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[2010] ZALCJHB 68
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City Power Johannesburg (Pty) Ltd v Ndela (JR281/10) [2010] ZALCJHB 68 (8 September 2010)
Not
reportable
Not
of any interest to other judges
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASE
NO
: JR281/10
DATE
: 2010-09-08
In
the matter between
CITY
POWER JOHANNESBURG (PTY)
LTD
Applicant
and
NDELA,
ZIMELE
B
Respondent
JUDGMENT
VAN
NIEKERK, J
:
This
is a matter that was heard yesterday. It is an application to review
and set aside an arbitration award made by the second
respondent.
The application was set down on what is referred to as the unopposed
roll. When the matter was called, the third
respondent’s legal
representative appeared and raised a number of points
in
limine
, in circumstances where on 24
March of this year, a notice for intention to oppose the application
was filed, and on 13 August
2010, a notice of appointment was filed
by the third respondent’s present attorneys of record.
I indicated after hearing
argument that I would make a ruling during the course of this morning
in respect of the points raised.
Before
turning to those points and my ruling in that regard, it ought to be
recorded that on 31 August this year, the third respondent
filed an
answering affidavit, it being common cause that the time period for
the filing of such an affidavit expired on 24 July
2010. The
answering affidavit was therefore filed more than a month late, and
was not accompanied by any application for
condonation for the late
filing.
The
technical points as I understood them were as follows. First, the
application is fatally defective, in that the applicant’s
attorney of record signed the founding affidavit. Now as I
understood the argument raised by Mr Scholtz (who appeared for
the
third respondent) the Act requires a ‘party’ to a dispute
to bring an application and this necessarily requires
that a party to
the dispute must sign the founding affidavit.
There is no merit in this
contention. The applicant in this matter is a corporate entity
and that being so, it is entitled
to litigate in this court, having
authorised a person to act on its behalf and to sign all necessary
documentation on its behalf.
The fact that the applicant’s
instructing attorney was so authorised is neither here nor there.
Mr. Scholtz also attacked
the resolution filed by the applicant As I understood the argument,
he submitted that the resolution was
defective in the sense that it
was signed prior to the lodging of this application, but after a case
number had been obtained.
Similarly, there is no
merit in this contention. It follows that the applicant, being a
corporate entity, was required to adopt
the resolution in order to
institute these proceedings. The resolution was dated 3 March
2010, the Notice of Motion signed
on 11 March 2010 and the
application filed the next day, 12 March 2010. In this court, it is
common practice to request a case
number prior to lodging an
application. All of these events were preceded by the resolution, and
were validly conducted.
In these circumstances,
there is no question that the resolution is proper, that it was
properly signed, and that the applicant
properly initiated these
proceedings and properly authorised the applicant’s attorney of
record (who incidentally had personal
knowledge of the arbitration
proceedings under review) to sign the necessary affidavits on behalf
of the applicant.
The third respondent
appears to have confused the issue of
locus standi
with
authority. Having regard to the documentation before me, there
is no question that the initiation of these proceedings
was properly
authorised and that the signature of the founding affidavit by Mr
Singh was effected under the necessary authority,
that being the
resolution that preceded signature of the affidavit and the filing of
this application.
The third point
in
limine
, as I understood it, was that the application was fatally
defective in the sense that the applicant had not complied with the
provisions
of Rule 7(A)(6) and (8), which requires a full
record of the proceedings under review to be filed in this court.
The
third respondent claims that there were a number of documents
which were not filed, including the certificate of outcome, on which
it places some importance.
What this contention
overlooks is the fact that the Rule requires an applicant to file
only a copy of the record or a portion of
a copy of the record that
is relevant to the review proceedings. Now if an applicant files only
a portion of the record and it
subsequently transpires that the
review in court is faced with an incomplete record, that is the
matter that the applicant
will have to deal with in due course and if
necessary, suffer the consequences of an adverse costs order. In the
present circumstances,
the applicant has filed a record that
substantially complies with the Rule. In any event, I fail to see
what significance the documents
alluded to by the third respondent
have in these proceedings.; there was certainly no case made out that
their omission was fatal.
As I have already indicated, the applicant
files such portions of the record as it does, at its risk - this is
not a matter that
goes to the question of whether or not the
application is fatally defective.
Finally, the third
respondent contended that the matter was improperly enrolled. I
understood the argument to be that the matter,
having been opposed,
ought to have been set down on the opposed motion roll.
There is no merit in this
contention and despite reference by Mr Scholtz to authority that
appears to suggest that when an application
is opposed ( at least in
the sense of a notice of intention to oppose having been filed) it
nonetheless remains necessary for the
matter to be enrolled as an
opposed application, even if the respondent has filed no answering
affidavit.
There is no support for
this view in either the Act or the Rules. Neither makes reference to
motion court in the sense of an opposed
Motion Court or an unopposed
Motion Court, nor is there any reference to opposed and unopposed
rolls. The fact of the matter
is that this application was
enrolled for hearing, and it is incumbent on the Court to deal with
the matter on that basis.
In any event, it seems to
me that where a notice of intention to oppose is filed and the
respondent in due course fails to file
an Answering Affidavit, the
Court is entitled to treat the matter as unopposed. This is
particularly so where an Answering
Affidavit is filed out of time
without any application for condonation, because in those
circumstances, the affidavit is not properly
before the Court.
In summary : there is no
merit in any of the points
in limine
raised by the third
respondent, all of which represent an attempt to avoid the
consequences of a failure to file an answering affidavit
timeously,
or with a proper application for condonation.
I
was inclined, for these reasons, to treat the matter as unopposed and
make a ruling on that basis. However, Mr Khumalo,
who
appeared for the applicant, indicated that the applicant’s
attitude was that if the third respondent wished to file an
application for condonation in due course, it ought to be
permitted to do so.
That is the nature of the
order I intend to make. What remains is the question of costs. It
seems to me that in circumstances where
a respondent such as a third
respondent in these proceedings has failed to comply with the Rule by
filing an answering affidavit
within the specified time limit without
an application for condonation, thereby occasioning the postponement
of the matter, that
it ought to be liable for the costs of that
postponement.
For
these reasons I make the following order:
1.
The application is postponed
sine
die.
2.
The third respondent is to file an
application for the condonation of the late filing of his Answering
Affidavit, within seven days
of the date of this order.
3.
The third respondent is to pay the wasted
costs occasioned by the respondent.