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[2013] ZASCA 45
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Food & Allied Workers Union v Ngcobo NO and Another (353/12) [2013] ZASCA 45; (2013) 34 ILJ 1383 (SCA); [2013] 7 BLLR 648 (SCA); [2013] 3 All SA 351 (SCA); 2013 (5) SA 378 (SCA) (28 March 2013)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 353/12
In the matter between:
FOOD & ALLIED
WORKERS UNION
........................................................
APPELLANT
and
L NGCOBO N O (M
NDLELA)
....................................................
FIRST
RESPONDENT
M MKHIZE
..............................................................................
SECOND
RESPONDENT
Neutral citation
:
Food & Allied Workers Union v Ngcobo
(353/12)
[2013] ZASCA
45
(28 March 2013)
Coram:
PONNAN,
MALAN, TSHIQI JJA, SOUTHWOOD AND PLASKET AJJA
Heard:
7 March
2013
Delivered:
28
March 2013
Updated:
Summary: A trade union
is liable for damages if it fails to perform the mandate which it
accepted to represent its members before
the Commission for
Conciliation, Mediation and Arbitration, and the Labour Court ─
the measure of damages is the amount of
the award that would have
been made if the claims for wrongful dismissal had succeeded.
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from:
KwaZulu-Natal High Court (Durban)
(Swain J sitting as court of first instance):
The appeal and
cross-appeal are dismissed. The appellant is ordered to pay the costs
of the appeal.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
SOUTHWOOD AJA:
[1] The appellant is the
Food and Allied Workers Union (FAWU), a trade union registered in
terms of the Labour Relations Act 66
of 1995 (LRA). The respondents
are L Ngcobo, the executrix in the estate of the late Mandla Ndlela
(Ndlela), and Michael Mkhize
(Mkhize). Ndlela and Mkhize instituted
separate actions against FAWU in the KwaZulu- Natal High Court,
Durban in which they claimed
damages for breach of contract. After
litis contestatio
, Ndlela passed away and he was substituted
as plaintiff by L Ngcobo, the executrix in his estate, but, for the
sake of convenience,
I shall continue to refer to Ndlela as the
litigating party. The actions were consolidated and the claims were
successful before
the high court (Swain J) which awarded damages in
the sum of R107 232 to each respondent together with interest thereon
at the
rate of 15.5 per cent per annum from 28 August 2004 to date of
payment. With the leave of the court a quo, FAWU appeals and the
respondents cross-appeal against the awards. FAWU contends that the
respondents’ claims should have been dismissed and the
respondents contend that the awards should have been double what the
court a quo awarded. At the hearing the respondents’
counsel
did not persist with the cross-appeal.
[2] Ndlela and Mkhize
each claimed damages for the loss which they sustained because FAWU,
which was acting on their behalf, failed
to prosecute their claims in
the Labour Court. The loss that they alleged that they suffered was
the award that they would have
obtained in terms of the LRA for their
unfair dismissal by their employer, Nestlé South Africa (Pty)
Ltd (Nestlé).
[3] The LRA
governs the right of a worker who is unfairly dismissed, to claim and
recover compensation for his or her dismissal
and the relevant
provisions, for purposes of this judgment, may be briefly
summarised.
1
[4] When a
Labour Court finds that a dismissal was unfair it may, depending on
the circumstances, (1) order the employer to reinstate
the employee;
(2) order the employer to re-employ the employee or (3) order the
employer to pay compensation to the employee.
2
[5] The
compensation awarded to an employee whose dismissal is found to be
unfair because the employer did not prove that the reason
for
dismissal was a fair reason relating to the employer’s
operational requirements or the employer did not follow a fair
procedure, or both, must be just and equitable in all the
circumstances, but may not be more than the equivalent of 12 months’
remuneration calculated at the employee’s rate of remuneration
on the date of dismissal.
3
An order or award of compensation made in terms of
Chapter VIII of the LRA is in addition to, and not a substitute for,
any other
amount to which the employee is entitled in terms of any
law, collective agreement or contract of employment.
4
[6] The LRA
clearly distinguishes between claims for compensation and claims for
damages.
5
It seems to be accepted that ‘compensation’
is a form of recompense (satisfaction for some misdeed or offense)
6
and comprises recompense for sentimental as well as
patrimonial loss. It also seems to be accepted that an employee will
be able
to recover a
solatium
for
the injury to his feelings that was caused by the manner in which he
was dismissed.
7
[7] In terms
of the LRA every employee has the right not to be unfairly
dismissed.
8
Dismissal occurs, inter alia, where an employer has
terminated a contract with or without notice and it will be unfair,
if the employer
fails to prove
9
(1) that the reason for the dismissal is a fair reason
based on the employer’s operational requirements, and (2) that
the
dismissal was effected in accordance with fair procedure.
10
[8] In terms
of the LRA an employer may legally dismiss an employee on three
grounds: the conduct of the employee, the capacity
of the employee
and the operational requirements of the employer’s business.
11
[9] The LRA
contains detailed provisions dealing with the procedure to be
followed where an employer contemplates dismissing an
employee for
reasons based on the employer’s operational requirements. At
the time of the respondents’ dismissal these
were set out in s
189 of the LRA.
12
[10] If
there is a dispute about the fairness of a dismissal, the dismissed
employee may refer the dispute to a bargaining council
having
jurisdiction, and if there is no such council, to the Commission for
Conciliation Mediation and Arbitration (Commission),
which referral
must be made within 30 days of the dismissal.
13
The Commission must attempt to resolve the dispute
through conciliation
14
and if the Commission certifies that the dispute remains
unresolved
15
the employee may refer the dispute to the Labour Court
for adjudication if the employee alleges that the reason for the
dismissal
is based on the employer’s operational requirements.
16
Such a referral must be made within 90 days after the
Commissioner has certified that the dispute remains unresolved but
the Labour
Court may condone non-observance with that time-frame on
good cause shown.
17
‘
Good cause’ is not defined in the LRA but
in deciding whether good cause has been shown, the court will take
into account
a number of interrelated factors which include the
explanation for the failure to comply with the time limit and the
applicant’s
prospects of success in the claim before the Labour
Court.
[11] The facts relevant
to Ndlela’s and Mkhize’s claims for unfair dismissal have
not been disputed and may be briefly
summarised. Ndlela and Mkhize
were both employed by Nestlé as sales representatives, Ndlela
from 1981 and Mkhize from 1982.
Although they had previously been
members in about 1986, in 2001 neither was a member of FAWU or any
other trade union. FAWU was
the recognised trade union at Nestlé.
