Glansbeek v JDG Trading (Pty) Ltd (JA76/97) [1998] ZALAC 17 (13 February 1998)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
1998
>>
[1998] ZALAC 17
|

|

Glansbeek v JDG Trading (Pty) Ltd (JA76/97) [1998] ZALAC 17 (13 February 1998)

IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
Case no: JA76/97
In the matter
between:
D W
GLANSBEEK Appellant
and
J D G TRADING (PTY)
LTD Respondent
JUDGMENT
[1] On 29 August 1997 a
notice of appeal was lodged in this matter. The notice of appeal was
defective in content. It was also out
of time. The record of the
proceedings in the industrial court and the prescribed form was then
delivered on 13 October 1997, also
out of time. On that day the
registrar gave notice to the appellant’s attorneys that the appeal
had been set down for hearing
on 9 February 1998, that appellant’s
heads of argument had to be served and filed on or before 1 December
1997 and respondent’s
heads by 15 December 1997. On 24 November
1997 respondent’s attorneys wrote to appellant’s attorneys
informing them that the
notice of appeal was late and did not comply
with the rules of court. On 9 December 1997 they were similarly
informed that appellant’s
heads of argument had not been filed. On
12 December 1997 the respondent’s heads of argument were served and
filed. On the same
day respondent’s attorneys filed and served a
notice of motion asking that the appeal be struck off the roll
because of the defective
notice of appeal. The appellant’s heads
were eventually served and filed on 18 December 1997. On 22 December
1997 a notice of
motion was served and filed by the appellant’s
attorneys, seeking condonation for the late noting of the appeal,
leave to amend
the notice of appeal, condonation for the late filing
of the record of the proceedings and the prescribed form,
reinstatement of
the appeal, condonation for the late filing of the
heads of argument, and leave to lead further evidence on appeal, said
to be relevant
to the question of compensation.
[2] Affidavits in
support of the various applications give no, or little, explanation
for these remarkable failures to comply with
court procedures. An
examination reveals the following.
[3] Appellant’s
excuse for, inter alia, the late noting of appeal is that he knew
nothing of the prescribed rules and left everything
in the hands of
the industrial relations consultant who represented him in the
industrial court. Approximately a week after he signed
the notice of
appeal, he says, the consultant, Mr Daniels, informed him that the
appeal was noted late and advised him to consult
an attorney.
Daniels himself did not make an affidavit to explain why the appeal
was noted late. There is no explanation why such
affidavit was not
forthcoming. One therefore simply does not know the reason for the
late noting of the appeal. If the appellant
wishes to lay blame on
Daniels he must at least make an effort to substantiate his averment
to that effect. This has not been done.
[4] There is no
explanation for the defective notice of appeal.
[5] The appellant’s
attorney made an affidavit in which she explained why the record and
prescribed form was filed late, viz. that
she was wrongly informed
that it had to be done in Pretoria, rather than at the registrar of
this court in Johannesburg. This explanation
may be a reasonable
one.
[6] The same cannot be
said for her explanation why she did not realise the appellant’s
heads had to be served and filed by 1 December
1997. She admits that
she received the notice of the registrar to that effect timeously,
but entered the date on her diary as 15
December 1997. She candidly
says that she cannot give a reason for this, except that she must
have “misread” the telefax. She
only realised her mistake when
telephoned by the respondent’s attorney on 8 December 1997. She
does not say that on becoming aware
of this she informed counsel of
the fact that the heads were late. Counsel indicated from the bar
that he was told, which makes his
failure to complete the heads
expeditiously even less acceptable.
[7] Counsel’s
further explanation for not delivering the heads on 15 December 1997
is equally unsatisfactory. He said he planned
to work on them
between 8 and 13 December 1997, but was precluded from doing so
because he accepted a later brief to draw a petition
for leave to
appeal which had to be delivered by courier to Bloemfontein on 13
December 1997. He says he could not refuse this brief
because of his
earlier involvement in that matter in the labour appeal court.
Apparently he anticipated that one day would be sufficient
time to
complete the appellant’s heads. On 14 December 1997, however,
because his computer malfunctioned, he was unable to do
so. He had
that particular problem seen to on 15 December 1997, but then a
difficulty with the tab key of the computer caused further
delays.
One must assume that these problems persisted for another two days,
because he only completed his heads on 18 December 1997.
Why he
could not take other steps to have the heads typed by his attorney or
someone else is not explained at all.
[8] There is no
explanation why the various applications were only brought on 22
December 1997 and not earlier.
[9] The conduct of the
appellant’s attorney and counsel fell short of what I consider to
be reasonable standards for their respective
professions.
[10] The appellant’s
explanation for not leading the evidence he now seeks to introduce is
to once again blame the unfortunate Daniels.
