About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2012
>>
[2012] ZALCJHB 25
|
|
Mathenjwa v State Information Technology Agency and Others (JS 801/2010) [2012] ZALCJHB 25 (7 March 2012)
Reportable
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA
AT JOHANNESBURG
JUDGMENT
case
no: jS 801/2010
In the matter between:
TITO B S MATHENJWA
Applicant
And
STATE INFORMATION TECHNOLOGY AGENCY
First Respondent
LEFATSHE TECHNOLOGIES (PTY) LTD
Second Respondent
NOEDINE ISAACS-MPULO
Third Respondent
Heard
:
19 August 2011
Delivered
: 07 March
2012
Summary:
(Exceptions – late filing thereof -Rule 23(3))
JUDGMENT
LAGRANGE, J
Introduction
This is a ruling on exception applications brought by the first
respondent in the main matter (‘the excipient’).
It
contends that the applicant’s statement of claim lacks
averments which are necessary to sustain a cause of action, and
in
addition also filed an exception to the statement of case as vague
and embarrassing in certain respects. The excipient also,
incorrectly, includes a special plea of prescription in its notice
of exception.
In response to the notice of exception, the applicant filed a
“counter-application” claiming that the excipient had
not filed an answering statement in terms of rule 6 (3) of the rules
of the Labour Court, nor had it applied for condonation
for the late
filing thereof.
Background
The applicant had launched a case in which he initially claimed an
alleged unfair dismissal in terms of section 187 (1) (a),
(d) and
(h) of the Labour Relations Act 66 of 1995 ("the LRA"). He
further claims that the excipient was in breach
of clause 3.3 of his
contract of employment (the payment of a contractual incentive
bonus) and clause 3.5 thereof (the non-payment
of a 13th cheque)
which should have been paid every November since 2004 according to
the applicant.
The respective dismissal claims relied upon by the applicant and
section 187 (1) (a), (d) and (h) are all forms of automatically
unfair dismissal. For ease of reference the relevant subsections
read as follows:
187 Automatically unfair dismissals
(1) A dismissal is automatically unfair if the employer, in
dismissing the employee, acts contrary to section 5 or, if the reason
for the dismissal is-
(a) that the employee participated in or supported, or indicated
an intention to participate in or support, a strike or protest action
that complies with the provisions of Chapter IV;
...
(d) that the employee took action, or indicated an intention to
take action, against the employer by-
(i) exercising any right conferred by this Act; or
(ii) participating in any proceedings in terms of this Act;
....
(h) a contravention of the
Protected Disclosures Act, 2000
, by the
employer, on account of an employee having made a protected
disclosure defined in that Act.
In respect of the applicant’s claim that he made a protected
disclosure in terms of section 6 of the Protected Disclosures
Act no
26 of 2000 ("the PDA”), he alleges that in late October
2007 he sent an e-mail to the excipient’s ‘Ethics
line’
e-mail address. Essentially, the applicant says he raised questions
about an alleged conflict of interest involving
the third
respondent, Ms N Issacs-Mpulo, who had been the former chief of
business operations of the excipient and was then appointed
as the
CEO of the second respondent, Lefatshe Technologies (Pty) Ltd. The
alleged conflict of interest arose in relation to a
Gauteng Shared
Services Centre Disaster Recovery Solution Project (“the
project”). The applicant claimed that instead
of the excipient
taking action to prevent the second and third respondents benefiting
from the project, he was suspended, charged
and dismissed by the
third respondent in contravention of section 187 (1)(f) of the LRA
1
.
The reference to the latter subsection appears to have been an
erroneous reference, whereas the applicant meant to refer to
section
187(1) (h).
The applicant goes on to say that on 30 June 2008 he exercised his
right not to be subjected to an unfair labour practice relating
to
the provision of benefits in terms of section 186 (2) (a) of the LRA
by referring a dispute to the CCMA concerning the excipient’s
alleged refusal to pay an annual contractual incentive bonus of 20%
each year from March 2005 until March 2009, inclusive.
