About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 288
|
|
Chauke v Safety and Security Sectoral Bargaining Council and Others (JR1944/12) [2015] ZALCJHB 288; (2016) 37 ILJ 139 (LC) (10 September 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
No: JR1944/12
DATE:
10 SEPTEMBER 2015
Reportable
DAVID
CHAUKE
......................................................................................................................
Applicant
And
SAFETY
AND SECURITY SECTORAL BARGAINING COUNCIL
....................
First
Respondent
THE
MINISTER OF
POLICE
................................................................................
Second
Respondent
COMMISSIONER
F J VAN DER MERWE,
N.O
...................................................
Third
Respondent
THE
MINISTER OF
LABOUR
..............................................................................
Fourth
Respondent
Heard:
13 August 2015
Delivered:
10 September 2015
Summary:
Application for review in terms of s. 158(1)(g) of the LRA; Applicant
seeking to set aside a Condonation Ruling; Second
Respondent raising
an ‘Exception’ to the application for review in terms of
Rule 23 of the Uniform Rules of Court;
Exception in motion
proceedings incompetent and bad in law; On the merits of the review,
no case made out for the setting aside
of the Condonation Ruling;
Application dismissed with no order as to costs.
JUDGMENT
VOYI
AJ
Introduction:
[1]
This is an application to review and set
aside a Condonation Ruling issued by the Third Respondent
(hereinafter “
the Commissioner
”)
on 26 July 2012 under case number PSSS 446-07/08. In so issuing the
Ruling under review, the Commissioner was acting under
the auspices
of the First Respondent, Safety and Security Sectoral Bargaining
Council (hereinafter “
the
SSSBC
”).
[2]
The
application for review is brought in terms of s 158(1)(g) of the
Labour Relations Act,
[1]
read
together with s 145 of the same Act. It was filed with this Court on
21 August 2012. The application is opposed only by the
Second
Respondent.
Preliminary
observations:
[3]
After
the review application was delivered and on 28 August 2012, the First
and Fourth Respondents delivered a notice of their intention
to
oppose.
[2]
In
further resisting the review, the Second Respondent took exception to
the manner in which the application was framed and to what
was
contained in the affidavit in support thereof. In this regard to the
latter and on 08 October 2012, the Second Respondent delivered
what
it labelled as its “…
Notice
to the Applicant in terms of Rule 11 of the Labour Court Rules read
with Rule 23 of the High Court Rules
.”
[4]
The aforementioned Notice raised a few
complaints against the Applicant’s application for review. In
essence, the Second Respondent
complained that the Applicant’s
application for review (i) constituted ‘an irregular
proceeding’ and (ii)
‘was excipiable’ on the
basis that it lacked averments necessary to sustain a cause of action
and that it contained
averments that are vague and embarrassing.
[5]
It
was mentioned in the aforesaid Notice that “…
if
the Applicant does not remedy the defects within 15 days of receipt
of [the] notice the Second Respondent will apply to this
Honourable
Court to set aside the Application on the grounds that it constitutes
an irregular proceeding and / or is vague and
embarrassing and fails
to disclose a cause of action
.”
[3]
[6]
The Applicant did not remedy the alleged
defects. Instead, he delivered what he termed a ‘Replication to
Second Respondent’s
Notice to the Applicant in terms of Rule 11
of the Labour Court Rules read with Rule 23 of the High Court Rules.’
[7]
In his purported ‘Replication’,
the Applicant rejected the Second Respondent’s assertions that
his application
for review constituted an irregular proceeding and/or
that same was excipiable. The Applicant tabulated his reasons for
disagreeing
with the Second Respondent. These somehow went into the
merits of his overall case against the Second Respondent.
[8]
With the Applicant having failed to remedy
the identified defects, the Second Respondent delivered what it
labelled as an ‘Exception’.
The ‘Exception’
was grounded on the Applicant’s application for review (i)
lacking averments necessary to sustain
a cause of action and (ii)
containing averments that are vague and embarrassing.
