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[2012] ZALCJHB 106
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Coetzer v Ceragon (South Africa) (Pty) Ltd (JR 234/12) [2012] ZALCJHB 106 (11 October 2012)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JR 234/12
In the matter between:
FREDERIK HENDRIK
COETZER
..............................................................................
Applicant
and
CERAGON (SOUTH AFRICA)
(PTY) LTD
...........................................................
Respondent
Heard: 10 October 2012
Delivered: 11 October
2012
Summary: Applicant
using motion proceedings to bring a contractual claim in terms of
section 77(3) of the BCEA – Disputes
of fact exist –
Court cannot find on papers and evidence before it – Matter
referred to trial – Applicant to
pay costs as disputes of fact
ought to have been foreseen.
___________________________________________________________________
JUDGMENT
BOQWANA AJ
Introduction
The applicant brought an
application in terms of section 77(3) of the Basic Conditions of
Employment Act
1
(‘the BCEA’)
by way of motion proceedings seeking for an order declaring that the
respondent breached an employment
contract that existed between the
parties and an order directing that an amount of R720 972.31
alternatively an amount determined
by this Court, being the amount
due to the applicant by the respondent in respect of his outstanding
leave.
Brief Facts
The applicant was
employed by the respondent as a Managing Director with effect from
01 June 2007 until he terminated his employment
on 16 July 2011
having apparently tendered his resignation on 17 April 2011.
The
salient terms of the written contract of employment which are
relevant to this case were as follows:
‘
10 LEAVE
10.1 The employee
will be entitled to twenty five consecutive days leave (25 working
days) in respect of each completed year of
employment.
10.2 The employee
must take at least 15 working days leave consecutively within 6
months of the cycle within which it accrued.
10.3 Leave must be
applied for in advance upon at least 1 week’s notice.
Authorisation for leave must be approved in writing
by the employee’s
manager or his/her designate.
10.4 The employee
agrees that he/she will not be paid in lieu of any leave to which
he/she is entitled to in terms of the provisions
of this agreement,
save as may be due upon termination of employment, as required in
law.’
Issues
The applicant claims
that he is owed 74.1653 days of annual leave spanning from 2007 when
he joined the respondent as a Managing
Director to termination of
his employment in 2011, which he accumulated over a period of these
years but could not take due to
operational requirements of the
respondents.
The respondent submits
that the applicant had to take at least 15 working days leave
consecutively within six months of the cycle
within which it accrued
in accordance with clause 10.2 of the contract of employment.
Accordingly, if any leave is due, which
is denied , it would
be
for a
limited period, which is the last leave cycle before
the termination of his employment as all the other leave would have
been
legally and contractually forfeited.
The respondent claims
that, however, in terms of its records no leave was due to the
applicant.
The applicant has
attached two payslips dated 31 May 2011 and 31 July 2011 reflecting
leave days due to him being 69.9987 and
74.1653 respectively to
substantiate his claim.
The respondent disputes
these payslips claiming that they were obtained dishonestly in that
the applicant had instructed the contractor
in charge of payroll,
one Mr Andre Louw (‘Louw’) to change leave days due to
him literally a few days before he tendered
his resignation on 01
April 2011. Louw has confirmed this in his confirmatory affidavit.
The respondent also
accuses the applicant of not being totally honest with this Court in
that he fails to disclose that payslips
for the period of January,
February, March and April 2011 had “nil” leave days due
to him and that the first time
any leave days due appear is on the
payslip dated 31 May 2011, which is after the applicant’s
instruction to Louw and after
he had tendered his resignation.
The applicant does not
dispute that he gave an instruction to Louw but his version is that
he instructed Louw to update all the
respondent’s employees
leave since the records were incomplete especially in relation to
him and one Dick Conradie. He
attaches to his replying affidavit a
spreadsheet apparently prepared by Louw for the period of 18
February 2008 to 1 April 2011
which apparently reflects a total of
73.9154 as at 01 April 2011. This new total is strange because on
the 31 May 2011 payslip
he attached in the founding affidavit the
total leave days due were said to be 69.9987.
The respondent further
submits that the payslip dated 31 July 2011 which reflects 74.653
leave days due was obtained after the
applicant had already left the
employ of the applicant as he resigned with effect from 16 July
2011.
The applicant further
attaches in his replying affidavit an email dated 18 July 2011
purportedly from one Selwyn Watkins who is
said to Head of Finance
for Africa within the respondent, which email records that an amount
of 72 days leave is due to the applicant.