The applicant further alleges that at the beginning of August 2008
the excipient's board decided not to pay employees performance
bonuses. In his capacity as a member of a consultative forum, he
challenged management's decision calling on it to retract it
or face
a protected strike. In his statement of claim the applicant states
that the employees "took the issue as a matter
of mutual
interest". He then says that the board reversed its decision
not to pay the performance bonuses but only paid
20% of the amounts
"due to the employees".
He was charged with breaching the applicant's delegations of
authority, damaging the image of the applicant, and gross
insubordination.
He was dismissed on 10 March 2009 for gross
insubordination for failing to respond to a request from the
applicant's provincial
manager about correspondence he had sent to
the Gauteng provincial government in early September 2008, as well
as for other unspecified
acts of failing to obey lawful instructions
and submitting to authority. The applicant links the formulation of
the third charge
to a meeting held on 12 September 2008 with the
excipient, in which he was allegedly intimidated by other management
figures
with the threat of disciplinary action if he continued
organising the threatened strike action.
In summary, the applicant refers to the events described in
paragraphs 6 to 8 above, together with the "disguised reason"
for which he was dismissed, as demonstrating that he was dismissed
for having challenged the board and executive management decision
"on issues of mutual interest, including the establishment of
the trade union and the intended protected strike by the employees".
These are the material facts he claims to rely on to establish that
she has a claim for automatically unfair dismissal in terms
of
section 187(1)(a) of the LRA.
In paragraphs 7.1 and 7.2 of his statement of claim where he deals
with the facts on which he relies to establish a claim of
automatically unfair dismissal in terms of section 187 (1) (d) of
the LRA, he links his claim for a contractual incentive bonus
and
his challengeto the board on performance bonuses together with
referring an unfair labour practice claim in relation to the
contractual incentive bonus as the reasons why he was suspended and
subsequently dismissed. In a somewhat roundabout way, the
applicant
contends that he was suspended and charged for exercising its rights
in terms of the LRA. In this regard, it would
appear that the
applicant is referring both to the exercise of his right to refer
the unfair labour practice dispute and, or
alternatively, voicing
the grievances of employees over the performance bonus.
On the question of the protected disclosure claim, the applicant
says he made a protected disclosure to the excipient in terms
of the
procedure for reporting corruption, which had been published in the
excipient’s newsmagazine of April 2005. The
disclosure
concerned queries about questionable conduct entailing a conflict of
interest allegedly committed by the third respondent
in relation to
project described above. The applicant says he followed up on the
protected disclosure at a meeting in January
2008 in which he
requested a forensic audit on the project in the light of what he
describes as the "
...glaring conflict of interest and
criminal conduct the transaction has manifested as was set out in
the Protected Disclosure
Document.
"
The failure to disclose a course of action
The excipient contends that the claim that he was dismissed for
reasons of challenging the board and executive management decision
on matters of mutual interest cannot constitute a claim in terms of
section 187 (1) (a) of the LRA. In order to succeed an excipient
has
the duty to persuade the court that upon every interpretation which
the pleading in question, and in particular the document
on
which it is based, can reasonably bear, no cause of action or
defence is disclosed; failing this, the exception ought not to be
upheld.
I appreciate that paragraph 6.1 of the applicant’s statement
of claim is somewhat compendious and appears to embrace more
than
one reason for dismissal within its scope. Nonetheless, it is
sufficiently clear that the applicant does believe that a
reason for
his dismissal was his role in intending to participate in a
protected strike in relation to the performance bonus
demands. In,
my view, this is sufficient to bring his claim within the ambit of
section 187(1) (a) of the LRA.
Accordingly, this exception must fail.
Vague and embarrassing averments
The exception that the statement of claim is vague and embarrassing
is more extensive. The excipient gave the applicant the opportunity
to remove the causes of complaint, but the applicant did not take
the opportunity to do so, which led to the exception application
being filed in keeping with the practice set out in rule 23 (1) of
the High Court rules.
2
Each of the complaints is dealt with below.
The nature of the strike action
In so far as the applicant claims that he was unfairly dismissed in
terms of section 187 (1) (a), the excipient notes that the
applicant
has failed to plead sufficient facts to illustrate that the intended
industrial action would have been protected. In
particular, it
claims that he ought to have clarified whether The Electronic
Communication Workers Association of South Africa
(‘ECWASU’)
was a registered union and whether the dispute had been referred to
conciliation prior to industrial action
being contemplated.
