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[2017] ZALCJHB 426
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Holroyd v Audiotronic (Pty) Ltd (JS1003/16) [2017] ZALCJHB 426 (14 November 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JS 1003/16
In
the matter between:
CECILIA
MAUREEN HOLROYD
Applicant
And
AUDIOTRONIC
(PTY) LTD
Respondent
Heard:
3 November 2017
Delivered:
14 November 2017
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
The respondent in the main claim, Audiotronic (Pty) Ltd (Audiotronic)
seeks condonation for the late filing of its statement
of response to
the applicant’s (Holroyd) claim. Holroyd opposed the
application.
Background:
[2]
Holroyd commenced employment with Audiotronic in June 1993 as a
book-keeper. At the time of commencement of her employment
she was 50
years old. During August 2005, Holroyd and Audiotronic concluded
a written contract of employment wherein Holroyd
was appointed as
Accounts Administrator. At the time that the contract was concluded,
Holroyd was 62 years of age. She would have
been about 73 years of
age at the time of the termination of her employment contract.
[3]
On 25 July 2016, Audiotronic informed Holroyd that it
intended to replace her with an existing Accountant within the
company, and thus ultimately placing her on retirement at the end of
August 2016. Holroyd, was also required to undertake
and
conclude a handover process before her contemplated date of
retirement.
[4]
On 29 July 2016, Audiotronic furnished Holroyd with a
notice of retirement with the date of termination being
31 August 2016.
In a reply to the notice of retirement,
Holroyd indicated that firstly, there was no formal meeting held with
her in respect of
the contemplated retirement, secondly, that there
was no agreement that she would go on retirement, thirdly, there was
no mention
of Audiotronic’s normal retirement age in her
contract of employment and lastly, that Audiotronic had no policy in
respect
of a retirement age.
[5]
On 12 August 2016, Holroyd received an ‘SMS’
from Audiotronic to the effect that she had indicated in
the meeting
of 29 July 2016 that she was not averse to retirement. In
an email on the same day, Holroyd replied and disputed
that there was
an agreement on her taking retirement.
[6]
On
24 August 2016, Holroyd then referred an unfair dismissal
dispute to the Commission for Conciliation, Mediation and
Arbitration
(CCMA). The dispute was conciliated on 21 September 2016.
That process however failed to resolve the dispute,
which was
subsequently referred to this court for adjudication in terms of the
provisions of section 187 of the Labour Relations
Act (LRA).
[1]
[7]
The statement of claim was filed with the Registrar of this Court on
8 December 2016, and Audiotronic, if it elected
to oppose
the claim, was called upon to deliver its’ statement of
response within 10 days from the date of service of the
statement of
claim. The statement of response was filed on 16 February 2017,
together with an application for condonation for its
late filing.
The
legal framework and evaluation:
[1]
The
principles applicable to applications for condonation are fairly
trite. Foremost is that in considering whether to grant condonation,
the Court in exercising its discretion in that regard will take into
account what the interests of justice dictate.
The
test in this regard was elucidated by the Constitutional Court in
Grootboom
v National Prosecuting Authority and Another
,
[2]
in
the following terms:
‘
In
this Court, the test for determining whether condonation should be
granted or refused is the interests of justice. If it is in
the
interests of justice that condonation be granted, it will be granted.
If it is not in the interests of justice to do so, it
will not be
granted....’
And,
‘
The
interests of justice must be determined with reference to all
relevant factors. However, some of the factors may justifiably
be
left out of consideration in certain circumstances. For example,
where the delay is unacceptably excessive and there is no explanation
for the delay, there may be no need to consider the prospects of
success. If the period of delay is short and there is an
unsatisfactory
explanation but there are reasonable prospects of
success, condonation should be granted. However, despite the presence
of reasonable
prospects of success, condonation may be refused where
the delay is excessive, the explanation is non-existent and granting
condonation
would prejudice the other party. As a general proposition
the various factors are not individually decisive but should all be
taken
into account to arrive at a conclusion as to what is in the
interests of justice.’
