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[2014] ZALAC 118
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Nature's Choice v FAWU & Others (JA12/12) [2014] ZALAC 118 (5 February 2014)
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR APPEAL COURT, JOHANNESBURG
Reportable
Case no: JA12/12
In the matter between:
NATURE’S
CHOICE PRODUCTS (PTY) LTD
Appellant
and
FOOD AND ALLIED WORKERS’
UNION
First Respondent
SEABELA, M C AND 6 OTHERS
Second and Further Respondents
Heard:
16 May 2013
Delivered: 05 February 2014
Summary:
Condonation was sought
in the Labour Court for the late delivery of a response to a claim;
the application was dismissed there,
inter
alia
, for not
dealing with the defence and prospects in the application for
condonation; lack of detail in the explanation for the delay
also
criticised. The response was delivered together with the application
for condonation; although a copy of the response was
not attached to
the application, it was referred to in the supporting affidavit and
incorporated into that affidavit by reference.
Explanation for the
delay, although not punctilious, held on appeal to have been
sufficient. On appeal held, given circumstances,
condonation ought to
have been granted; appeal upheld.
Coram: Waglay JP, Coppin
et
Francis AJJA
JUDGMENT
COPPIN AJA
[1] This is an appeal against the judgment and order of Basson J in
the Labour Court, dismissing, with costs, the appellant’s
application for condonation for the late filing of its statement of
response to the respondents’ statement of claim. Leave
to
appeal was granted to this Court on petition.
[2] The second and further respondents are members of the first
respondent. They were employed by the appellant at its plant in
Alrode, Alberton, until 31 January 2010 when the employment of each
of them was terminated by the appellant, allegedly due to its
operational requirements. The respondents disputed the fairness of
the dismissals and referred the matter for conciliation to the
Commission for Conciliation, Mediation and Arbitration (“
CCMA
”).
[3] A notice of the referral to the CCMA was served on the appellant,
but the appellant did not appear at the conciliation. The
CCMA
accordingly issued a certificate of non-resolution of the dispute.
The respondents then instituted proceedings in the Labour
Court.
[4] On 11 May 2010, the respondents served their statement of claim
on the appellant by facsimile. The appellant was supposed to
deliver
its response within ten (10) court days of service of the statement
of claim. It is common cause that this period would
have expired on
25 May 2010. However, the appellant failed to deliver its response.
Apparently, as a result, the respondents served
on the appellant an
application for default judgment by facsimile on 12 July 2010.
[5] On 15 July 2010, the appellant’s attorneys contacted the
respondents’ attorneys and requested a copy of the statement
of
claim and informed the respondents’ attorneys that they will be
opposing the application for default judgment as they
had not
received the respondents’ statement of claim. On 16 July 2010,
the appellant’s attorneys proposed to the respondents’
attorneys that they be granted an indulgence to file an application
for condonation together with the appellant’s statement
of
response. This was agreed to between the parties.
[6] On 28 July 2010, the appellant served its statement of response
together with its application for condonation on the respondents.
The
respondents opposed the condonation and filed an answering affidavit
in respect of that application. The appellant did not
file a replying
affidavit.
[7] Approximately almost a year after the filing of its condonation
application, the matter was heard by the court
a quo
on 16
August 2011. On that day, the court
a quo
granted the order
dismissing the condonation application with costs and furnished
comprehensive reasons for its order on 21 September
2011.
[8] The court
a quo
having considered the averments made in
the affidavits concluded
inter alia
as follows:
‘
[10]
I am in agreement with the submission on behalf of the employees that
the excuses tendered for the delay are far from compelling.
The
explanation certainly does not fully explain the full period of the
delay. Moreover, where an employer is faced with an application
for
default, it is certainly expected that the employer acted with
expedience and not wait for another 16 days before filing a
statement
of defence. I am therefore not persuaded that the explanation for the
delay is compelling and accordingly the application
for the delay
should fall on this ground alone.
[11]
Even if the court is wrong in rejecting the explanation for the delay
as not being reasonable, the court is further of the
view that the
application for condonation should fail in light of the fact that the
employer does not provide any reasons whatsoever
for its ‘reasonable
prospects of success’ except to refer to its statement of
response.