[9]
I need to say something about the Second
Respondent’s approach in resisting the application for review.
I do so before delving
into the merits of the review.
The
‘Exception’ to the application for review:
[10]
The approach adopted by the Second
Respondent in resisting the review application involves the
importation of the provisions of
Rule 23 of the Uniform Rules of
Court into proceedings before this Court. Such an approach is
permissible under Rule 11(3) of the
Rules of the Labour Court, the
provisions of which read as follows:
“
If
a situation for which these rules do not provide arises in
proceedings or contemplated proceedings, the court may adopt any
approach that it deems appropriate in the circumstances
.”
[11]
There
is no provision in the Rules of the Labour Court that deals with
Exceptions and/or Irregular Proceedings. It is, by now, accepted
that
an Exception can be raised in proceedings before this Court through
reliance on Rule 11, read together with Rule 23 of the
Uniform Rules
of Court.
[4]
[12]
There
is, accordingly, no controversy in raising an Exception to a claim
brought under Rule 6 of the Rules of the Labour Court.
[5]
What
I, however, need to deal with in this matter is the permissibility of
an Exception in motion proceedings before this Court.
This
necessitates an analytical look at the provisions of Rule 23 of the
Uniform Rules of Court. Rule 23(1) reads as follows:
“
Where
any
pleading
is vague and embarrassing or lacks averments which are necessary to
sustain an action or defence, as the case may be, the opposing
party
may, within the period allowed for filling any subsequent pleading,
deliver an exception thereto and may set it down for
hearing in terms
of paragraph (f) of subrule (5) of rule (6): Provided that where a
party intends to take an exception that a pleading
is vague and
embarrassing he shall within the period allowed as aforesaid by
notice afford his opponent an opportunity of removing
the cause of
complaint within 15 days: Provided further that the party excepting
shall within ten days from the date on which a
reply to such notice
is received or from the date on which such reply is due, deliver his
exception
.” [own emphasis]
[13]
It is evident from the above that the
Exception contemplated by Rule 23 is directed at a ‘pleading’.
In this matter,
we are dealing with a notice of motion accompanied by
an affidavit.
[14]
In
my considered view, there is a material distinction between a
‘pleading’ and an ‘affidavit’. In
Herbstein
& Van Winsen: The Civil Practice of the High Courts of South
Africa,
[6]
the
following is stated:
“
In
South Africa the term ‘pleading’ is used in a more
restricted sense and does not include documents such as petitions,
notices of motion, affidavits, simple summons, provisional sentence
summons or writs of arrest
.”
[15]
In
AB
Civils (Pty) Ltd t/a Planthire v Barnard
,
[7]
the
LAC held thus:
“
An
affidavit is not a pleading. It is a means of putting evidence before
the court. It takes the place of viva voce testimony.
”
[8]
[16]
In this matter, the Second Respondent’s
‘Exception’ is, therefore, not directed at a ‘pleading’
but
at the ‘affidavit’ in support of the review
application. In my opinion, that is incompetent. The provisions of
Rule
23(1) specifically make reference to instances where “…
any
pleading
is vague and embarrassing or lacks averments which are necessary to
sustain an action or defence
.”
[17]
The
Uniform Rules of Court do not permit Rule 23 to be applicable in
motion proceedings. In affirming this, I refer to the decision
of
Schippers J in
WP
Fresh Distributors (Pty) Ltd v Klaaste
,
[9]
where
the following was held:
“
Rule
23(1) provides inter alia that where any pleading is vague and
embarrassing or lacks averments necessary to sustain an action,
the
opposing party may deliver an exception thereto and may set it down
for hearing; provided that where a party intends to take
an exception
that a pleading is vague and embarrassing, the opponent must be given
an opportunity of removing the cause of complaint.
