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[2005] ZALAC 15
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Magalies Water Board v Thulare (JA 41/03) [2005] ZALAC 15 (1 January 2005)
17
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: JA 41/03
In the matter between:
MAGALIES WATER BOARD Appellant
and
PIET THULARE Respondent
JUDGMENT
Zondo JP
Introduction
[1] On the 14
th
September 2004 this Court
made an order dismissing with costs the appellant’s appeal in
this matter and indicated that reasons
would be furnished if either
party requested them. Subsequently, reasons for that order were
requested. These are they.
[2] This is an appeal from an order of Landman J
sitting in the Labour Court in an application which had been brought
by the present
respondent against the present appellant in terms of
which that Court made a certain arbitration award an order of that
Court in
terms of sec 158(1)(c) of the Labour Relations Act, 1995
(“
the Act
”). The award was that of a commissioner
of the Commission for Conciliation, Mediation and Arbitration (the
“
CCMA
”) which had been made pursuant to
arbitration proceedings relating to a dispute between the two parties
about the fairness
or otherwise of the dismissal of the respondent by
the appellant. Leave to appeal was granted by the Labour Court.
Before I can
deal with the merits of the appeal, it is necessary to
set out the facts.
The facts
The respondent had been employed by the appellant but
was dismissed from such employment on, or, with effect from, the
25
th
November 1997. A dispute arose between the
appellant and the respondent about the fairness of that dismissal.
Thereafter a
certain sequence of events followed which is set out
below:
On the 29
th
December 1997 the dispute was
referred to the CCMA for conciliation. Attempts at conciliation
failed and on the 27
th
January 1998 the CCMA issued a
certificate of outcome to the effect that the dispute remained
unresolved.
The dispute was thereafter referred to arbitration
under the auspices of the CCMA.
On the 14
th
July and 21
st
August 1998 the arbitration took place.
On the 5
th
October 1998 the commissioner
of the CCMA who had conducted the arbitration issued an award. In
terms of that award the commissioner
found that the dismissal was
substantively unfair but procedurally fair. The award he issued
was in the following terms:-
“
36. In the light of the conclusions and the
circumstances discussed above, I order the [the appellant] to
reinstate [the respondent]
retrospectively to 1
st
July 1998, provided that:-
36.1 he reports for duty at the [appellant’s]
premises within 14 days of this award being served on the Union;
36.2 he acknowledges in writing on his return to work
that he has received a final written warning both for failing to
obtain authorisation
for his absence from his work station on 17
th
November 1998 and for disregard of Board rules and regulations;
36.3 he acknowledges to the Board in writing on his
return to work that a copy of this award has been given and explained
to him
by the union;
36.4 the previous final warning received on 25
th
August 1998 shall continue to operate for a further three months from
the date of his return to work.
36.5 the period between the date of his dismissal and
1
st
July 1998 shall be regarded as a period
of suspension without pay.
37. Further, I order that within 14 days of his
return to work, the board shall pay [the respondent] the normal
remuneration he
would have received if he had worked ordinary hours
from 1
st
July 1998 to the date of his return
to work.”
At some stage prior to the 21
st
September
2001 – it is not clear exactly when – the appellant
launched an application in the Labour Court in
terms of sec 145 of
the Act for an order reviewing and setting aside the arbitration
award.
On the 21
st
September 2001 the Labour
Court, through Jammy AJ, dismissed the appellant’s review
application with costs.
On the 22
nd
November 2001 the respondent’s
attorney addressed a letter to the appellant’s attorney
informing him that the
respondent would be returning to work on
Monday the 3
rd
December 2001 and that the appellant
should prepare a cheque on that day for his wages for the period
from the 1
st
July 1998 to November 2001.
On the 23
rd
November 2001 the appellant’s
attorneys responded to the effect that they had been instructed to
apply for leave to
appeal against the judgment and that the
respondent should, therefore, not report for work on the 3
rd
December 2001.
