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[2011] ZALCCT 19
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Joni and Others v Servest (Pty) Ltd t/a FICA Quality Cleaning Services (C833/05) [2011] ZALCCT 19 (16 August 2011)
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
CASE NO: C833/05
In the matter between:
THEMBA JONI AND 82 OTHERS
…......................................................................
Applicants
and
SERVEST (PTY) LTD t/a
FICA QUALITY CLEANING SERVICES
….........................................................
Respondent
JUDGMENT
FRANCIS J
Introduction
1. This is an application for condonation for the late filing of the
respondent’s statement of response. The application
was opposed
by the applicants.
The background facts
2. The applicants were employed by the respondent. They were
dismissed by the respondent after they had embarked on an unprotected
strike action in 2002. The dispute was referred to conciliation and
after conciliation had failed to this Court for adjudication.
3. The applicants served and filed their statement of claim on 2
December 2005. A notice to oppose was served and filed on 20
January
2006 which was outside the 10 ten-day period. The respondent’s
statement of response should have been filed on
19 December 2005.
The matter was enrolled for default judgment on 30 March 2006 before
Pillemer AJ. The respondent’s attorney
appeared at the hearing
and Pillemer AJ made the following order:
“
1. The application is removed from the
roll.
2. The respondent is directed to deliver its response by no later
than 7 April 2006.
3. The respondent is ordered to pay the costs of today’s
proceedings.”
4. The respondent did not file its statement of response on 7 April
2006 in terms of the aforesaid court order but did so on
11April
2006. The statement of response case was filed some 16 weeks late
and was not accompanied with an application for condonation.
5. The matter was enrolled for a pre trial conference before Tip AJ
on 28 January 2010. Both parties attended court and by agreement
the
parties were ordered to file a full signed pre-trial conference
minute by 16 February 2010. The pre-trial minute was only
filed on
21 May 2010.
6. The applicants raised the following preliminary point in the
pre-trial minute:
“
24.1 Applicant party served the
Respondent party with its statement of claim on the 2nd December
2005 and accordingly notified
the Respondent that it had 10 (ten)
days to file its opposition thereto if it so wished.
24.2 The prescribed 10 (ten) days on which the Respondent was
supposed to file its opposition to the Applicant party’s
statement
of claim lapsed on 19 December 2005.
24.3 The Respondent filed its notice of intention to oppose the
Applicant’s statement of claim on 16 January 2005 without
filling its opposition thereof.
24.4 The matter was before Honourable Acting Justice Pillemer on
30th March 2006, almost 14 months when the Respondent had not yet
filed its opposition yet whereby the Court ruled that the matter be
removed from the roll that day and the Respondent to deliver
its
response to the Applicant’s statement of claim by not later
than 7 April 2006 and the Respondent was further ordered
to pay the
costs of that day’s proceedings.
24.5 The Respondent did not only fail to comply with that order
of the above Honourable Court but also failed to file an application
for condonation of the late filing of its opposing statement which
was filed 9 days after the date of the said Court Order. Thereby
failing to show good cause why it failed to comply with the above
said Court Order including but not limited to why should the
Court
entertain its opposing papers”.
7. The matter was enrolled for trial on 1 February 2011 before
Steenkamp J. The following order was made:
“
1. The matter is postponed sine die;
2. The Respondent is ordered to furnish the documents requested
by the Applicant on 17 May 2010 to the Applicant by not later than
8
February 2011. The Applicant is ordered to file consolidated bundle
of documents by not later than 22 February 2011;
3. The Respondent’s attorney is ordered to pay the
Applicant’s costs, including costs for travel and
accommodation
de bonis propriis.
4. The Registrar is directed to enrol the matter for trial on the
first available date after 22 February 2011 for 4 days;
5. The Registrar is directed to ensure the presence of an
interpreter from Xhosa to English and vice versa.”
8. The matter was enrolled for trial commencing 15 August 2011. On 5
August 2011 the respondent filed an application stating
that it
would on 15 August 2011 be seeking an order for the following
relief:
“
1. Condoning the late filing of the
Respondents Statement of Defence (in as much as same may be
necessary);
2. Directing that costs of this application be paid by the
Applicant only in the event that the application is opposed.”.
9. The deponent to the condonation application was the respondent’s
attorney, Brett Carnegie who stated as follows in his
affidavit:
“
1. I am an adult male attorney
practicing on my own account at 17Gb, Waverley Business Park,
Mowbray, 7700.
