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[2015] ZALAC 113
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POPCRU Group of Companies (pty) Ltd v Mahlase and Another (JA90/14) [2015] ZALAC 113 (20 August 2015)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: JA90/14
In the matter
between:
POPCRU GROUP OF
COMPANIES (PTY) LTD
Appellant
and
THATO
MAHLASE
First Respondent
UNIQUE STANDING
INVESTMENTS
Second Respondent
Delivered:
20 August 2015
Coram: Waglay JP, Ndlovu JA
et
Makgoka AJA
EX TEMPORE
JUDGMENT
WAGLAY JP
[1] On 12 April,
first respondent served its statement of case upon the Appellant,
wherein he claimed damages for breach of his
employment contract in
terms of section 77(3) and section 77A(e) of the Basic Conditions of
Employment Act, No. 75 of 1997 (BCEA).
[2] According to the
first respondent, he was employed by the second respondent on a fixed
term contract, which was to have terminated
by effluxion of time on
31 July 2014, but that his contract was unlawfully terminated in June
2010. The total amount due to him
consequent upon the alleged breach
is just over R1.25-million.
[3] The first
respondent seeks payment for his alleged loss from the appellant on
the grounds that the appellant has taken over
the business of the
second respondent and, as such, in terms of section 197 of the Labour
Relations Act No 66 of 1997 (LRA), the
appellant falls into the shoes
of his old employer.
[4] The first
respondent’s statement of case curiously included an annexure
setting out a list of documents he intended to
utilise to support his
claim.
[5] The appellant,
it appears was taken by surprise by being confronted with this claim.
It wrote to the first respondent requesting
that first respondent
deliver the discovered documents so that it could consider them and
thereafter draft its statement of defence.
The documents discovered
included the contract of employment between the first and second
respondent, minutes of various meetings,
et
c. The first
respondent supplied some but not all of the discovered documents.
Three months after the first respondent provided
some of the
documents, the appellant had still not filed its statement of
defence, so on 21 August 2012, the second respondent
made an
application for default judgment. About a month later, the appellant
filed its statement of defence.
[6] The statement of
defence, in a sense, denies that there was any transfer of business,
as contemplated in terms of section 197
of the LRA. Additionally, the
appellant averred that the first respondent was never its employee
hence the question of a breach
of the employment contract does not
arise. These averments are, in fact, a complete defence to the first
respondent’s claim.
[7] The first
respondent failed to react to the statement of defence for about
seven months and persisted with his application for
default judgment.
The first respondent held the view that since the rules that govern
proceedings in the Labour Court provide that
a statement of defence
must be filed within 10 days of the receipt of the statement of case,
a statement of defence filed outside
this period is meaningless
unless accompanied by an application to condone its late filing.
[8] I may at this
stage mention that such belief as held by the first respondent is
unwarranted and it was for this reason that
the practice manual that
regulates proceedings in the Labour Court, specifically provides that
unless a party who is served
with a process out of time objects to
the process, there is no need to apply for condonation and if there
is an objection, it must
be communicated within 10 days of the late
process being served.
[9] That
notwithstanding, and although the first respondent did not overtly
object to the statement of defence, he did indicate
his objection by
persisting with his default judgment application. This obviously
would not have alerted the appellant to the fact
that it should
proceed and apply for condonation. Nevertheless, the Labour Court, in
fact, ordered the appellant to apply for condonation
for the late
filing of his statement of defence and the appellant did so. The
application was opposed by the first respondent.
[10] The condonation
matter came before the Labour Court, which dismissed the application
with costs but granted the appellant leave
to appeal its order to
this Court. I see no need to go through all the requirements for
condonation, they are trite. I also do
not need to analyse all the
reasons proffered by the court
a quo
in refusing the
application, save to mention that it clearly erred when it held that
the appellant would have had in its possession
the documents sought
by it. This was speculative and not borne out by what was before the
court, although I would agree with the
court
a quo’s
decision that the documents were not necessary for the appellant to
file its defence. A further misdirection by the court
a quo
was to hold that the appellant’s averments amounted to bare
denials, which should not be entertained.
[11] I fail to
appreciate what the court expected the appellant to add, especially
if one takes into account that no objection to
the plea [response]
was raised by the first respondent, who in any event has the
onus
to prove that: (i) he was an employee of the appellant either because
he was employed by it or, (ii) by virtue of a section 197
transfer.
Clearly, the appellant had explained the reason for the delay and
that it had a defence to first respondent’s claim.
For these
reasons alone, I am of the view that condonation should have been
granted.
Order
[12] In the result,
I make the following order:
1. The appeal
succeeds with no order as to costs.
2. The order of the
Labour Court is substituted as follows:
“2.1
Condonation for the late filing of the statement of response is
granted.
2.2 There is no
order as to costs.”
Waglay
JP
I agree
Ndlovu
JA
I agree
Makgoka
AJA
APPEARANCES:
FOR THE
APPELLANT:
Adv J L Basson
Instructed by Grosskopf Attorneys
FOR THE
RESPONDENTS: Edward Nathan
Sonnenbergs INC