On the 29
th
November 2001 the respondent’s
attorney wrote a letter to the appellant’s attorneys in
which he suggested, among
other things, that there was no basis
for the appeal that the appellant was contemplating, urged them to
deliver the appellant’s
application for leave to appeal
within the prescribed time limits and advised that, if the
appellant’s application
for leave to appeal was not
delivered by the 12
th
December 2001, the respondent
would report for duty on the 13
th
December 2001. The
appellant failed to deliver the application for leave to appeal by
the 12
th
December.
On the 13
th
December 2001 the respondent
reported for duty but was turned away by the appellant and
informed that the case was being
taken on appeal.
On the 24
th
January 2002 the respondent’s
attorney wrote a letter to the appellant’s attorneys and
sought an undertaking
from the appellant by close of business on
the 29
th
January 2002 that it would accept the
respondent’s tender of services and would pay him his wages
for the period from
1998 to the 24
th
January 2002; the
respondent’s attorney threatened that, if such undertaking
was not given, he would make an application
to the Labour Court to
have the arbitration award made an order of that Court and would
seek an adverse costs order against
the appellant. The appellant
failed to provide such undertaking.
Proceedings in the Labour Court
Accordingly, on the 15
th
February 2002 the
respondent launched an application in terms of sec 158(1)(c) of
the Act in the Labour Court to make the
award an order of the
Labour Court. An order was also sought for the payment by the
appellant of an amount of R85 776, 47
which was alleged to be the
total amount owed by the appellant to the respondent in terms of
the arbitration award. Furthermore,
an order of costs on the scale
as between attorney and client was also sought.
By the 1
st
August 2002 the appellant had
not indicated any intention to oppose the respondent’s
application and specifically had
not delivered any answering
affidavit to the sec 158(1)(c) application.
On the 15
th
August 2002 the Registrar of
the Labour Court set the application to make the award an order of
Court down for hearing on
the unopposed roll on for the 18
th
September 2002.
On the 19
th
August 2002, which was more
than five months after the respondent had launched the sec
158(1)(c) application, the appellant
delivered an answering
affidavit to oppose the sec 158(1)(c) application and an
application for leave to appeal against Jammy
AJ’s judgment
dismissing the appellant’s application to review and set the
award aside; the delivery of this
application for leave to appeal
was over eight months late; the appellant also delivered an
application for condonation in
respect of both the answering
affidavit in the sec 158(1)(c) application and in regard to the
application for leave to appeal;
the delivery of the answering
affidavit was more than four months late.
Subsequently the sec 158(1)(c) application was
removed from the unopposed roll. On the 11
th
September
2002 Jammy AJ dismissed the application for leave to appeal
against his judgment which dealt with the appellant’s
review
application.
The appellant’s answering affidavit in support
of its opposition to the sec 158 application was deposed to by its
attorney.
The basis for the appellant’s opposition was that
the appellant’s “
debt
” to the respondent
had prescribed. The “
debt
” was alleged to be
the appellant’s obligation in terms of the arbitration award
to reinstate the respondent and
to pay him compensation. The
appellant alleged that such obligation was a debt as contemplated
by the Prescription Act, 1969
(Act 68 of 1969).
The appellant adopted the attitude that the respondent
was required to have brought the application to make the award an
order of
Court within three years from the date when the award was
issued and that, upon the expiry of such period, in terms of
sec
10(1)
of the
Prescription Act the
claim had prescribed. In this
regard the appellant relied upon the provisions of
sec 11(d)
of the
Prescription Action. It alleged that the debt had arisen on the 5
th
October 1998 when the award was issued and that from that date a
period of three years had elapsed. In due course the
sec 158(1)
application was set down for hearing.
The first question that the Labour Court had to
consider was whether or not the appellant had shown good cause for
the late
delivery of its answering affidavit. If it concluded that
good cause had been shown, it would grant condonation and then
proceed to deal with the
sec 158(1)(c)
application on the merits
and taking into account the appellant’s basis for its
opposition of the application, namely,
that the claim had
prescribed. If, however, it found that the appellant had failed to
show good cause, it would dismiss the
application for condonation
and, strike the answering affidavit out.
