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2023
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[2023] ZAFSHC 239
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Nation Emancipated & Allied Workers Union of South Africa (NEAWUSA) v Bothaville Milling (Pty) Ltd t/a Thusa Mills (2657/2021) [2023] ZAFSHC 239 (15 June 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case No.: 2657/2021
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In the matter between:
NATIONAL
EMANCIPATED
&
Applicant/First
Respondent
ALLIED
WORKERS UNION OF
SOUTH
AFRICA ("NEAWUSA")
And
BOTHAVILLE
MILLING (PTY) LTD t/a
Respondent/Applicant
HUSA
MILLS
In
re:
In
the matter between:
BOTHAVILLE
MILLING (PTY) LTD
t/a
Applicant
THUSA
MILLS
And
NATIONAL
EMANCIPATED
&
First
Respondent
ALLIED
WORKERS UNION OF
SOUTH
AFRICA ("NEAWUSA")
T
LENEPA N.O.
Second
Respondent
MOHAU
ISAAC LENGOLA N.O.
Third
Respondent
MOHLOLO
BENJAMIN SETABELA N.O.
Fourth
Respondent
ALL
EMPLOYESS
OF
APPLICANT PRESENTLY
Fifth
Respondent
INVOLVED
IN INDUSTRIAL ACTION
CORAM:
VAN
RHYN, J
HEARD
ON:
9 JUNE 2023
DELIVERED
ON: 15
JUNE 2023
[1] This
is an application by National Emancipated & Allied Workers Union
of South Africa "(NEAWUSA"), the first respondent in the
main application, for condonation for the non-compliance with
the
provisions of Rule 49(1) (b) and an application for leave to appeal
against the order handed down by this court on 9 February
2023. The
application for condonation and leave to appeal are opposed by
Bothaville Milling (Pty) LTD t/a Thuso Mills ("Thuso
Mills"),
the applicant in the main application.
[2] A
similar application for condonation and leave to appeal was brought
and
heard simultaneously with this matter in Case Number 2721/2021 in
the matter between LFC Milling (Pty) Ltd, the applicant in the
main
application and NEAWUSA being the first respondent. However, in Case
number 2721/2021 the third to sixth respondents are different
parties
to those in the matter at hand. This judgment is intended to apply in
respect of both applications, given that the facts
and arguments on
behalf of the parties are largely the same.
[3] In
terms of the provision of Rule 49(1)(b) of the Uniform Rules of Court
an application
for leave to appeal shall be made within 15 days of
date of the order or judgment appealed against. The 15-day period
lapsed on
2 March 2023. The applications for leave to appeal were
delivered to Thuso Mills's and LFC Milling's attorneys of record on
16
March 2023 and filed on 17 March 2023 together with the
applications for condonation, some 26 days after the date of the
order.
[4] Both
applications for leave to appeal were enrolled for hearing by the
respondents, Thuso Mills and LFC
Milling. In the application for
leave to appeal in the Thuso Mills matter, the grounds for the appeal
are set out and can concisely
be summarized as follows:
4.1.
the court erred in finding that the notice of intention to
bring an application to recover costs, enrolled for hearing on 9
February
2023 by Thuso Mills, was an application brought by NEAWUSA;
4.2.
the court erred in not finding that the notice of intention to
bring an application to recover costs did not constitute an
application
in terms of the provisions of Rule 6(4) and (5) of the
Uniform Rules of Court;
4.3.
The court erred in not finding that the notice of intention to
bring an application to recover costs was in fact filed by Thuso
Mills's attorney with the view of disguising the notice as an
application allegedly brought by NEAWUSA;
4.4.
The court erred in not finding that the contents of the notice
indicated that it was not a notice of intention to bring an
application
but that it was a complaint lodged against Thuso Mills
regarding monies which were taken from NEAWUSA's bank accounts in the
name
of legal costs which were not justified;
4.5.
The court erred in not finding that NEAWUSA, as a juristic
person are in law not allowed to file an application in its name
without
being represented by a legal practitioner and on this basis,
the purported application would in any event be defective.