He goes so far as to
state that it is in the public’s interest that “ this court
should rally to rescue lay litigants who entrust
their matters to
industrial relations consultants who, by oversight, fail to present
evidence on trial”. Daniels may, or may not,
be to blame for not
leading the evidence, but on the papers in the application no proper
basis is laid for an acceptance that he
is, in fact, to blame. The
appellant says so, but Daniels does not confirm it. That difficulty
may have been overcome if efforts
were made to obtain an affidavit
from him, but that he refused. As stated earlier there is no
evidence of this at all. In any event,
before appellant makes
possibly unfounded allegations about Mr Daniels, it behoves him to
explain why he chose Mr Daniels as his
representative and why he
should not accept responsibility for doing so. On that issue he
remained silent.
[11] It is trite law
that a requirement for any condonation for non-compliance of the
rules is an explanation for that non-compliance.
I do not consider
that there is any explanation for the non-compliance in respect of
the late noting of an appeal and the defective
notice of appeal
itself. I would therefore dismiss the application for condonation of
the late noting of the appeal, the application
for leave to amend the
notice of appeal and the application for the reinstatement of the
appeal for this reason alone. In that event
there is no appeal
before us and the necessity for dealing in detail with the other
applications falls away. In consequence they
should also be
dismissed.
[12] This finding makes
it strictly unnecessary to deal with the merits of the case. I am
far from convinced, however, that the appeal,
if allowed to proceed,
would be successful.
[13] The appellant was
dismissed by the respondent on 4 August 1995. That appellant’s
post as a regional manager had become redundant
for proper commercial
reasons and that he was aware of the possibility of retrenchment
since May 1995 is not in dispute. The appellant’s
complaint was
that he should not have been compulsorily retrenched, but that he
should have been afforded an opportunity of choosing
between a
voluntary retrenchment package or a temporary lay-off scheme, similar
to the choice offered to non-managerial employees
whose posts also
became redundant. The respondent countered that he was given such a
choice, had sufficient time to make an election,
but that he
vacillated, and refused to make a decision. His failure to exercise
his choice eventually made a decision of compulsory
retrenchment
inevitable. The industrial court decided the matter in respondent’s
favour.
[14] The scheme agreed
to between the respondent and the union representing non-managerial
employees was to the effect that in the
event of restructuring there
would be no compulsory retrenchment. Employees would, in such an
event, have a choice of either accepting
a voluntary retrenchment
package or be temporarily laid-off in terms of a scheme where they
would receive reduced remuneration for
a year and be re-employed if
employment opportunities arose within that year. In this particular
instance they had to exercise the
option of voluntary retrenchment in
writing by 15 June 1995. Failure to do so resulted in automatic
temporary lay-off in terms of
the scheme agreed to.
[15] The appellant was
not a union member, but the respondent’s officials testified that
they used the agreement as a guideline
in their dealings with
managerial employees as well. After being told of the restructuring
in May 1995 the appellant assisted in
this exercise at the
respondent’s Randfontein premises and on 16 June 1995 ( a day after
the deadline) he had consultations with
the human resources manager
of the respondent, Mr McCulloch, to try and sort out his own
situation. This became necessary because
he had been unable to do so
with his superior, Mr. Mackay. These consultations failed because
neither McCulloch nor Mackay could
give the appellant a final answer
on the issue relating to the shares he purchased in the company in
terms of an agreement between
himself and the JD Group Limited Share
Incentive Trust ( “the trust” ). The appellant considered
finality on the share issue
as crucial to an informed decision on his
part on the choices available to him. After 15 June 1995 it was
unreasonable to assume
that automatic lay-off was still a possibility
- it was now a straightforward choice between retrenchment and
lay-off.
[16] It is not
necessary, for the purposes of this judgment, to set out in any
detail the provisions of the agreement with the trust
with regard to
the purchase of the shares in the company by the appellant. Suffice
it to say that it would have been to the substantial
benefit of the
appellant if he had been able to pay the full purchase price of the
total amount of shares which he was entitled to
buy prior to the
termination of his employment or prior to December 1996.
[17] I will also
accept, without deciding the issue, that finality on the issue
whether and to what extent he would be allocated the
shares on
retrenchment was necessary in order that he could make an informed
election on the choices confronting him. In my view,
however,
finality on this issue was reached soon after the meeting with
McCulloch on 16 June 1995.
[18] McCulloch told
appellant that he had no mandate to deal with the share issue. He
advised appellant to see other company officials
in this regard.
Appellant did so and spoke to a Mr Mel Jaye about the shares. Jaye
apparently indicated that the trustees would
allocate the appellant
his full complement of shares on payment of the outstanding purchase
price of R17 000. On 23 June 1995,
however, Jaye wrote a letter to
the appellant in the following terms:
“
This
serves to confirm that the trustees of the above mentioned trust have
determined that fully paid ordinary shares in JD Group
Limited in
settlement of the amount paid in by you in reduction of your loan
account in the books of the trust, shall be transferred
from the
Trust to your own name.
