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[2020] ZAECPEHC 16
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Workforce Solutions v Small Claims Court Commissioner and Others (841/2018) [2020] ZAECPEHC 16 (11 June 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
CASE
NO.: 841/2018
Date
Heard: 28 May 2020
Delivered
on: 11 June 2020
In
the matter between:
WORK
FORCE SOLUTIONS
Applicant
and
SMALL
CLAIMS COURT COMMISSIONER First
Respondent
YOLISA
NONDLWANA Second
Respondent
SIZEKA
JANGE Third
Respondent
NOLOYISO
MSILARA Fourth
Respondent
BUKEKA
MAJIBA Fifth
Respondent
ZOLELWA
DLWENGU Sixth
Respondent
PHUMZA
GOBA
Seventh Respondent
NOSIBUSISO
MBASANE Eight
Respondent
THANDOKUHLE
DANISTER Ninth
Respondent
NOSIPHIWO
MANI Tenth
Respondent
ZUBENATHI
MAGAYIYANA
Eleventh Respondent
NOSIPHO
NGXANDSHE
Twelfth Respondent
LIZIWE
NODOM
Thirteenth
Respondent
NOLUSINDISO
PHILLIP
Fourteenth Respondent
NOLITHA
GCILISHE
Fifteenth Respondent
FUNEKA
SAMBUMBU
Sixteenth Respondent
NONKUTALO
SAMBUMBU
Seventeenth Respondent
KHOLIWE
KWEKANI
Eighteenth Respondent
NOMFUNDISO
MPANDENI
Nineteenth Respondent
AMANDA
MAPAZI Twentieth
Respondent
AYANDISWA
BOJI Twenty-First
Respondent
JUDGMENT
GQAMANA,
J:
Introduction
[1]
This application concerns twenty judgments that were handed down on
10 October 2017,
by the First Respondent in her capacity as a Small
Claims Court Commissioner
[1]
,
against the applicant
[2]
and in
favour of the second to the twenty-first respondents
[3]
.
The applicant seeks an Order that the aforesaid judgments be reviewed
and set aside. The application is opposed by the respondents
save for
few
[4]
, who elected not to
participate in these proceedings.
Factual matrix
[2]
The applicant is a training academy and a placement agent
with its main focus on training individuals for placement
in health
care institutions, the retail industry, the service station industry
and business in general. The respondents were
students under
training by the applicant or had completed three months training
courses offered by the applicant.
[3]
The respondents
[5]
issued
individual summons on or about April 2017 against the applicant. The
summons were served on the applicant on 3
rd
May 2017, save for the summons that were issued by the twelfth and
twenty-first respondents
[6]
.
The trial in respect of all their matters was set down on 27 June
2017, but was not finalised on the said date and was heard
over a
period of time until finalisation on 3 October 2017.
[4]
The respondents’ claims fell under three different groups.
The first group
were those respondents that had successfully
completed their courses and received certificates
[7]
.
The second group were those respondents that were allegedly removed
by the applicant from the practical training courses
based on
allegations of misconduct
[8]
.
The third group were those respondents who abandoned the training
course during their practical training after they discovered
that the
certificates issued by the applicant were allegedly invalid because
the latter was neither registered nor accredited by
the relevant
SETA.
[9]
[5]
As indicated in paragraph 3 above, the trial was heard over a period
of time.
A number of witnesses testified at the trial, some
witnesses were subpoenaed by the Commissioner. Significantly,
although
the respondents had issued individual summons against the
applicant, the Commissioner joined the respondents’ actions in
accordance with the provision of s 31 (1) of the Small Claim Court
Act 61 of 1984 (“the Act”). Judgments were
entered
in favour of the respondents.
Issues for
adjudication
[6]
The application is brought in Rule 53 of the Uniform Rules of Court.
The applicant
formulated its case in terms of s 46 (b) and (c)
of the Act. The respondents resisted the application, relying on
undue delay by
the applicant in bringing the application and also on
the lack of merits of the actual review application.
Legal principles
[7]
In terms of s 46 (b) and (c) of the Act, a party aggrieved by a
decision of a Commissioner may approach this Court
for a review of
such decision. The applicant contend that the Commissioner was
biased and also committed a gross irregularity
with regards to the
proceedings.
