Swanepoel v Lesotho Nissan Everlasting Co (Pty) Ltd (LC 124 of 1) [2002] LSLC 17 (11 October 2002)

IN THE LABO U R COU R T OF LESO T H O CA S E NO LC124/01 HELD AT MA S E R U IN THE MATT E R OF: COR N E L I U S MAC H E L SWA N E P O E L APPLI C A N T AND LES O T H O NIS S A N EVE R L A S T I N G CO. (PTY) LTD RE S P O N D E N T RULI N G This is an application for the condonation of the late filing of the Originating Application. The applicant was dismissed from the employ of the respondent on the 18th June 1999. The present application was launched on the 5th December 2001, some two and a half years after his dismissal. In terms of section 70(1) of the Labour Code Order 1992 (the Code) which was the applicable law at the time the cause of action arose, this matter ought to have been filed within six months from the date of termination of the contract. The court is empowered by section 70(2) of the Code to allow presentation of a claim outside the six months period if it is satisfied that the interests of justice so demand. In essence the court is vested with a discretion which it must exercise judicially. (See Khotso Sonopo .v. Lesotho Telecommunications Corporation LC67/95 (Unreported)). In exercising the discretion this court has relied on the principles enunciated in Melane .v. Santam Insurance Co. Ltd 1962(4) SA531(A). Applying the principle in the Melane case, we observe that the delay of two and half years is an inordinate delay. We note that the applicant has advanced an explanation for this delay. In brief his explanation is that he briefed counsel, through his present representative in November 1999. He attaches Annexure “CMS2” as proof of that brief. Counsel did not however, act on the matter until sometime in July 2000 when the said counsel indicated to them (applicant) that there was a conflict of interest which was not apparent when they accepted the instructions. The applicant goes further in his affidavit to aver that after his dismissal from employment he became jobless and destitute and it became difficult for him to travel from RSA to Lesotho to follow up on his case with the respondent. This would seem to compensate for the apparent lack of follow up of the case on the part of the applicant. But this still does not absolve the applicant altogether. Mr. Nteso for the respondent argued, correctly that there is no evidence that the attorney said what it is alleged he said. There is no correspondence from the attorney, for instance, declining instruction as alleged and yet the instruction had been communicated to him in writing. (Annexure “CMS2”). A party who is in default as the applicant must explain his default satisfactorily and honestly. Bare allegations are unsatisfactory and they smack of dishonesty. There is no indication on the papers that the applicant has prospects, but the significance of the case cannot be overstated. The respondent for their part have pleaded that they would be greatly prejudiced in their defence if the applicant is allowed to file his case out of time. They have averred that three of their key witnesses are no longer available. One has resigned, another has returned to China after the expiration of his contract while the other has died in a car accident. The respondent could not however, say why it would not be possible to subpoena the Workshop Manager who is only said to have resigned. However, the applicant did not challenge the submissions of the respondent in this regard. It would therefore be sheer speculation on our part to suggest that because the Workshop Manager has only resigned he is still within the jurisdiction of the court. As such he can be subpoened to come and testify. It was the duty of the applicant to have done his homework in that regard so as to attack the respondent’s claim to prejudice. As things stand that suggestion of prejudice is uncontradicted. As a rule a condonation which clearly prejudices the opposing party cannot be granted by the court. On this ground alone this condonation application cannot succeed and it is accordingly dismissed, with costs. THU S DON E AT MA S E R U THI S 11TH DAY OF OCTO B E R, 2002. L. A LETH O B A N E PRE S I D E N T A. T. KOLO B E ME M B E R P. K. LER O T H O L I ME M B E R I CON C U R I CON C U R FOR APPLI C A N T : FOR RE S P O N D E N T: MR MOH A L E R O E MR NTE S O