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[2015] ZALCJHB 411
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AAIM Investments (Pty) Ltd t/a Pongola Hospital and Another v Solidarity obo Steenkamp and Others (J2988/14) [2015] ZALCJHB 411 (11 November 2015)
Not
reportable
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: J 2988/14
In
the matter between:
AAIM
INVESTMENTS (PTY) LTD T/A
PONGOLA
HOSPITAL
FIRST APPLICANT
DR
M PRAMCHAND
SECOND APPLICANT
and
SOLIDARITY
obo STEENKAMP & 3 OTHERS
RESPONDENT
Heard
:
5 November 2015
Judgment
delivered
:
11
November 2015
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
This is an application to rescind an order made by this court on 25
May 2015 when settlement agreements entered into between
the first
applicant and the persons on whose behalf the respondent (the union)
acts were made orders of court in terms of s 158
(1) (c) of the LRA.
The rescission application was preceded by an application to stay the
enforcement of the order dated 25 May
2014. On 1 September 2015, the
court granted an order in terms of which the application to stay and
the rescission application
were to be heard simultaneously.
Factual
background
[2]
The material facts are a matter of common cause. During February
2012, the business that comprised the Pongola Hospital was
transferred to the first applicant as a going concern in terms of s
197 of the LRA. During June 2014, the hospital entered into
negotiations with its employees regarding voluntary severance
packages. The three persons on whose behalf the union acts (the
employees) volunteered to leave the applicant’s employ. On 26
June 2014, the first applicant, with the second applicant signing
as
surety, entered into settlement agreements with the employees in
terms of which the latter confirmed their applications for
voluntary
severance packages and agreement to certain payments in consideration
therefor.
[3]
In essence, the settlement agreements make provision for the payment
of severance pay, leave pay, notice pay, and confirm the
date on
which employment will terminate. The significance of this, of course,
is that these are all statutory payments which the
first applicant is
obliged to make in terms of the Basic Conditions of Employment Act
(BCEA). It is not disputed that the applicants
have failed and/or
refused to make payment to the employees in terms of the settlement
agreements.
Condonation
[4]
The application to rescind was filed on 28 August 2015. The
applicants became aware of the court order on 1 July 2015. In terms
of the Rule, they were obliged to file the rescission application
within 15 days, i.e. by 22 July. The application was filed
a
month late; the applicants have applied for condonation.
[5]
In support of the application for condonation, filed only on 5
November 2015, the deponent to the founding affidavit contends
that
condonation is unnecessary, since the application for rescission was
served by email on the respondent on 14 July 2015.
[6]
There is no merit in this submission. The Rules of this court do not
permit service by email. In any event, what the Rules require
is
delivery of the application in the form of service on the respondent
party and filing with the registrar of this court. Even
if it can be
said that the application was served by email, it was not delivered
in sense of service on the respondent in compliance
with the Rules
and filing in this court until 28 August 2015.
[7]
It is incumbent on the applicants to satisfy the court that they
should be extended the indulgence of condonation for the late
filing
of the application for rescission. This requires the applicants to
provide a satisfactory explanation for the delay (having
regard to
the extent of the delay) and to persuade the court of their prospects
of success in the main action
.
As the Constitutional Court
said in
Grootboom v National Prosecuting Authority & another
2014 31 ILJ 121 (CC):
[23]
It is now trite that condonation cannot be had for the mere asking.
A seeking condonation
must make out a case entitling it to the
court’s indulgence. It must show sufficient cause.
This requires a party
to give a full explanation for the
non-compliance with the rules or court’s directions. Of
great significance, the
explanation must be reasonable enough to
excuse the default.
An
applicant that relies on the negligence of his or her attorney should
not assume that condonation is there for the taking –
it is
incumbent on the applicant to make out a case for condonation on that
basis of the above principles. Further, the application
for
condonation must be filed as possible after the applicant becomes
aware of the failure to comply with the Rules. Both these
principles
were affirmed in
Darries v Sheriff,
Magistrate’s Court, Wynberg and another
1998 (3) SA 34
(SCA) where
Plewman JA held:
Condonation of the
non-observance of the Rules of this Court is not a mere formality. In
all cases some acceptable explanation,
not only of, for example, the
delay in noting an appeal, but also, where this is the case, any
delay in seeking condonation, must
be given. An appellant should
whenever he realizes that he has not complied with a Rule of Court
apply for condonation as soon
as possible. Nor should it simply be
assumed that, where non-compliance was due entirely to the neglect of
the appellant’s
attorney, condonation will be granted. In
applications of this sort the appellant’s prospects of success
are in general an
important though not decisive consideration.
Where
non-observance of the Rules has been flagrant and gross an
application for condonation should not be granted, whatever the
prospects of success might be.
[8]
The delay in the present instance is not inordinate. Insofar as the
explanation for that delay is concerned, the only explanation
proffered by applicants is that they gave instructions to their
former attorneys of record, Mnqobi Mkhize & Associates, to
oppose
the rescission application and were advised that this had been done.
It later transpired that the application had not been
opposed and
that the respondent had obtained an order by default against the
applicant. The applicants contend that this was through
no fault of
their own and that their intention had always been to oppose the
application.