Late in 2001 Nestlé decided to ‘rationalise and
restructure the Grocery
Sales Division’ (in which Ndlela and
Mkhize were employed) and on 19 November 2001 Berlin Nayager,
Nestlé’s
National Employee Relations Manager, faxed the
following letter to Mr Sam Mashilwane, FAWU’s Chief Negotiator
in Johannesburg:
‘
Re:
Restructuring in Grocery Sales
Division
The
Grocery Sales Division is currently sub-divided into 6 geographical
areas, with each area being managed by its own Area Business
Manager.
Each area is then staffed with its own complement of Account
Managers, Sales Representatives, Admin Personnel and Secretaries.
The
Company has now resolved to rationalise and restructure the Grocery
Sales Division by changing reporting structures and thereby
creating
only 3 Business Areas of the 6 mentioned above. There will be an
amended staffing level required in the new business areas.
This
restructuring could affect the job security of some of your members
who are employed as Sales Representatives and Admin Personnel.
We
envisage the proposed set up being put in place by 01 March 2002. The
company believes that there could be some real positive
spin-offs for
employees whose jobs could be affected by this restructuring
exercise, by offering empowerment opportunities.
You
are therefore invited to consult with us in terms of the provisions
of the Procedural Agreement and Section 189 of the LRA.
We
look forward to your urgent response.’
Pursuant to this letter,
Nestlé and FAWU arranged to meet on 29 November 2001 to
discuss the restructuring.
[12] What happened at the
meeting on 29 November 2001 is recorded in a handwritten note
discovered by FAWU and a letter dated 26
February 2002 from
Mashilwane to Nestlé’s Employee Relations Operations
Manager. It appears that FAWU objected to
Nestlé’s
failure to comply with s 189 of the LRA as this made meaningful
consultation impossible and that Nestlé’s
representatives undertook to comply with s 189 and to disclose in
writing all relevant information with reasons prior to the next
meeting to be held on 10 January 2002. It further appears from FAWU’s
letter that Nestlé did not comply with this
undertaking and
FAWU accused Nestlé of ignoring the provisions of s 189. FAWU
also asked how it was legally possible to
finalise retrenchment when
Nestlé had not consulted. There was no answer to these
complaints.
[13] Ndlela and Mkhize
did not hear about the restructuring before January 2002. In January
2002, Keith Green, Nestlé’s
Accounts Business Manager in
Durban, told the respondents that they would be converted to ‘trade
specialists’. They
would be trained and assessed and if they
were not successful they would be considered for alternative
employment. Mkhize was not
told that if he did not pass the
assessment he would be retrenched. He did not receive any training
but was assessed on 25 February
2002. He was not told how he would be
assessed and he was not told what the outcome of the assessment was.
After hearing a rumour
that he and Ndlela had decided to take a
voluntary severance package, he and Ndlela decided to apply for
membership of FAWU. At
about the end of February 2002 or early in
March 2002 they went to FAWU’s regional office where they
completed and signed
FAWU’s membership application forms. These
forms incorporated stop orders. The person they dealt with, Mike
Masondo, told
them that they were full members and that their FAWU
contribution would be deducted from their salaries.
[14] Any concerns that he
and Ndlela had about the process going on were allayed in April 2002
when they each received from Nestlé’s
Grocery Division
Business Manager, Bruce Laubscher, a letter dated 12 April 2002. The
letter to Mkhize read as follows:
‘
Dear
Michael,
Many
thanks for your efforts and contribution for last year. 2001 was yet
another difficult year for the KZN region, however, I
believe we now
have the right structure in place to succeed and grow our business in
2002.
The
increases for April 2002 are inflated as a result of our improved
Performance Management System and the inclusion of a once-off
adjustment as compensation for the change in increase period. From
now on, the salary increase period will run from April to March
the
following year, as a normal process.
Performance
driven salary increases will become the norm in the future as this
directly relates to the achievements of our business
and personal
goals.
Effective
1 April 2002, your salary has been increased to R7436 per month.
Lastly,
I am looking forward to working with you and ensuring that we,
together, take our business in the new Central Region, to
the next
level!’
[15] However, on 6 May
2002 each respondent received from Bruce Laubscher, now Nestlé’s
ABM, Central Area, a letter
dated 3 May 2002 in which the respondent
was informed that in terms of s 189 of the LRA his services would be
terminated on 15
May 2002 and what his severance package would be. It
is noteworthy that this letter states that at a meeting between
Nestlé
and FAWU on 11 April 2002 Nestlé formally
informed FAWU that Mkhize’s services as per s 189 of the LRA
will be terminated
on 15 May 2002. That happened the day before
Laubscher addressed his letters of 12 April 2002 to the respondents
to thank them
for their work during 2001, to inform them of their
salary increases and to tell them he was looking forward to working
with them.
[16] On receipt of this
letter on 6 May 2002, the respondents immediately went to FAWU’s
office and handed the letters to
Siphiwe Dlomo, FAWU’s branch
organiser. Dlomo told them to come back after they had been
retrenched which they did. Dlomo
undertook to represent them at the
Commission and completed the referral forms which they signed.
[17] The
conciliation hearing before the Commission took place on 18 June
2002. Ndlela and Mkhize were represented by Dlomo and
Nestlé
by Nayager. At the hearing, Nayager raised, as a point
in
limine
, the issue of whether Ndlela and
Mkhize were members of FAWU and whether FAWU could represent them. In
answer to this objection,
Dlomo produced the membership application
forms signed by Ndlela and Mkhize and assured the Commissioner that
they were members.
As a result, the point
in
limine
was not upheld. Nevertheless, the
conciliation hearing did not resolve the dispute and on 18 June 2002
the Commissioner issued a
certificate of non-resolution in terms of s
135(5) of the LRA. The certificate clearly states that FAWU was
acting on behalf of
Ndlela and Mkhize.
[18] Dlomo then sent the
certificates to Sam Mashilwane in Johannesburg as FAWU had decided to
consolidate, in proceedings before
the Johannesburg Labour Court, all
the claims based on Nestlé’s unfair dismissal of FAWU’s
members.
[19] FAWU did not refer
the dispute between Nestlé and Ndlela and Mkhize to the Labour
Court within 90 days of the issue
of the certificate of
non-resolution as required by s 191(11)(a) of the LRA or thereafter
and FAWU did not advise Ndlela and Mkhize
of this failure. Nor did it
keep them apprised of the progress of their cases. Ndlela and Mkhize
regularly visited the FAWU offices
to ascertain what progress was
being made. They were told, repeatedly, that the matter had been
referred to the Labour Court. Eventually
in about May 2003 Ndlela and
Mkhize approached the University of Durban-Westville Law Clinic for
assistance and the Law Clinic
advised them on 29 May 2003 that no
documents had been filed with the Labour Court.
