Litigants Need To Be Proactive And Cannot Escape The Conduct Of Their Attorneys!

Author:Mr Teneille Govender
Profession:Fraser Milner Casgrain LLP

In the recent case of Mashigo & another v Sibeko & others (2012) 21 LC 1.18.2, the court refused to grant condonation for the late filing of a review application, as it found that the litigants blaming the dilatory conduct of their erstwhile attorney was not a good reason for the delay, in the circumstances where the litigants themselves had not taken steps to further the proceedings.

The facts of the case are briefly as follows:

The employees were policemen who were charged with robbery for an amount of R3680 and a cell phone; They were dismissed in March 2004 and appealed against the decision; In September 2004 the sanction of dismissal was upheld; They referred the matter to the Bargaining Council nine months later; The arbitration took place in November 2005 and the award was issued on 22 November 2005 wherein the sanction of dismissal was upheld; and The employees brought a review application to the Labour Court on 27 June 2007, approximately a year and a half after the award was issued. In terms of section 145 of the Labour Relations Act 66 of 1995, as amended, an application for review must be brought within 6 weeks of the arbitration award being received.

The Labour Court had to determine whether the late filing of the review application could be condoned in the circumstances.

The Labour Court took cognisance of the fact that the employees could not explain what steps they had taken to pursue the review proceedings. The employees could not provide the detail regarding when they had met with their attorney, how often they spoke to him or if they had requested updates in their matter.

The Labour Court held that 'litigants are bound by the conduct of their attorneys and that they cannot escape the conduct of their attorneys especially when they do not take any steps themselves'.

The Labour Court...

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