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[2013] ZALCJHB 54
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Kuper v South African Board of Jewish Education (JS 370/2012) [2013] ZALCJHB 54 (19 April 2013)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
case no: JS 370/2012
In the matter between:
JEANETTE KUPER
.............................................................................................
Applicant
and
SOUTH AFRICAN BOARD OF
JEWISH EDUCATION
............................................................................
First
Respondent
Heard:
6
March 2013
Delivered: 19 April
2013
Summary:
Application for condonation for late
filing of statement of case, application to strike out parts of heads
of argument and application
to submit supplementary affidavit
.
JUDGMENT
VISAGIE, AJ
Introduction
[1] This is an application for condonation for the late
filing and service of the applicant's statement of case. The
application
for condonation is opposed. In the course of the parties
filing their heads of argument, the respondent annexed documents to
its
heads of argument that did not form part of its answering
affidavit. The respondent later filed a supplementary affidavit
attaching
these documents thereto. The applicant brought an
application to strike out the supplementary affidavit filed by the
respondent
and that certain paragraphs of the respondent's heads of
argument relating to the documents which were attached thereto, be
likewise
struck.
[2] The aforementioned prompted the respondent to bring
an application to permit the supplementary affidavit.
Background facts
[3] The applicant was
employed by the respondent as an educator. In October 2011 she was
informed that her employment would terminate
on 31 December 2011 by
reason of the fact that she had reached an alleged retirement age of
65 years. The applicant, believing
that she was automatically
unfairly dismissed, referred a dispute to the CCMA and the dispute
was unsuccessfully conciliated on
7 February 2012. A certificate of
non-resolution was issued on the same day.
[4] After consulting
with her family and legal representatives, the respondent stated that
she wanted to avoid litigation. She then
proposed a to resolve the
dispute and this proposal was transmitted to the respondent on 29
February 2012. The general director
of the respondent, Rabi Kacev,
confirmed receipt of the proposal on 5 March 2012 and undertook to
respond in due course. On 15
March 2012, Rabi Kacev informed the
applicant that a response will only be forthcoming after a board
conference was held. He undertook
to revert to the applicant by 23
March 2012. Eventually on 26 March 2012, Rabi Kacev's response was
received by the applicant and
the parties were unable to resolve the
dispute.
[5] The applicant then
considered whether or not she should continue to pursue her dispute.
She took into account the fact that
her grandchildren was still
attending the school at which she taught and she was concerned that
if she pursued her dispute further
this could potentially prejudice
them. She also considered whether she wanted to take on an
organisation which plays an essential
role within the Jewish
community in Johannesburg and that it would not be an easy decision
for her to make. It was only when a
judgment of the Supreme Court of
England, dealing with age discrimination, came to her attention on 19
May 2012 that she decided
to continue her dispute because she
believed that other persons in a situation similar to her situation
would continue to be discriminated
against. The applicant accepts, as
she states in her founding affidavit, that ‘there is some
degree of criticism which can
be levelled against me for not acting
sooner but I beg that this Honourable Court appreciates the difficult
position in which I
am in in respect of my community and my family
and my attempts to find a non-litigious solution to this dispute.’
[6] The applicant
eventually filed her statement of case on 29 May 2012. It is common
cause that her statement of case was 22 days
late.
[7] After the filing
of the affidavits, the parties filed their heads of argument and the
respondent's heads of argument was accompanied
by two documents. The
one document is an unsigned letter of appointment purporting to
confirm the terms and conditions of the applicant's
employment with
effect from 1 January 2010 ("the letter of appointment").
The second document purports to acknowledge
receipt by a number of
employees (including the applicant) listed on the document of
proposed amendments to the retirement policy
of the respondent. Next
to the applicant's name, however, her signature is scratched out. It
is common cause that she scratched
out her signature ("the
consent document"). The respondent's heads of argument makes
reference to these two documents
in paragraphs 22 and 23.
[8] On 3 September
2012, the respondent filed a supplementary affidavit wherein the
respondent explained how the two documents were
discovered by the
respondent. The respondent indicated that for the sake of
completeness, that these documents should be put before
the court.
Attached to the supplementary affidavit were the respondent's
employee manual and a letter from the general director
to staff. In
the affidavit the respondent states that because these documents are
listed in the schedule of documents in the respondent's
reply to the
applicant's statement of case, it should also be placed before the
court. The letter of appointment, employee manual
and director's
letter to staff are listed as part of the schedule of documents in
the respondent's reply to the applicant's statement
of case.