’
[9] The appellant contends on appeal that the court
a quo
erred in numerous respects,
inter alia
and in particular, in
finding: that the degree of lateness was egregious; that there was no
explanation for the full period of
the delay; that the appellant did
not act expeditiously after becoming aware that the respondents
intended to apply for default
judgment; that the explanation
furnished for the late filing of the response was, in any event, not
compelling; that the appellant
failed to deal in its affidavits, in
support of the application for condonation, with the prospects of
success and in finding that
the prejudice that the respondents would
suffer, if condonation were to be granted, would not outweigh that
which the appellant
would suffer if condonation was not granted. It
was also argued that the court
a quo
erred in ignoring the
actual statement of response of the applicant which was incorporated
into its answering affidavit by reference.
[10] The respondents, on the other hand, contend that the court
a
quo
correctly refused condonation.
[11] The
consideration of a request for condonation involves the exercise of a
judicial discretion which has been described as a
‘wide
discretion’, or a discretion “
loosely
so called
”.
In
Motloi
v SA Local Government Association,
[1]
McCall AJA summarised the position on appeal as follows:
‘
[16]
In my judgment the discretion conferred on the court of first
instance in deciding whether or not to grant condonation for
the late
referral of a dispute is a wide discretion or a discretion “loosely
so called”. The court of first instance
is required to arrive
at a decision “in the light of all relevant considerations”
such as the length of the delay,
the prospects of success in the main
application, the possible prejudice to the parties and the blame
attaching to the parties
(cf the Knox D’Arcy Ltd case (supra)
at 362B-C). The court on appeal is in as good a position as the
court a quo to
decide whether or not good cause has been shown for
granting condonation, and, that being so, it may substitute its
decision for
that of the court a quo if “it considers its
conclusion more appropriate” (see the Bookworks (Pty) Ltd case
(supra)
at 805A-D).
’
[2]
[12] It is thus established in the
Motloi
case that on appeal,
this Court may substitute its decision for that of the court
a quo
if it considers its conclusion to be more appropriate.
[13] In
Motloi,
the court summarised the relevant considerations, which are also
referred to in the frequently cited case of
Melane
v Santam Insurance Co Ltd,
[3]
as follows:
‘…
the
basic principle is that the court has a discretion, to be exercised
judicially upon a consideration of all the facts, in essence,
it is a
matter of fairness to both sides. Among the facts usually
relevant are the degree of lateness, the explanation thereof,
the
prospects of success and the importance of the case. Ordinarily these
facts are interrelated: they are not individually
decisive, for
that would be a piece-meal approach incompatible with a true
discretion, save of course that if there are no prospects
of success
there will be no point in granting condonation. What is needed is an
objective conspectus of all the facts. Thus, a
slight delay and a
good explanation may help to compensate for the prospects of success
which are not strong. The importance of
the issue and strong
prospects of success may tend to compensate for a long delay. The
respondent’s interest in finality
must not be overlooked.
’
[14] It is apparent from the judgment of the court
a quo
that
it was critical of the explanation for the delay tendered by the
appellant and that it was of the view, in essence, that the
appellant
did not show any prospects of success, albeit without considering the
statement of response which had been filed by the
appellant together
with its application for condonation and which was incorporated into
the founding affidavit of that application
by reference.
[15] Regarding
the explanation for the delay, I am of the view that it was
reasonable, although not punctilious, or very detailed.
The
respondents served their statement of case upon the appellant by
facsimile. The appellant did not dispute that, but explained
that the
document did not come to the attention of its relevant personnel,
because the fax number that had been used was a general
number and
the respondents did not draw their attention to the fact that the
document had been served in that manner. The explanation
is feasible.
Before the situation was ameliorated by a practice directive, when
service was by telefax, in the absence of, at least,
telephonic
confirmation that the fax was received by the intended recipient,
problems were experienced which resulted in a slew
of applications
for rescission, and the situation which was referred to in
MTN
v Van Jaarsveld and Others.
[4]
The fact that the application for default judgment had been served by
fax transmission to the same number to which the statement
of claim
had been sent, and that the former had come to the appellant’s
attention, while the latter did not, is not strange,
or anomalous and
does not detract from the reasonableness of the explanation that the
statement of claim was not brought to the
attention of the relevant
persons at the appellant.
[16] The appellant went on to explain that when it did receive the
application for default judgment on 12 July, it reacted immediately.
Its attorneys made contact with the respondents’ attorneys,
informed them that the appellant did not receive the statement
of
claim and requested a copy of it. A copy was received on 15 July and
on 16 July the parties, through their respective attorneys,
agreed
that the appellant be given an opportunity to deliver an application
for condonation together with its response to the statement
of claim.
It does not appear that any time period for the purpose was discussed
or stipulated.
