About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2010
>>
[2010] ZALCJHB 57
|
|
Murray Glen CC t/a Murray Park and Caravan Pleasure Resort v Grobbelaar and Others (JR467/09) [2010] ZALCJHB 57 (21 May 2010)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASE
NO. JR 467/09
In
the matter between:
MURRAY
GLEN CC t/a
MURRAY
PARK
& CARAVAN
PLEASURE
RESORT
APPLICANT
and
CORNELIA
JOHANNA
Grobbelaar
1
ST
RESPONDENT
COMMISSION
FOR CONCILIATION,
MEDIATION
& ARBITRATION
2
ND
RESPONDENT
THE
SHERIFF, SPRINGS
3
RD
RESPONDENT
JUDGMENT
LAGRANGE
J:
[1]
This application is somewhat unusual. The
applicant, which runs a caravan and chalet pleasure resort is seeking
to permanently stay
the enforcement and execution of an award issued
by a Commissioner of the second respondent, the CCMA. Interim relief
was initially
granted on 4 March 2010 to allow the first respondent,
the applicant's former employee, to file answering papers. The rule
was
further extended on 15 April 2010 by this court until 21 May
2010, being the final return day.
[2]
The applicant claims that the first respondent, Ms
Grobbelaar, had either settled with the applicant, or had abandoned
or waived
the award made in her favour.
[3]
On 12 December 2008, an arbitration award was
handed down in the form of a default decision in favour of Ms
Grobbelaar. She claimed
to have been unfairly dismissed by the
applicant after working for it for more than three years, following
an argument with her
employer. The arbitrator found that their
dismissal was both substantively and procedurally unfair and awarded
her four months
salary as compensation amounting to R 44,000-00. A
year later Grobbelaar applied to the CCMA to have the award certified
under
section 143 of the Labour Relations Act 66 of 1995 ('the LRA').
Subsequently, a writ of execution was issued by the registrar of
the
labour court and a number of goods belonging to the applicant were
subsequently attached by the Sheriff on 17 February 2010.
One of the
items attached was a vehicle which the applicant claims does not
belong to it (a vehicle registration certificates attached
to the
founding affidavits indicates that the registered vehicle belongs to
one Law, whom the applicant claims is the daughter
of the sole member
of the applicant), and in respect of which interpleader proceedings
would be instituted.
[4]
The applicant claims that Ms Grobbelaar had acted
disingenuously and fraudulently by not complying with an agreement
concluded in
May 2009 between herself and Mr J Law, the sole member
of the applicant, in terms of which she resumed her employment with
the
applicant in June 2009 and the applicant agreed to waive its
claims against her in relation to the rear rental owing by her in
respect of a house in which she stayed. The applicant also claims it
agreed it would not pursue her alleged unlawful appropriation
of the
stove and kitchen cupboards from the house in question. In return,
Grobbelaar allegedly agreed to waive her claim and rights
to the
award made in her favour.
[5]
The applicant initially sought to rescind the
award and filed a rescission application together with a condonation
application for
the late filing thereof. The condonation application
was dismissed sometime in April 2009. At that time, Law claims he
happened
to meet Grobbelaar at a shop where she was working.
Grobbelaar told him she was not happy in her current occupation and
asked to
be allowed to move into one of the chalets on the
applicant's premises. Law claims in essence that he agreed to a
request, allegedly
owing to a previous intimate relationship between
him and Grobbelaar which had gone on a number of years. After
Grobbelaar had
moved in, they had a discussion in terms of which it
was agreed she would come back and work for the applicant in June
that year.
The applicant raised with her the unpaid rental on the
house she had occupied before her termination and the property she
had allegedly
appropriated. In the discussion which followed between
them the parties supposedly agreed not to pursue their respective
claims
against each other.
[6]
Law claims that Grobbelaar presented him with an
employment contract which he amended, but "for some or other
reason",
she never signed the contract. He does not provide any
explanation what steps he took, if any, to try and secure her
signature.
[7]
For her part, Grobbelaar denies that any agreement
was concluded with the applicant which waived any of their respective
claims
against each other. She does admit that the meeting took place
but that all that was discussed at the meeting was her conditions
of
employment "... in the light of the applicant’s intention
to offer me a new position at the applicant." She
also agrees
that she obtained a draft employment contract for further discussion
between the parties, but says she was never presented
with the
amendments made to the draft contract, which is attached to the
applicant’s founding affidavit. She agrees the contract
was
never signed and also claims it was never discussed again after she
presented the draft.
