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[2014] ZALCPE 5
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Algoa Bus Company (Pty) Ltd v South African Transport & Allied Workers Union (SATAWU) and Others (P337/12) [2014] ZALCPE 5; [2014] 8 BLLR 786 (LC) (15 May 2014)
REPUBLIC
OF SOUTH AFRICA
INTHE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Reportable
Case
no: P 337/12
In
the matter between-
ALGOA
BUS COMPANY (PTY)
LTD
.................................................................................
Applicant
and
SOUTH
AFRICAN TRANSPORT & ALLIED
WORKERS
UNION
(SATAWU)
...............................................................................
First
Respondent
TRANSPORT,
ACTION, RETAIL&
GENERAL
WORKERS UNION
(THOR)
............................................................
Second
Respondent
TRANPORT
AND ALLIED WOKERS
UNION
OF SOUTH AFRICA
(TAWUSA)
............................................................
Third Respondent
THE
PERSONS REFERRED TO IN ANNEXURE
“
A”
TO THE NOTICE OF
APPLICATION
.......................................................
Fourth Respondent
Heard: 11
February 2014
Delivered: 15 May
2014
Summary:
Application to dismiss the claim for damages on the basis of dispute
of facts in motion proceedings. Claim for damaged
may be dismissed if
there are material disputes of facts in a matter launched by way of
motion proceedings. Insufficient evidence
to determine the
requirement of section 68 of the LRA were satisfied.
JUDGMENT
MOLAHLEHI,
J
Introduction
[1]
The applicant instituted a claim for
damages in the amount of R13 55095.00, against the first respondents
and more specifically
for the purpose of this judgment from the first
respondent arising from an unprotected strike which took place during
2011.
[2]
The first respondent (SATAWU) has filed an
application seeking to dismiss the applicant’s main claim
alternatively to have
the matter referred to oral evidence. The
application is brought on an urgent basis and that include an
application to rescind
the order made by Lallie J granting SATAWU
leave to file an application for condonation for the late filing of
the answering affidavit.
[3]
The applicant’s claim arises from the
events that occurred during September 2011 when the respondents
engage in an unprotected
strike action.
[4]
SATAWU seeks to have the application
to have the applicant's claim dismissed on the grounds that there are
disputes of facts
and or that it is inappropriate to claim damages
through motion proceedings.
The history of
the litigation
[5]
After receipt of the application in
September 2012 the respondents filed a notice to oppose the
applicant’s claim but did
not file an answering affidavit. The
answering affidavit was filed a day before the first scheduled
hearing on the 10
th
October 2013.
[6]
The following day subsequent to the filing
of the answering affidavit, on 11 October 2013, Lallie J postponed
the matter and granted
the first respondent leave to file condonation
for the late filing of the answering affidavit. The matter was then
set down for
hearing on 11 February 2014. On 7 February 2014, the
first respondents filed the current application. The respondent
further requested
that the answering affidavit which is not properly
before the Court be accepted as part of the founding affidavit in the
current
application.
[7]
The unprotected industrial action of the 22
September 2011 entailed the bus drivers at Motherwell and Bay depots
blocking the roads
after taking control of the buses allocated to
them in terms of their duties and in terms of the scheduled trips.
[8]
The applicant contends that as a result of
the unprotected strike action in September 2013, it suffered damages.
The claim is based
on the provisions of
section 68
(1)
(b) of the
Labour Relations Act of 1995
which reads as follows:
“
(1)
In the case of any
strike
Or
lock-out
or any conduct in contemplation or in furtherance of a
strike
or
lock-out
, that does not comply with the provisions of this
Chapter, the Labour Court has exclusive jurisdiction -
(a) . . .
(b)
to order the payment of just and equitable compensation for any loss
attributable to the
strike
or
lock-out
,
or conduct having regard to -
(i)
Whether -
(aa) attempts were
made to comply with the provisions of this Chapter and the extent of
those attempts;
(bb) the
strike
or
lock-out
or conduct was premeditated;
(cc) the
strike
or
lock-out
or conduct was in response to unjustified conduct
by another party to the
dispute
; and
(dd) there was
compliance with an order granted in terms of paragraph (a);
(ii)
the interests of orderly collective bargaining;
(iii)
the duration of the
strike
or
lock-out
or
conduct; and
(iv) the financial
position of the employer,
trade union
or
employee
s
respectively.
SATAWU’S
case
[9]
In the first instance SATAWU seeks
condonation for non-compliance with the time frames as provided for
in the rules of this Court.
