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Failure to refer timeously? Case dismissed!

It is not often that one comes across the Latin maxim, “vigilantibus non dormientibus lex subvenit”, which translates to, “You have delayed in prosecuting your case, therefore, your case must be dismissed.”

This maxim has been used to launch applications to have a dispute dismissed due to inordinate delays caused by the applicants in prosecuting a dispute in the labour law context.

In Independent Municipal and Allied Trade Union obo Erasmus and Craukamp v City of Johannesburg and Another[1], the court held that the maxim had found application in the Labour Court in several judgments dealing with undue delays in prosecuting applications, especially given the need to finalise labour disputes expeditiously.

In Khumalo and another v Member of the Executive Council for Education: KwaZulu-Natal [2], the Constitutional Court said: “The importance of resolving labour disputes in good time is thus central to the LRA framework.”

Further authorities in this regard are Aviation Union of SA and another v SA Airways (Pty) Ltd and others[3]  where it was held that “speedy resolution is a distinctive feature of adjudication in labour relations disputes…” and National Education Health and Allied Workers Union v University of Cape Town and others[4] where the Court held: “By their very nature labour disputes must be resolved expeditiously and be brought to finality so that the parties can organize their affairs accordingly. They affect our economy and labour peace. It is in the public interest that labour disputes be resolved speedily ….”

In Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others[5] the Constitutional Court held that “Excessive delays in litigation may induce a reasonable belief, especially on the part of a successful litigant, that the order or award had become unassailable. This is so all the more in labour disputes.”

The courts have established precedent that the failure on the part of an applicant to prosecute a case in an expeditious manner, resulting in an undue delay, may in itself result in dismissal of the matter based on this maxim without hearing the merits per se.

The maxim was again dealt with in Pathescope (Union) of South Africa Ltd v Mallinick[6].  The Court held that two factors are of importance in disputes where the maxim is raised.  These are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.

In BP Southern Africa (Pty) Ltd v National Bargaining Council for the Chemical Industry and Others[7] the court explained that “the rules of this court make no specific provision for an application to dismiss when a party fails diligently to pursue a claim referred to the court for adjudication, but the court has recognized and adopted the rule based on the maxim, vigilantibus non dormientibus lex subveniunt, in terms of which a party may in certain circumstances be debarred from obtaining the relief to which that party would have been entitled because of an unjustifiable delay in prosecuting their claim.”

While the LRA makes no specific provision for dismissal of a matter based on delays in pursuing the hearing of the dispute, the maxim is however, recognised and has been applied by our courts as illustrated above.

In Mohlomi v Minister of Defence[8], the Court said: “Nor in the end is it always possible to adjudicate satisfactorily on cases that have gone stale. By then witnesses may no longer be available to testify. The memories of ones whose testimony can still be obtained may have faded and become unreliable. Documentary evidence may have disappeared.”

It is therefore important for applicants to diligently pursue their disputes to ensure that their disputes proceed expeditiously. In the event of delay occasioned by the applicant, it will be critical to explain any delay and any steps taken to proceed during the delay to avoid dismissal of the dispute on the basis of the maxim, vigilantibus non dormientibus lex subvenit.

[1] (JS606/08) [2017] ZALCJHB 231; (2017) 38 ILJ 2774 (LC) (13 June 2017)
[2] (2014) 35 ILJ 613 (CC)  
[3] (2011) 32 ILJ 2861 (CC) 
[4] 2003 (3) SA 1 (CC); (2003) 24 ILJ 95 (CC)
[5] (2016) 37 ILJ 313 (CC)
[6] 1927 AD 292.
[7] (2010) 31 ILJ 1337 (LC) at para 10.
[8] 1997 (1) SA 124 (CC) at 129H-130A.
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