[8]
The factors
identified by the Constitutional Court as above are those that were
long identified in
Melane
v Santam Insurance Co. Ltd
[3]
in the following terms;
‘
In
deciding whether sufficient cause has been shown, the basic principle
is that the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success and the importance of the case. Ordinarily these
facts are
interrelated, they are not individually decisive, save of course that
if there are no prospects of success there would
be no point in
granting condonation. Any attempt to formulate a rule of thumb would
only serve to harden the arteries of what should
be a flexible
discretion. What is needed is an objective conspectus of all the
facts. Thus a slight delay and a good explanation
may help to
compensate prospects which are not strong. Or the importance of the
issue and strong prospects may tend to compensate
for a long delay.
And the Respondent’s interests in finality must not be
overlooked”
[9]
The factors
as outlined in
Melane
and
subsequent authorities are to be considered collectively and not
through a piecemeal approach in coming to a conclusion that
the
interests of justice dictate that condonation ought or ought not to
be granted.
[4]
Further
principles applicable to condonation applications are that
a
litigant who intends applying for condonation is required to launch
such application as soon as she or he or it becomes aware
of the
necessity to do so
[5]
; and that
a case must be made out as to why a party ought to be granted an
indulgence
[6]
.
It is further trite
that
where a period of delay is excessive and the explanation is
unreasonable, the court may deny the application for condonation
without the consideration of the prospects of success.
[7]
Extent
of the delay and explanation thereof:
[10]
Audiotronic
having been served with the statement of claim on 7 December 2016,
was supposed to have filed its statement
of response on or before
22 December 2016.
[8]
The statement of response was only filed with the Registrar of this
Court on 16 February 2017. The statement of response
was
therefore filed 40 days out of time. I did not understand from either
the pleadings or the arguments that there was a dispute
in regards to
this period of the delay. Inasmuch as I agree that the delay is
lengthy, I however do not hold the view that it is
excessive in the
extreme.
[11]
Mr Gregory Paul Cumming (Cumming), Audiotronic’s Director in
his founding affidavit in support of the application for
condonation
averred that the delay was attributable to the following factors;
11.1.
During the period that Holroyd served her statement of claim on
Audiotronic, Cumming was
overseas and had only returned to the
Republic on 22 December 2016. After his return, there was
the “festive season”
and as a result, potential legal
representative were not available for consultation.
11.2.
In 2017, in an attempt to avoid potentially unnecessary legal
expenses, Audiotronic through
its current attorneys of record
endeavoured to explore settlement of the dispute with Holroyd’s
attorneys of record. In that
regard on 16 January 2017,
Audiotronic’s attorneys of record sent correspondence to
Holroyd’s attorneys of
record wherein the following was record:
“…
Please be advised that it
is our client’s instruction that the matter is to be opposed.
We have, however, also
been advised that there was a brief and cursory discussion with
[Counsel], in which it was mentioned that
a settlement in the matter
may be possible. In order to save both parties the time and expenses
of litigation, we shall be pleased
to learn whether you have obtained
an instruction from your client on a possible settlement proposal.
…”
11.3.
In a letter dated 17 January 2017, Holroyd’s
attorneys of record replied
to Audiotronic’s invitation to
engage in settlement discussion, however they pointed out that any
settlement discussions
would not stay, detract from or pend the
proceedings before this Court. The relevant parts of the
correspondence read as follows:
“…
Our statement of claim
was served on your client on 7 December 2016 and filed at
court on 8 December 2016.
[The] writer was only
contacted by [your counsel] on Tuesday 10 January 2017 to
discuss the matter and it was recorded
during that discussion that
any settlement proposal and/or discussion would not detract from,
stay, or pend the court action and
proceedings, which are currently
unopposed.
With the above in mind
please note that our client is amenable to discuss settlement of the
matter and welcome any settlement proposal
your client may have at
this stage, however any settlement discussion will not detract from
the court action and proceedings which
are currently underway.