He also attaches, in the
replying affidavit, again a document dated 30 November 2011 which he
calls the respondent’s statement
for the month ending November
2011, which document reflects 74.1653 days due to him. According to
him, it is interesting that
the respondent’s records still
reflected that the stated leave days were due to him even long after
he resigned. I must
agree with the respondent that these are new
issues, which in my view, cannot be raised in a replying affidavit.
The fact that
the applicant invited the respondent to file a
supplementary answering affidavit to the extent that new issues were
raised is
irrelevant as that would have to be done with the
necessary leave having been obtained from this Court to do so. Those
new issue
in my view should be disregarded.
The issue that now
remains is whether I can determine whether breach of contract has
occurred based on the papers before me. There
seems to be consensus
from both Counsel that the Court can conclusively find from the
papers before it, albeit being marred by
disputes of fact (at least
from the respondent’s point of view). The respondent’s
attitude is that the applicant
persisted with motion proceedings
being well aware that there were disputes of fact. The applicant’s
view is that the only
issue the court might not be able to determine
in these proceedings, should it find that there was a breach of
contract is the
quantum. The applicant, therefore, asks that the
quantum be referred to oral evidence, if it cannot be determined by
the Court
in these proceedings.
The applicant submits
that the principles enounced in the
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
,
2
which provides that
notwithstanding factual disputes on the papers, if the court is
satisfied that the applicant is entitled to
relief in view of the
facts stated by the respondent together with the facts in the
applicant’s affidavits which are admitted
or have not been
denied by the respondent, it will grant the relief sought by the
applicant.
It seems to me that the
applicant should have foreseen that there would be dispute of fact
in this matter in view of the letter
written by the respondent’s
attorney denying that the respondent was liable for payment of an
amount for the 72.07 days
leave alleged and various differences in
amounts apparent from different documents used by the applicant
himself to substantiate
his claim, but he chose to use motion
proceedings anyway.
In a
Labour Appeal Court recent decision of
South
African Football Association v Mangope,
3
where
the proceedings relating to an alleged breach of contract were
brought in terms of section 77 (3) of the BCEA in a case
where a
litigant chose motion proceedings, the Murphy AJA held as follows:
‘
It is trite
that an application encompasses pleadings and evidence, all rolled
into one.
4
The
affidavits take the place of the pleadings and the evidence, and
formulate the issues of fact between the parties and contain
the
evidence upon which each wishes to rely. The applicant must set out
in the founding affidavit the facts necessary to establish
a prima
facie case in as complete a way as the circumstances demand. The
respondent is required in the answering affidavit to set
out which of
the applicant’s allegations he admits and which he denies and
to set out his version of the relevant facts.
In dealing with the
applicant’s allegations of fact, the respondent should bear in
mind that the affidavit is not solely
a pleading and that a statement
of lack of knowledge coupled with a challenge to the applicant to
prove part of his case does not
amount to a denial of the averments
of the applicant.
5
Likewise,
failure to deal with an allegation by the applicant amounts to an
admission…’
The
Court however went on to say that:
‘
The
inherently limited form and nature of evidence on affidavit means
that on occasion an application will not be able to be properly
decided on affidavit, because there are factual disputes which cannot
or should not be resolved on the papers in the absence of
oral
evidence. The various provisions of Rule 7 of the Rules of the Labour
Court take cognisance of this reality. Rule 7(3) requires
the
applicant to set out the material facts in the founding affidavit
with sufficient particularity to enable the respondent to
reply to
them, while Rule 7(4) expects the same on the part of the respondent.
Rule 7(7) grants the Labour Court a discretion to
deal with an
application “in any manner it deems fit”, which may
include “referring a dispute for the hearing
of oral evidence”.
That
discretion, in keeping with general practice and principles
applicable in relation to the determination of applications, should
be exercised to ensure that justice is done with a view to resolving
a dispute of fact.
Whether
a factual dispute arises from the papers is not a discretionary
decision; it is itself a question of fact and, importantly,
a
jurisdictional pre-requisite for the exercise of the discretion to
refer the dispute for the hearing of oral evidence. While
the
equivalent provision in Rule 6(5) (g) of the High Court Rules is more
explicit in this regard, requiring, as it does, the referral
to oral
evidence to be “with a view to resolving any dispute of fact”,
there can be no doubt that Rule 7(7) of the
Labour Court Rules, being
in
pari
materia
,
should be construed similarly to that effect.’