[5] In
the heads of Argument filed on behalf of NEAWUSA in the LFC Milling
matter
the contention is that this matter was not on the roll for 9
February 2023. The further grounds of appeal as set out in paragraph
4 above also apply to the LFC Milling matter. In the applications for
condonation the deponent, Tsiliso Lenepa, the General Secretary
of
NEAWUSA, contends that, on receipt of the court order on 13 February
2023 it appeared as if the applications were dismissed
against the
applicant, being Thuso Mills and LFC Milling, and not against the
first respondent being NEAWUSA. To the extent that
both orders of 9
February 2023 did not specifically direct NEAWUSA to pay the costs,
he was advised not to proceed with an application
for leave to
appeal. On 2 March 2023 Thuso Millis and LFC Milling delivered their
Notices of Taxation and it then dawned upon the
deponent that Thuso
Mills and LFC Milling considered themselves to be the "respondent"
in the applications that served
before court on 9 February 2023.
[6] As
a direct result of the delivery of the Notices of Taxation, NEAWUSA
brought
the applications for leave to appeal in both matters, which
the applications for condonation seeks its late filing to be
condoned.
The deponent explains that he was out of office from 1
March 2023 until 10 March 2023 and was only able to "get in
touch"
with the legal representatives of NEAWUSA in Johannesburg
on 14 March 2023 to provide the necessary instruction for the
application
for leave to appeal.
[7] On
behalf of NEAWUSA it is submitted that the late delivery of the
applications
for leave to appeal was not intentional. On the grounds
that Thuso Mills and LFC Milling filed vexatious and frivolous
applications,
being the Notice of Intention to bring an application
to recover costs, as if it were applications by NEAWUSA, it was
"dragged
to court without cause" and NEAWUSA would be
severely prejudiced in the event of condonation not being granted.
[8] Mr
Louw, counsel on behalf of Thusa Mills and LFC Milling contends that
NEAWUSA
has yet again, in a further abuse of the court processes,
applied for leave to appeal outside the timeframe prescribed by Rule
49(1)(b). In the applications for condonation no mention is made of
the fact that Mr Sebola, counsel on behalf of NEAWUSA, appeared
in
court on 9 February 2023 and subsequent to the order dismissing the
applications in both matters with costs being delivered,
Mr Sebola
threatened to take various steps to challenge the court's
pronouncement.
[9] Mr
Louw argued that NEAWUSA therefore distorts the true facts with
semantics
and attempts to escape the consequences of Rule 49(1)(b) by
stating that the taxation only came to its attention on 10 March 2023
and thus submits that is the date when the clock started ticking for
the calculation of the 15- day time period to file an application
for
leave to appeal. The applications for condonation in respect of both
matters are opposed on the grounds set out in the heads
of argument
filed by Mr Louw. It was argued that the applications for condonation
do not meet the threshold required and that the
explanation for the
delay amounts to no explanation whatsoever.
[10]
The salient facts pertaining to these matters are the following: On
10 June 2021 Thuso Mills and on
16 June 2021 LFC Milling, as
applicants, brought urgent applications (the main applications) for
two separate orders interdicting
and restraining the respondents in
the said matters, during protest or strike actions from committing
unlawful conduct which constitutes
a criminal act or violation of
fundamental rights of individuals in the form of damage to property
and assault in respect of the
applicants, its management and third
persons. In both matters a rule
nisi
was granted. The rule
nisi orders were subsequently confirmed by Page AJ on 5 October 2021.
[11] The
respondents in the main applications were ordered to pay the costs,
jointly and severally.
The respondents failed to pay the taxed costs
of the two main applications where after the applicants issued writs
for execution
with notices in terms of the provisions of Rule
45(12)(a) to be served by the Sheriff upon Standard Bank and later
also upon Absa
Bank. NEAWUSA failed to make payment of the costs.
[12] In
the meanwhile and in both applications, NEAWUSA filed applications
for leave to appeal, which were
dismissed. Thereafter NEAWUSA filed
applications for leave to appeal to the Supreme Court of Appeal and
condonation which applications
were dismissed by the Supreme Court of
Appeal. In both matters NEAWUSA then filed applications for leave to
appeal in the Constitutional
Court which are currently pending.
