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[2014] ZALCJHB 27
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SATAWU and Others v Country Meat Market CC (JS 71/12) [2014] ZALCJHB 27 (18 February 2014)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JS 71/12
In
the matter between
SATAWU
.................................................................................
First
Applicant
MOKOENA
M and 13 OTHERS
............................................
Second Further applicants
and
COUNTRY
MEAT MARKET CC
...........................................
Respondent
Heard:
12 June 2013
Delivered:
18 February 2014
Summary: Application
for condonation: Despite a lack of a reasonable and acceptable
explanation for the delay in filing an answer
to a statement of
claim, an application for condonation will be granted in
circumstances where the true identity of the employer
is in dispute.
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction
:
[1]
This is an opposed application for condonation for the late service
and filing of the Respondent’s response to the Applicants’
statement of claim. The Second to further Applicants’ main
claim was that their dismissals by the Respondent following upon
a
protected strike was automatically unfair as contemplated in section
187 (1) (a) of the Labour Relations Act (the LRA). For the
purposes
of convenience, the parties are referred to as they appear in the
main application.
Other
preliminary issues:
[2]
The Applicants’ contention was that the Respondent’s
application for condonation was defective due to the reason
that it
was not accompanied by a notice of motion; did not comply with the
Rules of this Court and further that the Respondent
had not filed an
application to amend and correct the defect. To the extent that the
application was defective, it was the Applicants’
contention
that it should be dismissed. Having heard arguments and submissions,
the preliminary issue was dismissed without an
order of costs. My
reasons for the order were read into the record and it would not be
necessary to repeat same in this judgment.
Background
to the application for condonation:
[3]
There is a dispute as to the identity of the real employer. The
Respondent’s contention is that the Second to further
Applicants were in its employ as general workers until 01 June 2011.
Following consultations, the Second to Further Applicants
were
transferred to a labour broker known as Thuba Flexible Staffing
Solutions CC (Thuba) in terms of section 197 of the LRA.
[4]
A wage dispute was referred to the Commission for Conciliation
Mediation and Arbitration (The “CCMA”) by SATAWU
on 20
June 2011. The Respondent and Thuba did not attend a conciliation
meeting held on 20 July 2011 and the CCMA had issued a
certificate of
non-resolution. SATAWU had on 22 July 2011 notified the Respondent of
its intention to embark on industrial action.
[5]
On 30 July 2011, members of the First Applicant had embarked on a
strike. The strike was suspended following further consultations
between the parties in order to resolve the dispute surrounding wage
increases. When nothing came out of these discussions, the
employees
had continued with their strike action on 02 and 03 July 2011. On 04
July 2011 the employees abandoned the strike was
abandoned and they
had resumed their duties. According to the Applicants, those of them
who had embarked on the strike action were
verbally notified on 10
August 2011 of disciplinary proceedings against them, which took
place on the same date. The Respondent’s
contention on the
other hand was that the employees were issued with notices to attend
the disciplinary enquiries on 08 August
2011 by a Mr. Bathe of FREO,
an employers’ organisation. These were scheduled to be held on
12 August 2011. Notwithstanding
the dispute surrounding how and when
these enquiries were held, it was common cause that the Second to
Further Applicants were
dismissed on 31 August 2011.
[6]
SATAWU had then referred an alleged unfair dismissal dispute to the
CCMA on 04 October 2011. A certificate of outcome certifying
that the
dispute remained unresolved was issued on 28 October 2011. On 26
January 2012, the Applicants had initiated proceedings
before this
Court by filing a statement of claim. The Respondent had until 05
February 2012 to file a response in terms of Rule
6 (3) (c) of the
Rules of this Court. On 03 May 2012, the Applicants had filed an
application for a default judgment. The response
to the statement of
case was only filed on 24 July 2012, some 168 days out of the
prescribed time limits. The response was accompanied
by an
application for condonation. The application for default judgment was
set-down for 29 August 2012 and the matter was removed
from the roll
by agreement.
The
application:
[7]
Rule 12 of this Court’s Rules in terms of which this
application was brought provide that;
‘
(3)
The court may, on good cause shown condone non-compliance with any
period prescribed by these rules.’
The
authoritative case dealing with applications for condonations, and
more specifically what constitutes “good cause”
or
“sufficient cause” is
Melane
v Santam Insurance Co Ltd
[1]
.
In this regard, the then Appellate Division held as follows;
‘
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
interrelated: 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 the facts. Thus a slight delay and a good explanation may help
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. And the respondent’s
interest in
finality must not be overlooked.’
