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[2013] ZALCJHB 21
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Hanwill Mafofela Mining CC v National Union of Mineworkers and Others (JS 961/08) [2013] ZALCJHB 21 (7 February 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
case
no: JS 961/08
In the matter between:
HANWILL
MAFOFELA MINING CC
............................................................
Applicant
and
NATIONAL
UNION OF MINEWORKERS
.......................................
First Respondent
KEKANA,
S AND 39 OTHERS
..............................
Second
to Further Respondents
Heard :
5 August 2012
Delivered : 7 February 2013
Summary : Application for rescission of Default
Judgment in terms of Rule 16A - Good cause must be shown:- which
requires a reasonable
explanation for the default, a bona fide
defence and proof that the application is
bona
fide
and not actuated by an intention
to delay – Whilst a very good defence may compensate for a weak
explanation
the best of - and even unassailable - defences
cannot trump a complete failure to provide any reasonable explanation
for default,
(such as a dishonest attempt), in applications for
rescission of Judgments – if no such reasonable explanation is
provided,
there is no need to enquire into whether a
bona fide
defence has been shown
judgment- reasons for order
HALGRYN
AJ
Nature of application
[1] This is an application for an Order to rescind a Judgment by this
Court, granted by default, on the 22
nd
of July 2011.
[2] The application was filed some eight days out of time and the
Applicant also seeks an Order condoning this late filing.
[3] Enthusiastically – the Applicant also sought an Order for
costs.
The Applicant’s
application for condonation
[4]
I did not understand there to be (much) opposition to the application
for condonation; the Respondents electing to rather deal
with the
merits of the application for rescission during argument.
1
[5]
So much so, that I did not say anything about the application for
condonation in my
ex
tempore
Judgment
- which upon reflection - I ought to have done.
[6] The fact that the
application for condonation was not (strongly) opposed does not
entitle the Applicant to an Order in this
regard and I still needed
to exercise my discretion, irrespective of opposition or not.
[7] I do not intend to
deal with the application for condonation in any amount of depth, nor
do I intend to restate the Law on applications
for condonation.
[8] By reason of the fact that I found that there was no merit
whatsoever in the application for rescission, it follows that it
would be wrong of me to grant condonation and to thereafter dismiss
the application for rescission.
[9] The proper approach would be to dismiss the application for
condonation by reason of the fact that the Applicant failed to
show
any prospects of success in the application for rescission and I
intend to do so hereunder.
[10] As a result I need not deal with the remainder of the
requirements for condonation applications, such as the period of the
delay or the explanation therefore and so on.
The factual background
to the dispute
[11] The Second to
Further Respondents – by all accounts members of the First
Respondent at all times material hereto - were
once employed by the
Applicant, until their dismissal for participating in an unprotected
strike on the 16
th
of February 2008.
[12] Dissatisfied with
their dismissal, an unfair dismissal dispute was referred to the
CCMA, where the matter was arbitrated.
[13]
The result of the arbitration found its way into an award, dated the
23
rd
of November 2008, in
terms of which, it was ruled that the CCMA does not have jurisdiction
to adjudicate the dispute between the
parties, as it fell within the
ambit of section 191(5)(b)(iii) of the Labour Relations Act,
2
a dispute which had to be
adjudicated by this Court.
[14] The parties accepted this ruling as correct and the Respondents
subsequently referred their unfair dismissal dispute to this
Court on
the 19
th
of December 2008, by way of a Statement of Case.
[15] The Applicant held the view that the Respondents’ referral
was late and objected to this Court’s jurisdiction.
[16] Understandably - and as a result, the Respondents brought an
application for an Order declaring that the said referral was
not
late, alternatively for an Order condoning the late referral, if it
was found to be late.
[17] The outcome of this application was a curiously worded Order,
dated the 20
th
of October2009, by Jammy AJ, which read as
follows:-
“
1.
The application for condonation falls away.
2. The statement of
case dated 19 December 2008 stands as filed.
3.
The
Respondent is to file answering affidavit
(sic)
within the periods prescribed by the rules of this
Court.
4. The Applicants are
to pay the wasted costs of today’s
(sic)
jointly and
severally the one paying the other
(sic)
to be absolved.”
(I added the emphasis.)
[18] Prayer 3 of this Order warrants some comment before I proceed.
[19] Upon a proper construction thereof, it required of the Applicant
to file its Answering Statement of Case within the periods
prescribed
by the Rules of this Court, i.e. within 10 days.
[20] The reference to “
answering affidavit”
was a
clear error and should have read “
answering statement of
case”.
Nothing turns on it and no-one made an issue of it.
[21] The Order is also silent as from which date the prescribed
period would become operative, but it seems to be self-evident,
that
it was meant to run from the date of the Order. Again – nothing
turns on it and no-one made an issue of it.