2. The facts herein contained are within my personal knowledge,
except where the contrary appears from the context, and are both
true and correct.
3. I am duly authorised to bring this application and depose to
this affidavit on the Respondent in the main Actions behalf.
4. This is an application for the condonation of the late filing
of the Respondents statement of defence in accordance with the
court
order of the Honourable Acting Justice Pillemer ordered on the 30th
March 2006.
5. Many years have passed since the issuing of the order and my
colleague, Mr Alfred Ntela, for the Applicants has insisted that
I
launch an application for condonation of the late filing of the
Respondents statement of defence in this matter. I was well
aware of
the implication of the Court order and worked hard at preparing the
Respondents Statement of Defence to have it delivered
timeously. I
cannot recall the precise details of why the Statement of defence
was delivered on the date when it was, however
I can only assume
that same was delivered with the consent of the Applicants attorneys
at that time. I do not have a file note
recording same and for this
I apologise, however the fact that there was consent for the late
filing is evidenced by the fact
that no further steps were taken by
the Applicants legal representatives to hold the Respondent as being
in Contempt of Court.
6. In fact, as far as I can make out, no further action was taken
by the Applicants attorneys until their withdrawal as attorneys
of
record in October 2006.
7. I believe that Mr Ntsela is taking a cheap shot to try and
gain some advantage in the litigation and submit that he should have
launched an application for contempt of court or set the matter down
for a default hearing. Instead, he has chosen to procced
with trial
preparation in this matter, including the conclusion of a pre-trial
minute and the setting of the matter for trial.
There would be no
prejudice to the Applicants case arising from the late filing of the
statement of Defence.
8. I submit that the matter is ready to proceed to trial and that
the late filing of the Statement of Defence be condoned.
9. In the premises I submit that the applicant has made out a
case for the relief sought in the Notice of Motion to which this
affidavit is attached. I accordingly ask the court to grant the
relief sought.”
10. The condonation application was opposed by the applicants on 5
August 2011 on several basis. It was contended that the application
was defective and was not filed within the prescribed time limits.
There was inordinate delay in filing the application for condonation
of the late filing of its opposing papers and that the respondent
was in contempt of Pillemer AJ’s order. It was contended
that
a party that needs to apply for condonation must do so immediately
upon its first realisation that condonation must be applied
for. The
respondent’s attorney was present in court on 30 March 2006
when the order was made. The respondent was ordered
to file its
opposing papers by 7 April 2006. The respondent’s attorney had
attached his signature to the statement of defence
on 22 February
2006. He has failed to give a plausible explanation in his
supporting affidavit why if the statement of response
was ready on
22 February 2006 which was eight days before he made his surprise
appearance in court on 30 March 2006 it was not
filed within eight
days. The deponent stated that he was present in Court on 1 February
2011 when the attorney was warned by
Steenkamp J for not having
applied for condonation for the late filing of the respondent’s
opposing papers even when he
signed a pre-trial minute with an
in
limine
point to this effect and he said that he would argue
condonation at the trial stage.
11. It was further pointed out by the applicants in the answering
affidavit that the application was defective and did not specify
or
reflect the degree of lateness and that the respondent did not deal
with prospects of success. The applicants stated that
the respondent
does not have prospects of success in the trial. It was stated that
the dismissals of the applicants were not
effected for a fair reason
and in accordance with a fair procedure as stated in the pre-trial
minutes of the matter. It was stated
that the respondent does not
have any prospects of success in the trial of this matter and hence
it silence on this important
issue in condonation applications. It
was stated that the court should not entertain or grant condonation
to an application which
failed to advance degree of lateness,
reasons for the lateness not known and or based on assumptions,
prospects of success, prejudice
and failure to show good cause. The
applicants denied that there was consent from the applicants
previous attorney for the respondent
not to comply with the court
order of 30 March 2006 and the respondent was put to the proof
thereof.
12. The respondent filed a replying affidavit on 12 August 2011. It
has stated
inter alia
that it has good prospects of success
and referred to the statement of response that was filed. It
confirmed that Steenkamp J
had raised the issue of the condonation
application with the respondent’s attorney and that he had
said he would deal with
it at the trial hearing.
The condonation application
13. The leading case dealing with condonation application is
Melane
v Santam Insurance Co Ltd
1962(4) AD where the following was
said at page 532 paragraphs C to D:
“
In deciding whether sufficient cause
has been shown, the basic principle is that the Court has a
discretion, to be exercised judicially
upon a consideration of all
the facts, and in essence it is a matter of fairness to both sides.
