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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 further found that the employees had weak
prospects of success and that the arbitrator had come to a decision
that a reasonable decision maker would have.
The employees' application for the condonation for the late
filing of the review application was dismissed with costs.
Although there is an array of case law that reiterates the above
principle, the principle itself cannot be emphasised enough.
Litigants must diligently prosecute a matter and a failure to do so
can only count against them.
About Fraser Milner Casgrain LLP (FMC)
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firms with more than 500 lawyers in six full-service offices
located in the country's key business centres. We focus on
providing outstanding service and value to our clients, and we
strive to excel as a workplace of choice for our people. Regardless
of where you choose to do business in Canada, our strong team of
professionals possess knowledge and expertise on regional, national
and cross-border matters. FMC's well-earned reputation for
consistently delivering the highest quality legal services and
counsel to our clients is complemented by an ongoing commitment to
diversity and inclusion to broaden our insight and perspective on
our clients' needs. Visit:
www.fmc-law.com
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