[22] Without getting ahead of myself – and as it turns out –
as at the date of the application for rescission on the
5
th
of July of 2012, the Applicant had not yet filed its Answering
Statement of Case and by any analysis, I have to find that the
Applicant had failed to comply with an Order of this Court; which
failure – it has to be said - is the sole cause of the
Applicant’s predicament and consequent unhappiness; albeit that
it sought to blame all and sundry therefore.
[23] This failure to file an Answering Statement of Case was also the
cause why this Court was prepared to grant a Judgment by
default on
the 22
nd
of February 2011.
[24] Unprepared to accept that it was the author of its own
misfortune, the Applicant sought to convince me that its failure to
file an Answering Statement of Case as per the clear directive in the
aforesaid Order, was in point of fact by reason of an agreement
reached with the Respondents to file at a later date and more
specifically at a pre-trial conference meeting - which never
materialised;
a contention which was disputed by the Respondents.
[25] Assuming for current purposes that it was indeed open for the
parties to enter into such an agreement, i.e. not to comply
with the
Order of the Court,
3
an aspect in respect of which I make no final pronouncement - save to
record that I discourage it strongly - I now proceed to investigate
if such an agreement indeed existed.
[26] Applicant’s counsel also strongly urged upon me that I
ought to take the entire history of the matter into account and
that
if I did so, I would be constrained to find that everything points in
the direction of the Applicant – at all material
times hereto –
intending to oppose and defend the Respondents’ claims herein.
[27] Whilst I accept that this is a factor which should be taken into
account – i.e. whether the Applicant by its actions
evidenced a
clear desire and intention to oppose the Respondents’ claims –
I find that the primary investigation herein
ought to be whether an
agreement indeed came into existence that the Applicant could –
albeit in violation of the aforesaid
Court Order – only file
its Answering Statement of Case at a date much later than the one,
dictated to by this Court.
[28] If I find that such an agreement did come into existence –
I am prepared to find that the enquiry should end there and
that I
should grant the Order rescinding the default Judgment.
[29] If, however, I should find that no such agreement came into
existence, I am of the view that I need not – in addition
–
enquire into the entire history of the matter (although I did so in
any event
4
)
in order to ascertain if I am able to find that there was a genuine
desire and intention to oppose the Respondents’ claims.
[30] I say this by reason of the fact that the Applicant was unable
to persuade me – on its papers or in argument –
that no
amount of effort made in the further prosecuting its defence, shy of
actually filing its Answering Statement of Case in
compliance with
the said Order of this Court, can conceivably suffice.
[31] As a matter of fact – the genuineness of any such efforts
is belied by the failure to comply with the Order of this
Court and
the only way to show that these efforts were indeed sincere is to
explain why there had not been compliance with the
Order - which in
turn - hinges on my finding if an agreement existed not to file on
the date as prescribed by the Order.
[32] To illustrate – even it if were so that the Applicant
wrote to the Respondents, every week for the entire period of
more
than 3 years – reminding the Respondents of just how serious it
was with its intention to defend their claims, making
offers of
settlement, making suggestions as to pre-trial conference meetings,
procedural issues and the like – in the face
of a failure to
file an Answering Statement of Case – especially in (wilful)
disregard of an Order of this Court, all of
this comes to naught, as
the best (and arguably only) way to illustrate its genuine intention
to further prosecute its defence
herein, would have been to simply
file its Answering Statement of Case, in compliance with the said
Order.
[33] As it turns out, the Applicant contends that an agreement
existed to hold a pre-trial conference and that the Applicant’s
Answering Statement of Case would be served on the Respondents
thereat.
[34] Applicant’s counsel meticulously referred me to all the
correspondence exchanged between the parties, in order to drive
this
point home.
[35] I have considered the contents of all the correspondence
carefully and I am not convinced that such an agreement came into
existence.
[36] As a matter of fact – if the correspondence is what I am
to be guided by – I am convinced that there existed no
such an
agreement.
[37] Significantly – as I will point out – and
conveniently so, the Applicant saw fit to rely and seek to enforce
that portion of the Order by Jammy AJ, which was in its favour,
(strangely so), i.e. ordering the Respondents to pay the Applicant’s
costs,
5
whilst (deliberately) ignoring that portion of the Order which
compelled it to file its Answering Statement of Case by a certain
date.
[28] This attitude manifested itself as early as the first letter
written after the Order by Jammy AJ, by the Applicant’s
then
attorneys, dated the 20
th
of October 2009.
6
[39] In it, attorney M Hart, of the firm Cliffe Dekker Hofmeyer Inc,
proposes that the matter be settled on the basis that the
Respondents
unconditionally withdraw their dispute, in return for the Applicant
not enforcing its rights to claim the costs as
per the Order.
[40] The Applicant’s attorney then extended the deadline after
a response from the Respondents’ attorneys dated the
23
rd
of October 2009
7
,
in a letter dated the 26
th
of October 2009
8
,
until the 28
th
of October 2009.