Among the facts usually relevant
are the degree of lateness, the
explanation therefor, the prospects of success, and the importance
of the case. Ordinarily these
facts are interrelated: they are not
individually decisive, for that would be a piecemeal approach
incompatible with a true decision,
save of course that if there are
no prospects of success there would be no point in granting
condonation. Any attempt to formulate
a rule of thumb would only
serve to harden the arteries of what should be a flexible
discretion. What is needed is an objective
conspectus of all the
facts. Thus a slight delay and a good explanation may help
compensate for prospects of success which are
not strong. Or the
importance of the issue and strong prospects of success may tend to
compensate for a long delay. And the respondent’s
interest in
finality must not be overlooked. I would add that discursiveness
should be discouraged in canvassing the prospects
of success in the
affidavits. I think that all the aforegoing clearly emerge from
decisions of this Court, and therefore I need
not add to the
evergrowing burden of annotations by citing the cases”.
14. The respondent had to deal with the following facts in its
application for condonation namely:
14.1 The degree of lateness;
14.2 The explanation for the lateness;
14.3 Prospects of success; and
14.4 The importance of the case.
15. The respondent was required to deal with all four requirements
for condonation in its founding papers. It has not done so.
It is
trite that a party must make out its case in its founding affidavit.
It cannot make out its case in its replying affidavit.
This
principle is dealt with as follows in
Herbstein & Van Winsen
- The Practice of the High Courts of South Africa - Fifth Edition
Volume 1
at pages 439 - 440:
“
The necessary allegations must appear
in the supporting affidavits, for the court will not, save in
exceptional circumstances,
allow the applicant to make or supplement
a case in a replying affidavit, and will order any matter appearing
in it that should
have been in the supporting affidavits to be
struck out. If, however, the new matter in the replying affidavit is
in answer to
a defence raised by the respondent and is not such that
it should have been included in the supporting affidavits in order
to
set out a cause of action, the court will refuse an application
to strike out. It is well established that there exists a general
rule that new matter may not be introduced by an applicant in the
replying affidavit, but this is not an absolute rule and the
court
may in an appropriate case allow an applicant to do so. In the
context ‘new matter’ is not synonymous with
a new cause
of action. The abandonment of an existing claim together with its
cause of action and the substitution of a fresh
and completely
different cause of action does not amount merely to the introduction
of ‘new matter’.
The general rule which has been laid down repeatedly is that an
applicant must stand or fall by the founding affidavit and the facts
alleged in it, and that although sometimes it is permissible to
supplement the allegations contained in that affidavit, still
the
main foundation of the application is the allegation of facts stated
there, because those are the facts that the respondent
is called
upon either to affirm or deny. The Appellate Division has held that
it is not permissible to make out new grounds for
an application in
a replying affidavit. If the applicant merely sets out a skeleton
case in supporting affidavits, any fortifying
paragraphs in the
replying affidavit will be struck out. .... On the other hand, where
the applicant’s supporting affidavits
were defective inasmuch
as they were based on hearsay evidence, the court held that the
applicant could not make a case for the
first time in the replying
affidavit; and where the applicant had failed to allege locus standi
to make the application it was
held this could not be done in a
replying affidavit. The applicant must make out a prima facie case
in the founding affidavit.”
16. The respondent had to deal with the degree of lateness. The
applicant’s statement of claim was served on the respondent
on
2 December 2005. The statement of response was served on 11 April
2006. It should have been filed on 19 December 2005. There
is no
explanation tendered why the statement of response was not filed on
or before 19 December 2005. The respondent’s
counsel contended
that Pillemer AJ after he had ordered the respondent to file the
statement of response on 7 April 2006 had
by implication condoned
the late filing of the statement of response. In this regard see
Score Supermarket v Kente
[1992] 12 BLLR 1261
(LAC) where at
page 1264, paragraph 10 it is stated as follows:
“
The second point which is, by way of
the condonation application, sought to be raised in appeal is not
stronger. In fact, it is
a good deal weaker. It is contended in the
alternative that the statement of case was filed late, and that
although it was accompanied
by an affidavit seeking condonation,
condonation was not granted. My view is that where the court dealt
with the dispute without
explicitly granting condonation it must be
considered to have been implicitly granted.”
17. When the matter came before Pillemer AJ the respondent had not
yet filed the statement of response. There was no application
for
condonation before him and it is unclear how he could have granted
condonation when there was no such application. The matter
was set
down for default judgment and not an application for condonation.