[17] The appellant explains that the preparation of the response and
condonation necessitated consultations with certain persons,
who are
mentioned by name, who were no longer in its employment and that a
further delay occured because of difficulties experienced
in
contacting and arranging to consult with and, ultimately, consulting
with those persons. A consultation could only be arranged
for
Saturday, 24 July and the documents could only be finalised by 27
July. Service on the respondents’ attorneys took place
on 28
July. This explanation, in our view, is feasible. It is debatable
whether more detail was required. We incline to the view
that the
explanation was sufficient. It is more than probable that there would
have been consultations with various persons concerning
the
respondents’ claim, a copy of which was received on 15 July;
that relevant witnesses would have been identified and that
a process
ensued of tracing and engaging them and accommodating them with
regard to dates and times for the purposes of consultation.
As these
persons were no longer employed by the appellant they were clearly no
longer subject to its “beck and call’.
Time taken to
prepare the documents following the consultations, is not out of the
ordinary, or unreasonable. In fact from the
time it became aware of
the default judgment to the time of delivering its response and the
application for condonation, only about
nine (9) court days had
elapsed. I do not consider the criticism, that the appellant was
being dilatory, after becoming aware of
the default judgment, to be
justified.
[18] The court
a quo
apparently did not consider the
appellant’s response to the statement of claim (i.e. its
defence) in order to ascertain whether
the appellant had reasonable
prospects of success. The court
a quo
seemingly regarded the
appellant’s application as lacking in a fundamental respect,
namely, including a traversal of the
appellant’s prospects of
success. The respondents, apparently, adopted the same approach since
they did not, in their answering
affidavit in the condonation
application, traverse the appellant’s response to their
statement of claim, but, instead, confined
themselves to a general
denial of the appellant’s averments in its founding affidavit
that it had “
excellent prospects of success
”. The
court
a quo
and the respondents clearly did not regard the
response to the particulars of claim, which was not annexed to the
founding affidavit,
to have been part of the condonation application,
despite reference having been made to it in the founding affidavit
and despite
the appellant’s averment that the response must be
read as if specifically incorporated into the founding affidavit.
[19] Rule 12(1) of the Labour Court Rules provides that a court may
extend or breach any period prescribed by the Rules on application
“
on good cause shown
”, unless the court is
precluded from doing so by the Act. Rule 12(3) provides that the
Labour Court may, on “
good cause shown
”, condone
non-compliance with any period prescribed by the Rules. I have
already referred to the cases of
Motloi
and
Melane
where the term “
good cause
” was given a practical
meaning and in which the two main requirements that have
crystallised, namely the explanation for
the delay and prospects of
success, are discussed. What is relevant at this juncture, however,
is the issue of
onus
. It is for the applicant who seeks
condonation to “
show
” good cause.
[20] Rule 27
of the High Court Rules is the equivalent of Rule 12 of the Labour
Court Rules. It was held in
Standard
General Insurance Co Ltd v Eversafe (Pty) Ltd
[5]
that:
‘
[i]t
is well-established that an applicant for any relief in terms of Rule
27 has the burden of actually proving, as opposed to
merely alleging,
the good cause that is stated in Rule 27(1) as a jurisdictional
prerequisite to the exercise of the court’s
discretion.
Silber v Ozen Wholesalers (Pty) Ltd
1954 (2) SA 345
(A) at 352G. The
applicant for any such relief must, at least, furnish an explanation
of his default sufficiently full to enable
the court to understand
how it really came about and to assess his conduct and motives
(Silber v Ozen Wholesalers (Pty) Ltd (supra
at 353A)). Where there
has been a long delay the court should require the party in default
to satisfy the court that the relief
sought should be granted. Gool v
Policansky
1939
CPD 386
at 390
.
’
[21] It has
also been held in respect of Rule 27 of the High Court Rules, that
the applicant should satisfy the court on oath that
it has a
bona
fide
defence.
[6]
In this regard, it has been held that the least that the applicant
must show is that his or her defence is not patently unfounded
and
that it is based on facts which, if proved, would constitute a
defence.
[7]
[22] It is
also trite that an applicant must make out a case in its founding
affidavit for the relief that it seeks. The respondents
relied upon
Swissborough
Diamond Mines (Pty) Ltd and Others v Government of the Republic of
South Africa,
[8]
where it was held with reference to motion (i.e. application)
proceedings, that it was not open to a litigant, when using the
affidavit procedure, to merely annex a document to an affidavit and
request the court to have regard to it. The court there held
that
what was required was the identification in the affidavit of portions
of the document on which reliance is placed and an indication
of the
case which is sought to be made out on the strength of that document,
or the portions on which reliance was placed.