In other words SATAWU seeks to have the
Court grant it an indulgence and treat the matter as urgent. The
question that immediately
arises in this respect is whether SATAWU
has complied with the provisions of
rule 8
of the Rules of the Court.
In terms of
Rule 8(2)(a)
, (b) and (c) of the Rules an applicant who
lodges an application on an urgent basis has to provide reasons why
the relief is urgent,
why the requirements of the Rules were not
complied with and why a shorter period of notice should be permitted.
[10]
The reason for the urgency is
explained by the deponent to the founding affidavit, Mr Niehause who
is also the attorney of record
for SATAWU in this matter. He states
the following at paragraph 23 of the founding affidavit:
“
23.
The current application is instituted in terms of
Rule 11
of the
Rules of this Court. The extent that this Rule envisages an
application in accordance with
Rule 7
of the Rules of Court this
application does not comply with the normal timeframes. I
respectfully refer the Honourable Court to
the explanation above as
to when the First Respondent became aware of the options it had in
law, which explains why this application
has been instituted only at
the present late stage.”
[11]
The essence of the explanation for
launching this application in the manner SATAWU did was according to
Mr Niehause because he only
discovered the legal point raised in the
application during the course of the evening of 25 February 2014,
when he was considering
SATAWU’s “options relevant to the
non-filing of the condonation application.”
[12]
Mr Niehause does not explain why he waited
from 11 October 2013 to 25 February 2014 to consider the point
raised. It is important
to note that the cases which Mr Niehause rely
on in support of the point made dates back long before 11 October
2013. The case
of
Molefe v Molefe
dates back to May 2002 and that of
Byway
Projects 10 CC v Masingita
dates back
to 2011. The case of
MEC for Finance and
Economic Development v Masifundisane College CC
dates back to September 2013 before the order by Lallie J was made.
This cases are discussed in details later in this Judgment
[13]
Mr Niehause, in his affidavit somehow
concedes that the explanation referred to above is not satisfactory.
He however contends that
the poor explanation is overshadowed by the
irregular step or inappropriate step taken by the applicant in
instituting motion proceedings
to claim damages. He further contends
that it would not serve the interest of justice if consideration was
only to be given to
the weakness of the condonation application.
[14]
In
support of its application that the court should dismiss the claim;
SATAWU relied on a number of cases dealing with the issue
of the
dispute of facts arising in motion proceedings. The majority of the
cases relied upon are those where the dispute of facts
arose
consequent to the issues as raised in the answering affidavit.
[1]
[15]
In
Public
Servants Association obo Botha and another v MEC for Health
:
North
West Provincial Government and Others
,
[2]
the applicant sought to have the respondents held in contempt of a
court order. In addition to arguing that they were not in contempt
of
the Court order the respondents contended that the matter stood to be
dismissed because the applicant ought to have foreseen
a dispute of
fact arising when they instituted their claim by way of motion
proceedings. It was in this respect that it was held
that the
applicants should have foreseen that a dispute of facts would arise
and therefore ought to have proceeded by way of action
and not motion
proceedings.
[16]
In
contending that the applicant’s case deserve to be dismissed
the first respondent relied also on the case of
Sigh
v Adam
,
[3]
where the court per Murphy AJ as he then was, held that:
“
In
her answering affidavit the respondent contends that because the
applicant not only anticipated but accepted that there was a
sharp
dispute of fact relating to the central issue she is not entitled to
relief, whether interim or otherwise, and that the relief
sought in
effect is final. Although the applicant does not say as much, I
understand her submission to include the assertion that
the
application ought to be dismissed solely on the ground that it is
inappropriate to proceed on notice of motion where the applicant
realizes when launching an application that a serious dispute of
fact, incapable of resolution on the papers was bound to develop.
.
.”
In
my opinion, an application on this basis amounts to an irregular
proceeding. Having anticipated a material dispute of fact that
could
not be resolved on the papers it was inappropriate for the applicant
to seek a final interdict by way of notice of motion.”
[17]
It is important to note that the dispute of
facts arose or was highlighted once the answering affidavit in the
above case was filed.
[18]
In Public Servants Association, Steenkamp J
after quoting the above with approval observed pertinently that:
“
I
agree that, in this case, there is a dispute of fact – indeed,
it was pertinently raised by the respondents in their answering
affidavit. However, I do not agree that the application should be
dismissed on that ground alone. The applicant may not have
anticipated
the dispute of fact before it was raised in the answering
affidavit.”
