
BANK OF SOUTH AFRICA LTD 1983 (4) SA 921 (A), a
case referred to us by counsel for the appellant.
[11]
As stated above, in September 2007, respondent's attorneys did not
complain about the absence of the record of the proceedings, or an
incomplete record but complained about the appellant's failure to
file its heads of argument. Respondent stated that it needed
appellant's heads first in order to respond thereto in its own heads
of argument. The respondent is clearly being disingenuous in its
objection that the record of the proceedings is incomplete. We find
or hold that the record of the proceedings in the court a
quo is
complete and there is no need at all to file Counsel's submissions as
part of the record in this appeal. We therefore dismiss this
objection.
[12]
We think we should mention another issue raised by the late filing of
the Heads of Argument by the respondent herein. Whilst conceding that
these were filed hopelessly out of time and there was no written
notice of application for condonation, counsel for the respondent was
adamant that there was nothing improper in just pushing in the heads
of argument without leave of the court. It was argued that there was
no need to file an application for condonation for the late filing of
the heads as there was after all no proper appeal before us. This
submission is unhelpful and unsound. It is illogical because the mere
filing of the heads of argument acknowledges the existence of an
appeal to which these heads relate. The submission is unhelpful
because it further fails to take into account the situation that
might arise if the objection relating to the status of the record of
the proceedings is dismissed, as has been done herein. The court may
refuse to accept the heads of argument and hear the appeal as if
unopposed, or if it decides to allow the Heads of argument do so with
an appropriate punitive order for costs. Counsel for the respondent
was alive to these possibilities but submitted that he was still at
liberty to make the condonation application from the bar. The
appellant's counsel objected to this claiming that it would be
ambushing or taking the appellant by surprise. We agree.
[13]
Again, as a matter of practice, principle and fairness, an
application for condonation of the late filing of a court process or
pleading must be made on notice supported by an affidavit setting out
the cause and reason for the delay. (VIDE
FEDCO CAPE (PTY) LTD v METER, 1988(4) SA 207 (C), and RENNIE NO v
GORDON AND ANOTHER NNO, 1988 (1) SA 1 (A).
[14]
As a mark of our displeasure at the conduct of the respondent in
dealing with the filing of its heads of argument, the respondent is
hereby ordered to pay the wasted costs of the 14th
November, 2007; such costs to include the costs of Counsel to be
certified in accordance with the rules of court.
[15]
We are of the considered view that the costs order we have made will
compensate the appellant for whatever prejudice it may suffer as a
result of the late filing of the heads of argument and the failure to
apply for condonation for such late filing. We have no doubt that
both parties are desirous of having this appeal deliberated upon and
decided on its merits. As a result we admit the respondent's heads of
argument.
MAMBA
JA
I
AGREE
BANDA
JP
I
ALSO AGREE
MAPHALALA
JA