[20] On 20 November 2003
Lucky Makae, FAWU’s Durban Legal Officer, addressed a letter to
Ndlela and Mkhize setting out the
history of the proceedings in the
Labour Court, as far as FAWU was concerned, and informing them (as
had already happened on several
occasions) that it was ‘imperative’
to apply to the Labour Court for condonation of the late filing of
the relevant
papers. Makae also informed them in the letter that the
evidence of Thami Tukani, the legal officer who had previously dealt
with
the matter, was essential for the application for condonation
and that he, Makae, was waiting for information from Tukani to enable
him to bring this application.
[21] This was the first
time that FAWU had advised Ndlela and Mkhize that it had failed to
file the papers. FAWU still did not launch
an application for the
condonation for the late filing of the relevant papers.
[22] On 12 January 2004
Makae, on behalf of FAWU, addressed a letter to Nestlé
demanding an urgent meeting to resolve the
unsatisfactory state of
affairs with regard to Nestlé’s employees who had been
unfairly dismissed.
[23] On 20 January 2004
Makae prepared a referral to the Commission of the disputes relating
to the unfair dismissal of Ndlela and
Mkhize. The Commission refused
to entertain this referral.
[24] During April 2004
FAWU approached attorney J Surju for an opinion on Ndlela and
Mkhize’s prospects of success in proceedings
before the Labour
Court. On 28 April 2004, after consulting with Ndlela and Mkhize,
Surju furnished FAWU with a written opinion
that the dismissal of the
Nestlé employees was not unfair.
[25] Eventually, on 4
June 2004, FAWU informed Ndlela and Mkhize that FAWU would not
proceed with their claim in the Labour Court
and on the same day
Ndlela and Mkhize consulted attorneys Deneys Reitz who addressed a
letter of demand to FAWU. In their letter,
Deneys Reitz stated that
FAWU had been negligent in the way it handled the claims and that
Deneys Reitz had been instructed to
institute an action for damages
against FAWU in the high court. Deneys Reitz concluded their letter
by saying:
‘
However,
as part of our clients’ duty to mitigate the loss, we are
instructed to give yourselves two weeks within which to
file the
necessary statement of case and bring the requisite application for
condonation, as quite clearly the reasons for the
failure to file the
statement of case would be in FAWU’s knowledge.
In
the event that you fail to file the statement of case and the
requisite application for condonation within this two week period,
or
should the application for condonation fail arising out of FAWU’s
negligence, we will immediately issue summons.’
[26] FAWU did not bring
an application for condonation and neither did Deneys Reitz on behalf
of Ndlela and Mkhize.
[27] In August 2004
Ndlela and Mkhize instituted their actions for damages against FAWU.
[28] On 3 September 2004
FAWU’s attorney, Surju, addressed a letter to Deneys Reitz
suggesting that Ndlela and Mkhize withdraw
their actions because
neither of them was a member of FAWU at the relevant time. On 7
September 2004 Deneys Reitz rejected the
suggestion and pointed out
that the correspondence emanating from FAWU showed that Ndlela and
Mkhize were at all relevant times
members of FAWU.
[29] The court a quo
identified 11 issues to be decided: (1) whether Ndlela and Mkhize
were members of FAWU at all material times;
(2) whether an agreement
of mandate was entered into between Ndlela and Mkhize and FAWU in
terms of which FAWU was to refer Ndlela
and Mkhize’s claims
against Nestlé for unlawful dismissal to the Labour Court; (3)
if such an agreement of mandate
was entered into, what its express,
alternatively, implied terms were; (4) whether FAWU breached the
agreement of mandate; (5)
whether, if FAWU breached the agreement of
mandate, such breach rendered FAWU liable to compensate Ndlela and
Mkhize for any damages
suffered by Ndlela and Mkhize having regard to
the following issues; (6) whether FAWU was entitled to resile from
and renounce
the agreement of mandate and, if so, what effect such a
right to resile from the agreement had upon any previous breach of
the
agreement by FAWU; (7) whether Ndlela and Mkhize’s actions
were premature, as a consequence of their failure to advance their
claims themselves in the Labour Court; (8) whether Ndlela and Mkhize
lacked locus standi to sue FAWU; (9) whether it is against
public
policy to hold FAWU liable for damages to Ndlela and Mkhize; (10)
whether Ndlela and Mkhize would have succeeded in the
Labour Court in
their claims for unlawful dismissal against Nestlé and (11)
whether Ndlela and Mkhize proved the quantum
of their damages. The
court a quo found against FAWU on all the issues which it found
necessary to decide.
[30] On appeal, FAWU
contends that the court a quo erred in respect of every finding
except the issue of public policy. The heads
of argument dealt with
all the relevant issues.
[31] Ndlela’s and
Mkhize’s claims before the court below were claims for damages
for breach of contract and the measure
of damages alleged was the
compensation which Ndlela and Mkhize would have been awarded in the
Labour Court if they had proceeded
there. Ndlela and Mkhize did not
allege that FAWU had breached the agreement by not applying for
condonation for the late filing
of their claims in the Labour Court.
However, they did allege that they were unable to mitigate their
damages by instituting proceedings
in their own names and seeking
condonation for the late referral of their disputes. According to
their particulars of claim this
was because of their dismissal and
hence unemployment. These allegations were denied by FAWU which
contended that, absent an unsuccessful
application for condonation,
Ndlela and Mkhize did not have a complete cause of action. It seems
to me that Ndlela and Mkhize’s
failure to bring applications
for condonation is relevant both in the context of pleading a cause
of action and in determining
whether the breach of contract relied
upon by Ndlela and Mkhize caused the loss which they claimed as
damages.
[32]
It is not necessary to traverse all the issues and arguments raised
at the hearing of the appeal since I am of the view that
the
respondents failed to prove that they suffered the loss as a result
of FAWU’s breach of contract
18
and that the respondents’ own
failure to apply for condonation for the late filing of their claims
in the Labour Court was
the
sine
qua non
for their loss.
19
In short, I am of the view that the
loss was self-
inflicted
and cannot be attributed to FAWU.