…”
11.4.
A settlement proposal was thereafter made in a letter dated
17 January 2017
by Audiotronic’s attorneys of record.
The proposal was rejected and as consequence, additional legal advice
had to be sought.
The identified legal counsel could only be
available for consultation and settlement of the papers in respect of
the main action
as well as the condonation application
on
13 February 2017
.
[12]
In opposing the condonation application, Holroyd avers
inter alia
that:
12.1
There was no proof that Cumming was overseas during the period that
the statement of claim was
served on Audiotronic. Moreover, even if
Cumming was overseas, other persons within Audiotronic had a duty to
deal with the matter
and “they” failed to exercise that
duty.
12.2
On 9 January 2017, Holroyd’s attorneys of record
contacted Audiotronic to confirm
the serving of the statement of
claim. During that telephonic conversation, no mentioned was made
about Cumming being overseas.
What was mentioned however, was that
Audiotronic had forwarded the statement of claim to their attorneys
of record to deal with.
[13]
The difficulty with the explanation proffered by Cumming is that it
is lacking in details, particularly as there is no indication
as to
who the statement of claim was served on at Audiotronic, and why that
particular person could not have brought it to the
attention of
Cumming, notwithstanding the fact that he was overseas.
[14]
Upon the return of Cumming from the overseas trip on
22 December 2016, the only explanation that is furnish is
that
due to the Christmas holidays, the potential legal firms were
not available. There is no explanation as to what attempts were made
at the earliest in securing legal representation, which other legal
firms were approached, and if so, when they were approached.
[15]
There is no explanation in respect of the period of delay between
2 January 2017 and 16 January 2017, the
first
date Audiotronic’s attorneys of record first made an invitation
for settlement discussions. Holroyd in her answering
affidavit to the
condonation affidavit averred that on 9 January 2017, her
attorneys of record made telephonic contact
with Audiotronic with
regards to service of the statement of claim, and there is no
explanation as to what action was taken between
that date and the
date of the letter of 16 January 2017. Moreover,
Audiotronic elected not to file a replying affidavit
to answer to the
allegation made by Holroyd that indeed on 9 January 2017,
the matter was brought to Audiotronic well
after 18 calendar days and
after Cumming had returned from his overseas trip.
[16]
When the settlement discussions broke down after 17 January 2017,
there is no explanation as to what steps Audiotronic
took to defend
the claim, except to aver that the preferred counsel was only
available on 13 February 2017. There is
no explanation
whether it was feasible to approach another counsel and if so what
attempts were made. It is significant to observe
that as at
17 January 2017, the statement of response was
already about 16 days out of time, and one would have
expected a
diligent litigant to have acted with the necessary haste at that
point. But that is not what Audiotronic did, it waited
a further 18
days before consulting with counsel on 13 February 2017.
[17]
Notwithstanding
the problems as highlighted above, it is trite that a lack of a
sufficient, satisfactory or detailed explanation
for the delay does
not necessarily translate into an absolute bar to condonation.
[9]
The court is required to undertake an objective conspectus of all the
factors, including the importance of the issue and the strong
prospects of success, which factors may tend to compensate for the
shortcomings in the explanation or length of the delay.
Prospects
of success:
[18]
It is trite
that even if a less than adequate or satisfactory explanation for the
delay was proffered, the factors to be addressed
in seeking
condonation should not be evaluated individually. In explaining the
approach to the issue of prospects of success, this
Court in
Gaoshubelwe
and Others v Pieman’s Pantry (Pty) Ltd
[10]
held that:
“
The prospects of
success or
bona fide
defence on the other hand mean that all
what needs to be determined is the likelihood or chance of success
when the main case is
heard. See
Saraiva Construction (Pty) Ltd v
Zululand Electrical and Engineering Wholesalers (Pty) Ltd
1975 (1) SA
612
(D)
and
Chetty v Law Society, Transvaal
1985 (2) SA 756
(A) at 765 (A-C).”
