About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 243
|
|
Bidvest Protea Coin (Pty) v Kgwedi (JS1052/16) [2017] ZALCJHB 243 (14 June 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No. JS 1052/16
Not
Reportable
In
the matter between:
BIDVEST
PROTEA COIN (PTY) LTD
Applicant
and
MISCHACK
KGWEDI
Respondent
Heard
on: 9 June 2017
Delivered:
14 June 2017
JUDGMENT
Saloojee
AJ
Introduction
[1]
This is an application to condone the late
filing of a Statement of Defence.
[2]
The applicant is the respondent in the main
action and the same applies to the respondent.
Background
of facts
[3]
On 26 January 2017, the respondent served a
Statement of Claim on the applicant. The respondent applied for
default judgment as
the respondent did not oppose the action.
[4]
On 16 February 2017, the respondent served
and an index to the default judgment on the applicant.
[5]
On 20 February 2017, the applicant
acknowledged receipt of the index. On the same day, the respondent
faxed a copy of the statement
of claim to the applicant, which
opposed the action.
[6]
The applicant served its Statement of
defence on 13 March 2017.
[7]
In
Mankayi
v Anglogold Ashanti Ltd
[1]
,
the Constitutional Court stated:
“
The
test for the grant of condonation is whether the interests of justice
permit. Factors relevant to this inquiry include, but
are not limited
to, the extent and cause of the delay, the prejudice to the opposing
litigant, the reasonableness of the explanation,
the importance of
the issues to be decided and the prospects of success.
The
inquiry entails weighing each factor against the others and
determining where the interests of justice ultimately lie.”
[8]
The applicant claims that the Statement of
Defence is four days late while the respondent claims that it is
twenty-three days late.
On either construction, the delay is not
severe and there is no real prejudice to the respondent.
[9]
The respondent’s claim in the main
action is based on an unfair retrenchment. The respondent, a security
guard, claims that
his employer ordered him to take a polygraph test,
which he was later informed that he had failed. On the last day of
his employment,
the respondent was handed a settlement agreement
relating to voluntary retrenchment.
[10]
The applicant relies on its contractual
arrangement with its client to justify conducting the polygraph test
and removing the respondent
from site. Further, after the respondent
failed the polygraph test, the applicant offered to secure an
alternative site for the
respondent. In the event that the applicant
was unable to do so, then the applicant would have to retrench the
respondent’s
services. The respondent did not want to be placed
at an alternative site and requested retrenchment.
[11]
The issues to be decided in the main
application are important. The nature of the defence has reasonable
prospects of success and
it would be in the interests of the justice
to condone the late filing of the Statement of defence.
[12]
In the premise, the following order is
made:
a.
The late filing of the Statement of Defence
is condoned.
b.
Each party to pay their own costs.
____________________________
Acting
Judge of the Labour Court
Appearance
For
the applicant:
S Lancaster
Instructed
by:
Lancaster Kungoane Attorney
For
the respondent:
S Mayet
Instructed
by:
Nadeem Mahomed Attorneys
[1]
[2011]
6 BLLR 527
(CC) at par. 8