[41] On the 28
th
of October 2009, the Respondents’
attorneys advised the Applicant that the First Respondent’s
attorneys were unable
to take instructions regarding the settlement
proposal
9
and undertook to revert.
[42] On the 2
nd
of November 2009, the Applicant’s
attorneys recorded an agreement to hold the
dies
for the
filing of the Applicant’s Answering Statement of Case in
abeyance, pending the final determination of the settlement
negotiations.
10
[43] On the 13
th
of November 2009, the Applicant’s
attorneys requested feedback regarding the offer of settlement.
11
[44] The Respondents’ attorneys responded on the 23
rd
of November 2009, that they had been unable to get a mandate, but
suggested a “
pre-arbitration”
; which I take it,
was meant to be a pre-trial meeting.
12
[45] Some toing and froing ensued as far as suitable dates for the
pre-trial conference meeting were concerned during which period
the
Applicant’s attorneys instructed cost consultants to prepare
the bill of costs as per the Order by Jammy AJ.
[46] I pause to record that although it appears to be so that at this
juncture an agreement existed between the parties, i.e. that
the
Applicant need not file its Answering Statement of Case pending the
outcome of settlement negotiations, the compulsion to file
the
Answering Statement of Case was not one founded (only) in the
prescripts of the Rules of this Court, but in an Order of this
Court.
[47] Whilst I fully accept that the Applicant would in all
probability have been successful in applying for condonation for the
late filing of the Answering Statement of Case, (on the basis of the
agreement), if the matter went to trial, I have to reiterate
that it
is indisputably and fundamentally so that Orders of our Courts have
to be complied with; and in this case the Applicant
had simply not
done so.
[[48] On the 17
th
of February 2010, the Respondents’
attorneys recorded a conversation with attorney Hart, during which it
was agreed to postpone
the pre-trial conference
sine die
, that
the Respondents suggested that the record of the arbitration hearing
be submitted as the evidence in the Labour Case, that
the parties
file Heads of Argument and then request a date of set down.
13
[49] Attorney Hart responded on the 23
rd
of February 2010,
that she would take instructions,
14
in respect of the Respondents’ suggestions.
[50] On the 23
rd
of February 2010, one Theo Potgieter
(“Potgieter”)
15
sent an email to Attorney Hart, in which he complimented her on her
“…
advice and professional contribution…”
which “…
has always been and is the best of the
champions…”
16
[51] In this email, Potgieter also records that the Applicant
believes that the suggested route – i.e. filing the arbitration
record as the evidence in the Labour Case – was the route to
go.
[52] On the 19
th
of April 2010, the Respondents’
attorneys enquired about the Applicant’s response to their
suggestion.
17
[53] So far so good; so it would appear - until there appears a
sudden and unexpected twist in events.
[54] A very surprising recordal is made by the Respondents’
attorneys on the 19
th
of April 2010:-
“
We
also refer to today’s telephone conversation with your Ms Hart,
and confirm that she indicated that you do not have instructions
to
act for the Respondent in the Labour Case.”
18
[55] On the 22
nd
of April 2010, the Respondents’
attorneys recorded another conversation with attorney Hart on the
20
th
of April 2010, during which she again confirmed to
the Respondents’ attorneys that she is “…
not
mandated to do the case…”
on behalf of the
Applicant, “…
except for the condonation application.”
[56] These advices by attorney Hart – and I was not presented
with any evidence that the advices were incorrectly recorded;
(in
fact, the Applicant relies on it as part of its case) - are the cause
of much concern for me herein.
[57] It makes a mockery of any suggestion that an agreement existed
that the Applicant need not file its Answering Statement of
Case
pending outcome of settlement negotiations, as attorney Hart was not
mandated to enter into such an agreement; her mandate
being limited
to the condonation application - which in turn - meant dealing with
the costs Order.
[58] To make matters worse, the Respondents’ attorneys, (who
have by now directed their attention to Potgieter directly),
on the
22
nd
of April 2010, recorded yet another incredulous twist
in the tale,
19
i.e. a conversation with Potgieter on the 20
th
of April
2010, in which conversation Potgieter confirmed that he (in turn) was
of the view that the Applicant’s “…
Johannesburg
attorneys are attending to the preparation of the Statement of
Defence, and the Pre-trial Conference,”
which on the face
of it at least, stand in stark contradiction to the advices by
attorney Hart, i.e. that she had no such mandate.
[59] This does not - in my view - amount to an innocuous situation of
the left hand not knowing what its right counterpart is up
to –
this is fundamentally damning for the Applicant who seeks to provide
a reasonable explanation for its failure to file
its Answering
Statement of Case, as per an Order of this Court.
[60] These contradictions were never explained and this means that
for months on end – nothing (serious) was done to further
the
Applicant’s defence herein.
[61] Significantly further, Potgieter seemed to be oblivious of the
“
agreement”
to hold over the filing of the
Applicant’s Answering Statement of Case pending settlement
negotiations. If he was indeed aware
of it, that would have been the
moment to record such awareness.