20
[33] For purposes of this
judgment I accept that the respondents established that─
(1) the respondents and
FAWU entered into a valid agreement in terms of which FAWU undertook
to represent the respondents before
the Commission and, if
unsuccessful there, to refer the claims to the Labour Court;
(2) the respondents and
FAWU agreed that FAWU would bring an application for condonation for
the failure to refer the respondents’
claims timeously to the
Labour Court;
(3)
that these agreements constituted a mandate to FAWU to represent the
respondents in prosecuting the respondents’ claims
before the
Commission and the Labour Court and FAWU was obliged to perform its
functions faithfully, honestly and with care and
diligence and to
account to its principals for its actions;
21
(4) in breach of its
mandate, FAWU failed to perform its functions with care and diligence
in that it failed to file the respondents’
claims timeously
with the Labour Court; it failed to prepare the application for
condonation and it failed to report these failures
to the respondents
at the earliest opportunity;
(5) if FAWU had
prosecuted the claims before the Labour Court it would have
established that Nestlé’s dismissal of
the respondents
was unfair and that they would have each been awarded compensation in
the sum of R107 232.
[34] The loss for which
the respondents claimed damages was the compensation they would have
been awarded by the Labour Court. They
did not suffer this loss
simply because FAWU did not lodge the claims timeously. They suffered
this loss because of the failure
of the parties to bring an
application for condonation which failure, effectively terminated the
prosecution of their claims and
meant that it was inevitable that no
compensation would be awarded.
[35]
When FAWU finally advised the respondents that it, FAWU, terminated
the mandates and would not act on their behalf they immediately
consulted Deneys Reitz which obviously advised them ─ correctly
in my view ─ that they had a good claim for compensation
on the
grounds of unfair dismissal. Deneys Reitz obviously knew that the
respondents could not stand by and do nothing to safeguard
themselves: Deneys Reitz correctly considered that the respondents
had a duty to act to prevent a loss arising from FAWU’s
breach
of contract. However it wrongly concluded that by calling on FAWU to
bring an application for condonation, the respondents
were mitigating
their damages. The principle was stated in
Hazis
v Transvaal & Delagoa Bay Investment Co Ltd
1939
AD 372
at 388─
‘
This
rule about mitigating damages relates not to what the claimant in
fact did, but to what he should have done. It is in essence
a claim
based on negligence ─ neglect to do what a reasonable man would
do if placed in the position of a person claiming
damages. The
defendant in such claim says “admitting that in fact you
suffered these damages, you have only yourself to blame
for having
suffered so much, or at all, because you did not take reasonable
steps to protect yourself and, therefore me.”’
The
onus of proving that the respondents did not mitigate their loss
rested on the defendant, FAWU.
22
[36] However, that is not
the issue in the present case. The respondents claimed damages for
breach of contract and they had to
prove that the loss which they
suffered was caused by FAWU’s breach of contract: that the
failure to recover compensation
in the Labour Court was caused by
FAWU’s failure to seek condonation for the late filing of the
respondents’ claims
in the Labour Court.
[37]
This was not a simple case where the failure to deliver the
statements of claim timeously, automatically resulted in the failure
of the claims, and, if the claims were good, the pecuniary loss
because no awards would be made.
23
It was possible to obtain condonation
for the failure to lodge the statements of claim timeously
24
and if the applications were
unsuccessful an appeal lay to the Labour Appeal Court.
25
It was therefore necessary for the
respondents to allege and prove that even if they had brought an
application for condonation
it would have been refused because of
FAWU’s delays, firstly in failing to lodge the statements of
claim timeously with the
Labour Court, and, secondly, in failing to
lodge an application for condonation with the Labour Court at the
earliest opportunity.
26
[38] The difficulty in
this case is that the respondents failed to take this necessary step
to enable them to proceed with their
claims before the Labour Court.
These were the respondents’ claims and they were obliged to
take this step to prosecute their
claims, particularly after FAWU
refused to act further on their behalf. That is obviously what a
reasonable man would do. If they
were not granted condonation they
would not succeed in getting an award of compensation in the Labour
Court. I therefore respectfully
disagree with the court a quo that an
unsuccessful application for condonation was not part of the
respondents’ cause of
action.
[39] The court a quo also
found that the respondents would not have been granted condonation
because they would not have been able
to show good cause. This
finding was based on the inordinate delay of FAWU, the lack of a
reasonable and acceptable explanation
for the delay, that Nestlé
would oppose the application on the basis that it would be prejudiced
in having to defend a claim
for dismissal which had occurred two
years earlier. The court a quo also found, correctly in my view, that
the respondents were
not precluded from bringing a condonation
application because of financial constraints, the case they alleged
in their pleadings.
The court a quo also seems to have based its
conclusion on the fact that the respondents lacked information which
was exclusively
within FAWU’s knowledge.
[40] Once again I
respectfully differ with the conclusion. There is no evidence that
Nestlé would have opposed an application
for condonation and
argued that it was prejudiced by the delay. It is a subsidiary of an
international group of companies and clearly
had the resources to
record what happened during the retrenchment of its employees.
Nayager was unable to show that any consultation
had taken place or
that the respondents had been dismissed for operational reasons. Nor
is there evidence that FAWU was asked to
provide information for the
purpose of an application for condonation and had refused to do so.
Deneys Reitz obviously decided
not to bring an application on behalf
of the respondents and therefore did not investigate the facts.
Obviously there had been
a long delay (about 20 months) but there was
an explanation which would have to be considered with all the other
relevant factors.
[41] The approach of the
court to the grant of condonation was summarised by this Court in
Melane v Santam Insurance Co Ltd
1962 (4) SA 531
(A) at 532:
‘
In
deciding whether sufficient cause has been shown, the basic principle
is that the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success, and the importance of the case. Ordinarily these
facts are
interrelated: they are not individually decisive, for that would be a
piecemeal approach incompatible with a true discretion,
save of
course that if there are no prospects of success there would be no
point in granting condonation. Any attempt to formulate
a rule of
thumb would serve only to harden the arteries of what should be a
flexible discretion. What is needed is an objective
conspectus
of
all the facts. Thus a slight delay and a good explanation may help to
compensate for prospects of success which are not strong.
Or the
importance of the issue and strong prospects of success may tend to
compensate for a long delay. And the respondent’s
interest in
finality must not be overlooked.’
[42] Unlike the court a
quo, when assessing the probability of an application for condonation
being successful, I consider that
it is probable that such an
application would have been successful. The respondents had been
employed by Nestlé for more
than 20 years before they were
unfairly dismissed. The merits of their claims could not be refuted
and were obviously important
to them. The respondents immediately
sought compensation and appointed FAWU to represent them before the
Commission and the Labour
Court. From the outset the respondents
intended to recover compensation for their unfair dismissal and there
was no willful or
grossly negligent default on their part. They were
clearly let down by FAWU’s legal officer who, on the
information on record,
appeared to have taken ill and was
hospitalised for a long period during which the FAWU administrative
personnel failed to ensure
that attention was given to his files.