[8]
There is a presumption of impartiality of a judicial officer and the
effect thereon
is that a judicial officer will not lightly be
presumed to be biased
[10]
.
Therefore an applicant relying of an allegation of bias by a judicial
officer would have to pass the double-requirement
of reasonableness
as was articulated by the Constitutional Court in
Bernert
v ABSA Bank Ltd 2011 (3) SA 92 (CC)
[11]
.
However, before I consider the grounds of review upon which this
application hinges, I must first deal with the argument of undue
delay raised by the respondents.
Undue
delay
[9]
This application is brought in terms of Rule 53 of the Uniform Rules
of Court. Rule
53 does not stipulate a period within which the
review proceedings must be lodged. However, it is well
established that such
an application must be brought within a
reasonable time
[12]
.
[10]
What is reasonable depends on the circumstances of each case.
The enquiry is twofold; namely,
(a) whether the delay is unreasonable
and, (b) whether it should be condoned. The first enquiry is
factual and the second
one entails an exercise of a discretion based
on the adequacy of the explanation for the delay, prejudice to the
parties and prospects
of success. These factors must not be
considered in isolation, but must be weighed up cumulatively.
[11]
On the facts herein, it is common cause that the impugned judgments
were handed down 10 October
2017. The present review
application was only issued on or about 20 March 2018, a period in
excess of five months from the
date of the judgments. Although
there is no time period to institute the review proceedings in terms
of Rule 53, however
the delay of more than five months is
unreasonable. The issues in this application are not
complex and the papers are
not voluminous.
[12]
Insofar as to whether such delay must be condoned, I need to exercise
my discretion, and in doing
so, I must consider the explanation given
for the delay, prejudice to both parties and prospects of success.
[13]
The explanation proffered by the applicant is that, shortly on
receipt of the judgments, on 13
October 2017, legal advice was sought
from its attorneys of record. Based on such advice, further
documentation were required by
its attorneys and such information was
provided on 23 October 2017. Soon thereafter, a working draft
founding affidavit was
provided to it on 1 November 2017. An
advice was given to it that counsel should be briefed to settle the
affidavit.
There is no explanation for the period of 1 to 13
November 2017, when counsel was eventually briefed to settle the
papers. The
brief was not actioned by counsel and it was then
terminated on 22 January 2018. An allegation was made that
during this
period various correspondence was forwarded to counsel,
reminding the latter to execute the brief. Such correspondence
was
not attached to the founding affidavit. On 25 January
2018, the current counsel was briefed and thereafter further
information was sought and the affidavit was settled on 9 March 2018.
[14]
Mr Olivier, on behalf of the respondents, argued that the applicant
had to provide a full and
satisfactory explanation for the entire
period of delay and the explanation given by it, is so pathetically
unsatisfactory.
I agree. The applicant’s
explanation does not cover the entire period of the delay and is not
satisfactory.
Lacking as it is, but I am able to understand how
the delay came about.
[15]
It is evident that, the applicant took reasonable steps to
investigate the reviewability of the Commissioner’s
decision as
soon it became aware of it
[13]
.
[16]
The evidence points that the delay was mostly caused by the
applicant’s erstwhile counsel,
but the applicant should not
easily escape its erstwhile counsel’s tardiness. In
Saloogee
v Minister of Community Development
[14]
,
it was said that:
‘
There
is a limit beyond which a litigant cannot escape the results of his
attorney's lack of diligence or the insufficiency of the
explanation
tendered. To hold otherwise might have a disastrous effect upon the
observance of the Rules of this Court. Considerations
ad
misericordiam
should
not be allowed to become an invitation to laxity. In fact this Court
has lately been burdened with an undue and increasing
number of
applications for condonation in which the failure to comply with the
Rules of this Court was due to neglect on the part
of the attorney.
The attorney, after all, is the representative whom the litigant has
chosen for himself, and there is little reason
why, in regard to
condonation of a failure to comply with a Rule of Court, the litigant
should be absolved from the normal consequences
of such a
relationship, no matter what the circumstances of the failure are.
