About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2015
>>
[2015] ZALAC 42
|
|
Mathekgana v Film and Publication Board (JA4/2014) [2015] ZALAC 42 (21 October 2015)
INTHE
LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case no: JA4/2014
In the
matter between:
ALPHEUS
MAKWENA MATHEKGANA
Appellant
and
FILM
AND PUBLICATION
BOARD
Respondent
Heard:
13 May 2015
Delivered:
21 October 2015
Summary:
Employee seeking in an urgent
application payment of 13
th
cheque – employer disputing the existence of the claim- dispute
of facts whether payment was made – principle that
in motion
proceedings when there exists a dispute of facts which cannot be
resolved on the papers court having the discretion to
refer the
matter to oral evidence restated – employee failing to request
that disputed fact be referred to trial court –
court
a quo
exercising its discretion not to
mero motu
referring matter to
trial court – Plascon Evans’ rule considered –
appeal dismissed.
CORAM:
Tlaletsi DJP, Sutherland JA, and Mngqibisa-Thusi AJA
JUDGMENT
MNGQIBISA-THUSI
AJA
[1]
The appellant is appealing against the
judgment and order of Rabkin-Naicker J handed down on 16 April 2013
in which the court
a quo
dismissed the appellant’s claim for payment of a 13
th
cheque against his erstwhile employer, the respondent. On 14 May
2014, this Court granted the appellant leave to appeal on petition.
[2]
The appellant was employed by the
respondent as Chief Finance Officer from June 2008 until his
resignation in June 2009. On his
resignation, the appellant requested
payment of his arrear leave benefit and a 13
th
cheque to which he was entitled in terms of his terms and conditions
of employment.
[1]
Upon accepting the appellant’s resignation, the respondent
indicated to the appellant that whatever was due to him would
be paid
in due course once deductions the respondent was entitled to were
worked out. Subsequent thereto, the respondent informed
the appellant
that he was entitled to R9 674.09
in
lieu
of his leave benefit. Nothing was
said about the 13
th
cheque.
[3]
When no payment was made by the respondent,
the appellant’s attorneys wrote a letter, dated 30 March 2012,
in terms of section
77 of the Basic Conditions of Employment Act 75
of 1997 “(BCEA) in which a demand on behalf of the appellant
was made for
payment of leave pay and the 13
th
cheque in the sum of R349 375.02. After several email exchanges, on
24 July 2012, the respondent acknowledged in a letter that
it owed
the appellant the sum of R37 619.40 as leave pay.
[4]
On 24 July 2012, the respondent made a
settlement offer to the appellant in which it undertook to pay the
appellant the amount of
R 37 619.40 as arrear leave payment in full
and final settlement of all claims the appellant may have with regard
to his employment
with the respondent. In the same e-mail containing
the offer, the respondent alleged that it had paid the appellant his
13
th
cheque. Whilst accepting the offer with regard to the leave pay, the
appellant still disputed payment of the 13
th
cheque.
[5]
On 10 September 2012, the appellant
brought an urgent application under case number JR2391/12 in which it
claimed payment of the
13
th
cheque. On the same day, an amended settlement agreement relating to
the leave pay was made an order of court. The relevant portion
of
the
settlement agreement reads as follows:
‘
1.
The parties have agreed to settle the Applicant’s claim in
relation to
the leave pay claimed as follows:
a.
The
First Respondent will pay to the Applicant an amount of R37 619.40
in full and final settlement of this application and
the Applicant’s
leave claim only, less any taxation thereon.’
The only outstanding issue between the parties being payment of the
13
th
cheque.
[6]
On 21 January 2013, the applicant again
launched an urgent application in the court
a
quo
under case number J96/13
[2]
in which it claimed payment of the 13
th
cheque. In its answering affidavit, the respondent raised two points.
Whilst alleging that the appellant was paid his pro-rated
13
th
cheque in July 2009, the respondent alleged that the appellant’s
claim has prescribed in view of the fact that three years
has expired
since June 2009 when payment of the 13
th
cheque was due. Secondly, the respondent alleged that a factual
dispute exists as to whether the 13
th
cheque was paid to the appellant that the appellant foresaw and
failed to refer the matter for oral evidence.
