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[2012] ZALCJHB 53
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Du Plessis v Wits Health Consortium (Pty) Ltd (JS 122/2011) [2012] ZALCJHB 53 (14 June 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
reportable
case no: J S
122/2011
In the matter between:
ANTOINETTE
DU PLESSIS
….....................................................................
Applicant
and
WITS
HEALTH CONSORTIUM (PTY) LTD
…..........................................
Respondent
Heard
:
23 May 2012
Delivered
:
14 June 2012
Summary: Application for condonation for the late filing of the
statement of case. Explanation- due to lack of funds –no
details
as to how and when were the funds raised- no explanation as
to why the amount paid for the retrenchment package was not used.
JUDGMENT
Molahlehi J
Introduction
This is an application for condonation for the late filing of the
statement of case by the applicant. The main case of the applicant
concerns the alleged unfair dismissal for operational reasons.
In opposition to the condonation application, the respondent has
filed an answering affidavit and has disputed that the applicant
was
unfairly dismissed for operational reasons. The respondent contends
that the relationship between the parties was terminated
by mutual
agreement between the parties and thus there was no dismissal and
accordingly the court does not have jurisdiction
to entertain the
matter. The applicant has not filed a replying affidavit.
It is common cause that prior to her dismissal for the alleged
operational reasons, the applicant was employed in the IT department
of the respondent. It is common cause that during February 2010, the
respondent embarked on a restructuring process of its entire
business operations. It, however, seems that the IT department was
not affected by the restructuring process.
The other common cause fact is that at the completion of the
restructuring process and when the decision was taken to retrench
certain of the affected employees it was not envisaged that the
applicant would also be retrenched.
According to the applicant, on 1 March 2010, when she could not
access the information system, she approached the HR manager
to
enquire about the problem. According to her, she was informed that
there was no work for her to do as her work was then done
by another
employee. She further says in her statement of case that she was
told that she was being dismissed for operational
reasons.
The above facts are disputed by the respondent in its answering
affidavit to the statement of case and the application for
condonation.
According to the respondent, it was before the completion of its
restructuring process approached by the applicant who indicated
that
she wanted to accept a voluntary retrenchment. The respondent
further states that in the discussions the applicant had with
its HR
executive manager, the parties agreed as follows:
‘
9.3.1
The applicant’s employment would be terminated by agreement due
to operational requirements with effect from 2 March
2010.
9.3.1 The applicant would be
paid 1 (one) months’ notice for March 2010, but would not be
required to work out her notice;
9.3.3 The applicant would
receive, due to having accepted voluntary retrenchment, an extra pay
of one weeks’ salary per completed
year of service;
9.3.4 The applicant would
receive, due to having accepted voluntary retrenchment, an extra sum
of 2(two) months’ salary
9.3.5 The applicant’s
accumulated leave would be paid out to her.’
The applicant’s affidavit in support of the application for
condonation is at most a page and half and it is set out as
if
condonation is there as an entitlement and should be readily granted
on the “say so” of the applicant.
In as far as the degree of the delay is concerned; the applicant
says the 85 days delay was not excessive because she ‘had
to
seek the services of an attorney.’
The applicant states the reason for the delay as follows:
‘
9.1 I
only received the arbitration report and the reasons for the decision
during August 2010 by post.
9.2 I approached the CCMA and
was told to approach an attorney. I gave instructions to my attorney
during August 2010 but had to
raise money to pay my attorney of
record. Due to the fact I had to find a job and then raise funds to
pay my attorney, I could
not file my statement od case timeously.’
The applicant then deals briefly with the issue of prejudice and in
one sentence with the prospects of success. The prospects
of success
is stated as follows:
‘
10. I
submit that I have good prospects of success as the Respondent’s
action amounted to an unfair procedure.’
It has repeatedly been stated in case law that in considering
whether to grant condonation for failure to comply with the time
frames set out in the rules or legislation, the court has a judicial
discretion to exercise. It is also trite that in exercising
that
discretion, the court has to take into account factors such as the
degree of lateness, the explanation for the delay, the
prejudice,
the prospects of success and the importance of the matter. These
factors are not to be considered in isolation of
each other but
together. The two most important factors are in this regard the
reasonableness of the explanation and the prospects
of success. The
authorities have repeatedly stated that if the explanation for the
delay is unsatisfactory condonation should
be refused and thus the
requirement to consider prospects of success becomes unnecessary.
