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[2022] ZAFSHC 216
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Centlec (SOC) Limited v Nkomo (724/2022) [2022] ZAFSHC 216; (2022) 43 ILJ 2883 (FSB) (29 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:724/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
CENTLEC
(SOC) LIMITED
Applicant
And
HLONELWA
NKOMO
Respondent
HEARD
ON:
02
JUNE 2022
JUDGMENT
DANSO,
J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by email and by release to SAFLII. The
date
and time for hand-down is deemed to be 14H00 on 29 August 2022
[1]
In this opposed application, Part B, the applicant (Centlec) seeks a
declaratory order
that the parties’ employment relationship has
been terminated on mutual basis pursuant to the settlement agreement
concluded
by the parties on 18 October 2021.
[2]
The pertinent facts of this matter are generally of common cause: On
1 July 2021 the
applicant (Centlec) appointed the respondent as its
Chief Executive Officer (CFO) for a
period of 5 years. Barely a month after the respondent assumed her
duties, Centlec discovered
that the respondent had a pending criminal
case,
an outstanding warrant of arrest for failing to appear
at a criminal court
and a civil
judgment for an unpaid debt which rendered her ineligible to be
appointed as a CFO. Centlec’s
investigations further
revealed that the respondent had also falsified a letter and
transmitted it to the Sheriff as if it emanated
from her creditor’s
attorneys in which she instructed the Sheriff to release her goods
which were attached by the Sheriff
for the satisfaction of a judgment
debt as a result, on 16 August 2021 Centlec
instituted
disciplinary proceedings against the respondent for misconduct.
[3]
Shortly thereafter, the parties concluded a settlement agreement in
terms of which
Centlec essentially abandoned the disciplinary
proceedings against the respondent and the respondent undertook to
resign from her
employment.
[1]
[4]
The material terms of the settlement agreement are the following:
“
1…
2.
The parties agree that, the Employer will pay Ms Nkomo a without
admission of liability three
(3) months equivalent pay for settlement
purposes and in order to reach finality and certainty, in this
matter.
3.
Ms Nkomo has agreed to formally resign at the end of November 2021.
However, the parties
agree that during this aforesaid period of
November 2021, Ms Nkomo will not attend to the offices of the
Employer.
4.
Thereafter, subsequent to the lapsing of the November period, the
Employer/Employee relationship
will be considered amicably terminated
and the Employer would then pay Ms Nkomo a salary equivalent to two
(2) months.
5.
Ms Nkomo has agreed to return to the Employer by no later than
Thursday, 28 October 2021
all property, including the laptop,
belonging to the Employer.
6.
The Employer will allow Ms Nkomo to collect her furniture that she
brought into the office
being the micro wave, kettle, cups any
further items not belonging to Centlec on the 28
th
of
October 2021.
7.
The employer has agreed to withdraw criminal charges against Ms Nkomo
within 24 hours of
compliance with paragraph 5. And same shall be
sent by the 29
th
October 2021 via email to
emmanuel@blairattorneys.co.za.
8.
The employer has agreed to furnish Ms Nkomo with a letter of good
standing by the 28
th
of October 2021.
9.
Subject to paragraph 3, above the parties agree that they will issue
a joint statement stating
that all charges have been dropped and the
employee is returning to work by the 28
th
of October 2021.
Thereafter the period mentioned in paragraph 3 the employee will
issue a statement stating her resignation on
an amicable basis on
which both parties will agree on prior.
10
.
…”
[5]
On 25 February 2022, approximately four months after the settlement
was concluded
Centlec launched an urgent application in this court
seeking an interdict (Part A) to prohibit the respondent from
accessing and
entering Centles’s premises and from resuming her
functions as an employee or passing herself as a Centlec’s
employee
pending the hearing of this declaratory relief (Part B) in
due course.
[6]
The urgent application served before me and it was premised on the
grounds that despite
having agreed to resign from her employment by
the end of November 2021 as provided for in the settlement agreement,
clause 3 therein,
the respondent has failed to do so instead on 15
February 2022 she presented herself at Centlec’s premises and
insisted on
performing the duties of an CFO.