The degree of
lateness:
[8]
The Respondent’s managing member, Adrian Leach had deposed to
the founding affidavit in support of the application. He
had averred
that the Respondent’s response to the statement of claim was
approximately four and a half months, and that the
delay was not
excessive in the light of the reasons proffered in that regard.
[9]
In his answering affidavit on behalf of the Applicants, Jack
Mazibuko, the Provincial Secretary of the First Applicant had averred
that the statement of claim was served on the Respondent on 26
January 2012, and one “Thuli” from its offices had
confirmed receipt of the statement. An affidavit of service was
attached to the answering affidavit. Mazibuko further pointed out
that the response was filed some six months late, which delay was
excessive.
[10]
It was common cause that the statement of claim was served on the
Respondent on 26 January 2012. The Respondent had until 05
February
2012 to file a response in terms of Rule 6 (3) (c) of the Rules of
this Court. The response to the statement of case was
only filed on
24 July 2012, some 168 days out of the prescribed time limits. It is
therefore not correct as contended on behalf
of the Respondent that
the delay was only four and a half months.
[11]
The delay is close on six months, and it is indeed excessive. In this
regard, Mr. Mabaso on behalf of the Applicants had submitted
that on
this ground alone, the application for condonation should be
dismissed. I am however, not in agreement with the submission
that
the application should be dismissed on this ground alone in that the
factors to be considered in determining “good cause”
are
interrelated, and can thus not be individually decisive. To adopt a
piecemeal approach which the Court in
Melane
had cautioned
against would be incompatible with the exercise of a true discretion.
The
explanation for the delay:
[12]
Mr. Leach of the Respondent attributed the delay to the following
reasons;
The
statement of case was served on the Respondent’s factory in
Harrismith and not to its branch in Bethlehem where the Second
to
Further Applicants had rendered their services. The Applicants
further did not serve the statement on Thuba Flexible Staffing
Solutions CC. At a date he could not recall, an employee at the
factory in Harrismith had advised him that “Labour Court
papers” were faxed to them and he had requested that these be
forwarded to him. Upon receiving the documents he had then
scheduled
a meeting with a Stephan van der Westhuizen, an organiser of Full
Range Employer’s Organisation (FREO) of which
the Respondent
was a member, in order to discuss and hand over the documents for the
purpose of opposing the legal proceedings
instituted by the
Applicants. On 28 February 2012, he had received a telephone call
from the Applicants’ attorneys who enquired
whether the
Respondent intended to oppose their statement of claim. He had
confirmed that this was to be done as FREO had already
been given
instructions in that regard. Van der Westhuizen had addressed
correspondence to the Applicants’ attorneys on 05
March 2012
advising that documents would be served on the parties. Leach avers
that the Respondent was at all material times under
the impression
that FREO would attend to the service and filing of the necessary
opposing pleadings.
[13]
Leach was advised on 27 June 2012 when he met with Van der Westhuizen
that FREO has lost an appeal in the Labour Appeal Court
in March 2012
in respect of its deregistration as an employer organisation. At that
meeting, Van der Westhuizen further told him
that he had neglected to
file the opposing pleadings as he undertook to do, and had totally
forgotten about it after he learnt
that FREO’s appeal was
unsuccessful. He had then instructed Van der Westhuizen to instruct
attorneys in Johannesburg to attend
to the matter. On 05 July 2012
Van der Westhuizen had then sent some documents to the Respondent’s
attorneys of record. The
attorneys had consulted with Van der
Westhuizen on 23 July 2012 who had flown from Durban for that
purpose.
[14]
Mazibuko’s response on behalf of the Applicants was that there
was no confirmatory response from the alleged employee
who advised
Leach of the documents from the Applicants and further that Leach had
conveniently failed to specify the dates that
he first met with Van
der Westhuizen. He contended that at the time that the Respondent was
sent correspondence to enquire whether
it intended to oppose the
Applicants’ statement of claim, the response was already 14
days late, and that as at 23 July 2012
when the response was filed,
it had been 4 months and 18 days since the Applicants’
attorneys had made enquiries. In this
regard, it was submitted that
the Respondent had failed to provide an explanation for not acting
promptly from 28 February 2012
to 05 March 2012 when Van der
Westhuizen addressed a letter to the Applicants’ attorneys
advising that documents would be
served. Furthermore, it was
submitted that the alleged deregistration of FREO had nothing to do
with these proceedings, and the
impression created was that once the
Respondent had entrusted the matter to FREO, it had adopted a laid
back approach and was only
prompted to contact FREO after it had
received a notice of set-down. To this end, it was submitted that the
Respondent could not
escape the consequence of a manifest failure to
provide a reasonable and acceptable explanation for the delay by
simply blaming
FREO, more specifically in view of lengthy period of
the delay and sheer inactivity which remained unexplained. In the
light of
these factors, Mazibuko submitted that the Respondent’s
approach indicated a complete disregard of the rules of this Court,
and did not act expeditiously in delivering its response.
