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[2011] ZALCJHB 178
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Murray Glen CC t/a Murray Park & Caravan Pleasure Resort v Grobbelaar and Others (JR 467/09) [2011] ZALCJHB 178 (16 March 2011)
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:
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.
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.
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.
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.
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.
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.
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.
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.
Grobbelaar denies
walking out on 14 December 2009 claiming that she was dismissed by
the applicant.
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
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.
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
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.
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
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.
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.
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.
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.
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.
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.
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."
”
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.
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.
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.
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.
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
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
Accordingly,
The rule is
discharged.
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] ZASCA 51
;
1984
(3) SA 623
(A)
at 634H - I