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[2015] ZALCCT 49
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Brynard v Mogwele Waste (Pty) Limited (C415/2014) [2015] ZALCCT 49 (24 July 2015)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
IN CAPE TOWN)
CASE
NUMBER:C415/2014
DATE:24
JUNE 2015
In the matter
between:
GERHARD MATTHYS
BRYNARD
.......................................................................................
Applicant
And
MOGWELE WASTE
(PTY)
LIMITED
..............................................................................
Respondent
J U
D G M E N T
STEENKAMP, J:
This is an ex
tempore judgment in an interlocutory application brought by the
respondent, Mogwele Waste (Pty) Ltd, this morning
to have a subpoena
set aside. The subpoena was issued on 23 April of this year at the
behest of the applicant, Mr Gerhard Brynard.
It called upon the
respondent’s director, Mr Kishor Chhita, to bring to court the
respondent’s annual financial statements
for the financial
years 2010 to 2014 and also the management statements for the
financial years 2010 to 2014.
The background is
that the applicant, Mr Brynard, referred an unfair dismissal dispute
to this court. It appears from his statement
of claim that he
alleges that he was dismissed for operational requirements and that
that dismissal was unfair. The employee says
in his statement of
case:
“The applicant
was verbally advised by the respondent’s duly appointed general
manager, Mr Dirkie van der Merwe, on
17 March 2014, that the
applicant is being retrenched with immediate effect.”
And further down:
“On 18 March
2014, the applicant was instructed by Mr Dirkie van der Merwe to pack
up his belongings and leave the respondent’s
premises at the
end of the day and that he is retrenched with immediate effect.”
The applicant then
alleges that the respondent did not comply with any of the provisions
contained in Section 189 of the Labour
Relations Act, Act 66 of 1995,
dealing with dismissals for operational requirements. He further
says that he was not informed
of the reason for his retrenchment and
that he is not aware of any operational requirements necessitating
any retrenchments. He
then formulates the first of his two claims as
follows:
“Unfair
dismissal for operational requirements/ retrenchment:
(i) The applicant’s
retrenchment was procedurally unfair. The respondent blatantly
disregarded the provisions of Section
189 of the LRA.
(ii) The applicant’s
retrenchment was substantively unfair, as the respondent failed to
disclose any reason for the applicant’s
retrenchment, no
operational requirements existed necessitating or justifying the
applicant’s retrenchment and the respondent
failed to follow
the procedure as set out in Section 189 of the LRA.”
The respondent, that
is the company, Mogwele Waste (Pty) Ltd, avers that the applicant’s
employment was, in fact, terminated
by agreement. However, the Court
must have regard to the claim as formulated by the applicant at this
stage, together with the
fact that the respondent applied for a tax
directive from the South African Revenue Services, stating that the
applicant had been
retrenched, and on the basis of which SARS issued
a tax directive that no deduction should be made from the severance
pay paid
to the applicant.
I shall return to
the relevance of the applicant’s claim insofar as he says that
the financial statements are relevant to
the reason for his
dismissal.
The further history
of the matter is that since January of this year, in circumstances
where the matter was initially set down for
trial to commence on 9
February, the applicant asked the respondent for certain documents.
More specifically, on 16 January, the
applicant’s attorneys
asked the respondent’s attorneys, both of whom have been on
record throughout, for the company’s
financial statements for
the years 2010 to 2013 and the management reports for the years 2011
to 2014. Further correspondence
ensued between the attorneys. In
short, the respondent’s attorneys questioned the relevance of
the financial statements
required and asked the applicant’s
attorneys for reasons why they wanted it. The respondent also said
that the documents
were, in its view, confidential.
Eventually, on 23
April, the applicant had the subpoena issued out of this court and it
was served on the respondent on 30 April.
On 15 May, the parties had
a further pre-trial conference, and in a pre-trial minute filed on 19
May they recorded, under the
heading “Subpoena”:
“Respondent
will revert on whether it is prepared to provide these documents or
whether this point will be argued.”
The respondent was
not prepared to provide the documents and when the matter was set
down for trial again to commence on 1 June,
it had still not done so.
Neither had the respondent applied for the subpoena to be set aside.
On that day, 1 June 2015, the matter
was set down for trial before
Walele, AJ. The respondent applied for a postponement, because its
main witness, Mr Chhita, was
ill. It did not apply to have the
subpoena set aside at that stage and Walele, AJ made an order in the
following terms:
“The subpoena
for documents to be furnished to the applicant shall be complied
with.”
It is only then that
the respondent brought the current application and it did so on 5
June. The employee filed an answering affidavit
and the company
replied. I was, therefore, presented with a full set of pleadings
when the matter came before Court this morning.