(
Cf. Hepworths Ltd v Thornloe and
Clarkson Ltd.,
1922 T.P.D. 336
; Kingsborough Town Council v Thirlwell
and Another,
1957 (4) SA 533
(N)
).
A litigant, moreover, who knows, as the applicants did, that the
prescribed period has elapsed and that an application
for condonation
is necessary, is not entitled to hand over the matter to his attorney
and then wash his hands of it. If, as here,
the stage is reached
where it must become obvious also to a layman that there is a
protracted delay, he cannot sit passively by,
without so much as
directing any reminder or enquiry to his attorney (
cf.
Regal v African Superslate (Pty.) Ltd., supra at p. 23 i.f.
)
and expect to be exonerated of all blame; and if, as here, the
explanation offered to this Court is patently insufficient,
he cannot
be heard to claim that the insufficiency should be overlooked merely
because he has left the matter entirely in the hands
of his attorney.
If he relies upon the ineptitude or remissness of his own attorney,
he should at least explain that none of it
is to be imputed to
himself. That has not been done in this case. In these circumstances
I would find it difficult to justify condonation
unless there are
strong prospects of success
(Melane v
Santam Insurance Co. Ltd.,
1962 (4) SA 531
(AD) at p. 532).’
[17]
The above principle applied in
Buthelezi
and Other v Eclipse Foundries Ltd
[15]
. However on the
facts of this case, the applicant should not be punished for the
tardiness of its erstwhile counsel. The
explanation given despite
lacking in details has enlightened me to understand the seed
germination of the delay, so as to be able
to exercise my discretion.
[18]
Another equally important factor to be considered is the prospects of
success. Prospects
of success may perhaps compensate for an
explanation which is otherwise lacking. The applicant in its
founding affidavit
advanced serious allegations of bias against the
Commissioner and those allegations remained uncontested by the
Commissioner.
As an officer of this court, one would have
expected the Commissioner to provide her side of the story and refute
them if they
were inaccurate. In the absence of the
Commissioner’s affidavit refuting such allegations, I am
inclined to accept
the correctness of the applicant’s
allegations. However, I intend to dispose of this application
on a narrow but acute
point sufficient to asphyxiate and
cause demise to the respondents’ opposition on the merits.
[19]
The other factor to be considered is the prejudice
to the parties. Actual prejudice to the respondents
is not a
pre-condition for refuting to entertain the review proceedings by
reason of undue delay. The argument advanced for
the
respondents on this point is their entitlement to finality of the
matter. Mr Olivier, passionately argued that the respondents
on
receipt of the judgments obtained writs of execution and were
expecting payment of their monies. The extension of the argument
was
that the respondents are men of straw, but this latter point quickly
crumbled as soon as it became clear to counsel that it
was not the
case pleaded. I accept that the respondents are entitled to
finality of the matter and that they are prejudiced
by the delay in
the finalisation of their case. However, such prejudice would
be well compensated by way of interest in the
event of success in
their actions. But, if I decline to condone the delay, the
applicant who in my view, has demonstrated
gross irregularity in the
conduct of the proceedings would suffer more prejudice compared to
the respondents.
[20]
In the results, I am satisfied that although the delay is
unreasonable, however such delay should
be condoned.
Grounds of review
[21]
The applicant’s case for review hinges on s 46 (b) and (c) of
the Act. Mr Williams, on
behalf of the applicant argued that the
Commissioner was bias and secondly there was gross irregularity with
regard to the proceedings.
However as hinted above, this
application is capable of being disposed on a narrow point, namely,
the contention that there was
gross irregularity with regard to the
proceedings as envisaged in s 46 (c) of the Act.
[22]
As indicated above, the respondents issued separate summons against
the applicant. The
twelfth and twenty-first respondents’
summons were never even served on the applicant. Despite such obvious
shortfall and
non-compliance with s 29 (2) of the Act, the
Commissioner entertained their actions and gave judgments in favour
of these respondents.
This is a gross irregularity on its own.