The first criticism is misplaced, as there is no requirement that a
strike may only be called or initiated by a registered trade
union
in terms of section 64 of the LRA. The second criticism is more
justified since the protection afforded by section 187(1)(a)
is only
available in the case of protected industrial action, and the
applicant has failed to alleged the facts on which the
protected
status of the intended strike action was based.
Accordingly, this exception is partly successful.
The claim under section 187 (1) (d)
The excipient claims that on the one hand the applicant is claiming
that the bonus dispute is a rights dispute governed by the
unfair
labour practice provisions of the LRA, and on the other hand, that
it is an interest dispute which was the subject of
intended
industrial action.
Reading paragraph 7 of the statement of case, it seems that the
applicant is claiming that his referral of the unfair labour
practice dispute in respect of the incentive bonus, as well as his
pursuit of the interest dispute in respect of the performance
bonus,
were reasons for his dismissal. I understand him to be saying that,
in essence, he was victimised for taking up either
or both of these
issues.
I accept that there is some confusion as to whether the applicant is
still pursuing an unfair labour practice claim over the
incentive
bonus dispute, which he claims to have referred to the CCMA, whereas
he is clearly asserting a contractual entitlement
to the incentive
bonus in his statement of case. Nevertheless, the possible effect of
the applicant pursuing overlapping remedies
in relation to the
incentive bonus is not something that is best addressed in an
exception application. The thrust of the excipient’s
complaint
in regard to the rights or interest nature of the bonus disputes,
does not detract from the fact that the claim of
unfair dismissal
under section 187(1) (d) rests on the claim that the dismissal was
on account of the applicant pursuing his
claims to those bonuses,
irrespective of whether they were based on interests or rights.
Accordingly, this exception must fail.
Protected disclosure claim
The excipient’s difficulty with this claim is one that it says
the disclosure made by the applicant was supposedly made
in 2007
whereas he was only suspended and charged for misconduct in January
2009. It submits that this long gap between the disclosure
and the
disciplinary action demonstrates that the applicant has failed to
show that there is a causal nexus between the two events.
There appears to be a factual dispute implicit in this objection
because the applicant said that he was suspended on 30 September
2008. For the purposes of this application, it is not necessary to
try and determine which version is true that to identify whether
there is a flaw in the applicant's case as pleaded.
From the applicant's account of events subsequent to the alleged
disclosure, it appears that he believes that it was his persistence
in following up on the protected disclosure which eventually
culminated in his suspension and dismissal. I agree with the
excipient
that a time lag of nearly a year between the alleged
protected disclosure in October 2007 and the applicant's suspension
in September
the following year does raise questions about whether
the applicant might ultimately succeed in establishing the causal
nexus
between the events. However, that is a matter which will
ultimately be determined on the evidence. From the perspective of
the
cogency of the pleadings, I think it is sufficient that the
applicant has asserted that the one event culminated in the other.
I
do not believe that the lack of detail prevents the excipient from
answering the allegation that it was the alleged protected
disclosure which led to the applicant’s suspension and
dismissal. The excipient’s alleged reason for dismissing the
applicant must be known to it and it ought to be able to respond to
a case which says otherwise.
Accordingly, this exception must also fail.
Bonus dispute
In claiming that the applicant’s pleadings on the bonus
dispute are deficient, it appears that to some extent the excipient
has conflated the incentive bonus dispute with the performance bonus
dispute. From the applicant’s statement of case it
appears
that these are two separate claims, the former being an entitlement
as of right and the second being a demand to be paid
a performance
bonus.
Despite the confusion mentioned, if one has regard to the incentive
bonus dispute, it does seem that certain important details
are
lacking in the statement of case. Firstly, the applicant is relying
on a written contract, which he claims ought to have
been attached
to his statement of case, but the excipientsays was not. Further,
the excipient points out that the applicant has
not said whether he
had performed the obligations that would have entitled him to the
incentive bonus in each of the years since
2004 to 2009.
Regarding the first question, it is necessary to digress on events
which took place subsequent to the hearing of this matter.