The Labour Court dealt with the appellant’s
condonation application and concluded that there was no proper
basis to
grant it. It, accordingly, dismissed the application. The
Court then proceeded to make the award an order of Court, ordered
the appellant to pay the respondent “
the amount of money
owing to him for a period dating from 5 October 1998 until today”
and to pay the costs of the
sec 158(1)(c)
application on the
scale as between attorney and client. The Labour Court did not
consider the appellant’s defence
on the merits, namely,
prescription, because it had dismissed the appellant’s
condonation application.
Subsequently, the appellant brought an application
for leave to appeal against the judgment of the Labour Court.
According
to the judgment of the Labour Court on the application
for leave to appeal, there were 12 grounds upon which the
appellant
sought leave to appeal. However, the Labour Court
considered only four of these. I assume that it did not consider
the others
because they were abandoned or were not pursued. The
appellant has not complained about the Labour Court’s
decision
to consider only four of the grounds and to leave out the
others.
The four grounds all related to prescription. They
read thus:-
“
1. The learned judge erred in law in not
upholding the appellant’s defence of prescription in this
matter;
The learned judge erred in fact and in law in not
determining the issue of prescription irrespective of the issue
whether or not
condonation for the late filing of the [appellant’s]
answering affidavit had not been granted;
The learned judge erred in law in not determining
that the appellant was entitled to raise the defence of prescription
[at] any
stage of the proceedings, and that such defence was before
Court at the hearing of this matter which required it to be
determined
on the merits;
The learned judge erred in fact and in law in making
the arbitration award in favour of the respondent and (sic) order of
Court
having regard to the fact that the award has become prescribed
as a result of no longer existed in law (sic)”.
[3] In its judgment on the application for leave to
appeal, the Labour Court stated that, having dismissed the
appellant’s
application for the condonation of the late
delivery of its opposing affidavit, it was of the view that the
sec
158(1)(c)
application should be dealt with as an unopposed
application. The Court further stated that, having dismissed the
appellant’s
condonation application, it was neither necessary
nor competent for it to consider the defence of prescription raised
in the appellant’s
answering. However, the Labour Court
expressed the view that there was a reasonable prospect that another
Court may come to a different
conclusion regarding the defence of
prescription and went on to make an order in the following terms:
“
1. The respondent in the
sec 158(1)(c)
application is granted leave to appeal against that part of my
judgement dismissing the [appellant’s] defence of prescription.
Costs are to be costs in the appeal.”
The appeal.
[4] The Labour Court did not in its main judgment
dismiss the appellant’s defence of prescription. What it
dismissed was the
appellant’s condonation application relating
to the late delivery of the appellant’s answering affidavit
containing
the defence of prescription. It did not consider the
appellant’s defence of prescription at all. What would have
been the
point of the Court dismissing the condonation application if
it was going to consider the appellant’s defence on the merits
irrespective of the outcome of the application for the condonation of
the late delivery of the answering affidavit containing such
defence?
[5] The whole point of the condonation application was
that, if condonation was granted, the appellant’s defence
contained
in the answering affidavit would be considered but that if
it was dismissed, the appellant would lose the right to have its
defence
considered by the Court. If the appellant was entitled to
have its defence considered irrespective of the outcome of the
application
for condonation, there would have been no point in
bringing the condonation application in the first place. The
appellant did not
seek to appeal against the order of the Labour
Court dismissing its application for condonation. Without appealing
against that
order, the appellant’s appeal is academic.
[6] It was plainly not competent for the Labour Court to
consider the defence raised in the answering affidavit despite an
order
refusing condonation of the late delivery of such affidavit. An
order dismissing the application for condonation of the late delivery
of the appellant’s answering affidavit meant that the defence
contained in such affidavit could not be considered. Also,
once the
Labour Court had dismissed the condonation application, it was not
even competent for the Labour Court to
mero motu
consider
prescription (see sec 17(1) of the Prescription Act, 1969 (Act 68 of
1969). The proviso in the second part of
sec 17(2)
of the
Prescription Act gives
a Court power to allow prescription to be
raised at any stage of the proceedings. That means that the Court has
a discretion but
that applies where a party has not lost the right to
have its defence considered. The decision to dismiss the condonation
application
was in effect a bar to the appellant taking any further
part in the matter.