[8]
As far as the previous employment relationship
went, Grobbelaar claims she was provided with free accommodation as
part of her employment
contract, and in fact Law had offered her a
property as a gift arising from their romantic attachment, but he
never fulfilled that
promise. Regarding her accommodation when she
was re-employed by the applicant in 2009, Grobbelaar denies ever
requesting to move
into any of the applicant’s chalets.
Somewhat confusingly she states: "
My
request to the vacate one of the chalets at the applicant's premises
was directed at the dependent prior to April 2009 and prior
to the
deponent meeting me in a shop in Springs.
"
Nevertheless, later in the affidavits she denies ever moving into one
of the chalets and denies ever signing a lease agreement
or receiving
any invoice for rental. She further claims no legal steps had been
taken by the applicant against her in respect of
any outstanding
rental.
[9]
Grobbelaar denies walking out on 14 December 2009
claiming that she was dismissed by the applicant.
[10]
In his replying affidavit, the applicant
puts more flesh on the allegations about Grobbelaar’s
previously rental of his house
during her first term of employment
and adds further details, which should have been included in the
founding affidavits. He asks
rhetorically how it could have happened
that he and Grobbelaar could only have dealt with the conditions of
her new employment
without addressing the previous arbitration award
she had obtained against the applicant.
In
limine issues
[11]
The applicant asks the court to disregard
the answering affidavit of Grobbelaar because it was filed one day
late without a condonation
application being filed, and accordingly
is not properly before the court. When the court had previously
extended the rule, Grobbelaar
was directed to file her answering
affidavit within three days of the order of 4 March 2010, but she
filed it a day late on 10
March 2010. The applicant argues that the
affidavit is not properly before the court in the absence of a
condonation application
and should be disregarded. The
applicant was also directed to file any replying affidavit within
three days of receiving
the answering affidavit, which was 15 March
2010, but only filed its reply on 18 March 2010. Consequently,
both parties failed
to comply with the court’s directions.
[12]
The
Labour court like the High court has the power to regulate its own
procedure.
[1]
In this case the
directives issued by Molahlehi J could have had no other purpose than
to ensure that the matter would be fully
ventilated in affidavits in
good time before the final hearing on the return date.
[2]
This object was achieved despite both parties filing their affidavits
late in terms of the court’s directives. These directives
were
of an interlocutory nature and did not dispose of any of the
substantive issues in the application. As such, the court is
entitled
to reconsider them.
[3]
In
passing, it can be mentioned that the remedy for a party objecting to
non-compliance with a direction is to file an application
to have the
step set aside as irregular, which neither party has done in this
instance in respect of each other’s late filing
of
affidavits.
[4]
[13]
Given that neither party suffered any
prejudice resulting from these procedural delays, and that the
purpose of the direction was
to ensure the proper ventilation of
issues by the time the matter was ready for final determination, the
court condones the late
filing of both affidavits, which were filed
in ample time before the first return day on 15 April 2010.
[14]
Grobbelaar also raises some
in
limine
issues relating to the lack of
urgency of the matter. This is the return day for the application and
given that the rule was originally
granted and extended once, with
both parties having had an opportunity to ventilate the issues fully
so that a final determination
can be made. I believe that when the
interim relief was granted the court had addressed the issue of
urgency. The application is
no longer urgent but a final
determination of the parties’ respective rights in the matter
now must be made.
Evaluation
of the merits
[15]
The essential question to be determined in
this application is whether the applicant has established a clear
right to have the enforcement
of the arbitration award and the
subsequent writ permanently stayed. The effect of such an order
is tantamount to setting
aside the writ.
[16]
The legal basis of the applicant’s
claim is the alleged existence of an agreement by Grobbelaar to
abandon the arbitration
award in favour of her in exchange for the
applicant waving its claims against her. Alternatively, it claims
Grobbelaar had waived
her right to enforce the award.
[17]
Even if the answering and replying
affidavits were to be disregarded on the basis that they were both
filed out of time, the Biggest
difficulty the applicant fAces in this
regard is the absence of!any clear unambiguouq ex4rinsic evidence to
corroborate These alleged
mutual undertaking3. The only document the
applicant was aâle to 0roduce was the unsigned draft employment
contract. When
the answering affidavit Is consiDered, matters are
complIcated f5rther because Grobbelaar denies evEr havine$seen the
contract
with the haodwritten amendments.