The
applicant’s union representative, Mr Sebola, approached the
court immediately after the matter had been argued and
sought to
include annexures to the statement of claim, which he said were
previously attached to his statement of claim, but
were no longer in
the court file. The applicant’s representative should have
tried to have these documents included in
the record during the
court proceedings, before argument was concluded. If he had done
this then, the question of their inclusion
as annexures to the
statement of claim could have been properly aired and decided.
Further, there is no evidence in the court file that the applicant
subsequently tried to obtain the excipient’s agreement
to
include the documents after Mr Sebola had been advised that he could
not unilaterally add documents to the record after the
hearing.
There is certainly no evidence of any service of the documents on
the excipient together with a request for the excipient
to agree
that the documents should be included as annexures to the statement
of case. Consequently, I cannot have regard to the
documents which
were submitted under cover of a letter from the South African
Association of Trade Union Officials (‘SAATUO’)
to the
honourable Judge President, Mlambo JA, on 19 August 2011.
In any event, the only deficiency which the documents could have
remedied in the statement of case would have been the absence
of the
written contract, which the applicant relies on to establish his
right to an incentive bonus. It appears such a contract
was not part
of the documents which the applicant sought to include as appendages
to his statement of case. What was attached
to the letter to the
Judge President, also did not include a copy of the contract but a
schedule of documents, supposedly served
on the excipient’s
previous attorneys, which merely lists the contract of employment as
one of those documents.
Further, even though the applicant’s statement of case does
refer to three annexures in the text, none of the annexures
referred
to was a contract of employment, so it seems unlikely that it was in
fact attached to the statement of case. Nevertheless,
it is
something the applicant should have been able to rectify easily when
the absence of the contract was raised in this exception.
In conclusion, the applicant’s failure to plead the facts on
which he claims he qualified to receive the incentive bonus
each
year and his failure to attach the written contract on which he
relies in his statement of claim, are material defects in
his
pleadings on the incentive bonus claim rendering them vague and
embarrassing. Therefore, this exception must be upheld.
The ‘counter-application’
If I understand the heart of this claim by the applicant correctly,
the applicant contends that the excipient ought to have applied
for
condonation both for its failure to file an answering statement
within the time limits set down in Rule 6 of the Labour Court
rules
and, or alternatively, its failure to file the exception notices
within the time permitted for filing an answering statement
of case.
Section 23 of the High Court rules, referred to above, stipulates
that a notice of exception that a statement of claim
fails to reveal
a cause of action ought to be filed within the time allowed for
filing a subsequent pleading.
In this instance, the excipient filed its first notices of exception
on 22 September 2010, some 3 days after the expiry of the
10 court
days for within which it should have filed a statement of response.
On the same day it called upon the applicant to
cure its second
complaint that the claim was vague and embarrassing and gave him 15
days to remove the causes of its complaint.
On 14 October 2010 the
excipient then filed its further notice of exception on these latter
grounds. In the High Court, if the
applicant wishes to compel the
filing of a response, it does so by way of a notice of bar. Rule
23(2) of the Labour Court rules
provides for a similar procedure.
Rule 23 of the Labour Court rules states:
The
court may
extend
or
abridge
any period prescribed by
these rules
on application
, and
on good cause shown
,
unless the court is precluded from doing so by an Act.
If
a party fails to comply with any notice or direction given in terms
of these rules,
any interested party may apply on notice for an
order that the notice or direction be complied with within a period
that may be
specified
, and that failing compliance with the
order, the party in default will not be entitled to any relief in
the proceedings.
The
court may,
on good cause shown
, condone
non-compliance
with any period prescribed by these rules.
(emphasis added)
Rules 23(1) and 23(3) correspond to rules 27(1) and 27(3) of the
Uniform Rules of the High Court
3
,
and rule 23(2) was clearly modelled on rule 30A of the High Court
Rules.
4
In this instance the excipient did not bring an application for
condonation as such, but it was tendered from the bar that its
current attorneys of record, Cliffe Dekker Hofmeyer, had not been
able to get the file from the previous attorneys soon enough
to file
the exception earlier. It appears that the current attorneys only
became the attorneys of record on 17 September 2010,
five days
before the notice of exception was filed.