[7] I have said that the appellant did not seek to
appeal against the order of the Labour Court dismissing its
condonation application.
I am surprised at the fact that the
appellant seems to have thought that it could get this Court to
pronounce on the merits of
its defence of prescription contained in
its answering affidavit and at the fact that the Labour Court granted
leave to appeal
on the merits of the appellant’s defence when
there was no challenge to the order of that Court dismissing the
appellant’s
condonation application. However, I am not
surprised at the fact that the appellant did not seek to appeal
against the order of
the Labour Court dismissing its condonation
application. I say this because, when one has regard to the
explanation given by the
appellant’s attorney, for the
appellant’s delay in the delivery of its opposing affidavit, it
is clear that, although
he seeks to blame a certain Advocate Nel whom
he says he had instructed to prepare an answering affidavit in this
matter, he himself
shoulders much blame for the fact that the
appellant’s answering affidavit was not delivered timeously.
[
8
]
The respondent’s attorneys
delivered and served the respondent’s sec 158(1)(c) application
on or about the 15
th
February 2002. The appellant’s
attorneys were required to have delivered the appellant’s
answering affidavit within
10 Court days. That period expired around
1March 2000.
[9] The affidavit in which the appellant’s
attorney provided an explanation for the delay in delivering the
answering affidavit
is the same affidavit which he used to apply for
the condonation of the late delivery of the appellant’s
application for
leave to appeal against the judgment in the review
application. In that affidavit the first mention that the appellant’s
attorney makes of the present matter is where he says that, due to
his firm having discovered that Advocate Nel had failed to handle
or
had mishandled a number of matters which the firm had briefed him to
handle, his firm terminated its relationship with him on
the 7
th
June 2002. The appellant’s attorney also states in the
affidavit that subsequently he discovered the respondent’s sec
158(1)(c) application in “
a pile of scrap paper which is
collected from the offices of the various professionals to be used
for the printing of telefaxes.”
[10]
The appellant’s attorney does not say
in his affidavit when it was that he found the
sec 158(1)(c)
application. However, he stated in a certain letter that he found the
sec 158(1)(c)
application on the 22
nd
July 2002. Earlier
in the affidavit he had said that
“in May and June 2002”
his firm had discovered several instances where Advocate Nel had
“
failed to discharge matters (sic) entrusted to him, and in
fact [had] misled both [the appellant’s attorney] and the
clients
he assisted as to what he had done.”
The
appellant’s attorney continued thus in the same paragraph:
“
On two occasions, [Advocate Nel]
had
settled matters without a mandate, and in one of these occasions,
[the appellant’s attorney’s firm] as a result
had to step
in and pay the settlement amount. In addition, [Advocate Nel] has
also on two occasions acted without a mandate in
two matters in the
Cape Town Labour Court, resulting [in] a scathing attack by the Court
on [the appellant’s attorneys firm]…”.
In the next paragraph of the affidavit the appellant’s
attorney relates an incident which he says occurred in May 2002. He
says that Advocate Nel tried to mislead the Court
“where he
had been entrusted to bring a review application, did not file the
application, and then again unsuccessfully tried
to settle the matter
without a mandate. As a result and in open court, Adv Nel tried to
mislead the Court relating to actions that
he took and, in a
subsequent judgement, the Honourable Judge Francis severely
criticised Adv Nel and due to the fact that we purportedly
briefed
him, also [ourselves].”
[11] It is clear from those parts of the appellant’s
attorney’s affidavit referred to above that as early as May
2002
the appellant’s attorney became aware of instances where
Advocate Nel had neglected his duties in regard to matters that had
been entrusted to him or in respect of which he had, I assume, been
briefed. Indeed, the appellant’s attorney was aware at
that
time that Advocate Nel had misled him and his clients. Yet, he did
not examine all matters that had been entrusted to Advocate
Nel to
determine whether the latter had carried out his instructions in
regard to all matters that had been entrusted to him in
which he had
been briefed. The appellant’s attorney fails to explain why he
did not do this. A period of about three months,
that is May, June
and July, lapsed before he discovered the file relating to this
matter. That delay in finding out, apparently
by mere coincidence,
whether Advocate Nel had carried out his instructions in regard to
this matter is not explained.