[62] I have little option but to find, on the strength of the
aforesaid advices by attorney Hart, that there was no agreement to
hold over the filing of the Applicant’s Answering Statement of
Case pending the outcome of settlement negotiations, as she
had no
mandate to enter into such an agreement.
[63] Even if I am wrong about all of this, the settlement
negotiations broke down in any event, (as I will show hereunder),
which
in itself brings an end to this debate.
[64] This letter by the Respondents’ attorneys
20
records further that an agreement was reached in terms of which the
Respondents’ attorneys would send Potgieter a copy of
the
Respondents Statement of Case and that he would revert within ten
days.
[65] Potgieter hereafter dealt with the matter personally.
[66] Ignoring the undertaking to revert within ten days, and nearly
another month later, on the 18
th
of May 2010, Potgieter
saw fit to deal with the matter again, recording
inter alia
the
following:
“…
we
apologise for reverting only now. It was regrettably caused by a
confluence of difficult operational duties and
leave.
”
(I added the emphasis.)
[67] A clear pattern of inconsistency, disregard and disdain is now
emerging. Inconsistency - as it is by no means clear that any-one
had
been attending to the Applicant’s case at all – for
months on end - and disregard and disdain for the Order of
this
Court, because as at this stage, there existed no reason whatsoever
for the non-compliance with the said Order.
[68] It must be borne in mind that a period of six months had by now
expired since the date of the Order by Jammy AJ, during which
period
– if the advices by attorney Hart are to go by – nothing
was done to further the Applicant’s defence herein.
[69] Potgieter does record the Applicant’s preparedness to meet
and discuss the way forward and that:-
“
At
the that
(sic)
venue,
we will be handing over our Statement of defense
(sic)
as
well.”
21
[70] Significantly there is no recordal of an agreement to “
hand
over”
the Applicant’s Answering Statement of Case at
this proposed meeting. It is a casual remark and not even a request
to be allowed
to do so.
[71] The Respondents’ attorneys agreed to hold the suggested
meeting in a letter dated the 2
nd
of June 2010.
22
[72] This letter is silent on the topic of the “
handing
over”
of the Applicant’s Answering Statement of Case
and this silence notwithstanding, I was urged upon by Applicants’
counsel
to find that an agreement to do so came into existence.
[73] I fail – entirely – to appreciate the factual basis
for this submission. The information that the Applicant would
“
hand
over”
its Answering Statement of Case at this proposed
meeting was as casual and informative, as would have been a remark
that the Applicant
expected the Respondents to provide tea and
biscuits at the said meeting.
[74] Potgieter responded on the 7
th
of June 2010, advising
of his unavailability to attend to the suggested meeting
23
and requested a date beyond the 25
th
of June 2010 “
…
for me to be prioritizing our consultation on subject.”
[80] The Applicant’s erstwhile attorneys – briefed with
the task of dealing with the condonation application (only)
–
i.e. the bill of costs, managed to have the bill taxed in the
princely sum of around R22 282-56,
24
and in keeping with their stated mandate - insisted on payment by way
of letter dated the 10
th
of June 2010.
[81] It must be said that the response by the Respondents’
attorneys dated the 11
th
of June 2010, was refreshingly
even keeled,
25
bearing in mind that the Applicant and its then attorneys have until
then acted in an inconsistent way and in a manner which cannot
be
said to be in keeping with a firm resolve to diligently and genuinely
oppose the Respondents’ claims.
[82] This letter records,
inter alia,
the following:-
“
We
have since been advised that you are pursuing a costs order against
our client, which costs were incurred because you,
instead
of filing your Statement of Defence,
raised
the issue of lateness of our client’s referral to the Labour
Court.
We then applied for
condonation, and the court indicated that the application was not
necessary, as we were not late. The court
then proceeded to order
costs against us.
The significance
of the judgment is that you are way out of time to file you Statement
of Defence.”
(I added the emphasis.)
[83] This letter further records the following:-
“…
our
client have
(sic)
instructed
us
to
suspend any further discussions with you
until
you waive your rights to costs in terms of the court order.”
(I
added the emphasis.)
[84] These recordals are significant, in that it brings an end to any
suggestion that the
dies
for the filing of the Answering
Statement of Case was extended until the outcome of settlement
negotiations, which I – in
any event – have found could
not have been agreed to, due to Attorney Hart’s stated lack of
a mandate to deal with
anything but the condonation application.
[85] Moreover, this letter records the following:-
“
In
the meantime,
we
have been instructed to proceed with default hearing application
,
unless the parties otherwise agree.
This
means that you should
either
settle the issue of costs and your lateness to
file
your Statement of Defence with our clients, or apply for condonation
of your lateness,
which
application our instruction
(sic)
are to oppose and ask
for costs, in the same way you did.”