If one or more of the excipient’s exceptions are successful,
it would necessitate the amendment of the applicant’s
statement of case. Under such circumstances, it would be potentially
unnecessary to plead over, since a later amendment might
change the
nature of the case and factual averments the excipient would be
expected to answer. Nonetheless the notice of exception
and the
notice calling on the applicant to cure the alleged defects in the
statement of case ought to have been filed within
10 days of
receiving the statement of case. The key consideration in such cases
in condoning non-compliance is the prejudice
to the applicant party
of the late response. Thus, in a recent application of the
principle, Tshabalala, JP held in
Dass and Others NNO v
Lowewest Trading (Pty) Ltd
2011 (1) SA 48
(KZD)
that:
“
[15]
It is trite law that, where it is possible, the rules of court must
be complied with. It is important to take heed of what
was stated by
Addleson J in Charsley v Avbob (Begrafnisdiens) Bpk
1975
(1) SA 891
(E)
at 893C - D:
'(I)f
there is a material defect in any of the formalities required by the
Rules of Court, the court should not readily grant summary
judgment.
On the other hand, where it is clear that the
Rules
have substantially been complied with and there is no prejudice to
the defendant
,
I think that the court should condone a failure to comply with a
technical requirement of the Rules.'
Similarly, in
Trans-African
Insurance
v Maluleka
1956
(2) SA 273 (A)
,
Schreiner JA stated at 278F - G:
'No
doubt parties and their legal advisers should not be encouraged to
become slack in the observance of the Rules, which are an
important
element in the machinery for the administration of justice.
But
on the other hand technical objections to less than perfect
procedural steps should not be permitted, in the absence of
prejudice,
to interfere with the expeditious and, if possible,
inexpensive decision of cases on their real merits
.'
[16] This court is
empowered to condone the non-compliance with rule 18(6). The
defendant could have relied on the provisions of
rule 35(12) and rule
35(14), both of which entitle a litigant to call for such documents,
as may be referred to in a pleading,
before pleading (see Nxumalo v
First Link Insurance Brokers (Pty) Ltd
2003
(2) SA 620
(T)
para 9). The defendant has not shown that it has suffered any
prejudice by the non-compliance. Plaintiffs' non-compliance with
rule
18(6) is therefore condoned.”
See
also the dictum of Van Winsen AJA, in
Federated
Trust v Botha
1978 (3) SA 645(A)
,
viz
:
“
The
court does not encourage formalism in the application of the Rules.
The rules are not an end in themselves to be observed for
their own
sake. They are provided to secure the inexpensive and expeditious
completion of litigation before the courts. See, eg,
Hudson v Hudson
and Another
1927 AD 259
at 267; L F Boshoff Investments (Pty) Ltd v
Cape Town Municipality (2)
1971
(4) SA 532 (C)
at
535 (last paragraph); Viljoen v Federated Trust Ltd
1971
(1) SA 750
(O)
at
754D - E; Vitorakis v Wolf
1973
(3) SA 928 (W)
at
932F - G.
Where
one or other of the parties has failed to comply with requirements of
the Rules or an order made in terms thereof and prejudice
has thereby
been caused to his opponent, it should be the court's endeavour to
remedy such prejudice in a manner appropriate to
the circumstances,
always bearing in mind the object for which the Rules were designed
.
See in this regard the remarks of SCHREINER JA in Trans-African
Insurance Co Ltd v Maluleka
1956
(2) SA 273 (A)
at
278F - G. Rule 60 (3) confers a discretion on a magistrate where the
order made by the court has not been fully or timeously
complied
with, either to give judgment against the defaulting party or to
grant an extension of time within which the defaulter
will be allowed
to comply with the order. The former course is clearly the more
drastic of the two and in the case where the plaintiff
is the
defaulter the dismissal of his action will result both in delay from
the necessity to start the action de novo as well as
in wasted costs.
Regard being had to the course taken up to the present by the
litigation in issue both the delay and wasted costs
will be
appreciable. These are important factors to which regard must be had
in the exercise of a discretion under Rule 60 (3).”