[18]
Even if the document could be considered as
evidence of a waiver by Grobbelaar of the award in her favour, such
evidence has very
tenuous probative value at best. The only reference
in the document which might conceivably pertain to any abandonment of
rights
is the following hand written sentence which appears, for no
apparent reason, under the clause dealing with probation. It reads:
"
no previous claims since a new
employment contract from 29/5/09
"
(
sic
). It
is common cause this inscription was made by LAw. Grobbelaar denies
she ever agreed to these amendments or that they were
they presented
to her.
[19]
The appLicant xoints to surrounding
circumstances from which!it wishes unambiguous inferences to be
dra7n.!Thus, the applicanT argues
that it is hmprobable that it would
have agreed to re-employ Grobbelaar whdn she sthll had ! claim of R
44,000-00 against the applicant
arising brom thE arbi4ration award.
t also submhts it is improbAble it would agree to rent out two
chalets to the applicant at
no cost, as Grobbelaar alleges, if such
an award was outstanding against it. The applicant further points out
that it was only
when the second term of employment ended that
Grobbelaar took steps to enforce the original arbitration award.
[20]
It must be said that Grobbelaar’s
resumption of employment with the applicant does raise questions.
Equally, one may wonder
why the applicant would have re-employed
Grobbelaar, without obtaining her unequivocal abandonment of the
award and acknowledgment
of the alleged claims against her
beforehand. If Law had made the amendments to the draft contract and
intended those to be material
conditions governing Grobbelaar’s
re-engagement, then it cries out for an explanation why he was
content to re-employ Grobbelaar
without ever finalising the document.
To say that Grobbelaar never signed the document ‘for
some or other reason’
is simply not sufficient to explain his
failure to insist on her acceding to those provisions in writing.
[21]
A waiver of rights is not to be
lightly construed. As Corbett, AJA (as he then was) emphasised in
[zRPz]
Borstlap
v Spangenberg en andere
1974 (3)
SA 695
(A)
:
“
Dit
is herhaaldelik deur ons Howe beklemtoon dat duidelike bewys van 'n
beweerde afstanddoening van regte geverg word, veral waar
op 'n
stilswyende afstanddoening staat gemaak word. Dit moet duidelik blyk
dat die betrokke persoon opgetree het
met behoorlike kennis van sy
regte en dat sy optrede teenstrydig is met die voortbestaan van
sodanige regte of met die bedoeling
om hulle af te dwing. Soos
Hoofregter INNES die vereistes in Laws v Rutherford,
1924 AD 261
op
b1. 263, gestel het -
"The
onus is strictly on the appellant. He must show that the respondent,
with full knowledge of her right, decided to abandon
it, whether
expressly or by conduct plainly inconsistent with an intention to
enforce it. Waiver is a question of fact, depending
on the
circumstances. It is always difficult, and in this case specially
difficult to establish."
”
[22]
While Grobbelaar’s conduct in
accepting re-employment with the applicant and not proceeding to take
further steps at that
stage to enforce the award at that stage may
well be indicative of a possible intention not to pursue the
enforcement of the award,
it is not unequivocal evidence that she had
plainly permanently abandoned her right to do so, irrespective of
what might have transpired
between her and the applicant after she
was re-employed. The applicant claims it did not proceed to review
the decision of a CCMA
commissioner to dismiss its condonation
application for its late filing of its rescission application in
respect of the award against
it, because of the mutual abandonment of
claims by it and Grobbelaar. Equally, it may have been content to let
the matter lie in
the hope that the award might eventually prescribe.
[23]
Grobbelaar has disputed that there are any
arrear rentals allegedly owing to the applicant, and the applicant is
unable to produce
any evidence to support his own averments that
before her first dismissal she was renting accommodation from the
applicant rather
than receiving it free. The difficulty this
conflicting evidence presents is that it undermines the basis
on which a reciprocal
abandonment of rights could be founded. It is
difficult to see why Grobbelaar would have agreed to waive her rights
to enforce
the award because of her alleged indebtedness if she did
not believe she owed the applicant any rental. Although the applicant
argues that it is unlikely he would have re-employed Grobbelaar
without this agreement, it does not claim that her re-employment
was
subject to her abandonment of her rights. If it had been, then again
it is inexplicable why such an undertaking would not have
been
obtained in an unequivocal form before her re-employment.
[24]
What complicates matters further in
assessing the facts on the papers is that it is difficult to know to
what extent the parties
might have been willing to re-enter an
employment relationship for unarticulated reasons relating to the
previous personal relationship
between Law and Grobbelaar. Whatever
the case, the question remains is whether on the papers the applicant
has clearly established
an abandonment of the award by Grobbelaar
either by agreement, or unilaterally, or that she has in some other
way waived any reliance
on it.