The first question
to be considered is that of urgency. Ms Erasmus, for the company,
argued that the matter remains urgent, despite
the fact that the
subpoena was issued two months ago, because in the interim the
company had tried to establish why the documents
were sought and
whether it should make them available. That may be so for the first
month, however, since 30 April when the subpoena
was served on the
respondent, even though further correspondence ensued, the respondent
took no steps either to supply the documents
provided or to have the
subpoena set aside. It was only galvanised into action on 1 June
when the matter was meant to proceed
to trial, but when it brought an
application for a postponement.
In my view the
application to have the subpoena set aside should be struck from the
roll for lack of urgency alone. However, that
would not be in the
interest of either party, as it will only lead to further delays in
circumstances where this matter has already
been postponed twice and
where the trial could and should have been finalised by now. I will,
therefore, deal with the merits
of the application.
The company sets out
four reasons why it says the subpoena should be set aside. Firstly,
it says it was issued for an ulterior
purpose, i.e. to extract “a
higher settlement”. Secondly, it says the documents subpoenaed
have no bearing on the
pleaded issues. Thirdly, it says they may
fall into the hands of a competitor, and along with that, that the
documents are confidential.
Fourthly, it argues that the employee is
simply embarking on a fishing expedition.
The principles
relating to applications of this sort are well known. Perhaps the
most convenient summary is that found in the judgment
of Mahomed, CJ
in Beinash v Wixley
[1997] ZASCA 32
;
1997 (3) SA 721
(SCA), and specifically at 734
where he says the following:
“There can be
no doubt that every court is entitled to protect itself and others
against an abuse of its processes. Where
it is satisfied that the
issue of a subpoena in a particular case indeed constitutes an abuse,
it is quite entitled to set it aside.
As was said by De Villiers JA
in Hudson v Hudson & Another
1927 AD 259
at 268:
“When …
the court finds an attempt made to use for ulterior purposes,
machinery devised for the better administration
of justice, it is the
duty of the court to prevent such abuse.”
What does constitute
an abuse of the process of the court is a matter which needs to be
determined by the circumstances of each
case. There can be no
all-encompassing definition of the concept of “abuse of
process”. It can be said in general
terms, however, that an
abuse of process takes place where the procedures permitted by the
rules of the court to facilitate the
pursuit of the truth are used
for a purpose extraneous to that objective. … A subpoena
duces tecum must have a legitimate
purpose. … Ordinarily, a
litigant is, of course, entitled to obtain the production of any
document relevant to his or her
case in the pursuit of the truth,
unless the disclosure of the document is protected by law. The
process of a subpoena is designed
precisely to protect that right.
The ends of justice would be prejudiced if that right was impeded.
For this reason the court
must be cautious in exercising its power to
set aside a subpoena on the grounds that it constitutes an abuse of
process. It is
a power which will be exercised in rare cases, but
once it is clear that the subpoena in issue in any particular matter
constitutes
an abuse of the process, the court will not hesitate to
say so and to protect both the court and the parties thereby from
such
abuse.” [Citations omitted].
Both parties also
referred me to a judgment of this court in Cachalia v Vinning 2012
(33) ILJ 611 (LC), but that judgment, to a
large extent, simply
reiterates the principle set out by the SCA in Beinash v Wixley.
It is against that
background and those principles that I must consider whether the
subpoena issued in this case constitutes an
abuse of process.
Firstly, I take into
account that the applicant’s claim rests on a claim that he was
dismissed for operational requirements.
Whether that is a good or a
bad claim, is neither here nor there; that is for the trial court to
decide. Why it is relevant is
that, if he was indeed dismissed for
operational requirements, then the financial status of the company
and, therefore, its financial
statements and management accounts, are
relevant to his dismissal.
More pertinently,
though, I turn then to the company’s counterclaims. Those four
counterclaims comprising more than R4 000
000,00 worth in total, are:
(1) that the employee manipulated management accounts; (2) that he
was responsible for stock losses;
(3) that he did not exercise
control of pallets in the period January 2012 to March 2014; (4) that
he was responsible for the overpayment
of leave in excess of 44 days;
and (5) that he was responsible for overpayments with regard to
forklifts (and that claim goes back
to mid 2012, as an aside).
Although it appears that those are actually five counterclaims, two
of them should be read together.
Having had regard to
those counterclaims and the substance of the company’s
allegations, I do not think it can be said at
this stage that the
claims can be neatly limited to one or two aspects with regard to
which the respondent can pick and choose
which documents to make
available. Clearly, both the management accounts forming the very
subject of one of the counterclaims,
and the financial statements are
relevant to the counterclaims, and more specifically the employee’s
responses and defences
to those counterclaims.