However, in
applications there is no recognized procedure for raising an
exception before the case comes to trial. Instead, rule
6(5)(d)
requires any person opposing an order sought in the notice of motion
to notify the applicant in writing that he or she
intends to oppose
the application; and to deliver an answering affidavit within 15 days
of the notice of intention to oppose. If
a respondent intends to
raise only a question of law, he or she is required to deliver a
notice of this intention, setting forth
the question of law. Thus a
respondent who wishes to raise a preliminary point that a case is not
made out in the founding papers,
must do so in the answering
affidavit. This construction is buttressed by rule 6 (14) which
expressly states that rules 10, 11,
12, 13 and 14 apply mutatis
mutandis to all applications. Rule 23 is not one of them.
”
[10]
[18]
In the present matter, I come to the
considered view that the Second Respondent’s ‘Exception’
to the application
for review is bad in law and can, therefore, not
stand.
[19]
The
Second Respondent had an opportunity to deliver an answering
affidavit and, instead, elected to follow an approach not envisaged
in motion proceedings. In
Bader
& Another v Weston & Another
,
[11]
it
was held as follows:
“…
where
a respondent has had adequate time to prepare his affidavits, he
should not omit to prepare and file his opposing affidavits
and
merely take the preliminary objection. The reason for this is fairly
obvious. If his objection fails, then the Court is faced
with two
unsatisfactory alternatives. The first is to hear the case without
giving the respondent an opportunity to file opposing
affidavits:
this the Court would be most reluctant to do. The second is to grant
a postponement to enable the respondent to prepare
and file his
affidavits. This gives rise to an undue protraction of the
proceedings, which cannot always be compensated for by
an appropriate
order as to costs and results in a piecemeal handling of the
matter which is contrary to the very concept of
the application
procedure
.”
[12]
[20]
In
my view, it would not serve the object of speedy and expeditious
resolution of labour disputes to afford the Second Respondent
a
further opportunity to deliver an answering affidavit now that I have
disallowed the ‘Exception’.
[13]
I
will, accordingly, deal with the matter in the absence of an
answering affidavit from the Second Respondent.
[21]
The matter was, in any event, not enrolled
solely for the purposes of deciding on the Second Respondent’s
‘Exception’.
The notice of set down issued by the
Registrar on 27 January 2015 informed the parties that “
[t]he
review application has been set down for hearing on the opposed
motion roll … on the 13
th
day of August 2015 at 10:00
.”
[22]
At the hearing of the matter, the parties
were nevertheless allowed to canvass all the issues arising without
them being confined
to arguments only on the Second Respondent’s
‘Exception’. I, therefore, have to deal with the merits
of matter
on the basis of application for review as it stands.
Evaluation:
[23]
The disposal of the Second Respondent’s
‘Exception’ does not mean that the Applicant’s
application for review
ought to, automatically, succeed.
[24]
It must still be determined if, indeed, the
Commissioner’s Condonation Ruling should be reviewed and set
aside on the basis
of what the Applicant alleges in his founding
affidavit.
[25]
In view of the findings reached above in
relation to the Second Respondent’s ‘Exception’, it
seems to me that
the matter must be considered on the basis of
whether indeed a case has been made out in the Applicant’s
review application
for the primary relief he seeks, namely the
setting aside of the Commissioner’s Condonation Ruling.
[26]
In
as much as the Applicant’s application for review contains a
convoluted catalogue of peculiar claims,
[14]
the
review and setting aside of the Condonation Ruling is the only relief
the Applicant is entitled to seek in the matter before
me. This in
view of the fact that the referral of
inter
alia
his unfair dismissal dispute was refused by the Commissioner on
account of it being exceedingly out of time.
[27]
The other claims the Applicant articulates
in his papers are simply not properly before me and they, therefore,
stand to be disregarded.
I now turn to the Condonation Ruling and the
grounds advanced for its setting aside.
[28]
Having been dismissed in or about April
2008, the Applicant referred his alleged unfair dismissal dispute to
the SSSBC. This he
did only in June 2012. As the referral was late,
an application for condonation was necessary and same was delivered
by the Applicant.