[9] On 11 September
2012, the applicant brought an application to strike out. In the
application she requested the supplementary
affidavit to be struck,
that paragraphs 22 and 23 of the heads of argument to be likewise
struck and that the respondent pays the
costs of the application to
strike out. In the application, the applicant makes the point that
the supplementary affidavit filed
by the respondent was commissioned
by a member of the respondent's staff and accordingly should be
disregarded. Respondent then
filed a notice of opposition to the
application to strike out. The respondent also filed the exact same
supplementary affidavit,
however, this time it was commissioned by
another commissioner. The respondent brought an application to submit
the supplementary
affidavit on 30 October 2012. Both the applications
to strike out and to submit the supplementary affidavit are opposed
by either
party respectively and in each of these applications full
sets of papers were filed. I deal with the interlocutory applications
first.
[10] On behalf of the
respondent, Advocate Campanella, correctly pointed out that the legal
position to allow further affidavits
in motion proceeding has been
set out in the case of
Afric
Oil (Pty) Ltd v Ramadaan Investments CC
,
1
where Moleko J stated
the following:
‘
Normally
in motion proceedings, 3 sets of affidavits are allowed and no
further affidavits may be filed without leave of the court.
Such
leave is in the discretion of the court and such discretion is
exercised judicially upon consideration of the facts in each
case.
In Herbstein and Van Winsen, Civil Practice of the Supreme Court of
South Africa at 359 it is stated that leave of Court will only
be
granted in special circumstances or if the Court considers such a
course advisable. Special circumstances exist where something
unexpected or something new emerges from the applicant's replying
affidavit. There must be a satisfactory explanation which negatives
mala fide as to the reason why the information was not placed before
the court at an early stage.’
2
(Court's emphasis)
[11] Advocate
Campanella also contended that although there is no rule in the Rules
of this court dealing with the filing of additional
affidavits, Rule
6 of the High Court Rules makes provision for a discretion to be
exercised by the court to allow additional affidavits.
[12] During argument,
it became clear that the only contentious document between the
parties and on which the interlocutory applications
were focused, was
the consent document.
3
[13] According to the
respondent, the reasons why the consent document was not put forward
at an early stage is that the human resources
manager obtained the
initial documents in the personnel file of the applicant. It was only
after the heads of argument of the respondent
was filed that the
respondent requested the human resources manager to do a wider
search. In doing so, the respondent discovered
the consent document
in a general file. As the supplementary affidavit seeks to admit the
consent document (together with the other
documents which were
already attached to the respondent's response to the Applicant's
statement of case), the supplementary affidavit,
so the respondent
argued, is highly relevant and material in order for this court to
determine whether the applicant has good prospects
of success in a
claim of an automatically unfair dismissal based on age
discrimination. Whether an applicant has good prospects
of success is
of course an important factor to consider by this court in deciding
whether to grant condonation.
4
[14] It was further argued, on behalf of the respondent,
that the applicant cannot suffer any prejudice if the supplementary
affidavit
is admitted because the applicant did get an opportunity to
answer to the allegations set out in the supplementary affidavit. In
response, counsel for the applicant, Advocate Lennox, contended that
even if the affidavit is admitted, the consent document, in
as much
as it may have relevance to the prospects of success issue that this
court need to consider in the condonation application,
does not take
the matter any further if one has regard to the fact that the consent
document is nothing more than an acknowledgement
by the employees of
receipt thereof. Secondly, the applicant clearly deleted her
signature that appears thereon. It is not denied
by the Respondent
that the applicant scratched out her signature on the document.
[15] I accept the reasons provided by the respondent why
the material in the supplementary affidavit was not put forward at an
early
stage. It is not inconceivable that after the initial search
for any relevant documents in the personnel file a second search in
a
general file was undertaken in preparation of the condonation
hearing. I also accept that the respondent, in good faith, believed
that the documents referred to in the supplementary affidavit may be
material to the issues that this court is required to decide
in the
condonation application. There is also no prejudice to the applicant
because the applicant has had a full opportunity to
reply to the
supplementary affidavit. In the reply, the applicant did deal with
the relevance or not of the documents referred
to in the
supplementary affidavit. The materiality of the documents, and
particularly the consent document, to the question of
prospects of
success I will deal with below when I deal with the condonation
application. For these reasons, therefore, I am inclined
to grant the
application of the respondent to submit the supplementary affidavit.