[15]
The explanation proffered by the Respondent for the excessive delay
in filing a response is wholly inadequate. No explanation
is given in
respect of the period that the statement of case was filed and served
on 26 January 2012 until 28 February 2012 when
the Applicants’
attorneys enquired whether a response was forthcoming. Leach failed
to explain as to who was the employee
who had allegedly informed him
of the statement of case, and there is no confirmatory affidavit in
this regard. Furthermore, there
is no indication as to when Leach was
informed, when he had received documentation in that regard, and when
he had allegedly managed
to schedule a meeting with van der
Westhuizen. There is further no explanation in regard to the delay
between the period 28 February
2012 after the Applicants’
attorneys had sent correspondence and 05 March 2012 when Van der
Westhuizen advised that the response
would be filed. Leach in his
affidavit further failed to account for the period 05 March and 27
June 2012, after Van der Westhuizen
had sent correspondence to the
Applicants’ attorneys and when he again met with Van der
Westhuizen only to be told that FREO
was deregistered and that there
was negligence on the part of van der Westhuizen.
[16]
Other than a lack of explanation in respect of these prolonged
periods, Leach also apportioned blame on Van der Westhuizen’s
negligence. It is not sufficient for a party in an application for
condonation to simply blame his or her chosen representative.
It is
trite that there is a limit beyond which a litigant can escape the
results of the negligence of its attorney
[2]
.
This
principle has consistently been applied by this Court
[3]
and other authorities referred therein). The principle is premised on
the view that a litigant instructs that representative, be
it an
attorney, Union official or Employer Association official on the
basis that the latter is familiar with applicable laws and
more
specifically with the Rules of this Court and the time periods
applicable in filing documents. Otherwise what would be the
purpose
of instructing that person or entity on matters of law?
[17]
In determining whether a litigant can escape the negligence of its
chosen representative, the Court will have to look at what
steps a
litigant had taken since instructing the representative to take up a
matter on its behalf. This implies that a litigant
cannot simply fold
its arms subsequent to instructing the representative. In
Uitenhage
Transitional Local Council v South African Revenue Service
[4]
the SCA held as follows:
'One would have hoped
that the many admonitions concerning what is required of an applicant
in a condonation application would be
trite knowledge among
practitioners who are entrusted with the preparation of appeals to
this Court. Condonation is not to be had
merely for the asking; a
full, detailed and accurate account of the causes of the delay and
their effects must be furnished so
as to enable the Court to
understand clearly the reasons and to assess the responsibility. It
must be obvious that, if the non-compliance
is time-related then the
date, duration and extent of any obstacle on which reliance is placed
must be spelled out.'
This
Court in
High
Tech Transformers (Pty) Ltd v Lombard
[5]
expressed similar sentiments as follows:
“
Condonation
is not merely for the asking as was duly pointed out by the court in
NUMSA & another v Hillside Aluminium
[2005] ZALC 25
;
[2005] 6 BLLR 601
(LC):
Additionally, there should be an acceptable explanation tendered in
respect of each period of delay. Condonation is not there
simply for
the asking. Applications for condonation are not a mere formality.
The onus rests on the applicant to satisfy the court
of the existence
of good cause and this requires a full, acceptable and ultimately
reasonable explanation. One of the primary purposes
of the Labour
Relations Act is to ensure that disputes are resolved expeditiously,
especially dismissal disputes. ... to do justice
to the aims of the
legislation, parties seeking condonation for non-compliance are
obliged to set out full explanations for each
and every delay
throughout the process. An unsatisfactory and unacceptable
explanation for any of the periods of delay will normally
exclude the
grant of condonation, no matter what the prospects of success on the
merits”.