[13] The
Sheriff received payments from Standard Bank and Absa Bank in respect
of both main applications
in the amount of R 185 042.25. On 2 August
2022 the movable assets of NEAWUSA were sold by the Sheriff which
yielded a net amount
of R3 823.70. The costs recovered from the said
bank accounts held by NEAWUSA and the sale in execution failed to
cover the taxed
costs owed to the applicants in respect of both
applications.
[14] On
29 September 2022 at 15h55 a "Notice of Intention to bring an
Application to Recover Costs"
in Case number 2657/2021 was
delivered to the attorneys of record acting on behalf of Thusa Mills
being Symington & De Kok
Attorneys, Bloemfontein. Simultaneously,
a similar notice was delivered in Case Number 2721/2021. On 13
October 2022 LFC Milling
and Thusa Mills delivered their notices of
intention to oppose these applications and on 2 November 2022 they
filed their opposing
affidavits in respect of both applications. No
replying affidavits were filed and these applications were enrolled
by LFC Milling
and Thusa Mills to be heard on 1 December 2022.
[15] On
1 December 2022 Boonzaaier AJ granted the following order in both
applications:
"1. The matter is
postponed to 9 February 2023;
2.
The
second applicant shall obtain legal representation and file replying
affidavit and heads timeously;
3.
Costs
shall stand over to be argued on 9 February 2023."
[16] It
is apposite to mention that in both the applications to recover
costs, the same heading and case
numbers were used as per the initial
main applications. LFC Milling and Thusa Mills appeared as applicants
and NEAWUSA and the
other parties as respondents. This evidently
created numerous problems when the subsequent orders were issued in
respect of both
applications. However, the applicant in the
applications to recover costs is NEAWUSA. It is obvious that
Boonzaaier AJ referred
to T Lenepa N.O. (the second respondent in
both applications) who, as placed on record by Mr Louw, appeared in
court before Boonzaaier
AJ, as the "second applicant".
[17] On
9 February 2023 both applications were on the unopposed motion court
roll following the postponement
thereof by Boonzaaier AJ on 1
December 2022. Mr Sebola appeared on behalf of NEAWUSA and Mr Louw
appeared on behalf of Thusa Milling
and LFC Milling. Subsequent to
hearing arguments on behalf of the parties, Mr Louw specifically
requested orders in respect of
both matters for the dismissal of the
applications for the recovery of costs, with costs. In both
applications such orders were
granted.
[18] It
appeared that the orders issued by this court on 9 February 2023 in
both applications, contained
an ambiguity, error or omission in that
the orders granted in court and the typed orders reflected that the
"application is
dismissed with costs" while the orders
should have read that the application in both matters by the "first
respondent"
is dismissed with costs. On 21 April 2023 the orders
in both matters were varied in terms of the provisions of Rule
42(1)(b) to
read as such.
[19]
In
Melane v
Santam Insurance Co Ltd
[1]
the
court in dealing with the issue of whether or not sufficient cause
had been shown for condonation for the non compliance
with the
court rules of a petition that was late held as follows:
"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 factors 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 only serve 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."
[2]
[20]
What
is completely absent from the explanation provided by NEAWUSA is the
particularity as to what occurred from 9 February 2023,
when counsel
represented NEAWUSA in court when the orders where delivered in both
matters, until 2
March 2023
and in
the
period from
10
March
2023 until
14 March
2023.
Mr
Louw referred to
Mnyandu
and others v Engineering Utilities and Installations Eastern Cape
(Pty) Ltd and others
[3]
and
argued that the facts of the
Mnyandu-case
has
striking similarities to the matters at hand. The applicants in the
Mnyandu
matter
were legally represented in court on the day Maya J (as she then was)
discharged interim relief with costs. A while after
expiry of the
15-day period the applicants sought condonation and leave to appeal
against the order. The explanation for the delay
was that the
attorney initially had no instructions. Later they learnt that the
respondents were taking steps
to
tax
a
bill
of
costs
against
them.
Only
then
were
the
applicants
"... galvanized into action by the threatened bill of costs and
had not otherwise intended to contest the order.
This explanation is,
in my view, far from satisfactory."
