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[2015] ZALCJHB 259
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Foley v Transvaal Abrasives CC (J2003/02) [2015] ZALCJHB 259 (14 August 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case no: J2003/02
PATRICK
JAMES
FOLEY
Applicant
and
TRANSVAAL
ABRASIVES
CC
Respondent
Delivered:
14 August 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
The applicant seeks to have a default award issued under case number
GA13222-01 by a CCMA Commissioner on 12 March 2002 be made
an order
of Court. The Respondent opposes the application and seeks that it be
dismissed on account of the inordinate delay in
enforcing the award.
Aligned to the application to have the award made an order of court
is a further application brought by the
applicant in terms of Rule 11
of the Rules of this Court.
[2]
This application was heard on 19 October 2014 and judgment was
reserved. On 21 January 2015, the applicant filed a notice of
application for leave to file a further affidavit. The respondent
opposed this application.
Background:
[3]
The applicant was dismissed by the respondent on 25 June 2001. He had
referred an unfair dismissal dispute to the CCMA. The
matter was
heard in default and he was awarded compensation in the amount of R74
568.00 in terms of an award issued on 12 March
2002. It is this award
which he seeks to make an order of court.
[4]
The respondent had not complied with the award. Its then attorneys of
record, PJB Van der Grijp had instead filed an application
in terms
of section 165 of the LRA for rescission of the award in this Court
in May 2002. Clearly this was not a proper cause of
action, and the
applicant in his answering affidavit correctly raised this point, and
further pointed out to the respondent that
a rescission application
ought to have been brought before the CCMA in terms of section 144 of
the Labour Relations Act. In opposing
the application for rescission
at the time, the applicant was assisted by Dirk Coetsee Attorneys. In
these proceedings, it was
conceded on behalf of the respondent that
indeed the said application was not the proper cause of action.
[5]
On 10 September 2002, the applicant filed and served an application
to have the arbitration award made an order of court. This
application was not immediately opposed. In May 2010 LJ De Jager
Attorneys were appointed as the applicant’s attorneys of
record. On 11 June 2010, some 8 years later, the applicant filed a
Rule 11 application to have the rescission application dismissed.
[6]
On 23 February 2011, a notice of set-down was sent to LJ De Jager
attorneys and to the respondent. The matter was set down for
16 March
2011. LJ De Jager attorneys withdrew as the applicant’s
attorneys of record on 16 March 2011, in terms of
a Notice dated 1
February 2011. On 16 March 2011 the matter was struck off the roll on
account of non-appearance by both parties.
In June 2012 the applicant
filed an affidavit explaining the circumstances that led to his
non-appearance on 16 March 2011. On
12 September 2012 the parties
were then directed by the Court to file Heads of Argument in respect
of the applicant’s Rule
11 application.
[7]
In November 2013, the respondent which was now represented by its
current attorneys of record, Fluxmans Inc filed an answering
affidavit to the application to have the award made an order of
court. Central to the submissions made in the answering affidavit
was
that the applicant was not entitled to relief in the light of the
award having prescribed.
[8]
During the hearing of this matter however, it was indicated on behalf
of the respondent that the preliminary point in respect
of the issue
of prescription was abandoned, and that the sole defence to the
application was that it ought to be dismissed on account
of lack of
timeous prosecution.
Evaluation:
[9]
I am of the view that nothing prevents a party from approaching the
court to seek leave to file further documents even if after
a matter
had been heard but before judgement is delivered as in this case. The
issue however is whether such leave should be granted.
[10]
It was only at the hearing of the application that Adv Cook on behalf
of the respondent abandoned the argument surrounding
prescription.
When Adv Ford on behalf of the applicant submitted that only the
issue of prescription was raised in the respondent’s
answering
affidavit, and that the respondent could not raise new matters in
heads of argument, Adv Cook’s response was that
the respondent
was entitled to raise the issue of inordinate delay even in its heads
of argument.
[11]
A submission to the effect that a matter should be dismissed on
account of inordinate delays in prosecuting it is substantial
in
nature. In the face of an application to have an award made an order
of court, and where this application is opposed on account
of the
failure to prosecute such an application timeously, it is my view
that the provisions of Rule 11 of the Rules of this Court
should have
been invoked, rather than merely raising such a matter in the course
of written arguments. It is trite that a case
cannot be made out in
written heads of arguments, and the question raised by Adv Cook is
not merely a procedural one in that if
upheld, it has the
consequences of disposing of the matter entirely.
[12]
Rule 11 of the Rules of this Court provides that;
“
Interlocutory
applications and procedures not specifically provided for in other
rules
(1)
The following applications must be brought on notice, supported by
affidavit:
(a)
Interlocutory applications;
(b)
other applications incidental to, or pending, proceedings referred to
in these rules
that are not specifically provided for in the rules;
and
(c)
any other applications for directions that may be sought from the
court.
(2)
The requirement in subrule (1) that affidavits must be filed does not
apply to applications
that deal only with procedural aspects.
(3)
If a situation for which these rules do not provide arises in
proceedings or contemplated
proceedings, the court may adopt any
procedure that it deems appropriate in the circumstances
(4)
In the exercise of its powers and in the performance of its
functions, or in any incidental
matter, the court may act in a manner
that it considers expedient in the circumstances to achieve the
objects of the Act.”
[13]
The reason for seeking to file a further affidavit according to the
applicant is to set out a chronological account of attempts
made and
actions undertaken by him in the prosecution of his claim. The
respondent has only filed a notice to oppose the application
without
any answering affidavit. Since a substantial application in terms of
Rule 11 would ordinarily have been filed where the
respondent sought
to have the matter dismissed, and since such an application was not
made, it is my view that having had regard
to the provisions of Rules
11 (3) and 11 (4), leave to file a further affidavit should be
granted.
[14]
My conclusions are based on the protracted history of this matter,
and in particular, regard is also had to the ill-considered
rescission application by the respondent, the failure to timeously
oppose the application to make the award an order of Court,
the
failure to oppose the applicant’s Rule 11 application, and most
importantly, the belated raising of the
point in limine
the
heads of argument in respect of the application to make the award an
order of court. Considerations of equity clearly dictate
that the
applicant should be afforded an opportunity to respond to substantial
arguments and legal points raised by the respondent
in its written
heads of argument. Accordingly, the following order is made;
Order:
i.
The
applicant is granted leave to file a further affidavit.
ii.
The
applicant’s further affidavit is to be filed within 14 days of
the handing down of this order.
iii.
The
respondent is entitled to file a response to the further affidavit
within 14 days from the date that it is served on it.
iv.
The
Registrar of the court is directed to set the matter down once
paragraphs (ii) and (iii) above have been complied with.
v.
The
costs of this application and those in respect of the proceedings of
19 October 2014 are reserved.
______________________
Tlhotlhalemaje, AJ
Acting Judge of the
Labour Court of South Africa
Appearances:
For
the Applicant:
Adv. B Ford
Instructed
by:
Rabia Sayed Attorneys
For
the First Respondent:
Adv. A L Cook
Instructed
by:
Fluxmans Inc