There is no indication that Nestlé would have been prejudiced
by the delay in producing
any evidence. Obviously, if requested, FAWU
could have provided more detail. Nevertheless the merits of the case
and the bizarre
circumstances of the failure would weigh heavily with
the court. In my view the court a quo attached too much weight to the
apparently
unacceptable explanation for the delay and insufficient
weight to the question of the merits and the importance of the case
to
the respondents.
[43] I would therefore
uphold the appeal with costs and replace the order granted by the
court a quo with the following order:
‘
The actions are
dismissed with costs.’
________________________
B R SOUTHWOOD
ACTING JUDGE OF APPEAL
PONNAN JA and PLASKET AJA
(MALAN and TSHIQI JJA CONCURRING):
[44] We have had the
benefit of reading the judgment of Southwood AJA but regret that we
are unable to agree with his conclusion
that the appeal should
succeed. We avail ourselves of the facts as also the issues that have
been set forth in such comprehensive
detail by our learned colleague.
As many of the issues raised by the appeal are interrelated we
consider there to be little value
in dealing with them individually.
[45]
It is important to note at the outset that the claim of the
respondents is based not on delict, but on a breach of contract.
What
they allege is that there was a contract between the parties which
imposed an obligation on FAWU that it failed to perform
in the manner
contemplated by that contract. The first duty of the court is
therefore to determine the nature of the obligation
imposed upon FAWU
by the contract.
It may well be that in
terms of its constitution FAWU may not have been obliged to assist
the respondents. But that can hardly avail
it now. For, the simple
truth is that FAWU had in fact undertaken to represent the
respondents in their dispute with Nestlé.
Not just that, it
thereafter did in fact do so before the Commission for Conciliation,
Mediation and Arbitration (the CCMA). Thus
whether the respondents
did indeed qualify for such assistance in terms of FAWU’s
constitution is, on the view that we take
of the matter, a red
herring. That the contract in question is one of mandate appears to
admit of no dispute. Once it accepted
that mandate FAWU was obliged
to perform its functions faithfully, honestly and with care and
diligence (
David Trust v Aegis Insurance Co
Ltd
[2000] ZASCA 108
;
2000 (3) SA 289
(SCA) para 20). It
mattered not that it was not to receive any remuneration for the
discharge of that obligation. For, as Hoexter
JA made plain in
Bloom's Woollens (Pty) Ltd
v Taylor
1962 (2)
SA 532
(A) at 539G-H ‘ . . . I wish to emphasise that in our
law a person who has undertaken an obligation is bound duly to
perform
it, whether or not he is to receive remuneration’.
[46]
At the outset we should perhaps dispose of a contention sought to be
advanced on behalf of FAWU that being a trade union and
not an
attorney a less exacting standard should be expected of it. There is
a short answer to that contention. It is to be found
in the following
dictum of Graham JP in
Mead
v Clarke
1922 EDL
49
at 51:
'Voet
(XVII.1.9.)
points out that where a man has expressly or tacitly professed to
have business capability he ought not to have undertaken
an affair
for which he was not qualified and in which he knew or ought to have
known that his own lack of skill would be damaging
to the interests
of his principal. And Story, in his work on
Bailments
,
sec. 175, states the same principle: "Nor will want of ability
to perform the contract be any defence to the contracting
party, for
though the law exacts no impossible things, yet it may justly require
that every man should know his own strength before
he undertakes to
do an act. And if he deludes another by false pretensions to skill he
shall be responsible for any injury that
may be occasioned by such
delusion."'
[47] In our view the
mandate given to FAWU was a relatively simple one – it was to
take such steps as were necessary to have
the respondents’
labour dispute with their employer determined in accordance with the
provisions of the LRA. That it could
easily have done. FAWU committed
breaches of its mandate. It did so in the first place by failing to
timeously refer the respondents’
dispute with Nestlé to
the Labour Court (LC) and in the second place by failing to secure
condonation for that failure.
In both instances it failed to act
honestly or diligently. When the dispute remained unresolved and a
certificate to that effect
issued by the CCMA on 18 June 2002, the
respondents acquired an unconditional right to approach the LC to
have that dispute resolved.
FAWU well knew that the respondents’
dispute had to be referred to the LC within 90 days of the issuance
by the CCMA of its
certificate. That much emerges from its own
correspondence to the respondents and Nestlé. FAWU, moreover,
failed to inform
the respondents that the matter had not been
referred within the requisite 90 days or to keep them apprised of the
progress of
their case (because, one suspects, there was none). It
took a visit by the respondents to the University of Durban-Westville
Law
Clinic for them to learn that no papers had been filed with the
LC. That was approximately one year after the CCMA certificate of
non-resolution had issued. The consequence of FAWU’s failure to
diligently discharge its mandate by failing to timeously
refer the
respondents’ dispute with Nestlé to the LC was that it
altered the nature of the respondents’ right
to one that could
now only be exercised with the leave of the LC upon good cause being
shown. A successful application for condonation
thus became a
necessary preliminary to a referral of the dispute to the LC.
[48] According to Mkhize,
once they learned from the Law Clinic that no steps had been taken by
FAWU, both respondents immediately
visited the offices of the union.
They were told that the person who had been handling the matter on
their behalf was sick and
that FAWU’s officials could not get
access to his office, which was locked. They were reassured that they
had no cause to
be concerned. On 20 November 2003 FAWU’s legal
officer wrote to the respondents that he was endeavouring to make
contact
with his predecessor, whose affidavit was asserted to be
‘central and imperative to the . . . abovesaid condonation
application’.
By that stage some 17 months had elapsed since
the certificate of non-resolution had issued by the CCMA. And despite
the letter
concluding ‘the criticality of this matter is fully
appreciated’, FAWU seemed incapable of raising itself from its
self-induced inertia.
[49] Instead after all of
that time, during April 2004, FAWU, somewhat surprisingly, chose to
secure an opinion from Attorney J
Surju, who, after having consulted
with the respondents, expressed the view on 28 April 2004 that their
dismissals were not unfair.
