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[2013] ZALCJHB 29
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Mbhele v South African Bank Note Company (Pty) Ltd (JS 844/11) [2013] ZALCJHB 29; (2013) 34 ILJ 2889 (LC) (15 March 2013)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
CASE NO:
JS
844/11
In the matter between:
MBHELE
MUSAWENKOSI
...............................................
APPLICANT
(Respondent
a quo)
And
SOUTH
AFRICAN BANK NOTE
COMPANY
(PTY) LTD
.......................................................
RESPONDENT
(Applicant
a quo)
Heard: 14 March 2013
Judgment delivered: 15
March 2013
JUDGMENT
VAN
NIEKERK J
[1]
Before the court are a number of interlocutory applications, the
primary application being an application to strike out a number
of
averments contained in the respondent’s statement of case filed
on 27 October 2011. The applicant has applied, in so far
as it is
necessary, for condonation for the late filing of the application to
strike out. The respondent opposes that application,
and has filed an
application in terms of Rule 30A of the Uniform Rules of Court for an
order to the effect that the applicant should
withdraw his
application to strike out.
[2]
The background facts material to these proceedings are that the
applicant was dismissed after a disciplinary enquiry conducted
in
December 2010. The applicant disputed the fairness of his dismissal,
and in terms of a ruling made under s 191(6) of the Labour
Relations
Act, 66 of 1995 (the LRA), the dispute has been referred to this
court for determination. In the statement of case filed
by the
respondent (the substantive proceedings, unusually, were initiated by
the respondent), reference is made to forensic reports
prepared by
Ernst and Young. The preamble to paragraph 67 of the statement of
case states “The investigation revealed the
following…”
and proceeds to describe, in four subparagraphs, more precisely the
results of the investigation. The
preamble to paragraph 70 of the
statement of claim states “The allegations against the
respondent stemmed from the findings
of the investigation. However,
the following issues are also relevant to these proceedings…’In
nine subparagraphs,
the respondent proceeds to describe issues that
arose during the applicant’s employment and which it contends
are the basis
for the allegations of misconduct made against him.
[3]
The applicant contends that certain of the averments made are
frivolous, vexatious and irrelevant because the respondent did
not
pursue charges of misconduct in relation to the matters that form the
subject matter of the paragraphs concerned, or because
the
chairperson of the disciplinary hearing did not deal with them, or
find him guilty of that misconduct.
[4]
Reduced to its essence, the applicant’s complaint is that any
averments of misconduct that fall outside of the scope of
the
chairperson’s adverse findings are not relevant to the pending
trial.
[5]
Condonation for the late filing of the strike out application was
sought in the answering affidavit to the Rule 30A application.
The
strike-out application is brought in terms of Rule 23(2) of the
Uniform Rules, read with Rule 11 of the Rules of this court.
The
application was lodges on 15 August 2012, almost ten months after the
respondent’s statement of case was filed, and almost
eight
months after the applicant’s response to the statement of claim
was filed. Rule 23 (2) requires that an application
to strike out be
brought ‘within the period allowed for any subsequent
pleading’. The respondent contends that condonation
ought to be
refused, since it is
inter alia
sought after the fact in an
attempt to purge an irregular step, and because no justifiable basis
has been established for condoning
the applicant’s failure to
comply with the time-period within which strike-out applications must
be brought.
[6]
Although the issue of condonation was dealt with at some length in
the applicant’s heads of argument, at the hearing of
the
application Mr. Halgryn SC, who appeared for the applicant, contended
that it was not necessary for the applicant to seek condonation,
and
that the applicant remained entitled to seek to strike out the
paragraphs concerned at any stage. He equated the relief sought
by
the applicant to that which applies in the case of an exception, and
submitted that despite the prescribed time limit, there
was no bar to
the applicant raising his objections either at this stage, or indeed
at the trial.
[7]
In my view, the present application can be disposed of on the
question of relevance. Adv. Gauntlett SC, who appeared for the
respondent, submitted that even if at trial, the respondent was
precluded from the traversing factual material that is the subject
of
the impugned paragraphs for the purposes of discharging its onus to
establish acts of misconduct on the part of the applicant,
they were
relevant in relation to the question of sanction, and in particular,
to the appropriateness of dismissal as a sanction
for any misconduct
established.
[8] The applicable
approach in this regard is that established by the Constitutional
Court in
Sidumo & another v Rustenburg Platinum Mines &
others
[2007] ZACC 22
;
2008 (2) BCLR 158
(CC). Navsa AJ said the following:
‘
[78]
In approaching the dismissal dispute impartially a Commissioner will
take into account the totality of circumstances. He or
she will
necessarily take into account the importance of the rule that had
been breached. The Commissioner must of course consider
the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employees challenge
to the
dismissal. There are other factors that will require consideration.
For example, the harm caused by the employees conduct,
whether
additional training and instruction may result in the employee not
repeating the misconduct, the effect of dismissal on
the employee and
his or her long service record. This is not an exhaustive list.
[79]
To sum up. In terms of the LRA, a commissioner has to determine
whether a dismissal is fair or not. A commissioner is not given
the
power to consider afresh what he or she would do, but simply to
decide whether what the employer did was fair. In arriving
at a
decision a commissioner is not required to defer to the decision of
the employer. What is required is that he or she must
consider all
relevant circumstances.’
[4] What this requires is
that the commissioner takes seriously the reason for the employer
establishing any rule that might have
been transgressed, and the
reason for prescribing the penalty of dismissal for a breach of that
rule. The commissioner must seek
to understand the reason for the
rule and its importance and significance. The commissioner is further
required to undertake a
balanced and equitable assessment of all of
the relevant factors, remaining impartial throughout and not
elevating the interests
of one party over the other.
[//] Given the s 191 (6)
ruling, this is value judgment that this court will be required to
exercise in due course. Issues of trust
and confidence ordinarily
assume a degree of significance and form an integral element of the
assessment that must necessarily
be performed. In a case such as the
present, where the applicant is employed as a senior executive
(indeed, he was the respondent’s
chief executive officer) the
outcome of the forensic audits, anyconduct that the respondent may
consider to have been indicated
and which might serve to compromise
considerations of trust and confidence, will almost inevitably be
relevant to the determination
of an appropriate sanction for any
misconduct found to have been established.
[//] In these
circumstances, it is not necessary for me decide whether any
application for condonation for the late filing of the
strike out
application is necessary, nor is it necessary for me decide whether
for the purposes of establishing any act of misconduct
for the
purposes of justifying the substantive fairness of the applicant’s
dismissal, the respondent is necessarily bound
by the parameters of
the chairperson’s recommendation. It is also not necessary for
me to make any ruling in the Rule 30
A application.
[//] In relation to
costs, there is no reason why cots should not follow the result. Both
parties engaged senior counsel, and in
my view, the costs of two
counsel are warranted. For these reasons, I make the following order:
The application to
strike out is dismissed with costs, such costs to include the
engagement of two counsel.
Andre van Niekerk
Judge of the Labour Court
Appearances
For
the applicant: Adv. L Halgryn SC, with himAdv. F Venter, instructed
by Sharusha Moodley Attorneys
For
the respondent: Adv. J Gauntlett SC, with him Adv. F Pelser,
instructed by Werksmans Inc