[
12] Furthermore, to the extent that the
appellant’s attorney may be saying that he had briefed Advocate
Nel to prepare an
answering affidavit in this matter, it was his duty
to have monitored Advocate Nel. That is what an attorney is supposed
to do
when he has briefed an advocate in a matter. He informs the
advocate when the brief must be back in order to ensure compliance
with whatever time limits may apply. He diarises that date and, if
the brief is not back by that date, he contacts the advocate.
He does
not brief an advocate and then forgets about the matter and leave
everything to the advocate. Accordingly, if the appellant’s
attorney had given Advocate Nel a brief, which is what he should have
done, he should have diarised the matter so as to contact
Advocate
Nel if the brief was not returned on time but also so that, if need
be, he could ask the respondent’s attorney for
an extension of
time, if this became necessary. If he had dealt with the matter in
this manner, he would have delivered the answering
affidavit on time
or if there was a delay, it would have been a slight delay. If the
appellant’s attorney had handed the
matter correctly, he would
have told Adv Nel the date by when the affidavit was required to be
delivered to Court and, if Advocate
Nel did not return the brief on
time, he would call him. If the appellant’s attorney gave
Advocate Nel work without briefing
him, that would have been an
unacceptable way of an attorney giving work to an advocate and
Advocate Nel is not supposed to have
accepted such work without a
brief.
[13] Furthermore, once Advocate Nel had prepared the
answering affidavit, he would have returned the brief to the
appellant’s
attorney whose responsibility it would have been to
deliver the answering affidavit to the Registrar and to serve it on
the respondent’s
attorney. The appellant’s attorney says
nothing in his affidavit about any of this and does not explain how
it would have
been possible for the answering affidavit to have been
delivered to Court by an advocate instead of an attorney or his
staff. Nor
does he explain how Advocate Nel, being an advocate, could
have had direct communication with the client without his knowledge
or intervention.
[14] It seems to me that the truth of the matter is that
the appellant’s attorney as the attorney who should have
monitored
the progress of the file in this matter should take equal,
if not greater, blame for the fact that the appellant’s
answering
affidavit was not delivered on time. Even, after he had
discovered the
sec 158(1)(c)
application on 22 July 2002, he still
took him about a month to deliver the answering affidavit and there
is no explanation tendered
as to why it took him a whole month after
the 22
nd
July to ensure delivery of such affidavit to
Court.
[15] There is no doubt in my mind that the appellant’s
attorney handled his client’s matter herein in a most
unsatisfactory
manner with the result that the Court a quo, quite
correctly, dismissed the application for condonation and disregarded
the defence
raised in the appellant’s answering affidavit. It
seems to me that the affidavits and annexures thereto in this matter
should
be furnished to the Law Society having jurisdiction over the
appellant’s attorney as well as to the General Council of the
Bar in order to enable those bodies to study how Adv. Nel and the
appellant’s attorney conducted themselves and determine
whether
Advocate Nel’s and the appellant’s attorney’s
conduct in the matter was not such that consideration should
be given
to taking some disciplinary action against them.
[16] In the light of all of the above circumstances I am
satisfied that the order of the Labour Court was right and the appeal
had
absolutely no merit. It was for these reasons that on the day of
the hearing of this appeal we had no hesitation in making the order
that we made dismissing the appeal with costs. The appellant and its
attorney must count themselves lucky that we did not order
that the
costs be as between attorney and client.
Zondo JP
I agree.
Davis AJA
I agree.
Jappie AJA
Appearances:
For the respondent : Advocate Nel
Instructed by : Cheadle Thompson & Haysom
For the appellant : Mr Snyman
Instructed by : Snyman Van Der Heever Heyns