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[2010] ZALCJHB 79
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Solane v Commission for Conciliation Mediation And Arbitration (J343/09, 344/09) [2010] ZALCJHB 79 (22 June 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Case
No. J343/09 and 344/09
In
the matter between:
SOLANE
MATOTO REUBEN
Applicant
and
THE
COMMISSION FOR CONCILIATION, MEDIATION
AND
ARBITRATION
Respondent
REASONS
BHOOLA
J:
Introduction
[1]
These are my amended
ex tempore
reasons for an order granted
in the following terms on 30 April 2010:
1.
The application for consolidation is granted on an unopposed basis;
2.
Condonation is granted for the late filing of the respondent’s
answering
affidavit;
3.
The applicant’s claim (under case numbers J343/09 and 344/09)
as consolidated
is dismissed;
4.
The respondent’s counter-claim in the sum of R3358.00 succeeds;
5.
Costs on an attorney and own client scale de boniis propriis are to
be paid by
the applicant’s former attorneys of record, Jansens
Inc.
Background
[2] Two separate claims
under case number 343/09 and 344/09 were brought by the applicant in
terms of sections 77(1) and 77(3) of
the Basic Conditions of
Employment Act, 75 of 1997 (“the BCEA”). In the first
application, the applicant sought payment
in the sum of R3533.20 as
well as interest thereon, in respect of travel expenses occasioned by
his travel on duties performed
in the course of his employment with
the respondent (“the travel claim”). In the second claim
(“the particulars
of employment claim”), the applicant
seeks an order directing the respondent to provide him with its
records relating to
his employment in terms of section 31 read with
section 78(1)(e) of the BCEA. Both claims arose from the termination
of the applicant’s
employment with the respondent on 28
February 2009, when he was employed as a full-time junior (Level B)
commissioner.
[3] The respondent
opposed the relief sought in both claims and instituted a counter
claim in the sum of R3358.00 in respect of
travel claims that were
not owed or payable to the applicant but were paid to him. In respect
of the particulars of employment
claim, which are ostensibly sought
to assess whether there are any further amounts due to the applicant
arising from his employment,
the respondent alleges that he already
has the particulars referred to in section 29 of the BCEA (such as
his name, occupation
and the address at which he was employed); seeks
information that will not assist him in furthering his claim; and
seeks information
to which he is not entitled.
[4] Both claims followed
separate letters of demand addressed to the respondent, and in
respect of both claims the respondent contends
that the matter should
have been referred to the Department of Labour for investigation.
[5] In both claims the
applicant sought costs on a scale as between attorney and own client,
which he acknowledges in his founding
affidavit is due to the fact
that a party and party costs order will not result in full
restitution for his costs in bringing the
applications, and it would
be just and fair for this court to award costs on this scale.
[6]
The respondent filed an application for consolidation of the two
claims, which (at least until the matter was heard on 30 April
2010)
was not opposed by the applicant. The consolidation application, an
application for condonation of the respondent’s
late filing of
its answering affidavit, as well as the merits of the two claims and
the counter-claim were enrolled for hearing
on 30 April 2010.
Conduct of the
applicant’s attorneys
[7]
The applicant’s attorneys, Jansens Inc obviously made no effort
to prepare for the hearing. No heads of argument were
filed by them.
The respondent had also attended to indexing and pagination of the
court file as required by Rule 22B of the Rules
for the conduct of
proceedings in the Labour Court (“the Rules”). At the
commencement of the matter, and in an obvious
ploy to prevent the
matter proceeding, the applicant’s attorney Mr Scholtz raised a
number of technical objections, which
(as I understood them) included
that the matter had been prematurely set down by the respondent
and it had indexed and paginated
the court file; that the
consolidation and/or condonation applications were defective; and
that the respondent had taken an irregular
step in filing a
consolidated answering affidavit prior to the application for
consolidation being granted.
[8]
The consolidation application had been filed in May 2009 and no
notice of opposition was forthcoming. Mr Scholtz submitted that
the
consolidation matter should be disposed of first, and only thereafter
should the merits be enrolled for hearing in due course.
However he conceded that the applicant did not oppose consolidation
and I proceeded to order that the two claims be consolidated.
In any
event, the need for consolidation should not even have arisen in the
first place. It was only necessitated by the unduly
burdensome and
vexatious manner in which Jansens Inc approaches litigation in this
court, the prime objective appearing to be generation
of income by
way of seeking, as a matter of course, costs on an attorney and own
client scale in order to cover the costs of bringing
multiple claims
for small amounts arising out of the same contract of employment.
There would appear to be no other justification
for bringing two
applications in this matter, and there is no reason why a public
institution like the respondent should have to
incur the costs of
defending two separate claims. It is trite that in terms of Rule 23
an order for consolidation may be granted
where it is just and
expedient. Both applications arose from the same facts and
circumstances; involve the same parties and
were dated and signed on
the same day. This pattern of conduct has drawn the ire of this court
on a number of occasions
[1]
, and
it is in line with these authorities as well as the interests of
expeditious dispute resolution that I ordered that the claims
should
be consolidated, and moreover that the merits should be heard.
