Usuthu Pulp Company t/a SAPPI v Swaziland Agricultural Plantations Workers Union (17/06) [2008] SZICA 3 (28 January 2008);

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

MAMBA JA,

[1] The respondent successfully filed an application against the appellant in the court a quo and that case was concluded on the 23^rd August 2006. Not being satisfied with the result; the appellant filed its appeal and the grounds thereof on the 14^th 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 27^th November, 2006. It is common cause that the appellant was obliged to prepare and file the record of the proceedings. By letter dated the 5^th 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 14^th June 2007 and these were served on respondent's attorneys on the same date.

[6] Again on the 24^th 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 14^th June 2007.

[7] The appeal was set down by the Registrar of this court for hearing on the 15^th 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 9^th November, 2007. On the 5^th and 6^th 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 14^th 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