[7]
Centlec stated that the respondent’s appearance at its premises
was preceded
by a series of correspondences from her attorneys
alleging that Centlec had breached the terms of the settlement
agreement by failing
to pay the respondent, to withdraw the criminal
case/s and provide her with a letter of good standing as agreed
therefore the settlement
was null and void, the respondent was thus
entitled to resume her duties as a CFO as she had not resigned and
this is despite the
fact that Centlec had duly performed its
obligations in terms of the settlement agreement. It had allowed her
to collect her personal
belongings from its premises, paid her the
amounts due, withdrew the criminal case it has lodged against her and
also furnished
her with a letter of good standing. See clause 6 to 8
of the settlement agreement.
[8]
The respondent appeared in person and sought a postponement for the
purpose of appointing
a legal representative to assist her. She
explained that she could not instruct an attorney prior to the
hearing due to lack of
funds she only received the application on
Saturday, 19 February 2022 and the copies were illegible in any
event.
[9]
The application for a postponement was opposed. It was Centlec’s
contention
that there was no merit to the respondent’s reasons
for requesting a postponement, at all material times hereto she was
legally
represented and it was as a result of the instructions that
she gave to her attorneys that she reneged on the terms of the
settlement
of the settlement agreement and insisted on returning to
her position as the CFO.
[2]
It
was also not correct that she only received the application on 19
February 2022 as the application was served by the Sheriff
at her
residence on 18 February 2022
[3]
another copy was served on her attorneys and they acknowledged
receipt in that regard.
[10]
It was also argued by counsel for Centlec, Mr Sibeko that the papers
were in fact served in terms
of the court rules despite the urgency
of the matter, the respondent was provided with at least five days to
oppose the application.
Centlec would be prejudiced if the order is
not granted as the CFO’s responsibilities involve the overall
management of finances
and other resources of Centlec’s
business, the respondent’s dishonest conduct places Centlec at
risk of not being able
to comply with its obligations in terms of
transparency and accountability. There is also a real risk that in
passing herself off
as the current CFO, Centlec’s staff members
of about 703 in total and third parties will interact with the
respondent on
the mistaken belief that she is an employee of the
Centlec to the prejudice of Centlec’s assets, finances and
effective management.
[11]
Having considered the papers filed herewith and the submissions made
by the respective parties,
I was not persuaded that the respondent
had made out a case entitling her to a postponement but that the
matter was indeed urgent
and Centlec could not be afforded
substantial redress if it had to follow the normal course laid down
by the rules of court. I
accordingly granted a
rule nisi
returnable on 25 March 2022.
[12]
On the return date the
rule nisi
was confirmed by Reinders
ADJP on the following terms:
“
1.
The respondent’s application for a postponement is hereby
dismissed.
2.
The rule nisi granted on 5 (sic) February 2022 is hereby confirmed.
3.
The respondent is hereby directed to deliver her notice of intention
to oppose Part B of
the application no later than 1 April 2022 and to
file her answering papers by no later than 28 April 2022.
4.
The applicant to file its replying affidavit (if any) by no later
than 12 May 2022.
5.
The parties shall deliver their respective heads of argument in terms
of the directives of
this division.
6.
The matter shall be set down for hearing on 2 June 2022.”
[13]
The respondent’s answering affidavit, in addition to the merits
raises points
in limine
disputing the authority of the
deponent of Centlec’s founding affidavit to act on behalf of
Centlec. The objection is premised
on the grounds that Centlec is a
company but no resolution has been attached to its founding affidavit
as proof that its deponent
has the necessary authority to act on its
behalf. The respondent also disputes the jurisdiction of this court
to entertain this
matter. It is her contention that this matter
involves a labour dispute which can only be adjudicated by a labour
court.
[14]
Before turning to the
issues to be considered in this application, there is a condonation
application that needs to be addressed.
The
respondent’s answering affidavit and the head of arguments were
delivered out of the time period prescribed in the order
by Reinders
ADJP. The answering affidavit was filed approximately 23 days out of
time and the heads of argument were filed three
days late.