[7]
At the hearing of the matter, the parties
presented argument on both the issue of prescription and the alleged
payment of the 13
th
cheque. With regard to the alleged payment of the 13
th
cheque, the respondent argued that there was a factual dispute on
whether the 13
th
cheque was paid. It is the respondent's contention that the appellant
foresaw the existence of a dispute of facts and should have
prayed
for a referral to oral evidence on this point. The respondent asked
for the dismissal of the appellant’s claim on
the ground that
the claim has prescribed and in the alternative on the ground of the
existence of a factual dispute that could
not be resolved on the
papers.
[8]
In dismissing the application, the court
said:
‘
[4]
The applicant clearly foresaw that there was a dispute of fact over
the issue of whether
the monies had in fact been paid. This is
reflected in his founding papers. Where there are material
disputes of fact
on the papers it is trite that an application should
not proceed by way of motion, but rather by way of action. The
applicant
did not seek a hearing of oral evidence in the alternative
to his prayers. In such circumstances, the appropriate order
must
be to dismiss the application.’
[9]
The appellant is appealing on the following
grounds:
9.1 that the court
a quo
had
erred in making a finding that he had been aware of the outstanding
money paid for the 13
th
cheque but did nothing to pursue
his claim;
9.2 that the court
a quo
erred
in not postponing the hearing for further investigation into the
money owed.
[10]
Motion proceedings are decided on the
papers filed by the parties. In case where there is a factual dispute
which can only be resolved
through oral evidence,
[3]
it is appropriate that action proceedings should be used unless the
factual dispute is not real and genuine.
[4]
In
Stellenbosch Farmers’ Winery
Ltd v Stellenvale Winery (Pty) Ltd,
[5]
the court held that where there is a dispute of facts final relief
should only be granted in notice of motion proceedings if the
facts
as stated by the respondent together with the admitted facts in the
applicant’s affidavit justify such an order.
[11]
This rule applies irrespective of where the
onus
lies.
Where a factual dispute exists or arises before the hearing of an
application and the applicant does not seek the matter
to be referred
either to oral evidence on a specific issue which is in dispute or to
trial, the court has a discretion either to
dismiss the application
or direct that oral evidence be heard or that the matter goes to
trial. The discretion whether to refer
the matter to oral evidence
lies with the court of first instance. A court of appeal will only
interfere with the exercise of such
discretion if it was not
exercised properly.
[12]
Taking into account that in its answering
affidavit the respondent had already alleged that it had paid the
appellant his 13
th
cheque, which is disputed, the respondent averred that a dispute of
facts exists, which cannot be resolved on the papers. The appellant
foresaw the existence of a dispute of facts. It was up to the
appellant at the beginning of the hearing in the court
a
quo
to have sought a referral to oral
evidence on the issue of whether payment was made. Bearing in mind
the undesirability of a court
to
mero
motu
refer an existing factual dispute
to oral evidence, I am of the view that there is no reason this Court
should interfere with the
court
a quo
’s
discretion to dismiss the application and not refer the factual
dispute to oral evidence.
[13]
Faced with a dispute of facts which cannot
be resolved on the papers before it, it was not unreasonable for the
court
a quo
not to have dealt with the issue of prescription.
[14]
Normally costs follow the cause. In this
matter, however, I am of the view that it was not unreasonable to
seek to pursue payment
of the disputed 13
th
cheque and it would be fair that no order as to costs should be made.
[15]
Accordingly, the following order is made:
‘
1.
The appeal is dismissed.
2.
No order as to costs is made.
___________________
Mngqibisa-Thusi AJA
Tlaletsi DJP and Sutherland JA concur in the judgment Mngqibisa-Thusi
AJA
APPEARANCES:
FOR THE APPELLANT:
Mr AM
Mathekgana (self)
FOR THE RESPONDENT:
Mr M Motsoeneng of Motsoeneng Bill
Attorneys Inc
[1]
See clause 3 of the appellant’s terms and
conditions of employment.
[2]
The matter under
J96/13
is the same matter under case number JR2391/12. As appears
from the appellant’s founding affidavit, it was
the
Registrar’s decision to allocate a new case number to the
previous urgent application under JR2391/12.
[3]
Plascon –Evans Paints Ltd v Van Riebeck
Paints (Pty) Ltd
[1984] 2 All SA 366
(A).
[4]
Soffiantini v Mould
[1956]
4 All SA 171 (E).
[5]
1957 (4) SA 234
((C) at 235 E-G.
See also
Joh-Air
(Pty) Ltd v Rudman
1980 (2) SA 420
(T) at 428-429;
Santino
Publishers CC v Waylite Marketing CC
2010 (2) SA 53
(GSJ) at 56F-57B.