[23] In this case, the appellant did not attach a copy of the
response to the founding affidavit. But what it did, was to, in its
founding affidavit, in respect of its averment that it had excellent
prospects of success, “
specifically refer to its response
which has been filed evenly
” with the condonation
application (including the founding affidavit) and request “
that
it be read as if specifically incorporated
” in the founding
affidavit. The question is whether this was sufficient to identify
which response was being referred to
and whether the response, by
being incorporated, become an explanation (or outline) under oath of
its defence?
[24] Reliance by the respondents on
Swissborough
in support of
their submission that the appellant cannot simply make reference to a
document and request the court to have regard
to it, is misplaced.
That case is clearly distinguishable. What was said in
Swissborough
was that an applicant cannot simply attach documents to its founding
affidavit and require the court to establish, from somewhere
within
the pile of documents, averments to support the application. The
Court in
Swissborough
held that if a document is attached to
an application, then the portion(s) of the document, which are relied
upon, must be clearly
identified. In this case, that situation did
not pertain, instead, the relevant document, namely, the appellant’s
response,
although not attached to the founding papers, was,
nevertheless, identified in the affidavit and incorporated into that
affidavit
by reference.
[25] Much was also made of the fact that the response to the
respondents’ claim was not attached to the application for
condonation. But this contention of the respondents’ loses
sight of the fact that the response was delivered with the
condonation
application and that its contents was incorporated, by
reference, in the founding affidavit in that application. The fact
that
the appellant did not also attach a copy of the response to its
affidavit does not detract from the merits of the condonation
application.
The papers filed in the matter, at that stage, were not
voluminous, or such that it would have been inconvenient to find the
response.
All that such attachment would have served to do, was to,
unnecessarily, increase the volume of the papers. .
[26] I am of the view that condonation ought to have been granted,
because the content of the response, having been incorporated
into
the founding affidavit, was under oath by virtue of such
incorporation; the response was actually delivered (i.e. filed and
served) and there was to be no further delay in awaiting the
response; the response was detailed and contained what would be a
defence, at least against a claim for reinstatement and the averment
that the dismissal was substantively unfair; the respondents
did not
deal at all with the response to indicate why the response could not
be said to contain a defence and the explanation tendered
for the
delay, although not too detailed, was feasible.
[27] With regard to the issue of costs, I am of the view, having
considered all of the circumstances in light of the law and equity,
that there should be no order for costs, the result being that the
parties would each bear their own costs.
[28] In the result, the following is ordered:
1. The appeal is upheld.
2. the order of the Labour Court is set aside and substituted with
the following order:
“
the late delivery of the respondent’s
response to the applicants’ statement of claim is condoned”.
Coppin AJA
Acting Judge of the Labour Appeal Court
I agree:
Waglay JP
Judge President of the Labour and Labour Appeal
Court
I agree
Francis AJA
Acting Judge of the Labour
Appeal Court
APPEARANCES
FOR THE APPELLANT:
S Snyman
Instructed by Snyman Attorneys
FOR THE RESPONDENTS:
J. Brickhill
Instructed by Cheadle Thompson & Haysom INC
[1]
Motloi
v S A Local Government Association
[2006]
3 BLLR 264
(LAC) par [16].
[2]
The
cases referred to in the quoted
dictum
are:
Knox
D’Arcy Ltd and Others v Jameson and Others
[1996] ZASCA 58
;
1996 (4) SA 348
(SCA) at 362B-C and
Bookworks
(Pty) Ltd v Greater Johannesburg Transitional Metropolitan Council
and Another
1999 (4) SA 799
(W) at 805A-D.
[3]
1962
(4) SA 531
(A) at 532C-E.
[4]
MTN
v Van Jaarsveld & others
(2002)
23 ILJ 1597 (LC) par [12].
[5]
Standard
General Insurance Co Ltd v Eversafe (Pty) Ltd
2000 (3) SA 87
(W) at 93; See also:
Uitenhage
Transitional Local Council v South African Revenue Service
2004 (1) SA 292
(SCA); 4 B All SA 37 R6.
[6]
See
inter
alia
Ford
v Groenewald
1977
(4) SA 224
(T) at 225G.
[7]
See
inter
alia
the
Groenewald
case (
supra)
and
Oostelike
Transvaalse Ko-operasie Bpk v Aurora Boerdery
1979 (1) SA 521
(T) at 523D-H.
[8]
Swissborough
Diamond Mines (Pty) Ltd and Others v Government of the Republic of
South Africa
1999 (2) SA 279
(T) at 342F-G.