Ms Erasmus said that
some of the contraventions were only discovered in 2015. That appears
to me to be irrelevant. The question
is not when they were
discovered, but when they arose. In that regard both parties will
have to point to the financial statements
and the management accounts
in order for the company to show on what it basis it counterclaims
and for the employee to establish
his defence, if any.
Once again, whether
he has a good defence or not, is irrelevant at this stage. The
question is only whether the subpoena amounts
to an abuse of process.
The merits of both his claim and the counterclaims will be traversed
at trial. At this stage, though,
it appears to me that he has at
least laid a basis for his assertion that the documents subpoenaed
may be relevant to both his
claim of an unfair dismissal based on
operational requirements; and his defence in the counterclaims, and
why they should be provided.
Once he, his legal team, and perhaps
his auditors have had an opportunity to peruse those documents, it
may well be that he decides
not to use them at trial; but at this
stage the interests of justice require that he at least be given
access to them.
With regard to the
claim of an ulterior purpose, the company has simply not set out any
basis for that argument. And with regard
to the claim that the
documents are confidential and may fall into the hands of a
competitor, it also has not laid any basis.
It may well be
inconvenient for it if the documents do fall into the hands of a
competitor, but there is no reason to suspect that
the employee will
be so vindictive as to make the documents available to another party.
As Ms De Wet pointed out, he is currently
employed in an unrelated
enterprise and there is no reason to suspect him of having that
purpose in mind. In any event, if necessary,
the parties could agree
to an undertaking that it will not be made available to any third
parties.
There is one
remaining aspect and that is that Ms Erasmus argued that the subpoena
was not validly issued. The rules of this Court,
in
contradistinction to the High Court rules, does not provide for two
different methods of subpoena. Rule 32 deals with both
a witness
subpoena and a subpoena duces tecum. Rule 32(3), that could perhaps
have been more clearly worded, says:
“If a witness
is required to produce in evidence any document or thing in the
witness’s possession, the subpoena must
specify the document or
thing to be produced.”
And then (5):
“A witness who
has been required to produce any document or thing at the
proceedings, must hand it over to the registrar as
soon as possible
after service of the subpoena, unless the witness claims that the
document or thing is privileged.”
The rule does not
make it clear whether, after handing over the documents, the
“witness” has to give evidence viva voce.
The form to be
used for issuing subpoenas does envisage that a witness is required
to appear in person before the court and to
remain in attendance
until excused “in order to testify”. It then goes
further to say “and inform them that
they are further required
to bring with them and to produce to the court (here describe
accurately the document, book or other
thing to be produced)”.
The subpoena issued
in this case did not in terms require Mr Chhita to come and testify.
However, it was issued to him, it was
served on the company in the
proper form and in terms of Rules 4, and it then states:
“Inform Mr
Kishor Chhita, director of the respondent of [sic] Mogwele Waste
(Pty) Limited, situated at no 1 Louwtjie Rothman
Crescent, Atlantis
Industria, Atlantis, that the respondent is required to bring to
court the respondent’s annual financial
statements for the
financial years 2010, 2011, 2012, 2013, 2014 and the management
statements for the financial years 2010, 2011,
2012, 2013, 2014. And
inform Mr Chhita that he should at no account not comply with the
subpoena as he may render himself and
the respondent liable to a fine
or to imprisonment.”
There could have
been no doubt in the mind of Mr Chhita and any of his fellow
directors that he was required to make at least the
documents
available. And Ms De Wet clarified in court today, as she apparently
did on 1 June before Walele AJ, that the applicant
does not require
Mr Chhita to be present in person, but only for the documents to be
provided. He has no objection if another
witness could be
cross-examined on the relevance of those documents. To say that the
subpoena has not been issued using the ipsissima
verba of Form 4, is
to my mind elevating substance over form. I am satisfied that the
subpoena was validly issued and served.
In conclusion, I do
not regard this subpoena to amount to an abuse of process. It is
relevant to the issue in dispute and it must
stand.
With regard to
costs, I must take into account the requirements of both law and
fairness. Firstly, I take into the account that
the respondent was
unsuccessful. Secondly, I take into account that this application,
that has been brought on an urgent basis,
could and should have been
brought some time ago. At the very latest it could have been argued
on 1 June when the parties were
in court in any event to argue the
application for postponement. The further costs incurred by the
applicant were unnecessary.
The application to
have the subpoena duces tecum set aside is dismissed with costs.
STEENKAMP, J
APPEARANCES
APPLICANT: Alma
de Wet
Instructed by
Venter attorneys, Durbanville.
RESPONDENT: Linda
Erasmus
Instructed by De
Beer Minnaar attorneys, Johannesburg.