[9] Mr Scholtz then
sought a postponement, without tendering costs, to enable the
applicant to file a replying affidavit to deal
with the allegations
regarding condonation made in the answering affidavit, and to oppose
condonation of the late filing of the
answering affidavit. He
submitted that the respondent should have anticipated that the
applicant would seek an opportunity to file
a replying affidavit and
it was accordingly responsible for the costs occasioned by the
postponement. However, no objection
to the answering
affidavit as being an irregular step or on any other basis had been
filed, no had the applicant indicated otherwise
its intention to
oppose condonation, despite the answering affidavit having been filed
9 months ago. The applicant’s attorneys
had moreover ignored
three directives to file heads of argument and had also been informed
by respondent’s attorneys that
they intended the interlocutory
as well as the main matters to proceed on the date allocated for
hearing.
Condonation
[10] In support of the
respondent's application for condonation it was submitted that it had
been necessary to investigate the alleged
non-payment of the claims
specified in the applicant’s founding affidavit as well as to
conduct a more general investigation
into all of his travel claims.
This was a time-consuming process. In any event once the respondent
became aware of the existence
of two separate applications arising
from the same set of facts the decision was made to seek
consolidation. The consolidation
application was filed less than two
months after the claim was brought, and it was submitted that this
delay was not substantial.
In addition the answering affidavit was
filed 10 weeks after the consolidation application, and was not
sufficiently serious to
warrant refusal of condonation particularly
given that the prospects of success appeared to favour the
respondent. Moreover, there
was no prejudice to the applicant. He
sought a relatively small amount in his travel claim relative to the
costs of litigating,
and in the event he succeeded in proving his
claim would be adequately compensated by way of payment of interest.
In regard to
the claim requesting particulars of employment the
applicant already had the information and his claim in this regard
was without
merit, and any delay was accordingly of little
consequence. On the contrary, the respondent would be prejudiced by a
refusal of
condonation.
[11]
In the circumstances, I determined that good cause existed to condone
the late filing of the answering affidavit. Although
the basis for
the condonation application was adequately set out in the answering
affidavit I permitted the respondent's attorney
to hand in a formal
notice of application during the hearing. Mr Scholtz sought a
postponement on the basis that, in the absence
of a ruling as to
condonation the applicant had not been obliged to file a replying
affidavit prior to the hearing and now sought
the opportunity to do
so. The postponement was opposed by the respondent on the basis that
a tender of costs had not been made
and Mr Scholtz took the view that
as the applicant was not responsible for the postponement, the
respondent should tender costs.
The basis for this, as I
understood his submissions, was that the respondent should have
anticipated that condonation would
be granted and that the applicant
would then be entitled to file a reply. I considered this to be
nothing short of a disingenuous
attempt to delay the matter and
exercised my discretion to refuse a postponement.
Costs
[12]
Following the refusal of his application for postponement Mr Scholtz
sought an opportunity to take instructions following which
he
withdrew as attorney of record. This was a pure expedience as the
respondent sought costs on an attorney and own client scale
and
extensive submissions had been made in its heads of argument in this
regard. In my view the conduct of Mr Scholtz justified
the initial
grounds on which this costs order had been sought. I proceeded to
hear the merits, granted the counter claim on an
unopposed basis and
dismissed the main claim. When I asked the respondent to address me
on the issue of costs Mr Scholtz then conveniently
sought leave on
behalf of Jansens Inc to intervene as an interested party. Leave to
intervene was refused. In my view this was
a mere subterfuge to avoid
an adverse costs order. Notwithstanding his withdrawal as attorney of
record, which appeared to be a
last ditch effort to avoid the matter
proceeding, and given his vexatious and contemptuous conduct in
this matter, I considered
it justified that Jansens Inc be ordered to
pay the respondent’s costs on an attorney and own client scale
de boniis propriis.
I have also directed the Registrar to provide a copy of these reasons
to the relevant Law Society for investigation of unprofessional
conduct.
______________
Bhoola
J
Judge
of the Labour Court of South Africa
Date
of hearing and
ex tempore
order and reasons: 30 May 2010
Date
of amended reasons: 22 June 2010
Appearance:
For
the applicant: Mr C Scholtz, Jansens Inc
For
the respondent: Mr D Hochstrasser, Bowman Gilfillan
[1]
See
for instance the judgment of Todd AJ in
Baartmann
AAC and Baartmann MME t/a Khaya Ibhubesi v Sheriff of Potchefstroom
and another
[2009] JOL 23566
(LC) para 41, and that of Van Niekerk J in
Ephraim
Mtokafona Mayo v Bull Brand Foods (Pty) Ltd
(unreported
judgment under case J104/09) as well as the judgment of Basson J in
Indwe
Risk Services (Pty) Ltd v Hester Petronella Van Zyl
(unreported judgment under case2647/2007).