[23]
Furthermore and on the evidence from the papers before me, the
Commissioner conducted a joint
hearing of all the respondents’
claims and there was no formal joinder of the respondents. Section 31
(1) of the Act, reads
as follows:
‘
(1)
Any number of persons each of whom has a separate claim against the
same defendant; may join as plaintiffs in one action if
the right of
each to relief depends upon the determination of some question of law
or fact which; if separate actions were instituted,
would arise in
each action: Provided that if such a joint action is instituted the
defendant may apply to the court that separate
trials be held; and
the court may in its discretion make such order as it may deem
just and expedient.’
[24]
The Commissioner did not bring to the attention of the
applicant as a layman that, it
is entitled to hold separate trials
and there was a duty on her to do so
[16]
.
This as well is a gross irregularity sufficient to vitiate the entire
proceedings.
[25]
Parties have agreed that, in the event I find that the judgments had
to be reviewed and set aside,
I should not entertain the actual
merits of the claims instituted by the respondents because I am not
fully equipped with the evidence
to adjudicate same. It is
trite that the Small Claims Court is not a court of record and as
such there was no transcript
filed by the parties that could have
assisted me to adjudicate on the merits of the respondents’
claim.
[26]
In the circumstances, a remittal of the matter to the Small Claims
Court, Port Elizabeth to be
heard
de
novo
by another Commissioner other than
the first respondent is justified.
Costs
[27]
Insofar as the issue of costs are concerned the applicant sought an
order that the costs should
follow the results and that the
respondents jointly and severally should pay the costs of the
application.
[28]
Mr Olivier, argued that there are exceptional circumstances in this
case which justify a deviation
from the general rule, that the costs
should follow the results. It was argued that the respondent should
not be saddled with a
costs order because the reasons advanced for
the review application were as a result of the gross irregularity
caused by the Commissioner
and not the respondents.
[29]
Without a shadow of doubt, the respondents were oblivious that, in
terms of s 31 (1) of the Act,
the Commissioner had a duty to advise
the applicant that it was entitled to hold separate trials. As
such the respondents
opposed this application unaware of such duty on
the Commissioner and it will not just and fair to saddle them with a
costs order.
[30]
Furthermore, Commissioners at the Small Claims Court are legal
practitioners in private practise
who volunteer their services
pro
bono,
and it would equally not be just
and fair to award costs orders against them.
Order
[31]
In the circumstances, I make the following order:
1.
The Commissioner’s judgments handed
down on 10 October 2017 in favour of the respondents and against the
applicant are reviewed
and set aside.
2.
The actions instituted by the respondents
against the applicant are remitted to the Small Claims Court, Port
Elizabeth to be heard
de novo
by
another Commissioner.
3.
Each party to pay their own costs.
________________________
N. GQAMANA
JUDGE
OF THE HIGH COURT
APPEARANCES
For the
Applicant
: ADV
K WILLIAMS
Instructed by
:
KAPLAN BLUMBERG ATTORNEYS
PORT
ELIZABETH
For the Respondents
: ADV
OLIVIER
Instructed by
:
BLANCHE ATTORNEYS
PORT
ELIZABETH
[1]
Hereinafter
referred to as the Commissioner.
[2]
The
defendant in the Small Claims Court.
[3]
Plaintiffs
in the Small Claims Court.
[4]
The
first, tenth, twelfth, thirteenth, sixteenth, seventeenth and
twenty-first respondents.
[5]
Referring
to the 2
nd
to twenty-first respondents collectively.
[6]
Case
numbers 181/2017 and 180/2017 respectively.
[7]
Under
that group, it is the second, third, fifth, seventh-eleventh
respondents.
[8]
Under
that group, it is the thirteenth to the twenty-first respondents.
[9]
For
this group, it is the fourth and sixth respondents.
[10]
President
of RSA v SAFRU 1999 (2) SA 14 (CC).
[11]
Para
[35].
[12]
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978 (1) SA 13
(A)
at 41E-F and also Gqwetha v Transkei Development Corporation Ltd
2006 (2) SA 603
(SCA) para 22.
[13]
Associated
Institutions Pension Fund v Van Zyl
2005 (2) SA 302
(SCA) paras
50-51.
[14]
1965
(2) SA 135
(A) at 140H-141C-H.
[15]
[1997]
18
ILJ
633 (A) at 638I-639A.
[16]
Smith
v Seleka and Andere
1989 (4) SA 157
(O).