[18]
From the above authorities, it is apparent that in circumstances
where a party blames a representative for tardiness, the Court
will
determine whether a detailed account was given since the instructions
were given, including dates of consultations, follow-up
consultations
and steps taken by a litigant in, ensuring that all the documents
pertaining to the subject matter of litigation
have been filed
properly and timeously. Thus, it is expected of a litigant to be an
active participant in his or her matter, to
actively and vigorously
follow up on the matter with the chosen representative, and not be
content until satisfied that the instructions
have been complied with
to the latter. In this case, more specifically in respect of the
period 05 March 2012 until 27 June 2012,
Leach and by implication,
the Respondent had not given an explanation to indicate what steps
were taken to ensure that the matter
as per its instructions were
properly and timeously attended to. On Leach’s own version, the
Respondent was at all material
times under the impression that FREO
would attend to the matter. There is no foundation laid for the
alleged impression, more specifically
in the absence of an account of
what steps the Respondent had taken to ensure that the matter was
properly attended to. Curiously,
there is no indication as to when
FREO was deregistered, or when an application in that regard was made
before this Court. Furthermore,
it is not known as to when the
deregistration was confirmed by the Labour Appeal Court. The lack of
details in this regard clearly
confirms that the Respondent had
detached itself from its own litigation and taken an arm-chair
approach. Had steps been taken
to vigorously follow up on its
instructions, it would have come to its attention that FREO no longer
had
locus standi
to represent it. Furthermore, there was not
even an attempt to explain a further delay between 27 June 2012 and
24 July 2012, when
a response was ultimately filed. In a nutshell,
the explanation proffered by the Respondent for the delay in filing
its response
qualifies as “no explanation at all’
.
Prospects
of success:
[19]
The Respondent was required to address the Court on all requirements
for condonation in its founding papers. It is trite that
a party is
required to make out its case in its founding affidavit, especially
if there are material disputes of fact that a Court
is required to
determine. Thus a party cannot make out its case in its replying
affidavit
[6]
. The
Respondent’s averments in respect of its prospects of success
are not contained in Leach’s founding affidavit.
He had however
referred the Court to the Respondent’s response (to prevent
unnecessary duplication). The difficulty with
relying on a response
as in this case is that what is contained therein, is not in the form
of an affidavit, and ultimately the
question arises as to how much
weight should be attached to those allegations made in that response
in determining whether a party
has any prospects of success. It was
only in his replying affidavit that Leach attempted to shed some
light on these disputes of
fact. In my view, special circumstances
are applicable in this case for consideration of these averments in
Leach’s replying
affidavit. This is due to the reason that the
issue of prospects of success is crucial in the determination of this
application,
albeit
not the main consideration.
[20]
The Respondent’s main contention was that during May 2011, it
had decided to transfer all its employees to Thuba, a labour
broker,
in terms of section 197 of the Act. These transfers came into effect
on 01 June 2011. It was further contended that SATAWU
did not at any
stage initiate proceedings to have the transfers set aside. The
Respondent had further contended that a certificate
of outcome
enabling the employees to embark on protected strike action was
erroneously issued against the Respondent and not Thuba.
[21]
In the Respondent’s view, the strike was in contravention of
the provisions of section 64 of the Act as a dispute was
not declared
against the real employer. Following upon the strike action, the
employees were then subjected to discipline by Thuba.
Following the
dismissal, SATAWU had referred an alleged unfair dismissal dispute on
11 October 2011. On the same date, it had also
launched an
application for a joinder at the CCMA, which application was not
opposed as the Respondent was not the employer. Despite
the
application for a joinder, a certificate of outcome was still
nevertheless issued against the Respondent and not Thuba. The
Respondent’s case is that at the time of the dismissal, the
Second to Further Applicants were employed by Thuba, that they
had
cited an incorrect employer, and had also contravened the provisions
of sections 64 and 134 of the LRA. In support of
the contention
that the Second to Further Applicants were employed by Thuba, copies
of their payslips were annexed to Leach’s
replying affidavit.
These are dated for the period 26 June to 27 July 2011, and reflect
the name of Thuba Flexible Staff Solutions.
[22]
Mazibuko’s in his response denied that the Respondent had
prospects of success. His contention was that the Respondent
had
fallen short of demonstrating that its prospects of success are so
good as to compensate for the egregious and unexplained
delays. As to
who the real employer was, Mazibuko had averred that the Second to
Further Applicants were at all material times
employed by the
Respondent and not Thuba. In support of his contention, he had
attached examples of copies of payslips. The copies
are however
illegible. An original copy of the payslip in respect of one of the
Applicants, JK Nhlapo was however filed as annexure
“MM8”
to Mazibuko’s answering affidavit. It clearly shows the name of
the employer/company as that of the Respondent
as at 30 June 2011.
[23]
The prospects of success or
bona
fide
defence mean that all what needs to be determined is the likelihood
or chance of success when the main case is heard.