26
(I added the emphasis.)
[86] The purpose of my emphasizing the aforesaid portions is to draw
attention to the fact that the reader thereof, could not conceivably
have laboured under any misapprehension as to how the Respondents’
attorneys felt about the fact that the Applicant had not
yet filed
its Answering Statement of Case – which negates any suggestion
of an existing agreement to file at a later stage.
[87] Moreover in response to this letter, Potgieter writes to the
Respondents’ attorneys on the 23
rd
of June 2010,
recording that the Applicant “
agrees with the gist and
purpose”
of the Respondents’ letter
27
and he does not – as one unquestionably would have expected him
to do – record that an agreement exists to file at
a later
date. To me it is clear that it did not even cross his mind that such
an agreement existed.
[88] It is certainly so, that if Potgieter was genuinely of the view
that an agreement came into being that the Applicant would
file its
Answering Statement of Case at a pre-trial meeting, this is an aspect
so significant, that he would have recorded it in
this very response.
The fact that he did not - and never did at any stage thereafter –
is indisputable evidence that he never
even thought that such an
agreement came into existence.
[89] Significantly, the first recordal of such an agreement was in
the founding affidavit in this application for rescission. It
was
thus evidently a belated afterthought.
[90] On the 15
th
of June 2010, the Respondents’
attorneys applied for a trial date from the Registrar,
28
without notice to the Applicant.
[91] Applicant’s counsel strongly urged upon me to make a
finding that doing so was improper (and actually dishonest) and
at
the very least, notice to the Applicant was required.
[92] There is no merit in this unsubstantiated submission.
[93] There is no legal requirement to do so and if anything – I
am amazed that it took the Respondents’ attorneys so
long to
apply for default Judgment.
[94] Significantly, Potgieter responded to the aforesaid letter by
the Respondents’ attorneys dated the 11
th
of June
2010, by way of letter dated the 23
rd
of June 2010.
29
[95] In it, Potgieter stated
inter alia
:-
“
We
agree with the gist and purpose as espoused in your correspondence
and suggest that we meet urgently…”
[96] Potgieter then wrote to attorney Hart on the 24
th
of
June 2010
30
– who, as I have shown herein above, was allegedly not mandated
to deal with anything more than just the condonation application.
After apologising for the Applicant’s failure to effect
payments to the said attorneys,
31
he records the following:-
“
Makinta
has threatened to proceed with the LC matter if we persist with the
cost taxation and claim against the Applicants.”
[97] Potgieter knew full well what the Applicant was facing at that
time and yet no Answering Statement of Case was filed. Significantly,
Potgieter did not even advise the Applicant’s attorneys of the
agreement to file at a later stage; which I have no doubt
he would
have done if he felt it existed, in order to engage her to stop the
rot.
[98] On the 24
th
of June 2010, the Respondents’
attorneys requested an indulgence to settle the costs bill.
32
[99] There appears to be a lack of disclosure of all the
correspondence thereafter. This – I do not think is deliberate
– and what I have before me, sufficiently tells the story.
[100] On the 24
th
of June 2010, the Respondents’
attorneys also wrote to Potgieter, advising him
inter alia
as
follows:-
33
“
In
the light of your change of approach
we
confirm that we will proceed with the matter in terms of the Act and
Rules of the Labour Court and will not be involved in any
further
discussions with you.
”
(I added the emphasis.)
[101] Even if I am wrong about (all of) my findings herein above,
this letter brings an end to any debate herein.
[102] Any suggestion of a suspension of the obligation to file its
Answering Statement of Case – for whatever reason or period
-could no longer exist.
[103] Rather than file its Answering Statement of Case, the Applicant
pursued it’s by now (much) preferred option, i.e. resort
to
further correspondence.
[104] Potgieter wrote a letter on the 24
th
of June 2010,
34
in which he carefully attempts to record everything that transpired
between the parties in order to revive some form of settlement
talks
and significantly he does not record any agreement to hold over the
filing of the Applicant’s Answering Statement of
Case.
[105] In keeping with her stated mandate, attorney Hart writes the
Respondents’ attorneys on the 28
th
of June 2010 and
records the Applicant’s preparedness to grant the Respondents
an indulgence to pay the taxed bill.
35
[106] Potgieter wrote another desperate letter to the Respondents’
attorneys on the 29
th
of June 2010,
36
in which he again attempts to revive the settlement talks. Again,
there is no recordal of an agreement to hold over the filing
of the
Applicant’s Answering Statement of Case.
[107] The Respondents’ attorneys responded to this letter on
the 2
nd
of July 2010,
37
making it very clear, that the suggested meeting will not serve any
purpose, that the Respondents will pay the taxed bill of costs
and
proceed with the matter in the Labour Court “…
in
terms of the Act and its Rules…”
[108] These strong and lucid advices notwithstanding, the Applicant
steadfastly failed to file its Answering Statement of Case
in
compliance with the Order of this Court.
