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[2017] ZALCJHB 328
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Nortje and Others v Regenesys Management (Pty) Ltd (J1824/15, JS766/15) [2017] ZALCJHB 328 (11 September 2017)
Not
Reportable
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
C
ase No: J 1824/15 &
JS 766/15
In
the matter between:
SUSARA
MARIA NORTJE & 7 OTHERS
Applicants
and
REGENESYS MANAGEMENT (PTY)
LTD
Respondent
Heard:
11 September 2017
Delivered:
11 September 2017
INTERLOCUTORY
JUDGEMENT ON POSTPONEMENT
[1]
The respondent belatedly filed a formal postponement application on
the date of the trial hearing (11 September 2017), having
previously
advised the applicants on 28 August of its intention to do so,
ostensibly because to of its main witnesses were out
of the country.
On 1 September it identified the two main witnesses in question as Dr
Penny Law (“Law”) and Dr Marko
Saravanja (‘Saravanja’)
who were away for mixed “business and pleasure” purposes,
but ostensibly could
not postpone the trip to a later stage because
of business purposes.
[2]
Apparently on the same day, the respondent’s attorney learnt
that another witness, the former chief executive officer
of the
respondent, Ms Brownlee, who had left the respondent’s
employment as far back as May 2017 would not be available either
because “she was travelling a lot.” In all the
correspondence exchanged with the applicant’s attorney no
mention
was made of her unavailability until the respondent filed its
postponement application, even though it is attorney of record claims
to have known of this difficulty since 1 September. It also appears
that in fact Law would have been available but was not a crucial
witness anymore. The applicant could offer no explanation for not
contacting Brownlee prior to 1 September except to say that it
had no
reason to believe she would not make herself available to testify
notwithstanding her not having worked for the respondent
for a few
months. Any attorney with reasonable experience in litigation would
know that past loyalties of an employee are an insufficient
guarantee
that such person will be willing and available to testify, quite
apart from the fact that since they are no longer employed
they are
not guaranteed that they will be compensated for any loss of current
remuneration they may suffer as a result of not being
at work while
they are testifying.
[3]
I accept that as things stand,
the respondent is not in a position to commence proceedings as it is
obliged to do and that the matter
would be decided virtually on a
default basis if it proceeds, which would be tantamount to it
conceding the case. It is only because
of the possible fundamental
unfairness that might result if the matter proceeded today that I am
willing to grant a postponement
notwithstanding the fact that it was
not timeously brought.
[1]
That said, I am not entirely convinced of the veracity of the various
reasons given for the unavailability of its key witnesses,
but no
doubt that is something that will be explored under cross
examination. On the other hand, there is no reason why the applicants
should suffer any more prejudice than the court can prevent under the
circumstances. Accordingly, I am of the view that the applicants
should not suffer any financial prejudice whatsoever as a result of
this delay and that the respondent’s tender of wasted
costs
must be augmented.
Order
[1]
The trial is postponed
sine die
and the registrar is directed
to enrol the matter at the earliest available date.
[2]
The respondent must pay the applicants wasted costs of the
postponement, on the attorney
own client scale.
[3]
The respondent must reimburse the applicants’ all their actual
travel and accommodation
costs incurred as a result of the
postponement and reimburse the applicants any lost wages incurred as
a result of taking time
off work or, in the case of applicants
currently performing temporary work, wages lost as a result of not
availing themselves of
temporary work they could have performed
during the period the trial was set down from 11 to 16 September
2017, inclusive, at the
usual rate of pay they have been receiving
for performing such temporary work.
[4]
The above amounts must be paid before trial proceedings recommence,
failing which the respondent
shall be barred from opposing the
matter, which shall proceed on a default basis.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANTS:
L Erasmus instructed by DD P Attorneys
FIRST
RESPONDENT:
D Groenewald instructed by CHJ Higgs
[1]
See e.g
Myburgh Transport v
Botha t/a SA Truck Bodies
1991 (3) SA 310
(Nm) and
Greyvenstein
v Neethling
1952 (1) SA
463
(C).