Accordingly, we enclose herewith share
certificate number 18274 for 4200 ordinary shares in JD Group Limited
registered in your name.”
Appellant admitted in evidence that he had
received this letter on 23 June 1995. On the face of it, therefore,
the appellant’s request
for finality on the share issue had been
met by the respondent, insofar as it was able to do so, by 23 June
1995. Nothing further
prevented him from exercising the choice he
says he was entitled to.
[19] Three reasons may
be advanced why this letter did not dispose of the objection raised
by the appellant about the shares. The
first is that a copy of the
resolution of the trustees to make the necessary allocation was not
enclosed in the letter. The second
is that the trustee’s decision
was based on the fact that appellant’s employment with the
respondent had been terminated by
23 June 1995, which, in fact, was
not the case. The third is that the appellant handed a cheque of R17
000 to Jaye on 27 June 1995
in payment of the outstanding purchase
price for the remaining shares and that he was thus entitled to his
full complement of shares.
[20] It was not
necessary for the respondent to attach a copy of the trustees’
resolution to Jaye’s letter. The appellant could
have dealt
directly with the trustees and, strictly speaking, this is the course
he should have followed.
[21] If the trustees’
decision was based on a misconception of the true facts relating to
the termination of his employment, the
appellant’s remedy lay
against them and the trust, not the respondent. The respondent was
requested to obtain a final decision
from the trustees on the share
issue, but the decision was that of the trustees, not the respondent.
In any event, the trustees’
decision clearly indicated to the
appellant what would happen if he opted for retrenchment and not for
the temporary lay-off. This
was the information he sought to make an
informed decision. He nevertheless still refused to make a decision.
[22] The fact that
appellant handed a cheque to Jaye on 27 June 1995 did not change
matters. The cheque was never deposited. By
27 June 1995 the
trustees had already made their decision. Jaye could not change the
decision, nor could the respondent itself.
Only the trustees could,
and there is no evidence that the appellant at any stage asked them
to do so, nor is there any evidence
that appellant requested the
respondent’s officials to make representations to the trustees to
change their decision.
[23] It follows that by
23 June 1995 the appellant knew what his position was in regard to
the shares. If he was dissatisfied with
the decision it was open to
him to challenge the trustees’ decision on legal grounds, or make
representations to them in order
to convince them to change their
minds, or ask respondent’s officials to do so on his behalf. He
did nothing of the sort. He
did not tell the respondent that he
needed further time to make his election because he wanted to take
the matter up again with the
trustees. Instead, he sat tight,
refusing to make a choice. It is true that it might have been better
for the respondent to have
given the appellant a further ultimatum to
make his final choice, but this factor should be weighed up against
the unreasonable delay
by the appellant, his failure to request
further time to consider his options, and the fact that by delaying
his choice he was, in
effect, forcing the respondent to pay him a
salary while still employed, in addition to his eventual retrenchment
package.
[24] Under those
circumstances it was not unreasonable that the respondent decided to
make up its own mind. Despite appellant’s
evidence to the contrary,
I am not convinced at all that he would have accepted an alternative
position at the J D Export plant if
that had been offered to him.
His evidence is that he required a properly mandated offer to be made
to him. Mackay’s evidence
was that he was told that Van Tonder,
who made the offer, had the necessary authority. The matter was not
taken further. It seems
that the most likely reason for this was
that appellant considered the position as too onerous and tenuous in
nature.
[25] The commercial
rationale for retrenchment was thus established. The dismissal on 4
August was not unfair, nor was the retrenchment
package unreasonable.
The appeal would have been unsuccessful.
[26] Mr Heyns, who
appeared for the respondent, did not file heads of argument on the
merits of the dismissal, because he considered
the notice of appeal
to be null and void. When the matter was called he indicated that in
the event of condonation and leave to
amend the notice of appeal
being granted, he would seek a postponement in order to deal with the
merits. That approach was not
well considered. There were several
applications for condonation of procedural lapses by the appellant.
The merits of the dismissal
were relevant to these applications in
the sense that had a reasonable explanation been given for the
lapses, the prospects of success
on appeal could have become
decisive. A deliberate decision not to deal with the prospects of
success would not have been sufficient
reason to grant a
postponement. The conclusion I have come to, however, saves Mr.
Heyns any embarrassment in this regard.
[27] In the result the
various applications, set out in appellant’s notice of application,
bearing this court’s date stamp of
22 December 1997, are dismissed
with costs.
J C FRONEMAN DJP.
I agree
J F MYBURGH JP
I agree
F KROON JA
Date of hearing: 9
February 1998
Date of judgment: 13
February 1998
Appellant’s
attorneys:Langstaffe Bird & Company
For the appellant: Mr
Wilke
For the respondent: Mr
A G Heyns
Respondent’s
Attorneys: Snyman Van Der Heever Heyns Inc
This judgment is
available on the Internet at Website:
http://www.law.wits.ac.za/labour crt.