[109] Cliffe Dekker Hofmeyr Inc withdrew as the Applicant’s
attorneys on the 16
th
of September 2010.
38
[110] The Respondents applied for default Judgment on the 5
th
of November 2010
39
and the rest is history; this Court granting default Judgment on the
22
nd
of February 2011.
The legal position
[111]
A Judgment of this Court may be rescinded in terms of the Common Law,
section 165 of the LRA or Rule 16A of the Rules for
the Conduct of
Proceedings in this Court.
[112]
This application is brought in terms of Rule 16A
40
and it is thus incumbent
upon the Applicant to show good cause.
[113]
I agree with the exposition of the apposite legal position by Seady
AJ,
41
to wit:-
“
The
application before me is brought in terms of rule 16A(1)(b) of the
Labour Court Rules. So I confine myself to a consideration
of whether
the applicant has shown good cause for the rescission as required by
that rule. Rule 16A(1)(b) is similar to rule 31(2)(b)
of the Rules of
the High Court. The requirements of good cause as contemplated by
rule 31(2)(b) have stated as follows:
The applicant must
give a reasonable explanation for his default. If it appears that
his default was wilful or that it was due
to gross negligence the
court should not come to his assistance;
The application must
be bona fide and not made with the view merely delaying plaintiff’s
claim; and
The applicant must
show that he has a bona defence to the plaintiff’s claim. It
is sufficient if it makes out a prima facie
defence in the sense of
setting out the averments which, if established at the trial, would
entitle him to the relief asked for.
He need not deal fully with the
merits of the case and produce evidence that the probabilities are
actually in his favour.
(See Erasmus Superior
court Practice Juta at B1-201 and 202.)”
[114] In that matter, Seady AJ enquired only into the requirement of
setting out a
bona fide
defence and having found that the
Applicant therein had failed to do so, did not enquire into the
remainder of the requirements
of good cause.
[115] I intend to follow a similar approach herein, in that if I find
that the Applicant failed to provide a reasonable explanation
for its
default, then the application has to fail, without the need for me to
enquire into whether the Applicant has set out a
bona fide
defence.
[117] I am aware that where an Applicant in similar proceedings has
provided a poor explanation for default, a good defence may
compensate.
42
[118] That does not avail an Applicant who had failed to provide any
explanation whatsoever and in my view, the best of (even
unassailable) defences cannot trump a complete failure to provide any
reasonable explanation for default, (such as a dishonest attempt),
in
applications for rescission of Judgments.
[119] The explanation proffered in this matter is palpably untrue.
120] Potgieter never – not even for a moment - thought that an
agreement had come into being which allowed the Applicant
to file its
Answering Statement of Case only at a pre-trial conference and as a
result he never acted as if there was such an agreement.
[121] He thus never recorded his belief that one existed - which he
indubitably would have done when he wrote his anxious letters,
attempting to revive the settlement talks – had he indeed
harboured such a belief.
[122] I am also fully aware that, in the exercise of the wide
discretion I have in evaluating good cause, I have to exercise that
discretion in a manner which ensures that justice is done.
43
[123] Having found that the Applicant attempted to rely on a false
and belatedly contrived explanation for its default, it would
not be
in the interests of justice if I embark on an investigation to
ascertain if the defence set out by the Applicant, is so
remarkably
strong, that I am obligated to - somehow - ignore the Applicant’s
dishonest explanation.
[124]
In casu
, the Applicant sought mainly to rely on an
agreement with the Respondents that the Applicant may file its
Answering Statement of
Case as the pre-trial conference meeting,
which was still pending at the time default Judgment was sought.
44
[125] In my investigation into the history of the matter I actually
went further and examined the correspondence to ascertain if
(perhaps) there existed an agreement to hold over the filing of the
Applicant’s Answering Statement of Case pending the outcome
of
settlement negotiations.
[126] On the face of it, this appears to have been the case –
for a while at least.
[127] The problem the Applicant faces in this respect is the belated
advices by attorney Hart, that she actually had no mandate
to deal
with the Labour Court matter and that her mandate was in fact
restricted to dealing with the condonation application.
[128] This effectively brings an end to this enquiry; but even if I
am wrong about this, the correspondence – especially
that of
the Respondents’ attorneys in June and July of 2010, eradicates
any notion that settlement talks were still an option
– it
clearly was not.
[129] As far as the alleged agreement between the parties that the
Applicant may file its Answering Statement of Case at the pre-trial
conference, which still has to be held – and which the
Applicant strongly seeks to rely on – the correspondence do
not
evidence such agreement at all.
[130] As it turns out, the high-water mark of the Applicant’s
case in this respect is a casual informative remark by Potgieter
contained in his letter of the 18
th
of May 2010,
45
to wit:-
“
We
are hence amenable and available to meet at a mutually convenient
date, time and place to discuss the practicalities and way
forward.
