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[2013] ZALCJHB 154
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Leboea and Others v LSG Sky Chefs (Pty) Ltd (JS 340/07) [2013] ZALCJHB 154 (4 July 2013)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG.
JUDGMENT
Not Reportable
Case no: JS 340/07
In the matter between
:
STELLA LEBOEA &
OTHERS
.............................................................................
Applicant
and
LSG SKY CHEFS (PTY)
LTD
...........................................................................
Respondent
Heard: 04 July 2012
Delivered: 04 July
2013
Summary: Rescission.
Amendment of the notice of motion not rectifying the defects in the
notice of motion
JUDGMENT
______________________________________________________________________
MEMANI AJ
[1] This was supposed to
be an application for the rescission of orders which were made by
Pillay J and Musi AJ.
[2] The so-called notice
of motion contains prayers, factual allegations, and argument. The
applicant is cited as the respondent
and the respondent is cited as
the applicant. Although the citation accords with the citation in the
referral no explanation is
given as to why the parties are cited as
in the original application. The notice of motion is not signed. The
notice did not invite
the respondents to oppose if they wished to,
nor did it state what they had to do if they wished to oppose the
matter.
[3] The notice of motion
was filed on 9 June 2008 and 8 November 2011, the applicant’s
attorneys filed an amended notice of
motion. The amendments to the
notice of motion cured some of the complaints that I have mentioned.
However, the amendment could
never cure the fact that the original
notice of motion did not call upon the respondent to oppose, and how
to oppose, and in addition
the notice of motion was not signed.
[4] I am of the view,
therefore, that the notice of motion was fatally defective, and that
defect could not be cured by the amendment.
Even if I am wrong in
this regard the application for rescission cannot succeed.
[5] The application for
amendment is accompanied by an application for leave to file a
supplementary affidavit. This application
is supported as follows:
‘
17.1. There
are a number of factual averments that, upon the Respondent’s
representatives’ consideration of the matter,
ought to have
been included in the original application by SEIFSA. In the
representatives’ views these allegations are necessary
to
support either the Respondents’ case under Rule 16A (1) or Rule
16A (1)(b).
17.2. These additional factual
allegations, although made by me to SEIFSA in the same way that I
conveyed them to the Respondent’s
present legal
representatives, I relied upon SEIFSA to include the relevant
allegations in the application for rescission as I
have no legal
training or background and would not know what the necessary and
relevant allegations in founding papers ought to
be.
17.3. I am advised that it is
necessary to include these allegations in a supplementary affidavit
to the founding papers (as opposed
to dealing with it in a replying
affidavit) in order to afford the applicants or their representative
a proper opportunity to deal
with these allegations in an answering
affidavit.
17.4. In the event that this
supplementary affidavit was (sic) not admitted into evidence, the
Respondent will suffer immeasurable
prejudice, both from a monitory*
and an individual perspective…’
[6] The issue of
insufficient allegations in papers has recently arisen in the
Constitutional Court. In
Gcaba
v Minister for Safety and Security and Others
1
Van der Westhuizen J
held
2
:
‘…
(T)he
applicant’s pleadings are the determining factor. They contain
the legal basis of the claim under which the applicant
has chosen to
invoke the court’s competence. While the pleadings-including in
motion proceedings, not only the formal terminology
of the notice of
motion, but also the contents of the supporting affidavits- must be
interpreted to establish what the legal basis
of the applicant’s
claim is, it is not for the court to say that the facts asserted by
the applicant would also sustain another
claim…’
[7] In
SA
Transport and Allied Workers Union and Another v Garvas
3
and
Others
4
the passage referred to
in paragraph 6 hereof was echoed by Jafta J when he stated
5
:
‘
Holding
parties to pleadings is not pedantry. It is an integral part of the
principle of legal certainty which is an element of
the rule of law,
one of the values on which our Constitution is founded. Every party
contemplating a constitutional challenge should
know the requirements
it needs to satisfy and every other party likely to be affected by
the relief sought must know precisely
the case it is expected to
meet.’
[8] If follows from the
above that the applicant must be held to its notice of motion and its
founding affidavit. It also follows
that the consequences of bad
pleading cannot properly be construed as prejudice. Thus, the
applicant cannot be heard to say that
it will be prejudiced if it is
not allowed to make out a case in its supplementary affidavit which
it ought to have made out in
its founding affidavit.
[9] In an unopposed
matter, a supplementary affidavit may be used, and is often filed, to
provide allegations that are necessary
for the relief that is sought,
but which are lacking in the founding affidavit. A supplementary
affidavit is also filed in order
to bring to the attention of the
Court facts which either did not exist when the matter was instituted
or which came to light after
the commencement of proceedings. In
opposed matters a supplementary affidavit may be used for the same
purposes. However, once
an answering affidavit has been filed the
applicant may no longer file a supplementary affidavit in order to
provide allegations
that are necessary for relief but which did not
appear in the founding affidavit when it was originally filed. It
may, however,
be used for the other purposes which I have referred
to.
In casu
, the applicant wishes to use a supplementary
affidavit in order to make out a case which was not made out in its
founding affidavit.
[10] The applicant
invited the respondents to respond to the supplementary affidavit and
tendered costs. This, the applicant reasons,
has cured any prejudice
that the respondents might have suffered. I disagree. Costs are
peripheral in deciding whether to admit
a supplementary affidavit.