Similarly, where there are no prospects
of success, a good
explanation would serve no purpose in as far as the granting of
condonation is concerned.
Another important principle is that in an application for
condonation the applicant is seeking the indulgence of the court and
thus has to take the court into his or her confidence in providing
an explanation and that is done by ensuring that all the relevant
facts and circumstances relating to the delay are disclosed to the
courts. In other words the applicant has to give full explanation
of
the reasons for the delay. The ultimate consideration when all other
factors have been taken into account is whether refusing
or granting
condonation would serve the interest of justice.
1
The delay in the present matter whilst not excessive it is not
insignificant. The explanation is grossly unsatisfactory. The
applicant says she could not file her statement of case because she
did not have funds. She in this respect in the heads of argument
relies on the decision of this court in
Gaoshubelwe and Others v
Pie Man’s Pantry (Pty) Ltd
,
2
where the court accepted as reasonable the explanation that the
delay was caused by lack of funds on the part of the applicants.
It
is also important to note that the other part of the delay in that
matter was caused by the attorney who the union had instructed
to
deal with the matter on their behalf. The communication regarding
progress of the matter was between the union and the attorney.
The
letter that the applicants received from the union indicated that
their matter was receiving attention and thus the assumption
which
the court regarded as being reasonable was that there was progress
in prosecuting their matter. In dealing with the issue
of lack of
funds as a reason for the delay, the court had the following to say:
‘
[35] I
now proceed to consider the explanation of the delay after the
applicants became aware of the outcome of the review application.
The
explanation for this period is as indicated earlier that, firstly, Mr
Gaoshubelwe had to find the other applicants and also
seek funds to
pay an attorney to assist them in processing their claim. I align
myself to the view expressed by Ncamu AJ in
Mabunda
's
case (
supra
)
that it is not in every case where the delay is occasioned by the
applicant seeking funds that the application for condonation
should
be dismissed. The explanation based on lack of funds has to be
evaluated within the context of the facts and the circumstances
of a
given case.
[36] In my view, there is no
rule that the explanation that the delay was occasioned by lack of
funds should automatically lead
to the dismissal of the application
for condonation. If this was to be the case then, in my view, the
court would be ignorant of
the economic reality that in most
instances faces unrepresented dismissed employees. I do however agree
that as a general approach
that lack of funds should not on its own
constitute reasonable explanation. In this particular instance it
seems to me that it
cannot be disputed the applicant had based their
hopes of access to justice on the union which apparently deserted
them without
any notice. Faced with this and in the context where
free legal assistance is not readily accessible, it cannot be said
that the
period of three months is unreasonable regard being had to
the fact that the applicant had to contact the affected employees to
seek the mandate to include them in the claim, including having to
ask them to put forward a contribution for the legal fees.’
In
Dyasi v Fort Cox College of Agriculture and Forestry and
Another
,
3
the applicant who had commenced with a common law review had to
abandon it because of lack of funds. The explanation given for
that
delay when the matter was reinstituted was that it was due to lack
funds. In rejecting that explanation the court held:
‘
Under
these circumstances the court will, by reason of the long lapse of
time, be at a great disadvantage in going into the questions
raised
by the appellant, and it is right that it should refuse to do so,
unless very exceptional circumstances are placed before
it.’
It is clear from the above and other judgments that a claim of lack
of funds on its own cannot constitute reasonable explanation
for the
delay. In other words, when pleading lack of funds as the cause of
the delay, the applicant needs to provide more than
a mere claim
that the reason for the delay is lack of funds. In this respect, the
applicant has to take the court into his or
her confidence in
seeking its indulgence by explaining “when” not only
that he or she finally raised funds to conduct
the case but also how
and when did he or she raise those funds. The “when”
aspects of the explanation is important
as it provided the courts
with the information as to whether there was any further delay after
raising the funds and whether
an explanation has been provided for
such a delay.