At that venue, we will be handing over our Statement of defense
(sic)
as
well.”
[131] By reason of the Respondents’ attorneys writing a letter
in response, dated the 2
nd
of June 2010,
46
wherein they suggest a date, time and venue for the meeting, the
Applicant contends that an agreement came into being that it would
be
allowed to file its Answering Statement of Case at such a meeting.
[132] The contention that this almost matter of fact and relaxed
remark by Potgieter could – somehow – be (super)
transposed to an agreement by reason of the Respondents’
attorneys not responding to it in its letter, is opportunistic and
desperately grasping at straws.
[133] Potgieter’s by the way remarks that the Applicant would
file its Answering Statement of Case at the suggested meeting
were
only informative and cannot be elevated to an agreement, simply by
reason of the Respondents’ attorneys’ silence
on this in
their written response, in which they merely suggested a date, time
and place for the suggested meeting.
[134] To illustrate – the lateness of the Applicant’s
Answering Statement of Case, may well have been (and I very much
suspect that it definitely would have been) very high on the
Respondents’ attorneys agenda for this very meeting; intent
on
recording their prejudice suffered thus far and their objection to
any late filing of the Answering Statement of Case; without
an
application for condonation.
[135] The letter responding only in respect of a date, time and venue
for the meeting cannot be construed to mean that the Respondents
have
waived any rights they had to object to the late filing of the
Applicant’s Answering Statement of Case; and to suggest
that
this is so, is farcical.
[136] Even the Applicant will have to concede that no express
agreement came into existence. At best for the Applicant therefore,
what it contends for is a tacit agreement coming into existence,
which is belied by both parties’ conduct immediately after
the
Respondents’ attorneys’ letter suggesting only a date,
time and venue for the meeting.
[137] Moreover, the suggested meeting did not take place and up and
until the time when the relationship soured to the extent that
the
Respondents’ attorneys expressly advised the Applicant that it
will not meet with the Applicant any more as it would
serve no
purpose, there was never any recordal of the alleged agreement and
none of the parties ever acted in a manner which evidences
that
it/they felt/believed there was such an agreement.
[138] When Potgieter realised that matters were now totally out of
control and he excitedly wrote his letters in June and July
of 2010,
desperately trying to revive the settlement talks - under repeated
and express threats of the Respondents’ applying
for default
Judgment - he was at pains to record much – if not all –
that had transpired, and not once did he record
any hint or a
suggestion of an agreement to hold over the filing of the Applicant’s
Answering Statement of Case, until the
holding of a pre-trial
conference meeting.
[139] I therefore have little difficulty in finding that no such
agreement ever came into existence and I reject this contention
as
false, contrived and opportunistic.
[140] It follows that the Applicant has failed to put up any
explanation for its default; let alone a reasonable one.
[141] It is so that an Applicant who acted under a
bona fide
but mistaken belief should not be held to in wilful default.
47
[142] This is not such a case and no such case was argued for.
[143] If Potgieter believed – albeit mistakenly – that
such an agreement existed, he would acted accordingly. He never
did –
because, quite obviously, the very thought that his casual remark
could constitute an agreement, not once, dawned upon
(even) him.
[144] It is said
48
that before a person can be found to be in wilful default, the
following elements must be shown:-
knowledge of the action
being brought against him;
a deliberate refraining
from entering an appearance to defend, though free to do so;
a certain mental
attitude towards the consequences of the default.
[145] Applied to the facts of this case, the Applicant certainly knew
of the Respondents’ case brought against it and the
Court Order
compelling it to file its Answering Statement of Case but it failed
to do so for no apparent or credible reason and
it has throughout
manifested a mental attitude of dragging the matter out by way of
correspondence, rather than to simply filing
its Answering Statement
of Case.
[146] I thus find that the Applicant’s default was wilful.
[147] As I have pointed out herein above, I actually enquired into
the history of the events in more detail than I was requested
to do.
[148] The result of my doing so, leaves me with the distinct
impression of an Applicant who has little - if any – regard
for
the processes of this Court and its Orders.
[149] The fact that attorney Hart seemed to create the impression
that she was mandated to deal with the Labour Court matter and
only
after the lapse of much time advised the Respondents’ attorneys
that she had no such mandate causes me much discomfort
and in
addition, her advices seem to be (expressly) contradicted by
Potgieter who advised the Respondents’ attorneys that
the
Applicant believed that she was dealing with the Applicant’s
Answering Statement of Case and pre-trial conference meetings.
[150] All of this means that for many months, no-one actively further
prosecuted the Applicant’s defence, which in itself
is
sufficient to dismiss this application as it amounts to no reasonable
explanation for the failure to file the Answering Statement
of Case.
[151] There exist too many inconsistencies in the version/s by the
Applicant, as to the history of the matter, to enable me to
make a
finding that it acted
bona fide
.
[152] As a matter of fact, everything about the Applicant’s
conduct herein leads me to believe that it was everything but
bona
fide
; so much so – that I find that this application too –
was not
bona fide
.