6
It is
clear to me that there is a myriad of disputes of fact in this case
as the issues I have outlined above would bear. In the
case of in
Cullen
v Haupt
,
7
Conradied
J said:
‘
I have
consulted some of the better known decisions concerning the referral
of applications to evidence or to trial. The leading
decision in this
regard is, of course,
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA
1155
(T) at 1162, where Murray AJP said that if a dispute cannot
properly be determined it may either be referred to evidence or to
trial, or it may be dismissed with costs, ‘particularly when
the applicant should have realised when launching his application
that a serious dispute of fact was bound to develop’. The next
of better known cases on this topic is that of
Conradie
v Kleingeld
1950
(2) SA 594
(O) at 597, where Horwitz J said that a petition may be
refused where the applicant at the commencement of the application
should
have realised that a serious dispute of fact would develop.’
In a
decision of the
National
Director of Public Prosecutions v Zuma,
8
Harms
DP said:
‘
Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine probabilities.
It
is well established under the
Plascon-Evans
rule that
where in motion proceedings disputes of fact arise in the affidavits,
a final order can be granted only if the facts averred
in the
applicant’s (Mr Zuma’s) affidavits, which have been
admitted by the respondent (NDPP), together with the facts
alleged by
the latter, justifies such order. It may be different if the
respondent’s version consists of bald or uncreditworthy
denials, raises fictitious disputes of fact, is palpably implausible,
far-fetched or so clearly untenable that the court is justified
in
rejecting them merely on the papers …’
I have considered this
matter long and hard and have come to the conclusion that justice
would be best served if this matter is
wholly referred to trial. I
do not believe that the respondent raises bald allegations as the
applicant suggests. To the contrary,
it has placed documentary
evidence to support its denial of the claim.
Whilst,
I
am
inclined to agree with the respondent on the point of law that on
proper reading clause 10.2 of the contract of employment
read with
clause 10.4, the applicant might have forfeited most of the leave
claimed and thus not entitled to that part of the
leave, which
should have been taken in terms of clause 10.2, there are
conflicting version as to whether any leave still due
at least for
the last cycle period before the applicant terminated his
employment. Whilst I agree that the respondent has produced
payslips
that are showing “nil” balance due up to April 2011, and
whilst I also accept that the payslips produced
by the applicant
raise a number of questions in respect of the time they were
obtained as well as circumstances under which they
were obtained, it
seems to me this evidence can properly be canvassed at the trial,
with witnesses being brought to cast light
on the differing versions
that have been produced on the affidavits.
The applicant also
alleges that he could not take leave due to operational
requirements. This point is not fully canvassed on
papers by either
side.
I am alive to the
respondent’s contention that the applicant chose this route
well knowing that there were disputes of fact
and therefore the
application should be dismissed. I, however, am of the view that the
in view of the amount claimed, the different
payslips produced and
the circumstances alleged around how those were obtained as well the
allegations made by the parties against
one another including those
of dishonesty, that the matter be referred to trial where all those
would be properly ventilated.
I, however, am of the
view that the applicant should pay the cost of this application
based on the fact that he brought motion
proceedings when he should
have foreseen that there were material disputes of fact which could
result in this Court not being
able to resolve this dispute without
those facts being cleared by way of
viva voce
evidence.
In the result, I order
as follows:
The application is
referred to trial to deal with the disputes of fact raised in
paragraphs 21 and 22 of this judgement.
The notice of motion and
the founding affidavit shall stand as a statement of case and the
answering affidavit as the statement
of defence.
The parties are ordered
to conduct a pre-trial conference in terms of the Labour Court Rules
and thereafter file a pre-trial minute
within 14 days of this
judgement.
Thereafter the
applicable provisions of the Labour Court Rules shall apply.
The applicant shall pay
to the respondent the costs of this application up to today.
_________________
BOQWANA AJ
ACTING JUDGE OF THE
LABOUR COURT
APPEARANCES:
For the applicant:
Advocate WP Bekker
Instructed by: Anton
Bekker Incorporated, Pretoria
For the respondent:
Advocate G. Fourie
Instructed by: Brian
Bleazard Attorneys, Parktown
1
Act
75 of 1997.
2
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-635.
3
(JA13/11)
[2012] ZALAC 27
(7 September 2012), (not yet reported) at para 9.
4
Rosenberg
v South African Pharmacy Board
1981 (1) SA 22
(A) 30H-31C.
5
Gemeenskapontwikkelingsraad
v Williams (2)
1977 (3) SA 955
(W).
6
Id
at para 10.
7
1988
(4) SA 39
(C) at 40F-H.
8
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) at para 26.