[21] NEAWUSA
does not allege that it was not informed about the orders granted on
9 February 2023.
It is evident that NEAWUSA did not contemplate any
application for leave to appeal until such time as the bill of costs
in both
matters were received. This court has a discretion in
granting condonation upon exercising same judiciously. An application
for
condonation is not a mere formality. The test is whether it is in
the interests of justice to grant condonation. I am not convinced
that NEAWUSA showed sufficient cause warranting the exercise of this
court's discretion condoning the late lodging of the application
for
leave to appeal
[22] In
respect of the prospects of success of appeal, Mr Sebola argued that
there was no application
before the court on 9 February 2023. The
process that served before the court was merely a "complaint"
served upon Thuso
Mills and LFC Milling to notify them of an
intention to bring an application to recover costs. On behalf of
NEAWUSA it was argued
that the "complaint" before court did
not comply with the provisions of rules 6(4) and 6(5)(a) in that such
applications
must be brought on notice of motion as near as may be in
accordance with Form 2(a) of the First Schedule and true copies of
the
notice, and all annexures thereto, must be served upon every
party to whom notice thereof is to be given.
[23]
I agree with the submissions by Mr Louw that Mr Sebola refrained from
dealing with the provisions of Rule
6(11) regarding interlocutory and
other applications incidental to pending proceedings which may be
brought on notice supported
by such affidavits as the case may
require. Given the pending appeals, the issue of costs remained
pending and was incidental to
the applications in respect whereof the
appeal had been lodged. When Mr Lenepa appeared on 1 December 2022 he
indicated to the
court that NEAWUSA wished to file a replying
affidavit in respect of both matters and therefore requested a
postponement. The postponement
and leave to file a replying affidavit
was granted by Boonzaaier AJ. However, no replying affidavits were
filed.
[24]
The
applications by NEAWUSA are fatally defective because it is not
supported by an affidavit as to the facts upon which the applicants
rely for the relief and contains various other fatalities and
defects. Notwithstanding the fact that the applications delivered
upon Thuso Mills and LFC Milling were defective, they were entitled
to file their answering affidavits in opposition to the relief
claimed by NEAWUSA.
[25]
The legislation dealing with the circumstances upon which
leave to appeal may be granted is set out in
section 17(1)
of the
Superior Courts Act 10 of 2013
which provides as follows:
"Leave to appeal may
only
be given where the judge or judges concerned are of the
opinion that-
(a)(i) the appeal
would
have a reasonable prospect of success; or
(ii) there is
some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter
under consideration:
[Emphasis added]
[26]
In applications of this nature, the test which was applied
previously, was
whether there were reasonable prospects that another
court
"may"
come to
a different conclusion.
[4]
What
emerges from
section 17(1)
is that the threshold to grant a party
leave to appeal has been raised. It is now only granted in the
circumstances
set
out
and
is deduced
from the
words
'only'
used
in the
said
section.
[5]
[27]
I
have seriously considered the submissions made on behalf of the
parties, reconsidered the applications that served before me on
9
February 2023 and the orders granted and have come to the conclusion
that the arguments raised on behalf of NEAWUSA are without
merit. I
have taken into consideration the reasons for the delay in bringing
the application for leave to appeal and I have considered
whether the
appeal would have reasonable prospects of success. I am convinced
that, there being no true reasonable explanation
for the delay and
the lack of reasonable prospects of success, leave to appeal should
be refused.
[28]
I
therefore make the following orders in respect of Case number
2657/2021 and Case number 2721/2021:
1. The
application for leave to appeal is dismissed with costs.
VAN
RHYN, J
Counsel
for the Applicant:
Adv.
M S SEBOLA
Instructed
by:
NEAWUSA
Bloemfontein
Counsel
for Respondent:
Adv.
M LOUW
Instructed
by:
Symington
& De Kok Attorneys
Bloemfontein
[1]
1962 (4) SA 531
(A).
[2]
Melane v Santam Insurance
(supra)
at 532
C-F.
[3]
[2001] JOL 9216 (Tk).
[4]
Commissioner of lnland Revenue
v Tuck
1989 (4) SA 888
(T) at 890.
[5]
The Mont Chevaux Trust v Tina Goosen & 18 Others 2014 JDR 2325
(LCC) at para [6].