Condonation application
[16] The often quoted
passage in
Melane
v Santam Insurance Co Ltd
5
setting out the
requirements for condonation is the following:
‘
In deciding whether sufficient cause has
been shown, the basic principle is that the court has a discretion,
to be exercised judicially
upon a consideration of all the facts, and
in essence it is a matter of fairness to both sides. Among the facts
usually relevant
are the degree of lateness, the explanation
therefor, the prospects of success and the importance of the case.
Ordinarily, these
facts are inter-related: they are not individually
decisive, for that would be a piecemeal approach incompatible with a
true discretion,
save of course that if there are no prospects of
success, there would be no point in granting condonation. Any attempt
to formulate
a rule of thumb would only serve to harden the arteries
of what should be a flexible discretion. What is needed, is an
objective
conspectus of all of the facts. Thus a slight delay and a
good explanation may help to compensate for prospects of success
which
are not strong. Or the importance of the issue and strong
prospects of success may tend to compensate for a long delay. The
respondent's
interests in finality must not be overlooked.’
6
[17] In the case of
NUM v
Council for Mineral Technology,
7
after endorsing the
approach adopted in
Melane
v Santam Insurance Co Ltd (and other further authorities)
the Labour Appeal
Court stated the following at page 211(h):
‘
There is a further principle which is
applied and that is that without a reasonable and acceptable
explanation for the delay, the
prospects of success are immaterial,
and without prospects of success, no matter how good the explanation
for the delay, an application
for condonation should be refused.
(cf.
F Chetty v Law Society, Transvaal
1985
(2) 756 (A) at 765 (A-C);
National Union
of Mineworkers and Others v Western Holdings Gold Mine
(1994)
15 ILJ 610 (LAC) at 613 (E)).’
[18] Counsel for the respondent argued that the
applicant did not provide an acceptable or reasonable explanation for
the full period
of the delay. In argument, the respondent accepts
that the applicant attempted to resolve the dispute with the
respondent up until
26 March 2012. However, according to the
respondent, the applicant provided no reason for the delay from the
period of 19 May 2012
when the applicant became aware of the judgment
of the Supreme Court of England to the time that the statement of
case was filed
on 29 May 2012. The respondent also contended that the
applicant's fear for her grandchildren, as one of the reasons why she
did
not do anything from 26 March 2012 to the time that she heard
about the English judgment, was unfounded.
[19] I do not agree with the contentions of Advocate
Campanella with regard to the respondent's explanation for the delay.
In my
view, the applicant was truthful and authentic in her reasons
for her delay in filing the statement of case. It is common cause
that it was the applicant who initiated the attempt to try and settle
the matter after the conciliation. The concern of the applicant
for
her grandchildren at the very same school that she was an educator
which she is now challenging in litigation, is a reasonable
concern
in my view. I also have no doubt that the applicant thought long and
hard about her decision to take on the respondent
because of the fact
that the respondent plays an essential role within Jewish life in
Johannesburg. For these reasons, therefore,
I do not think that 22
days is too long a period taking account of the reasons provided by
the applicant.
Prospects of success
[20] Having found that
the applicant has provided a reasonable explanation for the delay and
that the delay is not that extensive
in light of the reasons given
for it, I now deal with the arguments presented on the applicant's
prospects of success even though
in terms of
Melane
,
the prospects of success need not be strong if there is a slight
delay and good reasons given for it.
[21] The respondent
contends that the applicant has no prospects of success on the basis
of the authorities that provide that the
termination of employment
due to retirement is not a dismissal. In addition, the respondent
argues, Section 187(2)(b) of the LRA
8
provides that a
dismissal based on age is fair if the employee has reached a normal
or agreed retirement age for persons employed
in that capacity
despite what may be contained in Section 187(1)(f).
9
It is not disputed
that the applicant reached the age of 65. Although there is some
dispute as to whether or not the retirement
policy of the respondent
provides for a retirement age of 65, I accept for purposes of dealing
with this leg of the condonation
application that the retirement
policy provides for a retirement age of 65 (and my acceptance should
not be construed as a definitive
view as to whether the policy is
assailable or not).
[22] Advocate Campanella contended that for the
condonation application to succeed, the applicant must lay a
foundation in her founding
affidavit to indicate that there are prima
facie prospects of succeeding in her claim. He contended further that
the applicant
failed to lay any foundation in her affidavit
indicating that the alleged retirement policy was applied
inconsistently. Put differently,
the applicant did not lay an
evidentiary basis that the alleged dismissal was automatically unfair
nor that the policy was applied
in an inconsistent manner.