[19]
Another
case which SATAWU relied on his
Bay
Projects 10 CC v Masingita Auto Body and Another,
[4]
in particular paragraph 11 of the judgment which reads as follows:
“
[24]
The appellant sought a final order for the payment by way of motion
proceedings. In this regard there are two principles that
are
relevant. Firstly, it is trite that motion proceedings are not
appropriate for resolution of material disputes of facts. Should
a
factual dispute arise which is incapable of being resolved in the
papers there is a risk of dismissal of the application should
the
court, in the exercise of its discretion, not refer the matter
for trial nor direct that oral evidence be heard on specified
issues.
A court will exercise a discretion to dismiss the application if the
applicant ought to have foreseen, or in fact did foresee,
when
launching his application, that a serious dispute of fact, incapable
of resolution on the papers was bound to develop. (Footnotes
omitted). “
[20]
In
the heads of argument and in his submission Mr Niehause, emphasises
the principle that where in motion proceedings a dispute
of facts
ought to have been foreseen by the applicant and those facts cannot
be resolved through the papers then the application,
as is the case
in present matter according to him, should be dismissed. The argument
is based on the decision in
MEC
For Finance and Economic Development: KwazuluNatal v Masifundisane
Development College CC
,
[5]
where it was held that:
“
The
court below accordingly erred in deciding the matter when there was a
dispute of facts incapable of resolution on the papers.
Masifundisane
should have realised this before proceeding by way of application and
should have done so way of action.”
[21]
The
same approach was adopted in
Transnet
Limited v ERF 152927 Cape Town (Pty) Ltd and others
,
[6]
where the Supreme Court of Appeal Court quoting with approval
what was said in
Room
Hire CO (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd,
[7]
had the following to say:
“
It
is certainly proper that an applicant should commence proceedings by
motion with knowledge of the probabilities of a protracted
enquiry
into disputed facts not capable of easy ascertainment, but in the
hope of inducing the Court to apply
Rule 9
to what is essentially the
subject of an ordinary trial action.”
Rescission
application
[22]
It has to be noted that the
rescission application of the order made on 11 October 2013, is
brought on an urgent basis on 7 February
2014. A rescission
application is governed by the provisions of
section 165
of the LRA
which reads as follows:
“
The
Labour Court, acting of its own accord or on the application of any
affected party may vary or rescind a decision, judgment
or order -
(a) erroneously
sought or erroneously granted in the absence of any party
affected by that judgment or order;
(b) in which there
is an ambiguity, or an obvious error or omission, but only to the
extent of that ambiguity, error or omission;
or
(c) granted as a
result of a mistake common to the parties to the proceedings.”
[23]
Mr Niehause, in his submission on behalf of
SATAWU suggested that Lallie J made an error in making the order as
she was not aware
of the point raised in this matter at the time she
made the order. The argument further suggested that had Lallie
J been
aware of the issues raised in the present application she
would not have made the order as she did.
[24]
As would appear from the case referred to
upon by SATAWU above legal point raised and relied upon by SATAWU in
particular those
relied in this matter dates back to, 2002 and
September 2013 before the order was made. It is for this reason that
I am of the
view that the proposition that the order which granted
the respondent leave to file a condonation application was made in
error
bears no merit.
[25]
The delay from October 2013 to February
2014 is excessive; the explanation as indicated above is unreasonable
and unsatisfactory.
In addition the application does not satisfy any
of the requirements of
section 165
of the LRA including principles
established in the interpretation of this section.
Evaluation
[26]
In addition to what has already stated
earlier regarding the urgency and the rescission application SATAWU’s
case stands to
fail even as concerning alleged dispute of facts.
[27]
The
approach to adopt when dealing with dispute of facts in motion
proceedings received a detailed attention in the case of
South
African Football Association v Mangope (SAFA)
,
[8]
where the broad principles regarding the issue of disputes of fact in
motion proceedings was stated by Murphy AJA as follows:
“
[10]
The inherently limited form and nature of evidence on affidavit
means that on occasion an application will not be able to
be properly
decided on affidavit, because there are factual disputes which cannot
or should not be resolved on the papers in the
absence of oral
evidence. The various provisions of
Rule 7
of the Rules of the Labour
Court take cognisance of this reality.
Rule 7(3)
requires the
applicant to set out the material facts in the founding affidavit
with sufficient particularity to enable the respondent
to reply to
them, while
Rule 7(4)
expects the same on the part of the
respondent....”
[28]
As stated in the SAFA matter there
are three ways in which a dispute facts of may manifest itself in
motion proceedings and those
may be summarized as follows:
1)
the respondent in the answering affidavit denies one or more of the
material allegations made by the applicant in the founding
affidavit
and produce evidence to the contrary.
(2)
the respondent admits the allegations made in applicant’s
affidavit but allege other facts which the applicant disputes.
