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[2014] ZALCJHB 101
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Els v Gauteng Department of Education (Sedibeng East) (JS889/11) [2014] ZALCJHB 101 (28 March 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case
No: JS 889/11
In
the matter between:
ELS,
SUSARAH Applicant
and
GAUTENG
DEPARTMENT OF EDUCATION
(SEDIBENG
EAST) Respondent
Heard
: 12 February 2014
Delivered
: 12 February 2014
Date edited:
28 March 2014
Summary:
Notice of exception set aside.
Respondent barred from delivering opposing papers.
EX
TEMPORE
JUDGMENT
STEENKAMP,
J:
[1]
This is a two-fold application that has
been set down for hearing today. That is a point
in
limine
raised by the applicant in the
main application, that is Ms Susarah Els, to whom I shall refer as
the employee; and an exception
raised by the respondent. The
respondent is the Gauteng Education Department, Sedibeng East. I
shall refer to the respondent
in the main action as the Department.
[2]
The application set down for hearing today
arises from a statement of claim that was delivered by the employee
as long ago as October
2011. Despite that statement of claim
having been properly served on the Department, the Department did
nothing to oppose
it for a year. On 17 October 2012, I made an
order in the following terms:
“
The
matter is removed from the roll by agreement.
The respondent, that is
the Department, is ordered to pay the applicant’s wasted costs.
The respondent is ordered
to file opposing papers and an application for condonation within ten
days, failing which it will be barred
from doing so.”
[3]
The Department and the State Attorney did
not comply with that court order. The State Attorney delivered
a document headed
“Notice of intention to oppose” on 4
November 2012, after the
dies
in terms of the court order had expired. It also delivered a
“Notice of exception” on 1 November 2012.
It did
not deliver an application for condonation. The exception
raises grounds of exception that may well be valid.
It may well
be that the employee’s statement of claim is vague and
embarrassing and it may not even disclose a course of
action.
But given the point
in limine
raised by Mr
Goldberg
,
this Court is not in a position to decide on the merits of the
exception today.
[4]
The simple fact is that the State Attorney
and the Department did not comply with the order of this Court of 17
October 2012.
In this regard, Mr
Goldberg
helpfully referred me to the case of
McNally
N.O. & others v Codron and Others
[2012] ZAWCHC 17
, a judgment of 9 March 2012 of Yekiso J. In
that judgment, Yekiso J noted (in para 17) that, in terms of High
Court Rule
26, any party who fails to deliver a subsequent pleading
within the time stated in Rule 25 shall be
ipso
facto
barred.
“
If
any party fails to deliver any other pleading within the time laid
down in these rules or within an extended time allowed in
terms
thereof, any other party may by notice served upon him require him to
deliver such pleadings within five days after the day
upon which the
notice is delivered. Any party failing to deliver the pleading
referred to in the notice within the time therein
required or within
such period as may be agreed between the parties shall be in default
of filing such a pleading and
ipso facto
barred.”
[5]
Yekiso J goes onto say at paragraph 18:
“
It
will be noted that a failure to deliver a replication or subsequent
pleading, as required in terms of Rule 25 of the Uniform
Rules, will
result in an automatic barring of a party failing to deliver a
replication or subsequent pleading.”
[6]
The learned judge then goes on to find that
an exception is in fact a pleading as contemplated in the rules.
In this Court,
in a number of cases, for example, in
Eagleton
v You Asked Services
, (JS309/05, 18
July 2008), Basson J held that while this Court’s rules do not
deal specifically with exceptions, the High
Court rules have to be
adopted. And Basson J referred in that regard, in paragraph 15,
to the principles dealing with exception
and the purpose of a
statement of claim set out by Waglay J, as he then was, in
Harmse
v City of Cape Town
[2003] 24
ILJ
1130 (LC) at paragraphs 6 to 10.
[7]
Very recently on 6 January this year, my
brother van Niekerk J gave judgment in the case of
Makhanye
v South African Airways
(JS 265/13),
and dealt with an analogous position where an earlier order of this
Court granted one party, the applicant in that
case, leave to amend
his statement of claim within 30 days of the date of the order,
failing which the claim would be regarded
as dismissed. In that
case, as in this one, the party did not comply with the time period
set down in an order of Molahlehi
J.
Van Niekerk J then goes
on to say in paragraphs 8 to 10:
“
There
is no application for condonation that accompanied the amendment to
the statement of claim, and at no stage has the applicant
sought
condonation from this Court for what amounts to a breach of the
order. We are not dealing here with the breach of
a regulation
or a rule or a directive. The applicant has acted in breach of
a court order, thereby placing himself technically
in contempt of
this Court.
The terms of the order
granted by Molahlehi J on 24 July 2013 are clear - if the applicant
failed to file the amended statement
of claim within the prescribed
period of 30 days, his claim would be regarded as being dismissed.
I see
no reason, given particularly the absence of any application for
condonation or indeed any explanation whatsoever for the
late filing
of the amended statement of claim to consider that the consequence
foreshadowed by Molahlehi J’s order should
be any different.
On that basis alone, the referral of the applicant’s claim
stands to be dismissed.”
[8]
The same pertains to this case. The
order of this Court of 17 October 2012 could not have been any
clearer. It says
in terms:
“
The
respondent is ordered to file opposing papers and an application for
condonation within ten days,
failing
which it will be barred from doing so
.”
[9]
The respondent did not comply with that
order. It is barred from filing opposing papers.
Caedit
questio.
[10]
With regard to costs, I must unfortunately
note that Mr
Pheto
,
who argued valiantly and eloquently before me today, did so without
any proper instructions from the State Attorney. It
appeared
quite clearly that he was not even aware of the point
in
limine
that was pertinently raised by
the employee as long ago as November 2012, and reiterated in Mr
Goldberg
’s
heads of argument delivered to the State Attorney in September 2013.
That conduct is simply inexcusable. Neither
party addressed me
on the question of a possible
de bonis
propriis
cost order, and that is the
only reason why I decline addressing the question of whether that
would have been appropriate.
[11]
As it stands, the reason why the respondent
is barred from proceeding with any opposition to the employee’s
statement of claim
or from having its exception heard is simply the
negligence of either the State Attorney or the Department or both.
There
is no reason why they should not be ordered to pay the
employee’s costs.
Order
[12]
I therefore make the following order:
12.1 The notice of
exception is set aside as an irregular step.
12.2 The respondent (the
Department) is barred from delivering any further opposing papers.
12.3 The respondent (the
Department) is ordered to pay the costs of the applicant (Ms Els).
_______________________
Steenkamp
J
APPEARANCES
APPLICANT:
A
Goldberg (attorney)
RESPONDENT:
A M Pheto
Instructed
by the State Attorney, Johannesburg.