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[2017] ZALCJHB 270
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National Union of Mineworkers obo Nonganga and Others v MCC Contracts (Pty) Ltd (JS181/12) [2017] ZALCJHB 270 (19 May 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: JS 181/12
In
the matter between
NATIONAL
UNION OF MINEWORKERS
OBO
NONGANGA AND 170
OTHERS
Applicant
and
MCC
CONTRACTS (PTY)
LTD
Respondent
Heard:
10 May 2017
Reasons:
19 May 2017
REASONS
FOR THE ORDER
MABASO
AJ
Introduction
and background
[1]
These are the reasons for the order, in paragraph 11 below, that was
made 10 May 2017.
[2]
The applicant is the National Union of Mineworkers, which delivered a
statement of case on behalf of its members (the list of
all those
members is attached to the statement of case marked Annexure A). The
total number of members is 172. The respondent is
MCC Contractors
(Pty) Ltd. This matter was set down for trial on 8 May 2017.
[3]
On the date of the trial, the respondent indicated that this matter
should be dismissed, as the attorneys for the applicants
had failed
to deliver affidavits as per the agreement contained in the pre-trial
minutes.
[4]
The applicable clauses, in the pre-trial minutes, that the respondent
based its submission on read as follows:
“
12.1 the parties
agree that each and
every individual
applicant
that is to be considered to be
a party to these proceedings,
and who shall
be entitled to relief in terms of these proceedings
,
shall be required to submit an affidavit deposed to by such
Applicant,
which affidavit shall record
that such Applicant is in fact a party to the proceedings
,
and which affidavit shall record the
starting date of employment of the applicant, the applicant’s
company number and position
in the Respondent at the time of his
dismissa, and the salary earned by the Applicant at the time of his /
her dismissal
.
12.2 these affidavits
must and shall be filed with the Respondent’s attorneys within
60 (sixty) days of date of signature
of this pre-trial minute by the
Applicants’ attorneys.
12.3 Upon the receipt of
such affidavits, the Respondent’s attorneys shall verify the
information as contained in such affidavits
as to length of service,
occupation and remuneration of the Applicants with the Respondent,
within 30 (thirty) days of receipt
of such affidavits. Once so
verified in writing by the Respondent’s attorneys, these
affidavits shall be admitted as undisputed
evidence on these issues.
12.4 the parties however
specifically record and agree that any Applicant that does not
deposed to such an affidavit as referred
to in paragraph 12.1, and
any Applicant whose affidavit is not actually filed with the
Respondent’s attorneys by the deadline
prescribed by paragraph
12.2 above, shall not be a party to this dispute and shall not be
entitled to any relief in terms of this
matter” (Emphasis
added.)
Principles
and Application thereof
[5]
The Union referred a dispute in this Court , on behalf of the
individual applicants in terms of the provisions of the Labour
Relations Act 66 of 1995 (the Act), as contained in paragraph 1 of
the statement of case. However, the respondent in its affidavit
dated
9 May 2017 states its submission as follows: “
the focus of
paragraph 3.1 of the answering statement of case is therefore clearly
not a challenge to the individual respondent
identity as parties
having locus standi in this matter per se, the focus is
rather
the union’s locus standi to act on behalf of each and every
individual applicant and concomitantly whether they are
still parties
to the dispute if the first applicant do not have the locus standi to
so act on their behalf.
” (Emphasis added.)
[6]
It is important to indicate that the respondent’s statement of
response, paragraph 3.1, provides,
inter
alia
, that “
The
respondent has no knowledge of which of the individual applicants…are
in fact members of the [union] and/or have authorized
the [union] to
bring these proceedings on their behalf and/or are in fact a party to
these proceedings…”
In
the matter of
MacDonald’s
Transport Upington Pty Ltd v Association of Mineworkers and
Construction Union and others
,
[1]
the LAC, in clarifying a
locus
standi
of a trade union to
represent its members, held thus:
“
Moreover … the
relationship between a union and its members is a private matter. To
interfere with the private contractual
relationship of other persons,
a stranger would have to demonstrate some sort of delictual harm.