There is nothing before this Court or even by the respondent
that
Pillemer AJ had condoned the late filing of the statement of
response. There was simply nothing to condone since the applicant
had not filed a statement of response or condonation application.
There is no indication in the order made by Pillemer AJ that
he had
condoned the late filing of the statement of response. It can
therefore not be said that Pillemer AJ implicitly granted
condonation since all that he had before him was the statement of
claim.
18. Even if it could be said that Pillemer AJ had condoned the late
filing of the statement of claim, the respondent has also
not
complied with the order made by him. The respondent had to file the
statement of response by 7 April 2006 and did so on 11
April 2006
without applying for condonation. There is no proper explanation
tendered for non compliance with the court order.
The respondent’s
attorney has stated that he could not recall the precise details of
why the statement of response was
delivered on the date when it was,
however he could only assume that same was delivered with the
consent of the applicants attorneys
at the time. He said that he
does not have a file note recording same and apologised for this,
however the fact that there was
consent for the late filing is
evidenced by the fact that no further steps were taken by the
applicants legal representatives
to hold the respondent in contempt
of court. The respondent is economical with the truth. I would have
expected that the respondent’s
attorney would have recorded
the agreement or even written a letter or kept a note of this in his
file. He could not indicate
when exactly this agreement was
concluded and with whom in particular it was concluded with. The
period of delay in filing the
statement of response was sixteen
weeks.
19. This brings me to the question of prospects of success. Nowhere
is it stated in the founding papers what the prospects of
success
is. Since this not dealt with in the founding papers, it is
unnecessary to consider was is stated in the replying affidavit.
The
respondent has not dealt with the other requirements for condonation
in the founding affidavit.
20. I am not satisfied that the respondent has made out a proper
case for condonation and the application stands to be dismissed.
21. The application stands to be dismissed for another reason. It is
trite that a condonation application should be brought as
soon as
the need for such an application ought to have been apparent. The
respondent has given no plausible explanation why it
has only
brought the condonation application on 5 August 2011. The pre-trial
minute was filed on 21 May 2010. It is clear from
the minute that
the applicants had raised a point
in limine
about the late
filing of the statement of response which was not accompanied with
an application for condonation. The pre-trial
minute was filed by
the applicants new representatives. Despite this, the respondent
still did not apply for condonation. The
matter was enrolled for
trial on 1 February 2011 when the court asked the respondent’s
failure to apply for condonation.
The respondent’s attorney
stated that he would deal with this at the trial. Again it is not
explained why no such application
was made. There is still today no
explanation given why the respondent did not apply for condonation
soon after it became aware
that there was a need to do so.
22. I accept that the courts should be slow in closing the court
doors for any party. The rules of this Court permit a party
who has
not complied with the rules to apply for condonation. An applicant
who is seeking condonation is in essence seeking an
indulgence and
must therefore be candid with the court and give an explanation
about how it came that it did not comply with
the rules of this
court or court orders. The doors of this Court were shut by the
respondent’s attorney who it had entrusted
to deal with this
matter. They should seek recourse from him.
23. It was contended by Mr Sher who appeared for the respondent that
the condonation application was brought in terms of rule
12(1) of
the rules of this Court. He argued that the applicant should have
used the provisions of rule 12(2) by putting the respondent
on terms
for not having applied for condonation. I do not agree that the
applicants should have issued a notice to compel in
terms of rule
12(2). The applicants did not apply for the matter to be dismissed
as a result of the respondent’s failure
to apply for
condonation. It is the respondent who is applying for condonation
and should have made out a proper case for condonation.
It is
telling that the respondent’s attorney has deposed to an
affidavit without any confirmatory affidavit by the respondent.
The
respondent’s attorney was mandated to act on behalf of the
respondent. The respondent cannot hide behind the negligence
of
their attorney. The applicant’s services were terminated in
2002 and it is now nine years later and this matter has
still not
been determined by this Court.
24. The application stands to be dismissed.
25. There is no reason why costs should not follow the result.
26. In the circumstances I make the following order:
26.1 The application for condonation is dismissed with costs.
FRANCIS J
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
FOR THE APPLICANTS : A NTELA UNION OFFICIAL
FOR RESPONDENT : M SHER INSTRUCTED BY B CARNEGIE ATTORNEYS
DATE OF HEARING : 15 AUGUST 2011
DATE OF JUDGMENT : 16 AUGUST 2011