[15]
It is the respondent’s case
that at all material times hereto she was represented by attorneys as
a result she was under the
impression that they had filed the
answering affidavit, the heads of argument and the
rule 7(1)
notice
on her behalf. She states
that her attorneys informed her
on 21 March 2022 that if she
cannot pay their fees they will not assist her they ultimately
withdrew as her attorneys of record
on Monday 30 May 2022 and it was only then that she realized
that the said papers were not filed. It is her submission that
Centlec
is not prejudiced by the
late filing and she has good merits in the main application.
[16]
The applicant opposed the application for condonation on the grounds
that the respondent’s
explanation for the delay
in
filing her papers is not reasonable and also not bona fide.
[17]
According to Mr Sibeko, the respondent is not a clueless litigant so
far she has appeared in
this court on at least three different
occasions in person having drafted and filed comprehensive papers
which contain extensive
legal arguments supported by legal
authorities including the papers that she filed in the labour court
therefore, she could have
very well drafted the answering affidavit
herself.
[18]
It is trite that c
ondonation
cannot be had for the mere asking. It is an indulgence granted by the
court upon a consideration of whether good cause
has been shown for
the failure to comply with the court rules. In the exercise of its
discretion whether to condone the non-compliance
or not, the court
takes into account all the relevant factors which have a bearing on
fairness and equity to both sides including
the degree of lateness,
the explanation provided for the delay, the prospects of success on
the merits of the application and the
respondent’s interest in
the finality of the matter. For that reason, the onus is on the
respondent to provide a full, detailed
and accurate account of the
cause of the delay and this is to enable the court to understand how
it came about.
[4]
[19]
The respondent’s explanation for the delay does not constitute
a sufficient cause to warrant
the court’s indulgence.
Particularly in relation to the answering affidavit, the delay of
over 20 days is extreme. On her
own submission, she was first
informed by her erstwhile attorneys on 21 March 2022, approximately a
month before the answering
affidavit was due that they will no longer
be representing her due to non-payment. On 25 March 2022 when the
order was made regarding
the filing of the answering affidavit she
was represented by an attorney who thereafter filed a notice in terms
of rule 35(12)
on her behalf.
[20]
There is no explanation why she did not instruct her attorneys to
also file the answering affidavit
at that time, except to state that
when the attorneys formally withdrew as attorney of record on 30 May
2022 she was under the
impression that the required documents were
filed. There is no explanation as to what she did from the day of the
order to ensure
that the answering affidavit and the heads of
argument were filed. The respondent is the litigant not her legal
representatives,
she waited for the whole two months and two days
before the day of the hearing and filed an answering affidavit
running in length
to 736 pages including legal authorities. The
respondent has neglected her obligations as a litigant in this
regard.
[22]
The respondent’s lack of funds to procure legal representation
is also
not a
sufficient explanation of delay under these circumstances.
She
does not explain why if she deemed it necessary to be legally
represented she did not consult the Legal Aid offices. She instead
elected to conduct self-representation throughout all the court
appearances where I must say, that she eloquently presented arguments
after having filed voluminous opposing papers supported by extensive
legal authorities.
[23]
No basis whatsoever
has been set out for absence of prejudice to Centlec, except to
fleetingly assert that the
Centlec is not prejudiced by the late answering affidavit and the
heads of argument, the respondent does
not explain why she is of the
view that Centlec is not prejudiced by being deprived of its right to
reply to her belated opposing
papers.
[24]
The respondent’s prospects of success in the main application
are also slim, considering
the fact that the settlement agreement
which is a subject of this application and the circumstances under
which it was concluded
are not in dispute.
[25]
The matter does appear to be important to the parties.
I’m
also of the view that it would be i
n the interests of justice
and also of Centlec that the late filing of the opposing papers is
condoned for the matter to be heard
and
advanced
to finality.
[26]
Regarding the respondents’
in
limine
objections, there is no merit to the respondent’s objection to
the authority of Centlec’s representative to depose
to the
founding affidavit or to act on behalf of Centlec. It is now settled
law that a remedy for a respondent who wishes to challenge
the
authority of a person allegedly acting on behalf of an applicant
(legal entity) is now provided for in Rule 7(1) of the Uniform
Rules
of court.