(3)
the respondent, while conceding that he has no knowledge of one or
more material facts stated by the applicant, may deny them
and put
the applicant to the proof.
[29]
In the SAFA matter, respondent
contended that the matter should be referred to oral evidence as
concerning a claim for damages for
a prospective loss of future
salary the Court in SAFA held that because of dispute of facts that
arisen from its answering a plaintiff
needs to adduce evidence
enabling a fair approximation of the loss. Put in another way the
plaintiff determination of the question
of damages the needs to place
before the Court a factual basis upon which the Court can determine
the damages. LAC agreed with
the coat aquo proceeding to
determine merits of the claim for damages despite the claim being
instituted on notice of motion
and the respondent contending that
there existed a dispute of acts
[30]
In the unpublished judgment of
Bay
Food v Deysel Trust t/a Blue Bay Food v Dayzel Ronelle Lauren and
Anothe
r case number P343/13,
Lagrange J in dealing with the issue of a claim for contractual
damages instituted by motion
proceedings had the following to say:
“
Nothing
prevents an applicant from launching a claim for contractual damages
by way of an application as the judgment in
Mangope
(SAFA judgment)
makes clear .
[31]
In the present
instance it should be noted that, SATAWU contends that there exist
dispute of facts without having properly placed
before the Court its
answering affidavit. It is important to note that from the above
authorities it is not every dispute of fact
that would warrant a
dismissal of the claim or a referral to oral evidence. It is
only a material dispute of fact that would
warrant the dismissal of a
claim instituted by way of motion proceedings.
[32]
In failing to
ensure that an answering affidavit is properly filed the respondent
denied the Court the opportunity to asses in a
fair manner whether
there exist in this matter a dispute of facts. It is for this reason
and others stated earlier that I am of
the view that SATAWU’s
case stands to fail. It therefore
[33]
Follows that the version of the
applicant as concerning the merits of the claim, remains
unchallenged. The question that remains
to be answered however is
whether the Court would be in a position, on the pleadings and the
evidence before it, be able to determine
the issue of the quantum of
damages.
[34]
In
SA
Football Association v Mangope
(2013)
34
ILJ
311
(LAC
)
, the
LAC dealing with the issue of damages had the following to say:
“
It
is not competent for a court to embark upon conjecture or guesswork
in assessing damages when there is inadequate factual basis
in
evidence.
[9]
[35]
In the present
instance, while the applicant has pleaded and provided evidence in
relation to the cause of action, namely that the
damages arose from
the unprotected strike actions by the respondents, it has not pleaded
all the other aspects of
section 68
of the LRA dealing specifically
with the issue of quantum of damages. It is therefore my view that in
order to ensure that justice
is done the matter must be referred to
oral evidence as concerning matters referred to in
section 68(1)
(b)
(i), (ii), (iii) and (iv) of the LRA. I see no reason in law and the
circumstances of this case why costs should not follow
the results.
[36]
In the
premises, the following order is made:
1.
The First
Respondent’s (Applicant in the present matter) is dismissed
with costs.
2.
The matter is
referred to oral evidence for consideration of matters referred to in
section 68(1)
(b) (i), (ii), (iii) and (iv) of the LRA.
3.
The parties
are directed to hold a pre-trial conference within 14 days of date of
this order and file same accordingly.
E
Molahlehi
Judge
of the Labour Court of South Africa
APPEARANCES:
For the Applicant:
Adv JE Grogan
Instructed by:
Joubert Galpin & Searle
For the Respondent:
Attorney Minnaar Niehause
Instructed
by: TAWUSA
[1]
Public
Servants Association obo Botha and another v MEC for Health: North
West Provincial Government and Others
(2013)
34 ILJ 1574 (LC
),
Byway Projects CC
10 v
Masingita
Autobody
2011 ZAGPJHC 54 (14 June 2011)
and
Molefe v Molefe
[2002] ZANWHC 16
(16 me 2002)
and
MEC for Finance and Economic Development KwaZulu Natal v
Masifundisane Training Development
[2013] ZASCA 138
(27 September 2013).
[2]
(2013)
34 ILJ 1574 (LC).
[3]
(2006)
27 I LJ 385 (LC) at paragraph 14 and 16.
[4]
(2011)
ZAGPHC (14 June 2011).
[5]
(2013)
ZASCR 133 (27 September 2013).
[6]
(2011)
ZASCA 148
(26 September 2011).
[7]
(1949)
3 SA 1155 (T).
[8]
(2013)
34 ILJ 311 (LAC).
[9]
At
333 para [44] Footnote omitted.