[19]
Cumming averred that there were excellent prospect of success in
defending the claim. In this regard, it was submitted that;
19.1.
Holroyd had agreed to retire with effect from 31 August 2016
and therefore she
was neither unlawfully and/ or wrongfully dismissed
by Audiotronic.
19.2.
The last date that Holroyd reported for duty was on 2 August 2016.
Thereafter
she did not resume her services, which resulted in her
employment contract being terminated as a consequence of her
desertion.
19.3.
The
termination of Holroyd employment did not constitute an automatically
unfair dismissal within the meaning of the provisions
of section
187(1)
[11]
of the LRA.
19.4.
Audiotronic admitted that it did not have a normal retirement age
policy in place. It
however contended that there was an agreement
between it and Holroyd that she would retire on 31 August 2016.
Moreover,
Holroyd’s employment services were terminated as a
result of her desertion.
19.5.
The trial court will be called upon to determine the real dispute,
that is, the real reason
for the termination of the employment
relationship. The trial court will have determine whether or not
Holroyd had deserted prior
to the agreed date of retirement, being
31 August 2013, or whether she was dismissed as she had
alleged.
[20]
Mr. Morgan on behalf of Holroyd submitted that there were indeed
factual disputes in regard to what had led to the termination
of
Holroyd’s contract of employment. He however contended that
Audiotronic had failed to sufficiently deal with its prospects
of
success in in its application.
[21]
There is a
dispute of fact as to when and how Holroyd’s contract of
employment was terminated. Holroyd contends that the contract
of
employment was terminated by Audiotronic on 31 August 2017
through a forced retirement. Auditronic on the other hand
contended
that the contract was terminated on 2 August 2017, through
the act of desertion by Holroyd. It is apparent
that these disputed
facts can only be resolved by affording both parties an opportunity
to ventilate their respective cases at
trial. In the light of
these disputed facts, it cannot be said that Audiotronic does not
have prospects of success. In line
with
Gaoshubelwe
[12]
,
it
should be found that
Audiotronic
has demonstrated
the
likelihood or chance of success when the main case is heard.
Prejudice
and other considerations:
[22]
It was further common cause that the pleadings in
this case have been closed, and the parties had completed and filed a
signed pre-trial
minute. As correctly pointed out on behalf of
Audiotronic, it cannot be said in view of these common cause factors
that Holroyd
has been prejudiced by the delay, which it has already
been concluded, is not excessive in the extreme.
If
any prejudice has been suffered, I do not believe that such prejudice
can outweigh all the other considerations taken into account
in
deciding whether condonation should be granted.
Conclusion:
[23]
The delay in filing a response to the statement of claim is not
excessive in the extreme. The explanation for the delay may
be
inadequate but is not necessarily unacceptable. Any shortcomings in
the explanation proffered for the delay in any event have
been
compensated by Auditronic's prospects of success on the merits of the
main claim and the fact that it cannot be said that
Holroyd has been
prejudiced by the delay. In the end, and in consideration of these
factors, the interests of justice dictate that
condonation ought to
be granted.
Costs:
[24]
I have had regard to the requirements of law and fairness in
considering the issue of costs. Auditronic did not do itself any
favours by the delay in filing a response, particularly in view of
the collapse of the settlement negotiations. Similarly, Holroyd
was
within her rights to oppose the application for condonation
application. I have no reason to believe that the opposition to
the
application was
mala fide
,
albeit
it can be deemed as
having been unnecessary in the circumstances. Accordingly, the
requirements of law and fairness dictate that
each party must be
saddled with its own costs.
Order:
[25]
In the premises, the following order is made:
1.
The late filing of the statement of response by the Respondent is
condoned;
2.
Each party is to pay its own costs
3.
The Registrar of this Court is directed to set the matter down for
trial for two days.