[9]
In my view, this is an insufficient explanation for the delay. It is
precisely the same reason proffered by the applicants in
relation to
the rescission application, where they explain that they were not in
willful default because their attorney failed
to execute their
instructions by failing to oppose the application in terms of s 158
(1) (c). A reasonable litigant in these circumstances
would have been
sufficiently diligent to ensure that the application for rescission
was timeously filed. In the absence of a satisfactory
explanation for
the delay in filing the application for rescission, condonation
stands to be refused. In so far as the applicants
seek to rely on
correspondence between their erstwhile attorney of record and the
respondent that postdates the order sought to
be rescinded and which
indicates that the latter recorded that it was awaiting the
applicants’ reply to the respondent’s
statement of claim,
it is manifestly clear that this correspondence related to another
matter and had no bearing on the s 158 (1)
(c) application. This is
no more than a further indication of the lackadaisical attitude
adopted by the applicants to their business
affairs. Further, the
applicants do not explain why they filed the application for
condonation on 5 November 2015, the day of the
hearing. The
applicants were represented in court by their current attorney of
record on 1 September 2015 when the present application
was
postponed. They ought to have appreciated at least by then that the
application to rescind had been filed late and that condonation
was
necessary. In short, the explanation for the delay in filing the
application to rescind is unsatisfactory.
[10]
Even if I am wrong in coming to that conclusion, in my view, the
applicants have failed to establish a
prima facie
case in the
main application. The application to rescind is brought in terms of
Rule 16A (1) (b). That provision requires an applicant
to show good
cause, in the form of the absence of any wilful default on the part
of the applicant and the existence of a bona fide
defence. In regard
to the former, a party seeking rescission must present a reasonable
and acceptable explanation for the default;
in regard to the latter,
the applicant must establish a bona fide defence which carry some
prospects of success. Both of these
requirements must be met –
a party showing no prospects of success on the merits will fail in an
application to rescind no
matter how reasonable and convincing
explanation of the default (see
Chetty v Law Society, Transvaal
1985 (2) SA 756
(A)).
[11]
The consequences of an attorney’s neglect or ineptitude may
serve to exculpate an applicant an application for rescission,
but it
is incumbent on the applicant to explain why neglect or ineptitude
ought not to be imputed to him or herself. This the applicants
have
failed to do. In relation to the second leg of the enquiry, the
applicants contend that certain misrepresentations were made
by the
employees concerning unpaid leave days due to them. The severance
package agreements, they contend, were entered into in
consequence of
these misrepresentations and that the agreement is invalid. In my
view, this defence has no merit, and fails even
to meet the threshold
of a bona fide defence. In terms of the BCEA, it is incumbent
on an employer, on termination of employment
of an employee, to pay
the employee the value of annual leave accrued but not taken. It is
not for the employee to make representations
regarding the leave that
he or she is owed. This is a matter most often the subject of records
kept by the employer. In any event,
if any discrepancy is
established, the value of accrued leave is a matter that is capable
of easy resolution. An employer is not
permitted, as the applicants
have, to withhold all of the statutory payments due on termination
simply because after making payment
of one of them, it contends that
the employee made misrepresentations in respect of one of them.
[12]
In so far as the relative prejudice to the parties is concerned,
while it is correct that the applicants will be debarred from
pursuing their application to rescind the s 158 (1) (c) order, they
have themselves and their failure to attend with due diligence
to the
litigation that they initiated to blame. The respondent and its
members on the other hand, have an interest in certainty
and in the
expeditious resolution of their dispute. In my view, the latter
trumps. In Makuse v CCMA & others (JR 2795/2011,
unreported,
Myburgh AJ said the following:
Labour
law litigation is unique in that it takes place within a system
designed to ensure the effective (and thus expeditious) resolution
of
labour disputes – this being one of the primary objects of the
LRA. The need for this, and the implications of delays,
were
explained as follows by Ngcobo J in
CUSA v Tao Ying Metal
Industries & others
[2009] 1 BLLR 1
(CC):
The
LRA introduces a simple, quick, cheap and informal approach to the
adjudication of labour disputes. This alternative process
is intended
to bring about the expeditious resolution of labour disputes.
These
disputes, by their very nature, require speedy resolution. Any delay
in resolving a labour dispute could be detrimental not
only to the
workers
who may be without a source of income pending the
resolution of the dispute, but it may, in the long run, have
a
detrimental effect on an employer
who may have to reinstate
workers after a number of years. (Emphasis added.)
[13]
What this judgment emphasszes in the policy consideration that
underlies the statutory purpose of expeditious dispute resolution.
The employees volunteered for severance packages. Those were agreed
with the first applicant. The grounds on which the applicants
now
seek to withhold payment are tenuous, if not spurious. The applicants
have lost their employment and the delay in payment of
their agreed
severance packages, on which they no doubt depended when agreeing to
terminate their employment with the first applicant,
has been
inordinate. This is not a matter that should be further delayed by
the applicants’ ineptitude.
[13]
For the above reasons, in my view, the application for condonation
stands to be dismissed. There is no reason why the respondent
ought
not to be entitled to its costs.
In
the result, I make the following order:
1.
The application to condone the late filing of the application to
rescind the order made by this court on 25
May 2015 is dismissed.
2.
The application to stay the writ of execution issued on 28 July 2014
is dismissed.
3.
The applicants, jointly and severally, the one paying the other to be
absolved, are ordered to pay the reasonable
costs incurred by the
respondent in opposing the application for condonation, the
application for rescission and the application
to stay the writ of
execution issued by the Registrar on 28 July 2015.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
APPEARANCES
For
the applicants: Mr H Pretorius, Macgregor Erasmus Attorneys
For
the respondent: Union official