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[2014] ZALCJHB 198
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King Edward VII School v Jackson (JS739/13) [2014] ZALCJHB 198 (3 June 2014)
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REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT REPORTABLE
CASE NO: JS 739/13
KING EDWARD VII
SCHOOL
Applicant
And
JACKSON G D
Respondent
Heard:
26 February 2014
Delivered:
3 June 2014
JUDGMENT
TLHOTLHALEMAJE,
AJ
INTRODUCTION:
[1]
This matter initially came before this
Court as an unopposed application for condonation for the late filing
of the Applicant’s
statement of response in the main
application. The condonation application was unopposed until a day
before the set down date.
The matter was nevertheless argued by the
parties in Court and heads of argument were submitted by both
parties. However, due to
averments made in the course of the
opposition of the matter, and before judgment could be delivered, a
Rule 11 application was
launched by the Applicant to re-open the
condonation application and to allow for further evidence in relation
to the service of
the condonation application on the Respondent. The
Respondent vigorously opposed the latter application.
[2]
For reasons that will appear clearer in the
course of determining the application for condonation, little purpose
will be served
in considering the subsequent Rule 11 application. In
my view, this subsequent application was indeed superfluous.
The
application to postpone or dismiss:
[3]
As already indicated, the application
remained unopposed until 25 February 2014. A notice of
intention to oppose, together
with an ‘affidavit of
non-service’ and written heads of argument were filed on behalf
of the Respondent in which the
following contentions were made:
3.1
The hearing of the application should be
postponed, or in the alternative, the application should be dismissed
on account of lack
of service.
3.2
As a result of lack of service, the
Respondent or his attorneys of record were unaware of the application
until at a late stage
when the Registrar of this Court had issued a
directive that the parties should file written heads of argument
relating to the
application for condonation.
3.3
Enquiries were then made with the
Applicant’s attorneys of record to establish what application
the directive related to.
It was only thereafter that the Respondent
became aware of the condonation application.
3.4
The Respondent’s attorneys then
enquired from the Applicant’s attorneys how service of the
application was effected.
From the response that was received, it
became evident to the Respondent’s attorneys that various
e-mail addresses were incorrect
and the fax of the Applicant was not
received. Only one e-mail address was established to be
correct. The Applicant’s
attorneys could not provide proof of
service on the e-mail address as requested.
3.5
As the Respondent’s attorneys needed
time to consider the application and obtain his further instructions,
and to further
advise him on further possible grounds in opposing the
application, the application was only opposed on the grounds of
non-service.
3.6
In order for the Respondent to be afforded
an opportunity to properly consider the application and file opposing
papers, the Applicant
was on 24 February 2014 requested to remove the
matter from the roll. It had refused to do so, hence only written
heads in support
of the opposition due to non-service was filed.
[4]
The Applicant had filed an affidavit of service deposed to by
Zithulele Ndlebe, a Candidate Attorney who had averred that:
4.1 On 29 November 2013,
she had served a copy of the Applicants’ condonation
application on the Court. Attempts were made
to serve a copy on the
Respondent’s attorneys of record at a fax number without any
success. She had previously utilized
the same fax number before in
serving documents on the Respondent’s attorneys without
problems.
4.2 Having failed to
successfully serve the application she had ultimately contacted the
Respondent’s attorneys on 10 December
2013 to request an
alternative fax number. A Ms. Vicky of the Respondent’s
attorneys had confirmed that there was no alternative
fax number.
Ndlebe had then requested to serve the application via e-mail and she
was furnished with an e-mail address being
[…..]
She had then served the application by e-mail at that address on that
day.
4.3 On 13 December 2013
she had then successfully served a copy per fax on the Respondent’s
attorneys. She confirmed that
the contact details were correct.
[5]
Michael Yeates of the Applicant’s attorneys also deposed to a
service affidavit in which he confirmed that he was contacted
by Ms.
Botha of the Respondent’s attorneys on 14 February 2014, and
was informed him that the application for condonation
was not
received. His response was that the application was served by e-mail
as per the service affidavit of Ndlebe, and also by
fax. It had since
transpired that service by fax was nevertheless not successfully
transmitted. Yeates had nevertheless served
the application again by
fax on 17 February 2014.
[6]
Ms Nina Kim Botha of the Respondent’s attorneys of record had
confirmed that she had contacted Yeates as she was unaware
of the
application for condonation. Yeates had then on 14 February
2014 informed her that Ndlebe had thought that she had
properly
effected service by fax when this was not the case. Yeates had then
served the application by fax on 17 February 2014.
On 18
February 2014 she had then requested further proof of service of the
condonation application. She had further advised Yeates
that the
e-mail address used for her candidate attorney was incorrect and as
such she could not have received the application.
Botha further
requested a read receipt in respect of the e-mail sent to […..]
as there was no proof that the application
had been sent at that
e-mail address. When such proof could not be adduced, she had then
requested the matter be removed from the
roll.