The said application came before the Commissioner
for a Ruling.
[29]
In his Condonation Ruling, the Commissioner
reasoned as follows:
“
11.
It is trite that in applications of this nature the following factors
are relevant : Extent of the delay; the explanation for
the delay;
the prospects of success in the main dispute / complaint; prejudice
to both sides (also called the balance of convenience);
and some
authorities add the importance of the matter. These factors are
inter-related, although it is generally accepted
that if there is an
inadequate explanation or if there are little prospects of success,
condonation need not be granted.
12. In this
particular case the delay is very excessive. Assuming that there was
a dismissal during or about March or April 2008,
the referral now is
just over 4 years late.
13. I have found
it very difficult to discern a coherent explanation for this long
delay. The fact that the applicant was embroiled
in various court
cases in my view does not provide a reasonable explanation for the
delay. A diligent litigant would have done
much more much sooner to
pursue his complaint of unfair dismissal.
14. Even if
arguably the applicant may have some prospects of success in the
matter of the original complaint of misconduct against
him, it would
be severely prejudicial to expect of the respondent to deal with that
dispute at this time. It is well known that
SAPS often has problems
in finding and obtaining the co-operation of members of the public in
complaints against employees, moreso
after such a long period. It is
also quite probable that the applicant as reservist is not an
employee as contemplated in the LRA.
15.
Bearing in mind the long delay, inadequate explanation, and the
balance of convenience favouring the employer, I conclude that
the
applicant has not shown good cause for condonation”.
[30]
Having deliberated on the Applicant’s
application for condonation as per the preceding paragraphs, the
Commissioner ultimately
ruled that “
[c]ondonation
for the late referral of the unfair dismissal is not granted
.”
[31]
As indicated herein before, I have to
consider whether a case is made out for the setting aside of the
Commissioner’s Ruling.
As correctly pointed out by the Second
Respondent’s Counsel, Advocate S Tilly, during the hearing of
the matter, the only
discernable grounds for review that can be
ascertained from the entire hodgepodge in the founding affidavit are
those contained
at paragraphs 5.1 to 5.3 thereof. It would be useful
to quite these in their entirety. They read as follows:
“
5.1
There was a defect on the condonation ruling award in that the matter
was reported around 2007
for unfair labour practices. It was
given the same case number of PSSS 446-07/08 and processes underway
were abandoned no
award was ever served. Recently when I
referred the matter for condonation of unfair dismissal the matter as
given the same
case number of PSSS 446-07/08 in 2012.
5.2
The commissioner exceeded his powers in that there was gross
irregularity in the conduct
of the arbitration proceedings.
The
award has been improperly obtained in that the same case number of
matter reported in 2007 is still subject to debates in the
council in
2012. There is no proper explanation as to why this matter was
not conciliated during the processes of 2007 when
it was referred.
From December that is enough period that is approximately three
months until 11 March 2008 before sentence
and conviction also when I
was still available for this matter to be heard. This is within
the ambit of the prescribed period
on which the Bargaining Council
should have adjudicated this matter on their roll a failure which is
also a gross irregularity.
5.3
This matter was declined condonation in 2012. That delay is
also too excessive, but
who bares the blame if not the bargaining
council. There is nowhere in between this processes of four
years that the council
decided to address the matter or refer it to
Court to make a decision. It is only when I made an inquiry
into the outstanding
dispute and redoing the referral in 2012 as
advised to do so by senior commissioner in the CCMA that this ruling
is made.
The commissioner committed a gross irregularity in
that he has adjudicated two referrals in a single interval that have
been referred
at different time frames, by so doing he exceeded his
powers as the commissioner.”
[32]
It is my considered view that these
allegations are simply inadequate to upset the Commissioner’s
Ruling. None of what the
Applicant states in his founding affidavit,
as grounds for review, lays any justifiable and valid basis for the
setting aside the
Condonation Ruling.