The central issue is whether the respondents were entitled to object
to the filing of the supplementary
affidavit, and, whether, by filing
an answering affidavit thereto the respondents waived their right to
object. The applicant has
not established that the respondents knew
or must have known their right to object to the filing of the
supplementary affidavit,
and that their response thereto was with the
full knowledge of that right. Accordingly, I cannot find that the
applicants waived
their right to object to the filing of the
supplementary affidavit by responding to it without objecting to its
filing. An important
consideration is that the applicants were either
unrepresented or had dubious representation.
[11] The applicant also
states that the deponent relied upon the advice of SEIFSA. In the
first place I do not regard it as being
reasonable that a
multimillion rand company which operates in the complex environment
that the aviation industry is should have
elected to be represented
by the type of advisor who drew its papers, especially when the
matter came before the Labour Court.
In any event, the applicant,
especially because it is not an unsophisticated employer or employee,
is bound by its choice of representative.
[12] In the premises, I
refuse the application for leave to file a supplementary affidavit.
[13] I now turn to
examine the founding affidavit to determine whether a case for
rescission is properly made out therein.
[14] The applicant’s
explanation for its absence is that it erroneously filed its
opposition papers under case number JR340/07
which resulted in the
present matter being treated as unopposed. It then skips events and
states that Pillay J awarded wasted costs
against the applicant.
Later on the matter was set down without reference to the applicant
and it came before Musi AJ who granted
default judgement reinstating
the respondents. This led to default judgement reinstating the
respondents being granted against
the applicant.
[15] The applicant has
annexed a court order to its affidavit which shows that the Pillay
postponed the referral
sine die
and ordered the applicant to
pay wasted costs. The only reason why Pillay J would have ordered the
applicant to pay the costs of
the postponement, would have been that
the respondents were not to blame for the postponement, and that the
postponement was not
attributable to fault on the part of a third
party, but was only due to fault on the part of the applicant. One
also has to infer
from these circumstances that the granting of
default judgement by Pillay J was prevented by the presence of the
applicant or its
representative. The probability that inheres in the
circumstances is that the learned Judge would have discussed the
matter with
the applicant’s representative who would have been
made aware that there was a need to file the statement of defence.
The
postponement could not have been for any reason other than to
give the applicant the opportunity to file its statement of defence
under the correct case number.
[16] The applicant
maintains that it did serve its statement of defence on the
respondents. The respondents deny that they received
any papers in
opposition. There is a ring of truth in this denial. The applicant’s
statement of defence which was issued
under case number JR340/07 is
annexed to the founding affidavit. On it, it appears that it was
supposed to be served by registered
mail, but no proof of postage is
annexed to the papers nor is there any other form of acknowledgement
of receipt. Musi AJ would
probably not have granted default judgement
if there was a notice of opposition or a statement of defence, and it
appeared to him
that the notice of set down was not served on the
applicant.
[17] I, therefore, am not
satisfied that the applicant has shown good cause for its absence
when default judgement was granted.
[18] The respondents were
unfairly dismissed in 2007. Thus, there is a real possibility that
the applicant has changed the detail
of its operations, but the
operation remains basically the same, that is, providing catering
services to the aviation industry.
I am not of the view that simply
because of a lapse of time, it has become impossible to reinstate the
respondents. It is still
possible for the applicant to retrain the
respondents if that is required. Furthermore, judging by the size of
the applicant’s
operation, the respondents are only a small
fraction of its staff compliment. This means that they can easily be
assimilated into
its workforce, and those that were employed to
substitute them can be discarded without causing severe disruption to
its operations.
Those who were employed to substitute them should
have been made aware that their employment was precarious as,
initially, the
applicants were challenging their dismissal, and,
later, a judgement was entered in their favour. It is also open to
the applicant
to take the respondents back in such tranches as it
wishes to if it has concerns about its operations, provide that it
pays them
whilst they are waiting. In any event, an employer who
wishes to invoke section 193(2) (c) must set out facts from which the
court
can conclude that, objectively speaking, it is not practicable
to take the employee back, not only in the sense that there is no
vacancy that is available, but because the change in its operations
and its operational requirements is such that it is not practicable
to accommodate the employee whose employment was unlawfully and
unfairly terminated even with some training or retraining. No such
case has been made out by the applicant in this case.
[19] During argument, the
question of the size of back-pay also arose. Although I am not
satisfied that the applicant can ill-afford
to pay the back-pay that
is due to all the respondents in this case in one single payment, I
nevertheless asked the respondents
whether they could waive their
right to single-tranche payments of their back-pay and accept
payments in instalments, to which
they agreed. In the context of the
discussion that I had with them, their waiver was based on the fact
that it would be better
to tolerate instalments while having a job
than to have a big payment that would threaten the existence of the
applicant and thereby
jeopardise their continued employment.
20 In the result, I make
the following order:
1. The application is
dismissed with costs.
2. The applicant may take
the respondents in tranches over a period not exceeding three months
from the date of this order, provided
that those respondents who are
not required to resume their duties immediately shall be entitled to
remuneration as if they were
actually reporting for duty.
3. The applicant is
ordered to pay the back-pay which is due in terms of the order of
re-instatement in twelve equal instalments
calculated from a date
which is fourteen days from the date of this judgement, and,
thereafter, on the first day of each succeeding
month to date of
final payment.
________________
Memani AJ
Acting Judge of the
Labour Court of South Africa
Appearances
For the Applicant:
Instructed by:
Norton-Rose
For the Respondents: In
person
1
[2009]
12 BLLR 1145
(CC).
2
At
para 75.
3
In
some authorities referred to as
“
Garvis”
.
4
(2012)
33 ILJ 1593 (CC).
5
At
para 114.