[25]
In
terms of the rules of the High Court and the Magistrates Court
[5]
,
a judgment can be abandoned on the filing of a formal notice by
the party that agrees to waive its rights to the judgment
in its
favour. No such procedure exists in respect of an arbitraton award
which has not yet been made an order of court. There
was no other
unequivocal or demonstrative act on the part of Grobbelaar that the
applicant can point to which shows that she clearly
abandoned all her
rights to enforce the award when she re-entered employment with the
applicant. The applicant was not compelled
to re-employ Grobbelaar.
It ought not to have been difficult for the applicant to have secured
Grobbelaar’s written consent
to waive her rights under the
award as a pre-condition for re-employing her, but it did not.
Likewise, it would have been relatively
simply to have recorded the
supposed reciprocal abandonment of their claims against each other in
a distinct document. It did not
require the conclusion of a new
contract of employment containing such a provision to achieve this.
[26]
There
are material disputes of fact on the affidavits which the applicant
should have anticipated and it ought to have applied to
refer the
matter to oral evidence. Accordingly, it is only entitled to the
relief sought if the facts as stated by respondents,
together with
the admitted facts in applicant's affidavits, justify such an order,
or when it is clear that the facts, though not
formally admitted,
cannot be denied and must be regarded as admitted.
[6]
[27]
On this basis the applicant has failed in
my view to establish on the papers that the applicant plainly
intended to abandon the
award in her favour, and the application must
fail. I see no reason why the costs should not follow the result in
this instance.
Order
[28]
Accordingly,
a.
The rule is discharged.
b.
The applicant is ordered to pay the first
respondent’s costs.
Order
The
application is dismissed with costs.
ROBERT
LAGRANGE
JUDGE
OF THE LABOUR COURT
Date
of judgment: 16 March 2011
Date
of hearing: 21 May 2010
Appearances:
For
the applicant: L C Leysath instructed by Gishen-Gilchrist Inc.
For
the first respondent: W P Scholtz of Jansens Attorneys
[1]
See
Queenstown
Fuel Distributors CC v Labuschagne NO and others
(2000)
21
ILJ
166
(LAC)
at 171, par [13]. This decision also distinguished between cases in
which it is the non-compliance with the directory provisions
of the
rules of court which is being forgiven and those in which the
provision in question is peremptory in terms of a statutory
provision, which a court cannot waive compliance with unless
expressly given the power to do so by the statute (at 169, paras
[5]
– [6]).
[2]
See
Chelsea
Estates
& Contractors CC v Speed-O-Rama
1993
(1) SA 198
(SE)
at
201G-202A, where Mullins, J said:
“
As
has
often been stated, the Rules are made for the Courts, not the Courts
for the Rules. It is not inappropriate to quote the words
of
Slomowitz AJ in the case of Khunou and Others v M Fihrer & Son
(Pty) Ltd and Others
1982
(3) SA 353
(W)
at
355F-356A as follows:
'The
proper function of a Court is to try disputes between litigants who
have real grievances and so see to it that justice is
done. The
rules of civil procedure exist in order to enable Courts to perform
this duty with which, in turn, the orderly functioning,
and indeed
the very existence, of society is inextricably interwoven. The Rules
of Court are in a sense merely a refinement of
the general rules of
civil procedure. They are designed not only to allow litigants to
come to grips as expeditiously and as
inexpensively as possible with
the real issues
between
them, but also to ensure that the Courts dispense justice
uniformly and fairly, and that the true issues which
have
mentioned are clarified and tried in a just manner.’
”
Of
course the Rules of Court, like any set of rules, cannot in their
very nature provide for every procedural situation that arises.
They
are not exhaustive and moreover are sometimes not appropriate to
specific cases. Accordingly the Superior Courts retain
an inherent
power exercisable within certain limits to regulate their own
procedure and adapt it, and, if needs be, the Rules
of the Court,
according to the circumstances. This
power is enshrined in s 43 of the Supreme Court Act 59 of 1959.
'
[3]
See
Zondi
v MEC, Traditional and Local Government Affairs, and others
2006
(3) SA 1
(CC)
at 13, par [30] on the power of the high courts to reconsider
interlocutory orders.
[4]
Rule
12(2) of the Labour court rules.
[5]
High
Court Rules r 41(2) and Magistrates’ Courts Rules
r 27(4).
[6]
See
Stellenbosch
Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd
1957
(4) SA 234
(C)
at
235E - G. In
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
E
1984
(3) SA 623 (A)
at
634H - I