Conclusion
[153] The Applicant
failed to provide any explanation for its default, let alone a
reasonable one.
[154] The one proffered
is a belatedly contrived version, belied by all the correspondence
and the conduct of the parties.
[155] The Applicant’s
conduct herein has never been
bona fide
and this application –
likewise - is not
bona fide
.
[156] The Applicant came
to Court, brimming with self-confidence, accusing everyone but itself
of improper conduct, (and in fact
of dishonesty by not disclosing the
alleged agreement to file its Answering Statement of Case on a later
date, to the Registrar),
whilst it had no case whatsoever and truth
being told, had always been in wilful disregard of an Order of this
Court – at
all times material hereto.
[157] The Applicant
burdened this Court with arduous papers and boldly made submissions
not supported by any fact; even spuriously
seeking an Order for
costs.
[158] It is by reason –
only - of the Respondents not seeking a punitive costs Order; that I
do not make one.
[159] I intend to recall
the
ex tempore
Order I made on the 5
th
of July 2012
and replace it with the following Order:-
[160] The Applicant’s
application for condonation is dismissed with costs.
161.1The Applicant’s
application for rescission is dismissed with costs.
_______________________
L. HALGRYN
Judge of the Labour Court
APPEARANCES
For the applicant : Advocate L Giai-Coletti
Instructed by : Webber Wentzel Attorneys
For the Respondents : Advocate IM Maunatlala
Instructed by : Es Makinta Attorneys
.
1
They
did seek an Order dismissing the condonation application at the
conclusion of the answering affidavit.
2
No
66 of 1995, (“the LRA”).
3
I
hasten to record that this Judgment by no means sets a precedent for
non-compliance with Orders of this Court – on the
contrary –
if anything, I intend to set a precedent (in so far as this may be
necessary) that Orders of this Court ought
(always) to be complied
with. All that I am prepared to accept, (begrudgingly), is that it
was open for the parties to agree
to file at a later stage, the
Court Order notwithstanding, bearing in mind that the Applicant
would have had to apply for condonation
for its late filing if the
matter proceeded to trial. The trial Court could – in my view
– condone the late filing
if good reason existed for the
agreement to file at a later stage.
4
If
it appears that my recordal of the history of the matter hereunder –
as manifested by the correspondence – seem
to be over
inclusive, it is by reason of the Applicant’s insistence that
it was all relevant.
5
I
say strangely so – as the reason for that application was the
jurisdictional objection raised by the Applicant. I would
have
thought the unsuccessful objector should have been ordered to pay
the costs. This has become academic however.
6
At
p31.
7
At
p33.
8
At
p34.
9
At
36.
10
At
p37.
11
At
p39.
12
At
p41.
13
At
49.
14
At
p50.
15
Manager
Legal Services in the employ of the Applicant and deponent to the
Applicant’s founding affidavit.
16
At
p52.
17
At
p53.
18
At
p54.
19
At
p57.
20
At
p57.
21
At
p58.
22
At
p60.
23
At
p61.
24
Which
makes a mockery of the sincerity of the earlier offer of settlement,
i.e. the Respondents withdraw their claims and in return
the
Applicant will not enforce the costs Order; the disparity being too
great.
25
At
p66.
26
At
p67.
27
At
p70.
28
At
p68.
29
At
p70.
30
At
p72.
31
A
fact that has not gone unnoticed. This, from an Applicant who urged
upon me to find that it genuinely wanted to oppose the Respondents’
claims herein.
32
At
73.
33
At
p74.
34
At
p75.
35
At
p78.
36
At
p80.
37
At
p82.
38
At
p87.
39
At
p90.
40
See
paragraph 2.1 of the Applicant’s founding affidavit at p5.
41
In
SIZABANTU ELECTRICAL CONSTRUCTION V GUMA & OTHERS
[1999] 4 BLLR
387
(LC), at [7].
42
See
ERASMUS; SUPERIOR COURT PRACTISE; JUTA; at B1-204. See also CAROLUS
V SAAMBOU BANK LTD, SMITH V SAAMBOU BANK LTD
2002 (6) SA 346
(SE),
CREATIVE CAR SOUND V AUTOMOBILE RADIO DEALERS ASSOCIATION (PTY) LTD
2007 (4) SA 546
(D).
43
See
ERASMUS; SUPRA; at B1-204. See also WAHL V PRINSWIL BELEGGINGS
(EDMS) BPK
1984 (1) SA 457
(T).
44
See
paragraphs 24 – 29 of the Applicant’s counsel’s
Heads of Argument.
45
At
p58.
46
At
p60.
47
See
ERASMUS; SUPERIOR COURT PRACTISE; JUTA; at B1-203. See also
KOEKEMOER V VILJOEN
1921 TPD 129.
48
See
ERASMUS; SUPRA; at B1-202.