[5]
[27]
Rule 7 states thus:
“
Power
of attorney
:
(1)
Subject to the provisions of
subrules (2) and (3) a power of attorney to act need not be filed,
but the authority of anyone acting
on behalf of a party may, within
10 days after it has come to the notice of a party that such person
is so acting, or with the
leave of the court on good cause shown at
any time before judgment, be disputed, whereafter such person may no
longer act unless
he satisfied the court that he is authorised so to
act, and to enable him to do so the court may postpone the hearing of
the action
or application.”
[28]
It is common cause that the respondent’s notice in that regard
was only filed on 31 May
2022 well out of the time prescribed by the
rule. No condonation was sought for the late filing,
consequently there is no
proper objection to authority before this
Court.
[29]
Similarly, the objection against this court’s jurisdiction to
entertain this matter is
unsustainable. The relief sought by Centlec
is essentially a declaratory order that Centlec has performed its
obligations in terms
of the settlement agreement therefore the
respondent is bound by the terms of the settlement as a result, her
employment with Centlec
has been terminated.
[30]
In my view, what is at issue here is Centlec’s contractual
right to enforce the agreement
which was meant to put the disputes
between the parties to bed and for the parties to part ways. In any
case, the High Court enjoys
concurrent jurisdiction with the Labour
Court in respect of claims arising from labour disputes. The
locus
classicus
on this issue is
Baloyi
v Public Protector and Others.
[6]
Here,
the Court quoting with approval
Gcaba
v Minister for Safety and Security
[7]
said the following:
“
In
sum, the mere fact that a dispute is located in the realm of labour
and employment does not exclude the jurisdiction of the High
Court.”
“
[T]he
LRA does not intend to destroy causes of action or remedies and
section 157 should not be interpreted to do so. Where
a remedy
lies in the High Court, section 157(2) cannot be read to mean
that it no longer lies there and should not be read
to mean as much.
. . . If only the Labour Court could deal with disputes
arising out of all employment relations, remedies
would be wiped out,
because the Labour Court (being a creature of statute with only
selected remedies and powers) does not have
the power to deal with
the common-law or other statutory remedies.”
[31]
In now turn to the merits of the application. A settlement agreement
imposes reciprocal obligations.
The issue that arise in this
application is whether Centlec has fulfilled its obligations in terms
of the settlement agreement
which would entitle it to call upon the
respondent’s co-operation namely, to vacate her employment.
[32]
In her answering affidavit, the respondent contends that Centlec has
breached the terms of the
settlement agreement by failing to pay her
as agreed, to withdraw the criminal charges Centlec laid against her
and to issue a
statement “which clears” her of all
charges therefore she is not obliged to comply with the terms of the
settlement
agreement by resigning.
[33]
The disputed facts can easily be resolved on the papers as the
respondent’s averments are
not genuine and they are also not
bona fide for the reason that, the respondent has provided varying
and inconsistent reasons why
she is not obligated to fulfil her
obligations.
[34]
In a series of correspondences transmitted to Centlec by her
attorneys from about 24 January
2022 to 15 February 2022
[8]
she maintains that because she had not received any payment from
Centlec, she was not provided with the letter of good standing,
Centlec failed to provide her with a draft of the statement clearing
her of wrong doing and to also release that statement she
was thus
entitled to retain her employment as the settlement agreement is null
and void.
[35]
The relevant clauses for the Centlec’s obligations are clause
2, 4, 6, 7 and 8 of the settlement
agreement.
[36]
In terms of clause 2, Centlec undertook to pay the respondent “three
(3) months equivalent
pay”. The allegations regarding Centlec’s
failure to pay the respondent as agreed are countered by the
respondent’s
own version of the events regarding the payment
issue.
[37]
On 26 November 2021 approximately two months before her attorneys
wrote to Centlec complaining
about non-payment, the respondent sent
an email to Centlec
[9]
stating
that she had been paid for the months October 2021 and November 2021.
Her gripe was merely in relation to the amounts,
that she was short
paid. Inexplicably, in the next month, on 18 December 2021 the
respondent wrote to Centlec stating that she
had been overpaid with
an amount of R62 584.81. Again on her own version, she paid back
the said amount to Centlec.
[10]
As correctly pointed out by, Mr Sibeko, it does not make sense to
complain about being unpaid or even short paid then on the other
hand
complain about being overpaid.