[33]
In my judgment, the Commissioner’s
Condonation Ruling falls within the realm of what is a reasonable
decision under the circumstances.
[34]
The
Commissioner was dealing with a dispute that was late by over four
(4) years. Such delay is beyond excessive. It is quite
remarkable. It was the Commissioner’s viewpoint that “…
it
[was] very difficult to discern a coherent explanation for [the] long
delay
.”
[15]
[35]
The
Commissioner went on to reason that a “…
diligent
litigant would have done much more much sooner to pursue his
complaint of unfair dismissal
.”
[16]
I
cannot agree more.
[36]
To take over four (4) years in lodging an
unfair dismissal claim is simply inexcusable. To the extent that the
incarceration of
the Applicant may justify the delay, it only lasted
for no more than twelve (12) months. Such incarceration can,
therefore, not
serve as an excuse for such an extraordinary delay.
All things considered, the Commissioner’s Ruling can,
therefore,
not be faulted.
[37]
It is, accordingly, my conclusion that the
Applicant’s application for review fails to make out a case for
the primary relief
he seeks, which is to review and set aside the
Commissioner’s Condonation Ruling. Consequently, the
application for review
stands to be dismissed.
[38]
In this matter, there is no necessity for
awarding any costs order as neither party is successful in their
respective cases as advanced
in the papers before me. The Second
Respondent’s ‘Exception’ is declined and the
Applicant’s application
for review is refused.
Order:
[39]
I, accordingly, make the following order:
i.
The Second Respondent’s ‘Exception’
is dismissed.
ii.
The Applicant’s application for
review is dismissed.
iii.
There is no order as to costs.
VOYI AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant: In person
On
behalf of the Second Respondent: Adv Sumayya Tilly,
instructed
by The State Attorney (Johannesburg)
[1]
Act
66 of 1995 as amended (“the LRA”).
[2]
In
the end however, it was only the Second Respondent that persisted
with opposing the matter.
[3]
In
the Second Respondent’s Notice under discussion, no
distinction seems to be drawn between the provisions of Rule 23 and
Rule 30 of the Uniform Rules of Court. Rule 23 deals with exceptions
and applications to strike out whereas Rule 30 deals with
irregular
proceedings.
[4]
Van
Rooy v Nedcor Bank Ltd
(1998)
19
ILJ
1258 (LC);
Eagleton
& Others v You Asked Services (Pty) Ltd
(2009) 30
ILJ
320 (LC) at para 15;
Charlton
v Parliament of the Republic of SA
(2011)
32
ILJ
2419 (SCA) at para 16;
De
Klerk v Cape Union Mart International (Pty) Ltd
(2012)
33
ILJ
2887 (LC) at para 18.
[5]
Ibid.
[6]
5
th
Ed., Vol. 1, Juta & Co. Ltd, at p. 558.
[7]
(2000)
21
ILJ
319 (LAC).
[8]
At
para 7.
[9]
(16473/12)
[2013] ZAWCHC 95
(23 April 2013); 2013 JDR 1616 (WCC).
[10]
At
para 5.
[11]
1967
(1) SA 134 (C).
[12]
At
136H - 137B.
[13]
The
provisions of Rule 11(4) of the Rules of the Labour Court provide
that this Court may, in the exercise of its powers and in
the
performance of its functions or in any incidental matter, act in a
manner that it considers expedient in the circumstances
to achieve
the objects of the LRA.
[14]
These
claims are for
inter
alia
(i) losses incurred due to alleged unfair labour practices with
regard to certain project software estimated between prices ranges
of R480 million to R1.3 billion, (ii) compensation for lost property
at the value of R46 million, (iii) compensation for missing
property
confiscated with net value of R250 million; (iv) lapsed investments
and insurance business covers worth R1.5 million.
The founding
affidavit deals at length with the alleged basis for these claims.
[15]
At
para 13 of the Condonation Ruling.
[16]
Ibid
.