[23] I do not share Advocate Campanella's view on the
prospects of success of the applicant's claim as set out in the
statement
of case. At the very least her claim not only comprises the
allegation that she was automatically unfairly dismissed due to her
age and that this amounts to direct discrimination, but also that the
respondent allegedly applies the contentious policy in a
capricious,
arbitrary and inconsistent manner. In this latter regard, the
applicant states in her statement of case that it is
applied to some
employees, but not to others.
[24] In the case of
Gaoshubelwe
and Others v Pieman's Pantry (Pty) Ltd,
10
this court stated the
following:
‘
The prospects of success or bona fide
defence on the other hand mean that all what needs to be determined
is the likelihood or chance
of success when the main case is heard.
See
Saraiva Construction (Pty) Ltd v
Zululand Electrical and Engineering Wholesalers (Pty) Ltd
1975
(1) SA 612
(D)
and Chetty v Law Society,
Transvaal
1985 (2) SA 756
(A) at 765
(A-C).’
[25]
In my view, there is the likelihood or chance of the applicant
succeeding with her main case. There is clearly a policy (although
the exact nature of that policy is being challenged by the applicant)
that allows the respondent to continue to employ educators
past the
age of 65. How this policy is being applied for the benefit of some
and to the exclusion of others, is one of the legs
of the applicant's
claim as set out in her statement of claim. The respondent may have a
good explanation and defence to differentiating
between those that it
decides to retain for whatever period and those that it decides not
to retain. Those are issues that need
to be ventilated in the trial
and whether that differentiation amounts to discrimination is still
to be determined by the trial
court.
[26]
Advocate Campanella argued that the matter is not of importance based
on decisions of this court relating to the termination
of an
employee's employment after reaching retirement age. In my view, the
importance of the issue is probably neutral, although
I am of the
view that a number of employers apply a similar discretion when
employees retire to decide which of the employees they
intend
contracting further or allowing to work beyond retirement age. A
decision as to how that discretion or, if there is a policy,
how that
policy is applied may have some importance.
[27] On the issue of prejudice, I do not think that the
delay in the applicant filing her statement of case is such that the
respondent
would be prejudice in meeting that case in the ordinary
course.
Conclusion
[28] In conclusion, therefore, I find that the
respondent's application to submit the supplementary affidavit
succeeds. I also find
that the reasons provided for the delay by the
applicant of the statement of case adequately explains the 22 days.
Costs
[29] In considering costs, I point out that, in my view,
the interlocutory applications were completely unnecessary. In fact,
the
pleadings filed in the interlocutory applications are more
voluminous than the very concise pleadings in the application for
condonation.
Although I wish to make an adverse costs order to show
this court's displeasure in the manner in which a simple condonation
application
unravels to the point where interlocutory applications
consume more time to deal with than the main condonation application,
it
is clear that both parties share an equal blame for their conduct.
In the circumstances, therefore, I do not think a costs order
in
favour of either party is warranted.
Order
[30] In the result, the following order is made.
30.1. The application to submit the supplementary
affidavit is granted.
30.2. The application to strike out the supplementary
affidavit is denied.
30.3. The condonation application of the applicant is
granted.
30.4. There is no order as to costs.
__________________
Visagie, AJ
Acting Judge of the Labour Court
APPEARANCE
For the Applicant: Moss Cohen and Partners
For the Respondent: Dewey De Souza Attorneys
1
2004
(1) SA 35
(N).
2
Id
at pages 38I to 39B.
3
The
unsigned letter of appointment of 23 November 2009, employee's
manual of 31 May 2003 and director's letter to staff 10 September
2009 all form part of the schedule of documents in the respondent's
reply to the applicant's statement of case.
4
Melane
v Santam
Insurance Co Ltd
1962
(4) SA 531
(A) at 532C-F.
5
Ibid.
6
At
537C-F.
7
[
1999]
3 BLLR 209
(LAC) at para 10.
8
Act
66 of 1995
9
187
Automatically unfair dismissals
187(1)(f) A dismissal is automatically unfair if the
employer, in dismissing the employee, acts contrary to Section 5 or,
if the
reason for 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, conscious, belief, political opinion, culture,
language, marital status or family responsibility.
187(2)(b) Despite sub-section 1(f) … a dismissal
based on age is fair if the employee has reached the normal or
agreed
retirement age for persons employed in that capacity.
10
2009
30 ILJ 347 (LC) at para 27.