Some five weeks later on 4 June 2004 FAWU
informed the respondents that they would not proceed with their claim
in the LC. The
respondents then consulted with Deneys Reitz
Attorneys, who wrote to FAWU threatening to institute a civil claim
in the high court
for damages as a result of the Union’s
negligent handling of the matter, but affording it two weeks within
which to file
a statement of case and bring the necessary application
for condonation in the LC. The response that that letter elicited
from
Mr Surju on behalf of FAWU on 3 September 2004 was: ‘You
are hereby informed that [the respondents were] not member[s] of
our
client at all material times.’ And so having undertaken to
carry out the respondents’ instructions and in so doing
having
asserted before the CCMA that they were indeed members of FAWU when
that was called into question by Nestlé, the
union did a
complete
volte-face
well in excess of two years after first
accepting the mandate.
[50] It is now contended
by FAWU that the respondents’ failure to themselves apply for
condonation somehow operates as a bar
to the institution of the civil
action against it. We cannot agree. In our view while the obtaining
of condonation may have been
a necessary preliminary to the referral
by the respondents of their dispute with Nestlé to the LC, it
is not for this action.
For, it seems to us that all that the
respondents had to establish to succeed in this action as against
FAWU is that: had their
dispute been referred to the LC by it in
accordance with the terms of the mandate it would have been resolved
in their favour.
Moreover, as this court held in
Ashcor Secunda
(Pty) Ltd v Sasol Synthetic Fuels (Pty) Ltd
[2011] ZASCA 158
para
8:
‘
For,
as Nienaber J stated in
Moodley
& another v Moodley & another
1990
(1) SA 427
(D) at 431C-H:
“
In
Erasmus
v Pienaar
(
supra
at
29
et
seq
)
Ackermann J, while expressing reservations about the given reason
(that an unaccepted repudiation operates as a waiver of sorts),
fully
endorsed the notion that the repudiation may release the aggrieved
party all the same from taking measures which, in terms
of the
agreement, he would otherwise have been obliged to take. The Court
(at 29A read with 22J) accepted the proposition (if I
may be
permitted to paraphrase) that the one party's repudiation, though not
treated by the other as a cause for cancellation,
may nevertheless
(i) excuse the latter from formal acts preparatory to performance;
and (ii) entitle him, in appropriate circumstances,
to suspend his
own performance until the guilty party has reaffirmed his willingness
and ability to fulfil his side of the bargain,
provided that the
aggrieved party, to the knowledge of the repudiating one, remained
ready, willing and able to perform his part.
The appropriate
circumstances would be that the aggrieved party cannot proceed
without co-operation from the other or that the
principle of
mutuality of performance would entitle him, eventually, to withhold
his own performance.
The
rationale for the rule was said to be (if I may again paraphrase)
that a party to a contract ought not to be allowed, by his
own
wrongful conduct, to advantage himself or to disadvantage his
counterpart. To permit the repudiating party to take advantage
of the
other side's failure to do something, when that failure is
attributable to his own repudiation, is to reward him for his
repudiation; conversely, it would disadvantage the other party to be
obliged to make the effort and incur the expense of tendering
a
guarantee or of performing some other act when such a step, because
of the repudiation, has become nothing but an idle gesture.”’
Elsewhere P
M Nienaber ‘The Effect of Anticipatory Repudiation: Principle
and Policy’
1962
Cambridge Law Journal
213
at 225 said:
‘
It
is a fundamental principle of our law that no man can take advantage
of his own wrong.
Nullus
commodum capere potest de injuria sua propria
.
From this broad proposition it follows that a contracting party
cannot liberate himself from a contract by reason of his own breach.
A contract mutually made cannot be terminated unilaterally, unless
the law authorises the one to do so by reason of the other’s
misconduct. Rescission cannot be effected at the instance of the
guilty party. Hence the innocent party to a breach of contract,
entitled to rescind, is not obliged to do so.’
[51] Having
accepted the mandate the principal duty of FAWU was to carry it out.
In breach of that duty it failed to timeously refer
the dispute to
the LC. It is trite that in those circumstances the respondents had
an election to either hold FAWU to its undertaking
by claiming
performance of it of what it had bound itself to do or to claim
damages
(Haynes v Kings William’s Town
Municipality
1951 (2) SA 371
(A) at 378D-E).
Some eight decades ago the position was articulated thus by
Watermeyer J in
Abrahamse & Sons v SA
Railways and Harbours
1933 CPD 626
at
638-639:
‘
It
is a rule in the law of contracts that where one party to a contract
does an act which makes it impossible for him to perform
his promise,
or renounces, or refuses to perform, his obligation under the
contract, the other party is put to his election. He
can either treat
such refusal as a breach of contract and sue for damages or he can
hold the defaulting party to the contract and
insist on performance.
If he elects to treat the default as a breach the contract is at an
end; if, on the other hand, he refuses
to accept the default as a
breach, then he keeps the contract alive, he can insist on
performance and the other party then has
a further opportunity to
perform his obligation notwithstanding his previous repudiation’.
[52] Here
when it was discovered by the respondents that almost one year after
it had undertaken to do so, FAWU had not taken steps
to refer the
matter to the LC, the respondents elected to keep the contract alive
in the expectation, it would appear, that FAWU
still had every
intention of discharging the obligation imposed upon it by the
mandate. Indeed at that stage FAWU also chose to
keep the agreement
alive. It was only on 4 June 2004 that FAWU intimated a deliberate
and unequivocal intention no longer to be
bound by the agreement.
Even then the respondents through their attorney appeared in the
first instance to insist on performance.
That letter signified an
unmistakable election on the part of the respondents to treat the
contract as at an end should FAWU not
perform. It thus constituted,
to the knowledge of FAWU, a clear and unequivocal manifestation by
the respondents (through their
attorney) of their attitude that were
FAWU to continue to refuse to perform they would regard the contract
as being at an end.
(See
Datacolor
International (Pty) Ltd v Intamarket (Pty) Ltd
[2000] ZASCA 82
;
2001
(2) SA 284
(SCA) paras 28-29.) The response that that letter elicited
from FAWU (through its attorney) was that the respondents were not
members
of the union. That in turn gave rise to the action now
instituted, which on the view we take of the matter − namely,
that
the respondents’ loss cannot be regarded as self-inflicted
− must succeed. That renders it necessary for us to consider
whether the dismissals were unfair and if so, the damages, if any, to
which the respondents are entitled.