5
(Emphasis added)
In this instance, the delay was a matter of a few days. There was no
material prejudice to the applicant and if the applicant
had been
more receptive to those complaints in the notices of exception that
were well founded, time might have been saved in
advancing this
litigation. In the circumstances, I believe the late filing of the
notices of exception should be condoned in
terms of rule 23(3) of
the Labour Court rules.
Conclusion
The excipient has been partly successful in the application, but in
a number of respects the exception failed. Accordingly, it
is not
appropriate in my view to award costs in the matter.
The applicant must remedy the defects by filing an amendment to his
statement of claim and the respondents must file answering
statements as set out below.
Order
Accordingly, the applicant’s statement of claim is vague and
embarrassing in the following respects:
The applicant has failed to allege the facts on which the protected
status of the intended strike action was based.
The applicant has failed to plead the facts on which he claims he
qualified to receive the incentive bonus each year and has
failed
to attach the written contract on which he relies to his statement
of claim.
The applicant is ordered to remedy the above defects by filing an
amended statement of claim within 10 days of the date of this
judgment.
The respondents are directed to file any answering statement of
claim within 10 days of receipt of the applicant’s amended
statement of claim.
No order is made as to costs
_______________________
R LagRange, J
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT: Mr M S Sebola of SAATUO
FIRST RESPONDENT: S Raja of Cliffe Dekker Hofmeyer
1
This
subsection deals with dismissal where the reason for the dismissal
is that:
“
.... the employer unfairly
discriminated against an employee, directly or indirectly, on any
arbitrary ground, including, but
not limited to race, gender, sex,
ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience,
belief, political opinion,
culture, language, marital status or family responsibility;...”
2
[gnr48y1965r23]23 Exceptions
and Applications to Strike Out
(1) Where any pleading is vague
and embarrassing or lacks averments which are necessary to sustain
an action or defence, as the
case may be, the opposing party may,
within the period allowed for filing any subsequent pleading,
deliver an exception thereto
and may set it down for hearing in
terms of paragraph
(f)
of subrule (5) of rule (6):
Provided that where a party intends to take an exception that a
pleading is vague and embarrassing
he shall within the period
allowed as aforesaid by notice afford his opponent an opportunity of
removing the cause of complaint
within 15 days: Provided
further that the party excepting shall within ten days from the date
on which a reply to such
notice is received or from the date on
which such reply is due, deliver his exception.
(2) Where any pleading contains
averments which are scandalous, vexatious, or irrelevant, the
opposite party may, within the period
allowed for filing any
subsequent pleading, apply for the striking out of the matter
aforesaid, and may set such application
down for hearing in terms of
paragraph
(f)
of subrule (5) of rule 6, but the court shall
not grant the same unless it is satisfied that the applicant will be
prejudiced
in the conduct of his claim or defence if it be not
granted.
(3) Wherever an exception is
taken to any pleading, the grounds upon which the exception is
founded shall be clearly and concisely
stated.
(4) Wherever any exception is
taken to any pleading or an application to strike out is made, no
plea, replication or other pleading
over shall be necessary.
3
27
Extension of Time and Removal of Bar and Condonation
(1) In the absence of agreement between the parties,
the court may upon application on notice and on good cause shown,
make an
order extending or abridging any time prescribed by these
rules or by an order of court or fixed by an order extending or
abridging
any time for doing any act or taking any step in
connection with any proceedings of any nature whatsoever upon such
terms as
to it seems meet.
(2) Any such extension may be ordered although the
application thereforis not made until after expiry of the time
prescribed or
fixed, and the court ordering any such extension may
make such order as to it seems meet as to the recalling, varying or
cancelling
of the results of the expiry of any time so prescribed or
fixed, whether such results flow from the terms of any order or from
these rules.
(3) The court may, on good cause shown, condone any
non-compliance with these rules.
4
[gnr48y1965r30A]30A
Non-compliance with rules
(1) Where a party fails to comply with these rules or
with a request made or notice given pursuant thereto, any other
party may
notify the defaulting party that he or she intends, after
the lapse of 10 days, to apply for an order that such rule, notice
or request be complied with or that the claim or defence be struck
out.
(2) Failing compliance within 10 days, application may
on notice be made to the court and the court may make such order
thereon
as to it seems meet.
5
At
654D-H