[7]
Having considered the averments made by Ndlebe, Yeates and the
response of Botha, I am satisfied that the Applicant has made
out a
case that all reasonable attempts were made at properly serving the
Respondent with the application in question. There does
not appear to
be a response to Ndlebe’s averments that all attempts at
serving the application at the Respondent’s
attorneys’
known fax number had proven to be unsuccessful. When this mode of
service had failed at the time, there was consent
from
Ms
Vickie Blancke
of the Respondent’s attorneys that the
application could be served via e-mail, which she had then done on 10
December 2013
as per her Annexure ‘ZFN3’ as attached to
her affidavit.
[8]
Short of physically serving the application, in view of the problems
encountered in transmitting service by fax, I am satisfied
that all
reasonable attempts were made to properly serve that application. In
the circumstances, it would be unfair to dismiss
the application or
even postpone it in circumstances where the Applicant was not at
fault. It is in the light of these conclusions
that the subsequent
Rule 11 application to re-open the hearing of this application is
deemed to be superfluous. Furthermore, it
needs to be emphasized that
the right of the Respondent to oppose the application is
acknowledged. It is however my view that it
would not be in the
interests of expeditious resolution of this matter to simply postpone
the application in circumstances where
every reasonable attempt at
serving the application were frustrated by circumstances beyond both
parties’ control.
CONDONATION
APPLICATION:
[9]
The requirements for condonation were enunciated in the well-known
decision in
Melane
v Santam Insurance Co Ltd
[1]
in the following terms:
‘
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.’
[10]
In expanding further on the principles set out in
Melane
,
the Labour Appeal Court had in
NUM
v Council for Mineral Technology
[2]
had held that;
‘
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)).’
The
delay and explanation thereof:
[11]
The statement of case in terms of which the Respondent sought
specific performance in terms of his contract of employment and
payment in the amount of R128 532.00, or alternatively payment by the
Applicant in the amount of R66 712.00 as damages, was filed
and
served on 22 October 2013. In accordance with the Rules of this
Court, a statement of response was supposed to have been
filed on 5
November 2013. The Applicant had however only done so on 13 November
2013, some six days late.
[12]
In my view, the delay is indeed negligible. Be that as it may, the
Applicant is still required to satisify the Court that a
reasonable
and acceptable explanation for that delay has been proffered. The
application was supported by a founding affidavit
deposed to by the
Applicant’s business manager, Mr Ian Sim in which he averred
that the delay was not excessive; that the
Applicant had excellent
prospects of sucess in defending the main claim as well as that there
was a lack of prejudice suffered
by the Respondent, moreso in the
light of the consent already given by the Applicant to the late
filing. The following further
averments were made;
12.1
The delay was attributable to the fact that
the Applicant’s School Governing Body as well as management had
to convene a meeting
in order to jointly decide whether or not to
oppose the Respondent's statement of claim. It was submitted that
this was a requirement
that the Applicant had to meet especially in
the light of the fact that the Respondent is an employee of the
School’s Governing
Body, and remunerated by it.
12.2
It was submitted that the joint decision
making process was a requirement in order to decide on a way forward
and in order to issue
a mandate regarding further steps to be taken,
if any. These delays were attributed to difficulties the Applicant
faced, including
the fact that the members of the School Governing
Body are not full time employees of the Applicant, and as a result,
challenges
were posed in getting all the members together for a
meeting which was held on 4 November 2013.
12.3
Due to the delays experienced, the
Applicant's attorneys had requested an indulgence from the
Respondent's attorneys to file the
response out of time. Although the
indulgence was granted, the Respondent's attorneys held the view that
the Applicant still needed
to file its condonation application, which
it had duly done on 10 December 2013
[13]
Notwithstanding the constraints faced by the Respondent, Adv Venter
had on his behalf in opposing the application, submitted
that;
13.1
The applicant has not accounted for some days from receipt of the
statement of case until eventually filing
a response. In this regard,
it was submitted that the Applicant failed to account for each day
that it was late.
13.2
The Applicant’s explanation was not reasonable and acceptable,
as it did not make every possible attempt
to refer the dispute
timeously.
[14]
It is trite that an application for condonation should be filed
without delay as soon as a party to litigation becomes aware
of the
need to file such an application
[3]
.
To enable this court to properly exercise its discretion, a party
seeking condonation must set out all the facts and circumstances
relating to the delay, and most importantly, must provide a
satisfactory explanation and account for each period of the delay
[4]
.
In this case, the statement of case having been received on 22
October 2013, the Applicant’s members of the School Governing
Body, who are not its full time employees could only resolve on 4
November 2013 to oppose the application. Even though the delay
between these priods is not explained with particularity, I am
satisfied that the Applicant acted with due haste in the light of
the
constraints it faced in having to hastily convene a meeting of the
School Governing Body. Given the period of the delay and
the
constraints faced by the Applicant, it cannot be said that no
attempts were made to timeously file the response to the statement
of
claim.