[53] Swain J found that
the retrenchments of the respondents were both substantively and
procedurally unfair. Mkhize testified that
when they had heard
rumours about possible retrenchments they raised the issue with
management and were reassured that there was
no danger of that
happening. Indeed on 12 April 2002 he received a letter from the
business manager of Nestlé thanking him
for his efforts and
contribution during the previous year and informing him of his salary
increase, which was stated to be ‘inflated
as a result of our
improved Performance Management System’. The letter concluded:
‘Lastly, I am looking forward to
working with you and ensuring
that we, together, take our business in the new Central Region, to
the next level.’ But that
letter was written, it would seem,
after the Nestlé board had already taken a decision to
restructure its operations and
negotiations had already commenced
with FAWU. That much emerges from Nestlé's retrenchment letter
to Mkhize dated 3 May
2002. It read: ‘I refer to the
consultation held between the Company and the Union since 29 November
2001. . . . Several
meetings were held. In the last meeting held on .
. . 11 April 2002, we formally informed the Union that your services
as per Section
189 of the LRA will be terminated from 15 May 2002.’
The letter proceeded to inform him that he would inter alia receive
‘[t]wo months notice pay’ and ‘[t]hree weeks for
each completed year of service’.
[54] The position of
Ndlela is for all material purposes identical to that of Mkhize. One
of the primary complaints of the respondents
is that they had been
kept in the dark about the unfolding restructuring process. Mr Berlin
Nayager, who was intimately involved
in the restructuring process at
the company, conceded that: (a) he did not know whether non-union
employees, such as the respondents,
were consulted as part of the
retrenchment exercise; (b) the selection criteria and profiling
exercise to identify the employees
to be retrenched may not have been
agreed with the union, it having insisted on LIFO, in which event the
respondents ought not
to have been retrenched; and (c) the
respondents ought to have been − but were not − offered
other positions as an
alternative to dismissal, when such positions
were vacant and shortly after their retrenchments advertised to be
filled. Mr Nayager
was FAWU’s witness. In the light of that
evidence Swain J’s conclusion that the retrenchments were both
procedurally
and substantively unfair cannot be faulted. Nor, bearing
in mind that the onus would have been on Nestlé to prove that
the
dismissals were fair (s 191(2)), can his conclusion that had the
dispute been referred to the LC it would have been resolved in
the
respondents’ favour.
[55] The
learned Judge then proceeded to a consideration of damages. In
Steenkamp v Du Toit
1910
TPD 171
at 175 Innes CJ stated:
‘
A
man, therefore, who has failed to carry out his contractual
obligation, is liable for such damages as he must reasonably have
known would naturally and probably result from the breach; such
damages, in other words, as given his knowledge of the circumstances,
might naturally be expected to follow the breach.’
Relying on s
194 of the LRA (as it read at the time) the respondents claimed
either 24 months’ salary, being payment for the
period from the
termination of their employment until when the LC would probably have
finalised the matter and ordered re-instatement,
alternatively 12
months’ salary in the nature of a
solatium
.
[56] Section
158 of the LRA sets out the powers of the LC. It authorises the LC to
award compensation (subsection (1)
(a)
(v))
or damages (subsection (1)
(a)
(vi))
in any of the circumstances contemplated in the Act. Section 193(1)
provides the remedies for unfair dismissals and unfair
labour
practices, namely, reinstatement, re-employment or compensation.
According to s 193(2), reinstatement or re-employment must
be ordered
unless: (a) the employee does not want to be reinstated or
re-employed; or (b) a continued employment relationship would
be
intolerable; or (c) it is not practical to order reinstatement or
re-employment; or (d) the dismissal is unfair only because
the
employer did not follow a fair procedure.
[57]
Section 194(1) provides that where compensation for an unfair
dismissal (whether substantively or procedurally unfair, or both)
is
ordered, it 'must be just and equitable in all the circumstances, but
may not be more than the equivalent of 12 months' remuneration
calculated at the
employee's
rate of
remuneration
on the date of
dismissal
'.
And, according to
s
195, an award of compensation as envisaged by s 194 'is in addition
to, and not a substitute for, any other amount to which the
employee
is entitled in terms of any law,
collective agreement
or contract of
employment'.
Sections 41(2)
and
41
(5) of the
Basic Conditions of
Employment Act 75 of 1997
also come into the reckoning. In terms of
the former, on retrenchment, an employee is entitled to severance pay
'equal to at least
one week's remuneration for each completed year of
continuous service . . .’ . Whilst the latter provides that the
'payment
of severance pay in compliance with this section does not
affect an employee's right to any other amount payable according to
law'.
[58]
The respondents were dismissed on 15 May 2002.
Sections 193
and
194
of the LRA were amended by the
Labour Relations Amendment Act 12 of
2002
which commenced on 1 August 2002. The amendment sought to
address what Conradie JA described as: ‘the dismal state of
affairs
to which s 194(2) . . . has given rise’ (
Lorentzen
v Sanachem (Pty) Ltd
(2000) 21
ILJ
1075 (LAC) para 9). It removed the need
to exercise a discretion to award all or nothing, as regards
procedural irregularities.
And replaced in its stead a new general
discretion to award compensation in an amount which is just and
equitable in all the circumstances.
The result is that the risk of an
employer having to pay
−
and an
employee having to receive – all or nothing as regards
procedural unfairness has been ameliorated. In
Fouldien
& others v House of Trucks (Pty) Ltd
(2002)
23
ILJ
2259
(LC) para 17 Landman J held that for various reasons, such as:
considerations of fairness; the absence of a transitional measure;
the unchanged limit on quantum; the contingent nature of the right;
the element of discretion, fairness and equity; the redress
of the
mischief; and, the fact that the new
s 194
does not remove existing
rights, the provisions of the section, as amended, are rendered
applicable to pending disputes.
[59]
The compensation for the wrong in failing to give effect to an
employee’s right to a fair procedure, according to Froneman
DJP, is not based on patrimonial or actual loss but is in the nature
of a
solatium
for
the loss of the right and is punitive to the extent that an employer
who breached the right must pay a penalty for causing the
loss
(
Johnson & Johnson (Pty) Ltd v
Chemical Workers Industrial Union
(1999)
20
ILJ
89
(LAC) para 41). In
Highveld Steel &
Vanadium Corporation Ltd v National Union of Metalworkers of SA &
others
(2004) 25
ILJ
71 (LAC), the LAC considered the
factors to be taken into account in determining whether to grant
compensation for procedurally
unfair retrenchments under the all or
nothing regime. The following were, inter alia, considered relevant:
(a) the extent of the
employer's deviation; (b) the severance
packages and lengths of service; (c) the ages of the retrenched
employees; and (d) whether
it would have been easy for the retrenched
employees to find other employment.
