About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2011
>>
[2011] ZALCJHB 198
|
|
Dicks v South East Node (Pty) Ltd (J 2131/08, J 2132/08, J 2133/08) [2011] ZALCJHB 198 (2 February 2011)
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NO: J 2131/08
J 2132/08
J 2133/08
In the matter between:
DICKS CHRISTOPHER JOHANNES
..................................................................................................
Applicant
and
SOUTH
EAST NODE (PTY) LTD
...................................................................................................
Respondent
JUDGMENT
LAGRANGE,
J
The applicant in the
main matters has launched two separate applications in October 2008
for different relief under the
Basic Conditions of Employment Act 75
of 1997
.
The first application is
to obtain a certificate of service in terms of
section 42
of the
BCEA. For reasons which remain unclear this application was filed
twice under different case numbers, namely J 2133/08
and J 2131/08
Regarding the first
claim, the respondents supplied the applicant’s attorneys with
a copy of the applicant’s certificate
of service for the
period of his employment with the respondent. The respondent queried
why the applicants had not used the enforcement
mechanisms provided
in the BCEA, which enables him to obtain such a document by using
the offices of the Department of Labour
and its inspectors. The
respondents also pointed out that the applicant was employed by an
associated company and not by itself
at the time the applicant
claims the duty to provide the particulars of employment arose.
The second application
is for the payment of the overtime pay. The applicant claimed that
the respondents had not complied with
its obligations in terms of
section 20
and
section 10
of the BCEA governing the payment of leave
pay and overtime respectively. The respondent has opposed both
applications.
In both cases, the
applicant sought a cost order on an attorney and client scale.
In June 2010, the
applicant filed a supplementary affidavit in which he now
essentially relies as his cause of action on a contractual
entitlement based on the provisions of
sections 4
and
77
(3) of the
BCEA. The former provides that a basic condition constitutes a term
of a contract of employment, subject to certain
limitations which do
not seem to be relevant here. The latter provision gives this court
concurrent jurisdiction with the civil
courts to hear and determine
any matter concerning a contract of employment whether or not a
basic condition of employment constitutes
a term of the contract.
No explanation is
provided for the filing of the supplementary affidavit, nor has the
applicant sought leave for its introduction
into the proceedings.
The application before
me is an interlocutory one brought by the respondent in the main
matter. It seeks to have the supplementary
affidavit struck out. The
respondent also seeks the setting aside of a document styled by the
applicant as a “Tender in
Terms of
Rule 22A
” and served
directly on the respondent instead of its attorneys of record, as an
irregular proceeding. It further seeks
relief in the form of a
referral to the Law Society of the applicant attorneys conduct for
communicating directly with the respondent
and for allegedly
creating the impression it acted for the respondent.
Only the last part of
the relief relating to the punitive cost award is opposed.
Rule 7 of the Labour
Court Rules makes no provision for the filing of a supplementary
affidavit in motion proceedings. The effect
of the applicant’s
supplementary affidavit is to amend its cause of action from one
reliant solely on the direct application
of sections the BCEA to one
based on sections 10,20 and 42 of the BCEA to one reliant on the
contractual qualities of basic conditions
of employment. As
mentioned,
no
explanation is made for this change of tack on the applicant’s
part, nor is leave sought from the court for introducing
the
supplementary affidavit which in effect is akin to an application to
amend pleadings and amounts to the introduction of a
new cause of
action. Whatever the circumstances are in which this court may admit
supplementary affidavits
1
,
the content of the affidavit is such that the applicant ought to
have made a formal application for its admission.
In these circumstances,
no proper application for the introduction of the supplementary
affidavit has been made, nor does the
affidavit explain why the
applicant is changing his cause of action. The admission of the
affidavit in the circumstances has
not been justified and is not
admitted as part of the record.
The applicant’s
representative sought to argue that in seeking an attorney own
client cost order against the applicant’s
attorneys, the
respondent ought to have separately joined the firm as a party to
the matter, notwithstanding the provisions of
section 162(3) of the
Labour Relations Act 66 of 1995 (‘the LRA’). Mr Scholtz,
who appeared for the applicant, could
not explain why the firm would
not have had notice of the respondent’s intentions in this
regard, by virtue of being the
applicant’s attorneys in the
matter on whom the respondent’s interlocutory application was
served. Mr Beaton, for
the respondent, referred to the case of
Darries v Sheriff, Magistrates Court, Wynberg & Another
1998 (3) 34 SCA
in which the Supreme Court of Appeal held an
attorney liable for the costs of an application for condonation,
without any joinder
application having been brought. In any event,
Mr Scholtz could not cite any authority for the proposition that his
firm ought
to have been joined before such an order can be made. In
circumstances where the applicant’s attorneys of record must
have
been aware of the order that was sought, I see no reason why
they had to be joined as parties to the main litigation.
Mr Scholtz also argued
that the respondent had filed its opposing affidavit three days late
and in the absence of obtaining condonatéon
for the late
referral it could not oppose itS applications. This is a matterof
disput%, as phe respondent dEnies receiving the
applica`Ion on the
date in question But$cìaims to heöe recåiVud
it only three dayr latr/ It $oes not
appg!r to$me in
the`circumstances that it w`s necessary for the respondunt t/ apply
for condonation.
RegarDing the tender
document sent to the respondent directly, there is no excuse for
conduct of The applicant�s attorneys
in this regard. Tha
rerpondent’s attm2ney{ were on record, and the document itself
may well have created confusion in the
mind of the respondent that
its attorneys had tendered an offer to settle the matter. Whether
there was professional misconduct
by the applicant’s attorneys
is a matter for the Law Society to consider and it will be referred
to it, though it does
not form part of th
e
order of this
court. However, whether or not it constitutes unethical conduct,
such correspondence ought to have been served on
the respondent’s
attorneys of record and such conduct should be discouraged. However,
it was not a step in the proceedings
as such and it is not necessary
to declare it an irregular step in the sense that term is usually
meant. Even though the applicant
does not oppose the relief sought
in this regard, it is not necessary for the court to make the ruling
sought, even though the
conduct was improper in relation to the
rules pertaining to service.
Order
Accordingly, an order is
made in the following terms:
The applicant’s
supplementary affidavit filed on 21 June 2010 is struck out.
The applicant’s
attorneys, Jansen Incorporated, must pay the costs of this
application on an attorney own client scale.
ROBERT
LAGRANGE
JUDGE
OF THE LABOUR COURT
Date
of hearing: 01 February 2011
Date
of judgment: 02 February 2011
Appearances:
For
the Respondent: Mr R G Beaton instructed by Messrs Wandrag &
Marais Inc
For
the Applicant: Mr W G Scholtz of Jansens Inc.
1
In
parenthesis, it should be noted that the general practice followed
in this court is that a supplementary affidavit cannot be
introduced
without the leave of the court and such leave is normally sought by
way of an interlocutory application. For example
see
NASUWU &
Others v Pearwood Investments (Pty) Ltd t/a Wolf Security &
Another
(2009) 30 ILJ 1852 (LC)
at 1859, [32]