[38]
Clause 4 begins with “Thereafter…” and clearly
states that the respondent
will be paid further payments equivalent
to two months “subsequent to the lapsing of the November
period…” therefore,
Centlec’s obligation is
reciprocal to the respondent’s obligation namely, to resign at
the end of November 2021.
[39]
It is undisputed that the November period refers to the date on which
the respondent undertook
to resign (clause 3 of the settlement
agreement). Centlec has made the payment despite the fact that the
respondent has not resigned,
see annexure “CNT28” to
“CNT30” as copies of the salary slips in that regard.
[40]
In terms of clause 6, 7 and 8. Centlec was required to allow the
respondent to collect her personal
belongings from its premises, to
withdraw the criminal charge it laid against her upon her returning
Centlec’s laptop and
to also furnish her with a letter of good
standing.
[41]
The respondent does not dispute that she has collected her personal
belongings and that on 28
October 2021 proof of withdrawal of the
charge and the letter of good standing was furnished to her erstwhile
attorneys of record.
[42]
With regard to the withdrawal of the charges, she insists that
Centlec has not complied because
not all the charges instituted
against her were withdrawn instead more charges were lodged even
after court proceedings were instituted
against her. Clause 7
states clearly that the charge that will be withdrawn is the charge
relating to the theft of the laptop
and on condition that that she
has returned it as stated in clause 5. The contention that
Centlec was required to withdraw
all the criminal cases is
fallacious.
[43]
In conclusion, I’m of the view that Centlec has complied with
its obligations in terms
of the settlement agreement. The obligation
to release a press statement falls squarely on both Centlec and the
respondent and
pursuant to the respondent’s resignation.
[44]
I have consequently arrived at the conclusion that the application
ought to succeed.
There
is no reason why the costs should not follow the result, the
respondent shall therefore bear
the costs herein.
[45]
In the premises, the following order is granted
:
1.
The application for condonation for the
late filing of the respondent’s answering affidavit and the
heads of argument is granted.
2.
It is declared the respondent’s
employment contract concluded between the parties on 1 June 2021 has
been terminated as provided
for in the settlement agreement concluded
between the parties on 18 October 2021 in terms of which they
mutually agreed to terminate
their employment relationship.
3.
The respondent shall pay the costs of
this application (Part B) including the costs in respect of Part A
and the costs of the application
for a postponement heard on 25 March
2022.
NS
DANISO, J
APPEARANCES:
Counsel
on behalf of Applicant:
Adv.
L.T Sibeko SC
Instructed
by:
Tshangana & Associates
INC
BLOEMFONTEIN
Counsel
on behalf Respondent:
Respondent
appears in person
[1]
See in this regard, Annexure “CNT3” of the applicant’s
founding affidavit.
[2]
Annexure “CN35” of the applicant’s founding
affidavit is a letter addressed to the respondent’s attorneys
on 15 February 2022 reacting to the respondent’s presence at
Centlec’s premises stating that Centlec will be laying
trespassing charges and also launching a court application against
the respondent as she was no longer entitled to report for
duty at
their premises.
[3]
Page 136 of the applicant’s bundle is a copy of the Sheriff’s
return of service in that regard.
[4]
United
Plant Hire (Pty) Ltd v Hills and others
1976
(1) SA 717
(A)
page 720 para E-G;
Uitenhage
Transitional Local Council v South African Revenue Service
2004
(1) SA 292
(SCA) para 6.
[5]
Eskom
v Soweto City Council
1992
(2) SA 703
(W);
Ganes
v Telecom Namibia Ltd
2004
(4) SA 615
(SCA) at 624I – 625A;
Unlawful
Occupiers, School Site v City of Johannesburg
2005
(4) SA 199 (SCA).
[6]
[2020]
ZACC 27
at Para 45.
[7]
[
2009]
ZACC 26
;
2010
(1) SA 238
(CC);
2010
(1) BCLR 35
(CC)
[8]
Annexures “CNT33” to “CNT36”.
[9]
Annexure “CHN28” of the respondent’s answering
affidavit.
[10]
See in this regard Annexure “CHN28.1” of her answering
affidavit.