_____________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Respondent:
Adv. J Campanella
Instructed
by:
L Cirone Attorneys
For
the Applicant:
Mr D. Morgan
of Mc Larens Attorneys
[1]
Act 66 of 1995, as amended
[2]
[2014] 1 BLLR 1
(CC) at paras 50-51.
[3]
1962
(4) SA 531
(A) at 532B-E
[4]
United
Plant Hire (Pty) Ltd v Hills
1976(1)
SA 717 (A) at 720 E –G:
“
[I]t
is well settled that, in considering application for
condonation, the court has a discretion, to be exercised judicially
upon a consideration of all the facts, and that in essence it is a
question of fairness to both sides. In this enquiry,
relevant
considerations may include the degree of non-compliance with the
rules, the explanation thereof, the prospects of success
on appeal,
the importance of the case, the respondent’s interest in the
finality of the judgment, the convenience of the
court, and the
avoidance of unnecessary delay in the administration of justice.
The list is not exhaustive. These
factors are not individually
decisive but are interrelated and must be weighed one against the
other, thus a slight delay and
a good explanation may help to
compensate for prospects of success which are not strong”.
[5]
See
CWIU
and Another v Ryan and Others
[2001]
3 BLLR 337
(LC)
[6]
Grootboom
at para 23 where it was held that;
‘
It
is now trite that condonation cannot be had for the mere asking. A
party seeking condonation must make out a case entitling
it to the
court’s indulgence. It must show sufficient cause. This
requires a party to give a full explanation for the non-compliance
with the rules or the court’s directions. Of great
significance, the explanation must be reasonable enough to excuse
the default’
See
also
Uitenhage Transitional Local Council v South African
Revenue Service
2004 (1) SA 292
(SCA)
at
para 6
, where it was held that;
‘
....
It must be obvious that, if the non-compliance is time-related then
the date, duration and extent of any obstacle on which
reliance is
placed must be spelled out.’
[7]
NUM v
Council for Mineral Technology
1999
3 BLLR 209
(LAC) at 211 G-H:
“…
. without
a reasonable and acceptable explanation for the delay, the prospects
of success are immaterial and without prospects
of success, no
matter how good the explanation for the delay, an application for
condonation should be refused”
See also In
Moila
v Shai N.O. and Others(2007) 28 ILJ 1028 (LAC)
at
para 34
the
Labour Appeal Court held:
‘
I do not have the
slightest hesitation in concluding that this is a case where the
period of delay is excessive and the appellant's
purported
explanation for the delay is no explanation at all. I accept that
the case is very important to the appellant. However,
the weight to
be attached to this factor is too limited to count for anything
where the period of delay is as excessive as is
the case in this
matter and the explanation advanced is no explanation at all. If
ever there was a case in which one can conclude
that good cause has
not been shown for condonation without even considering the
prospects of success, then this is it. Where,
in an application for
condonation, the delay is excessive and no explanation has been
given for that delay or an “explanation”
has been given
but such “explanation” amounts to no explanation at all,
I do not think that it is necessary to consider
the prospects of
success.
[8]
Rule 6:
Referrals:
(1) …
Response
(3)
(a)
Any party
on whom a statement of claim is served may deliver a response to
that statement.
(b)
The response
must, with the changes required by the context, contain the same
information required by subrule (1).
(c)
A response
must be delivered within 10 days of the date on which the statement
of claim is delivered.
[9]
See
Toyota Marketing v Schneizer
[2002]
12 BLLR 1164 (LAC)
[10]
(2009) 30 ILJ 347 (LC) at para 27
[11]
Section
187:
Automatically
unfair dismissals
(1) A
dismissal
is
automatically unfair if the employer, in dismissing the
employee
,
acts contrary to section or, if the reason for the
dismissal
is
–
(a) …
(
f)
that the
employer unfairly discriminated against an
employee
, directly
or indirectly, on any arbitrary ground, including, but not limited
to race, gender, sex, ethnic or social origin, colour,
sexual
orientation, age, disability, religion, conscience, belief,
political opinion, culture, language, marital status or family
responsibility.
[12]
supra