The facts in as far as the explanation for the delay is concerned in
Gaobushubelwe
is different to the present explanation. In
that case the applicants provided a full explanation regarding the
lack of funds
and how they managed to raise them including other
factors that contributed to the delay. In the present case, the
applicant
does not take the court into her confidence by providing a
full and proper explanation as how and when did she raise the funds.
She also does not explain why she could not use the money she
received from the retrenchment package to pay her attorneys. If
she
needed to use that money for other purposes, she does not explain
why could she not pay her attorneys or other attorneys
to assist her
only with the drafting of the statement of case. She never approach
the attorneys of the respondent and indicated
that she needed to
challenge her dismissal and that she needed their indulgence in as
far as the time frames for filing the statement
of case was
concerned. Approaching another party and indicating the intention to
challenge the decision to dismiss including
seeking an indulgence in
as far as the failure to carry out the intention timeously, would go
a long way in tilting consideration
in favour of granting
condonation.
In my view, the applicant’s application for condonation stands
to be dismissed for the above reason alone.
The application still stands to be dismissed even if regard was to
be had to prospects of success. Although the applicant has
essentially failed in her application to deal with and substantiate
her prospects of success, I had adopted a liberal approach
of having
regard to the statement of case reasonable in considering the
chances the applicant had in succeeding in the main case
if
condonation was to be granted. I do so being aware that the
statement of case for the purpose of considering condonation
application is not in a form of an affidavit neither did the
applicant sought to incorporate its contents into her founding
affidavit in the condonation application.
As indicated above, the respondent has placed in dispute the
allegation that it had dismissed the applicant. It contends that
the
termination of the employment relationship was by mutual agreement.
In this respect, the respondent in its answering affidavit
quotes
the letter wherein the terms of the alleged agreement are recorded.
It is stated that the relevant portion of that letter
reads as
follows:
‘
. . .
you have indicated that you opted for retrenchment package to be paid
in lieu of notice and your employment contract . . .
will therefore
be terminated on the grounds of operational requirements, with effect
from 2 March 2010.’
It is further stated in the answering affidavit that the applicant
recorded the acceptance of the terms of the termination of
the
employment relationship as contained in the said letter by signing
“accepted” in the letter. The applicant was
thereafter,
according to the respondent, paid the package as agreed between the
parties.
It was stated earlier that the applicant did not file a replying
affidavit. This means the averments and the allegations made
by the
respondent in the answering affidavit stand unchallenged. The
applicant does raise the issue of the credibility of the
version of
the respondent in the heads of argument. The logic of the applicant
accepting the retrenchment when the IT department
was not part of
the restructuring does not according to the applicant’s heads
of argument make sense.
The point missed on behalf of the applicant is that what is stated
in the heads of argument does not constitute evidence that
could be
weighed against the version of the respondent as set out in the
answering affidavit. The one critical aspect which the
applicant
does not deal with even in the heads of argument is the letter which
the respondent says the applicant accepted the
package which was
agreed between the parties.
It seems to me on the basis of the above discussion the chances of
the applicant succeeding if the matter was to proceed to trial
are
non-existence and therefore there would be no purpose in grating
condonation for the late filing of the statement of case.
The respondent has asked that costs be awarded against the
applicant. In terms of
section 162
of the
Labour Relations Act 66 of
1995
, the court in considering the issue of costs has to take into
account the dictates of law and fairness. Whist the court is
generally
slow in granting costs against the individual litigants,
in the present instance, I find the conduct of the applicant to have
been unreasonable and therefore warranting the awarding of costs.
In the premises, the applicant’s application for condonation
for the late filing of the statement of case is dismissed
with
costs.
___________________
Molahlehi J
Judge of the Labour Court of South Africa
Appearances
For the Applicant: Ms K Pillay of Krishnee Pillay Attorneys
For the Respondent: Mr L Hutchinson instructed by Snyman Attorneys.
1
Mankayi
v Anglogold Ashanti Limited
2011 (5) BCLR 453
(CC) at para 8.
2
(2009)
30 ILJ 347 (LC).
3
[1998]
6 BLLR 641
(Tk).