[7]
In this case, there are a variety of factual disputes that makes the
Court’s task of even making a
prima
facie
finding on the prospects of success arduous. The first dispute of
fact surrounds the identity of the employer. The copies of payslips
of the employees submitted by both parties in respect of their
contending versions are clearly not helpful and are at odds with
each
other. Secondly, it was common cause as per annexure “AL 11”
to Leach’s replying affidavit that SATAWU had
at least on 11
October 2011 after referring the dispute to the CCMA, also launched
an application to join Thuba. This application
was properly before
the CCMA, and there is no indication that a ruling was issued in that
regard as a certificate of outcome in
respect of the dismissal
dispute was only issued against the Respondent. In the light of this
application for a joinder, an inference
should be drawn that SATAWU
was at least aware that Thuba might have a substantial interest in
the matter. The reasons Thuba was
still not cited as a party for the
purposes of this claim, or at most, why it was not joined are still
unknown. Mr. Mazibuko in
his arguments on behalf of the Applicants
had submitted that the Respondent’s application was not
supported by an affidavit
from Thuba to confirm that it was indeed
the employer. In my view, such an affidavit would obviously have gone
a long way in assisting
in the identification of the real employer.
However, the fact that no such affidavit was filed does not, in my
view, put paid to
the dispute to the extent that a determination can
be made that the Respondent remains the employer. This conundrum
could be have
been dealt with differently had SATAWU persisted with
its initial joinder application as it was aware that Thuba had
a substantial
interest in the matter.
[24]
In
Melane
v Santam Insurance Co Ltd,
[8]
the Court had further held that
‘
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.….’.
Based
on the excessive delay and the lack of a reasonable and or acceptable
explanation for that delay, ordinarily this application
would have
been dismissed. However, the importance of this case to both parties
lie in the resolution of the identity of the true
employer, coupled
with a consideration of whether insofar as the cited respondent is
concerned, in embarking on their strike action,
the Applicants had
properly complied with the provisions of section 64 and section 134
of the LRA. These issues in my view, can
only be properly determined
through oral evidence. In exercising discretion, I have taken account
of interests of fairness in the
sense that an adverse order may
ultimately be obtained against an incorrect party if the parties are
not afforded an opportunity
to fully ventilate the issues in dispute,
more particularly the identity of the true employer. This
discretion is also in
consideration of the convenience of this court
in order to assist it in coming to a proper determination on these
issues.
[25]
Considerations of the avoidance of unnecessary delays in the
administration of justice compel this Court not only to grant
this
application but to also invoke the provisions of Rule 22 (2) (a) of
the Rules of this Court, which provide that;
“
The Court
may, of its own motion or on application and on notice to every other
party, make an order joining any person as a party
in the proceedings
if the party to be joined has a substantial interest in the subject
matter of the proceedings”
Reference
in this Rule to “any person” in my view cannot have been
meant to exclude entities. To this end, in the Court’s
view,
clearly Thuba has a substantial interest in the subject matter of
these proceedings.
[26]
In regards to the issue of costs, considerations of law and fairness
preclude me from making an order in that regards.
Order:
i.
The
application for condonation is granted.
ii.
Thuba
Flexible Staff Solutions CC is to be joined as the Second Respondent
in these proceedings.
iii.
The
Applicants are directed to serve their original statement of claim on
Thuba Flexible Staff Solutions CC within fourteen (days)
of delivery
of this judgment.
iv.
Thuba
Flexible Solutions CC is directed to file its response with the Court
within Fourteen days upon being served with a statement
of claim by
the Applicants
v.
There
is no order as to costs
Tlhotlhalemaje, AJ
Acting Judge of the
Labour Court of South Africa
Appearances:
For
the Applicants: Mr. S. Mabaso of Mabaso Attorneys
For the Respondent: Mr. J
Du Randt of Du Randt Du Toit Pelser Attorneys
[1]
1962(4)
AD at 532C-D
[2]
(See
Saloojee
and Another NNO v Minister of Community Development ([1965] 1 All SA
521 (A)).
[3]
(See
CWU
obo Moses Mahambela v SABC and others (P100/09).
[4]
2004
(1) SA 292
(SCA)
at
para 6
[5]
(2012)
33 ILJ 919 (LC) at para 25.
[6]
(See
Themba
Joni
and 82 Others v Servest (Pty) Ltd t/a FICA Quality Cleaning Services
(C833/05).
[7]
(See Chetty v
Law
Society1985
(2) SA at 765A-C.)
[8]
(supra)