Prospects
of success:
[15]
The Respondent has been and is still in the employ of the Applicant
as a teacher since April 1997 in terms of a written contract
of
employment. In launching the main application, his contention was
that in terms of clause 5.4 of the contract of employment,
he is
entitled to a 50% contribution of his Medical Aid from the Applicant
since his date of employment. The Applicant had however
failed to pay
the said contribution from the inception of the contract, and to this
end, he was entitled to payment in the amount
of R128 532.00 as
specific performance in terms of the contract, or in the alternative,
damages in the amount of R66 712.00, due
to breach of contract.
[16]
In its response, the Applicant had contended that the Respondent
first raised the issue of alleged breach of contract in September
2009 when he alleged that the Applicant was liable for 50% of his
medical fes, and that he was however making more that 50%
contribution
to those fees. He was informed that despite the
provisions of the contract of employment, the Applicant contributed
more that was
required, and that he was required to contribute
accordingly. He was further informed that his contract did not
provide for increased
payment of medical aid contribution, and as
such, was not entitled to increased payments.
[17]
The Respondent had again in February 2013 raised the issue, and was
informed that 50% of the contribution related to his medical
aid fes
and not the entire medical aid fees including his dependents. Despite
this response, the Respondent still held the view
that the Applicant
was in breach of his contract of employment.
[18]
In
regards to the approach in dealing with the aspect of prospects of
success, this Court in
Gaoshubelwe
and Others v Pieman's Pantry (Pty)
Ltd
[5]
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).’
[19]
In his written heads of argument, the Respondent submitted that the
Applicant failed to incorporate the response into the condonation
application, and has thus not under oath committed to the version
stated therein. This contention can however not be sustainable
in
that at paragraph 25 of his founding affidavit, Ian Sim had
specifically stated in dealing with the aspect of prospects of
success that the Applicant had prospects of success in defending the
Respondent’s claim, and this regard, had referred to
the
‘statement of claim as if specifically incorporated herein’.
It is apprent that reference to ‘statement of
claim’ is
erroneous as what should be referred to is the ‘statement of
response’. In this regard, I am of the
view that the Applicant
cannot be prejudiced by such an obvious error, and I am satisified
that the statement of response has been
incorporated into the
application for condonation, and should thus be considered.
[20]
Sim had further averred in his founding affidavit that the Respondent
had misinterpreted his contract of employment and had
erroneously
found the Applicant to be responsible for contributing 50% for both
his own medical aid and that of his dependents.
In this regard, it
was contended that the medical contribution related to the
Respondent’s medical aid fees and not to the
Respondent’s
dependents, who are also members of the medical aid.
[21]
Having had regard to the above, I am satisfied that the Applicant has
demonstrated that given the nature of the dispute, which
prima
facie
requires an interpretation of the contract of employment, it has a
bona
fide
defence to the Respondent’s claim. Furthermore, the interests
of justice, it being also one of the fundamental requirements
in
considering such applications
[6]
,
requires that the Applicant be afforded an opportunity to defend the
claim against it.
[22]
In conclusion, in the light of the negligible extent of the delay in
filing a response to the Respondent’s main claim,
the
satisfactory and acceptable explanation proffered in that regard, and
the Applicant’s
bona fide
defence to the Respondent’s
claim, I am of the view that the Applicant has shown good cause for
an indulgence to be granted.
Furthermore, considering the
circumstances of this application, it cannot be said that there is
any suggestion that there is or
was a deliberate attempt on the part
of the Applicant to frustrate the expeditious finalisation of this
matter. Any contention
that the delay in question might impact on the
memory of the witnesses, and moreso in view the claim before the
court is clearly
misplaced. Furthermore, I am of the view that the
delay in question has not prejudiced the Respondent in any manner as
he remains
employed. On the contrary, it is the Applicant that stands
to suffer more prejudice if the application is not granted in view of
the claim before the court. In regards to costs, it is further my
view that considerations of law and fairness dictate that each
party
must bear its own costs.
Order:
i.
The Applicant’s late filing of its
statement of response to the Respondent’s statement of claim is
condoned.
i.
Each party is to pay its own costs.
________________
Tlhotlhalemaje, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Ms. Z Ngwenya of DLA Cliffe Dekker Hofmeyer
For
the Respondent:
Adv. PJL Venter
Instructed
by:
D and K Attorneys
[1]
1962
(4) SA 531
(A) at 537C-F.
[2]
[
1999]
3 BLLR 209
(LAC) at para 10
[3]
See
Meintjies
v HD Combrinck (Edms) Bpk
1961 (1) SA 262
(A) at 263 H-264B.
[4]
See
NUMSA
and another v Hillside Aluminium
[2005] 6 BLLR 601 (LC)
[5]
2009 30 ILJ 347 (LC) at para 27.
[6]
Brummer
v Gorfil Brothers Investments (Pty) Ltd
[2000] ZACC 3
;
[2000] (2) SA 837
(CC) at 839 F