None exist to justify the appeal
and seeking to pierce the veil of
AMCU’s internal affairs in relation to the dismissal
dispute.”
[2]
[I
am mindful of what the LAC said in paragraph 35 to 37, however, the
facts and issues in Macdonald‟s matter and
in casu
are
not the same].
[7]
In this matter, on 8 May 2017, the date when the trial should have
commenced, I made an order that the applicant‟s attorneys
should deliver an affidavit explaining why they failed to comply with
clause 12.2 of the pre-trial minutes, taking into account
that some
of the affidavits were delivered on the eve of the trial. Likewise,
that the respondent‟s attorneys were given
an opportunity to
deliver an answering affidavit in respect of the explanatory
affidavit by the applicants‟ attorneys. Both
parties complied
with this order. The attorneys for the applicants in their affidavit
stated, among other things, that, they acknowledged
that they were
supposed to deliver the affidavits as per clause 12.2 of the
pre-trial minutes within a specified period. Further,
that they
agreed to this paragraph believing that they were to comply with this
time frame, unfortunately, it was not possible
for them to contact
the individual applicants as they did not have their contact details.
And they oppose the application to dismiss
the matter saying they
have delivered some of the affidavits, therefore, to dismiss the
matter will not be the right thing to do.
[8]
I have also taken into account, that the dismissal of the individual
applicants in this matter is not in dispute, and that the
respondent
is not inviting the individual applicants to prove an employment
relationship. The employer evidently is in possession
of all the
required information, which the individual employees are required to
disclose in terms of clause 12.1 of the pre-trial
minutes and the
respondent is not alleging that the required information has been
lost nor destroyed. In my view, under these circumstances
paragraph
12 of the pre-trial minute is both incongruous and inconsequential.
And the statement of case cannot be dismissed based
on failure to
fully comply with clause 12 of the pre-trial minutes, because the
issue as to who will be entitled to the relief
in this matter will
still be decided at the trial, formed by individual applicants
present and the outcome thereof
[9]
As indicated above, the Union referred a dispute before this Court
acting on behalf of its members in terms of section 200,
and as per
Macdonald
‟
s
case, that relationship is between
the Union and those members and it has nothing to do with the
respondent, therefore, before me,
I do not have anything that makes
me doubt the
locus standi
of any party as all applicants have
complied with the provisions of the Act in respect of referring a
dispute to this Court.
[10]
I also note that the only relevance for the submittal of these
affidavits was to assist this Court to shorten the proceedings
of the
trial. Rule 6 of the rules of this Court requires an applicant, in
matters such as in
casu
, to deliver a statement of the case
and a respondent may deliver a statement of response if he/she/it
wishes to oppose. Thereafter,
pre-trial minutes to be filed. There
are timeframes in respect of when documents should be delivered in
this Court, and any party
who has defaulted in those time frames will
be required to deliver a condonation application. Condonation
applications are issues
between the courts and the applicants
thereof. A respondent may deliver an opposing affidavit. However,
discretion will lie with
such court. Therefore, my view is that this
court cannot be bound by agreements entered into by parties which are
not in line with
the rules and the Act , meaning there is no need for
the Applicants to deliver condonation for the late delivery of “
the
affidavits” based on my conclusion in paragraph 9 above.
Order
[11]
In the circumstances, the following order is made:
1. The application to dismiss the
statement of case is dismissed with no order as to cost.
2. The trial is postponed to 26-28
June 2017.
—————————————
S.
Mabaso
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant:
H Molotsi
Instructed
by:
M S Molebaloa Attorneys INC.
For
the Respondent:
RJC Orton
Instructed
by:
Snyman Attorneys
[1]
(2016) 37 ILJ 2593 (LAC)
[2]
Id at 42