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[2016] ZALCJHB 265
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Khumhold Wholesale Foods & Commodities (Pty) Ltd v Wilsenach and Another (J625/13) [2016] ZALCJHB 265 (25 February 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Of
no interest to other judges
case
no: j 625/13
In
the matter between:
KHUMHOLD
WHOLESALE FOODS &
COMMODITIES
(PTY)
LIMITED
Applicant
and
JOHAN
FREDERICK
WILSENACH First
Respondent
CHANTAL
SLABBERT Second
Respondent
Heard
:
15 January 2016
Delivered
:
25 February 2016
Summary:
Application for condonation for the late filing of answering
affidavit in application brought in terms of
section 158
(1)(a)(iii)
of the
Labour Relations Act 66 of 1995
.
Application
granted, no order as to costs. The application is referred for
the hearing of oral evidence in terms of
rule 7
(8) (b) and the
affidavits to be treated as statements of claim and response in terms
of rules 6 (1) and 6 (3) of the Labour Court
Rules. The parties
are ordered to hold a pre- trial conference in terms of rule 7 (8)
(a) of the Labour Court Rules, within
14 days of the date of this
judgment being handed down.
JUDGMENT
HARDIE,
AJ
[1]
This is an opposed application for condonation brought in terms of
section 158 (1) (f) of the Labour Relations Act 66 of 1995
(“the
Act”), seeking to condone the late delivery of the Applicant’s
answering affidavit in the Respondents’
application brought in
terms of section 158 (1) (a) (iii) of the Act on 28 March 2013.
[2]
As the Registrar purported to set the matter down on 1 December 2015
for both the condonation application and “sec 158
1 (c)”
of the Act to be heard before me, the parties’ legal
representatives prepared themselves to argue both the condonation
application as well as the application in terms of section 158 (1)
(a) (iii) of the Act when the matter was heard on 15 January
2016.
This precipitated my requesting the parties to file further heads on
the law related to the amending of notice of motions.
Having
now considered the notice of set down, it is quite apparent that the
parties’ legal representatives were needlessly
misled by it.
The main application brought by the Respondents, is not one brought
in terms of section 158 (1) (c) of the
Act. That section
relates to the Labour Court making an arbitration award or any
settlement agreement, an order of court.
To the extent that
what is written on a notice of set down sent out by the Registrar is
determinative of what must be dealt with
by the Labour Court when the
matter is heard, which I don’t need to decide now, in this case
it was impossible for the parties
to comply with that notice, because
there is no section 158 (1) (c) case that has been brought under the
above case number.
I am thus satisfied that the only
application which I am to consider is that brought by the Applicant
in terms of section 158 (1)
(f) of the Act.
[3]
In dealing with the application for condonation, I am guided by the
dictum
in
Melane v Santam Insurance Co Ltd 1962 (4)SA 531
(A)
at 532- E which reads as follows:-
“
... the basic
principle is that the court has a discretion, to be exercised
judicially upon consideration of all the facts, in essence,
it is a
matter of fairness to both sides. Among the facts usually relevant
are the degree of lateness, the explanation thereof,
the prospects of
success and the importance of the case. Ordinarily these facts
are interrelated: they are not individually
decisive, for that would
be a piecemeal approach incompatible with a true discretion, save of
course that if there are no prospects
of success there will be no
point in granting condonation. What is needed is an objective
conspectus of all the facts.
Thus, a slight delay and a good
explanation may help to compensate for the prospects of success which
are not strong. The
importance of the issue and strong
prospects of success may tend to compensate for a long delay.
The respondent’s interest
in finality must not be overlooked.”
[4]
What is apparent from the Applicant’s explanation for the delay
in filing its opposing affidavit, is that from inception
it sought
independent labour law advice first from a labour law consultant, Mr
Kevin Scott, and then when he failed to deliver
the goods, from an
attorney, Ms Jana Hartmann. The Applicant’s opposing
papers should have been delivered on 11 April
2013, but were only
properly delivered on 11 October 2013, accompanied by the requisite
application for condonation. The
Applicant concedes that the
delay was substantial. It is however, common cause that Ms Jana
Hartmann served a notice of opposition
and answering affidavit on the
Respondents’ attorneys on 3 July 2013 and 10 July 2013
respectively, but that she did not
file them with the Labour Court.
Nor were they accompanied by the requisite application for
condonation.
[5]
In opposing the section 158 (1) (a) (iii) application, the Applicant
raised various defences, which
prima facie
can be dispositive
of the case, if found to be valid. These are the following,
namely the Respondent’s were never employees
of the Applicant,
and therefore their claims for unpaid remuneration and benefits are
unfounded; the Respondents have failed to
make the necessary
averments in their founding affidavit to sustain any cause of action
in either statute or contract; and the
claim for unpaid remuneration
and benefits is not one that should have been brought in terms of
section 158 (1) (a) (iii) of the
Act.
[6]
I am satisfied that whilst the Applicant could have acted more
vigorously to pursue its opposition to the Respondents’
section
158 (1) (a) (iii) claim, by
inter alia
chasing up its labour
consultant and lawyer, the importance of the issues raised in its
defence, and its apparent prospects of success
make up for the
substantial delay and the less than satisfactory explanation for it.
[7]
I am also of the view that the Respondents should have foreseen that
their claim would precipitate a dispute of fact, and hence
that they
should have made their referral to the Labour Court in terms of Rule
6 of the Labour Court Rules. In the interests
of justice, I
propose to remedy that as I am entitled to do, in terms of the
provisions of Rule 7 (8) (b) of the Labour Court Rules.
[8]
As the Applicant sought an indulgence from the Labour Court in
bringing the Application for Condonation, and whilst it has been
successful in being granted same, this is not an appropriate case
where costs should follow the result. The Respondents were
entitled to seek to persuade this Court that condonation should not
be granted.
[9]
I hereby make the following order:
1. The Applicant’s
application for condonation is granted.
2. The main Application
brought by the Respondents in terms of section 158 (1) (a) (iii) of
the Act, is referred for the hearing
of oral evidence in terms of
rule 7 (8) (b) and the founding and opposing affidavits filed of
record are to be treated as statements
of claim and response in terms
of rules 6 (1) and 6 (3) of the Labour Court Rules.
3. The parties are
ordered to hold a pre- trial conference in terms of rule 7 (8) (a) of
the Labour Court Rules, within 14 days
of the date of this judgment
being handed down.
4. There is no order as
to costs.
_______________________
Hardie,
AJ
Acting
Judge of the Labour Court
APPEARANCES
For
the Applicant:
L Frahm- Arp
Instructed
by:
Fasken Martineau Attorneys
For
the Respondents:
R Atcheson
Instructed
by: Lee
and McAdam Attorneys