[60]
Both respondents had exemplary work records. Ndlela had 22 years’
service and Mkhize, 20. By comparison the longest serving
of any
other similarly placed employee was ten years. At the date of their
retrenchments, Ndlela was 52 years old and Mkhize 47.
Given their
ages and lack of formal education – standard 9 in the case of
the first and matriculation in the case of the
second - it would be
fair to say that neither could entertain any serious prospects of
other employment. Indeed neither had been
able to secure employment
after their dismissal. As we have shown, the deviation on the part of
the employer from the requirements
of the LRA was quite substantial.
On the other hand the severance package, which was in excess of the
statutory minimum and also
that provided in the recognition agreement
between
Nestlé
and FAWU, was fairly
generous. In
Highveld Steel
the LAC took into account that the severance pay
that had been paid was generous – every bit as generous as in
this case.
Despite this, it held that those employees were entitled
to compensation and the severance pay was not deducted. That is
consistent
with the approach to compensation as set out in
Johnson
& Johnson
.
[61]
From what is set out above, it seems to us that: first, the
distinction that was drawn by the court below between substantive
and
procedural unfairness falls away when the amended
s 194
is applied;
second, the compensation envisaged by the section remains in the
nature of a
solatium
for
being subjected to unfair treatment; and third, while the quantum of
the severance pay, the mitigation of loss and the other
factors
alluded to may be relevant considerations, they do not necessarily
preclude the payment of compensation; rather they go
into the scales
in determining whether it is just and equitable to compensate, and if
so, in what sum.
[62] Swain J believed
that he was dealing with
s 194
in its pre-amended form. The effect of
that is that we have to reconsider the matter afresh and exercise the
discretion ourselves.
We are of the view that as it would not have
been practical to have ordered re-instatement, the awarding of
compensation is indeed
warranted. And given all the circumstances
here present that 12 months' salary as compensation would have been
appropriate. We
would therefore uphold Swain J's award of damages but
on a somewhat different approach. We may add that if one were to
approach
the matter on the basis of the pre-amended
s 194
, the matter
is rendered much the easier - the weight of the relevant factors
would be in favour of compensation for the procedurally
unfair
dismissals and, once that is so, the amount is set at 12 months'
salary. In the result Swain J’s conclusion on this
aspect of
the case falls to be confirmed. That conclusion disposes of the
respondents’ cross-appeal. But as it did not contribute
to any
increase in the costs of the preparation of the record and occupied
barely any time in argument, we would make no order
as to costs in
respect of the cross appeal.
[63] In the result we
would dismiss both the appeal and the cross-appeal and order the
appellant to pay the costs of the former.
_________________
V M PONNAN
JUDGE OF APPEAL
_________________
C M PLASKET
ACTING JUDGE OF APPEAL
APPEARANCES
APPELLANT: M Pillemer SC
(with him R Pillemer)
Brett Purdon Attorneys,
Durban
Honey Attorneys,
Bloemfontein
RESPONDENTS: C A Nel (Ms)
Macgregor Erasmus
Attorneys, Durban
McIntyre & Van der
Post, Bloemfontein
1
For
present purposes it is not necessary to consider the position of an
employee in the case of an ‘automatic unfair dismissal’.
2
Section
193(1)
of the LRA.
3
Section
194(1)
of the LRA.
4
Section
195
of the LRA.
5
Section
158(1)
of the LRA empowers the Labour Court to award either and
s
195
empowers the Labour Court to award, in addition to
‘compensation,‘ any other amount to which the employee
may be
entitled in terms of any law or contract of employment .
6
Shorter
Oxford English Dictionary.
7
Ferodo
(Pty) Ltd v De Ruiter
(1993) 14 ILJ
974 (LAC).
8
Section
185(
a
) of
the LRA.
9
Section
188(1)
read with
s 192(2)
of the LRA places the onus on the
employer.
10
Section
188(1)
of the LRA.
11
Section
188(1)
of the LRA.
12
These
were substituted by
s 44
of the
Labour Relations Amendment Act 12 of
2002
.
13
Section
191(1)
of the LRA.
14
Section
115(1)(a)
and
135
(1) of the LRA.
15
Section135(5)
of the LRA.
16
Section
191(4)
and (5) of the LRA.
17
Section
191(11)(a)
and (b) read with
s 158(1)(f)
of the LRA.
18
Vision
Projects (Pty) Ltd v Cooper, Conroy, Bell & Richards Inc
1998
(4) SA 1182
(SCA) at 1191H-J; R H Christie & G B Bradheld
The
Law of Contract in South Africa
6 ed
(2011) at 565-6.
19
International
Shipping Co (Pty) Ltd v Bentley
1990
(1) SA 680
(A) at 700E-701A.
20
Cooper
v Syfrets Trust Ltd
[2000] ZASCA 128
;
2001 (1) SA 122
(SCA) at 134F.
21
David
Trust v Aegis Insurance Co Ltd
[2000] ZASCA 108
;
2000
(3) SA 289
(SCA) paras 20-21; J C de Wet and A H van Wyk
Die
Suid-Afrikaanse Kontrakte- en Handelsreg
5
ed (1992) vol 1 at 386; Joubert (ed)
The
Law of South Africa
vol 17 (first
reissue) para 11.
22
Hazis
v Transvaal & Delagoa Bay Investment Co Ltd
1939
AD 372
at 388-389;
North & Son
(Pty) Ltd v Albertyn
1962 (2) SA 212
(A) at 216-217.
23
See
eg
Mazibuko v Singer
1979
(3) SA 258
(W) at 261D-E and
Slomowitz
v Kok
1983 (1) SA 130
(A) at 132C-D
where claims for damages in terms of the Motor Vehicle Insurance Act
59 of 1972 were negligently allowed to prescribe.
24
In
terms of s 191(11)(b) read with s 158(1)(f) of the LRA the Labour
Court ‘may condone non-observance of that timeframe
(ie 90
days) on good cause shown’.
25
Section
173(1) of the LRA.
26
Without
these facts there was no cause of action as it was described in
McKenzie v Farmer’s Co-operative Meat Industries Ltd
1922 AD 16
at 23 ‘. . . every fact which it would be necessary
for the plaintiff to prove, if traversed, in order to support his
right
to the judgment of the Court’ and in
Abrahamse &
Sons v SA Railways and Harbours
1933 CPD 626
. . . ‘the
entire set of facts which gives rise to an enforceable claim and
includes every fact which is material to be
proved to entitle a
plaintiff to succeed in his claim’. See
Evins v Shield
Insurance Co Ltd
1980 (2) SA 814
(A) at 838D-H.