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[2017] ZALCJHB 440
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Transport and Allied Workers' Union of South Africa obo Maphosa v South African Road Passenger Bargaining Council and Others (JR2738/13) [2017] ZALCJHB 440 (21 November 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable/Not
Reportable
Case
No: JR 2738/13
In
the matter between:
TRANSPORT
AND ALLIED WORKERS’
UNION
OF SOUTH AFRICA OBO
SYDWELL
EDMUND
MAPHOSA
Applicant
And
SOUTH
AFRICAN ROAD PASSENGER
BARGAINING
COUNCIL
First Respondent
KHUTSO
MPAI N.O.
Second Respondent
GREAT
NORTH TRANSPORT (PTY) LTD
Third Respondent
Heard:
04 SEPTEMBER 2017
Delivered
:
21 November 2017
JUDGMENT
THOMPSON,
AJ
Introduction.
[1]
This is an application to review and set aside the arbitration award
under case number RPNT1391 issued on the 25
th
of April
2013 under the auspices of the South African Road Passenger
Bargaining Council.
[2]
The Applicant has also logged an application for condonation of the
late filing of the review application. The Third Respondent
is also
seeking condonation for the late filing of its answering Affidavit.
[3]
The Applicant seeks condonation for launching the review application
six months beyond the six week period provided for by section
145 of
the Labour Relations Act. The Third Respondent’s Counsel
submits that the Applicant in prayer 3 of the notice of motion
seeks
condonation for the late filing of the application. Ms. Gaffoor
submits that the Applicant has failed to set out the basis
for a
condonation application in its founding affidavit and it stands to be
struck out. The Applicant sought to bring the condonation
affidavit
in its replying affidavit. Of importance is that the Applicant was
represented by Attorneys at the time of lodging the
application on 19
December 2013.
[4]
Of further significance is that
the Third Respondent, in answer raises the Applicant’s failure
to set out grounds for condonation
in its founding affidavit. The
Applicant addresses this by stating that he admits the contents of
the Third Respondent’s
paragraphs referred to above. The
Applicant does not set out any explanation for the failure to deal
with the grounds for condonation
in its founding affidavit. It is
trite that an applicant must set out its case in the founding
affidavit as is necessary to make
out a
prima
facie
case. See in this
regard
Juta & Co Ltd v
De Koker
[1]
where the court held as follows:
‘
In the light of the aforegoing
l was of the view that sufficient allegations were contained in the
founding affidavits to establish
prima facie
that
passages in the affected work constituted an infringement of
copyright in respect of the copyright work. I emphasize
that it was
but necessary for the applicants to make out a
prima facie
case
in this respect. Clearly, once regard was to be had to the evidence
following upon the founding affidavits, that
prima facie
case
might be destroyed or the applicants might at the end of the day have
been in the position that they had failed to show on
a balance of
probabilities that there was any such infringement.’
[5]
The Applicant must therefore
stand or fall by his founding affidavit. (See also in this regard
Director of Hospitals v
Ministry
[2]
).
An Applicant will generally
therefore not be allowed to introduce a new matter in reply. The
Applicant will especially not be allowed
to introduce a new cause of
action in the replying affidavit that supplants the cause of action
contained in the founding affidavit.
This rule is, however, not
inflexible. The court may allow an applicant to set up an additional
ground for relief arising from
the Respondent’s answering
affidavit.
[6]
In Shakot Investments (Pty) Ltd v Town Council of the Borough of
Stanger
1976 (2) SA 701
D the principles are set out. The headnote to
that case sets out accurately the principle enunciated by Miller J
and is in the
following terms:
“
In consideration of the
question whether to permit or to strike out additional facts or
grounds for relief raised in the replying
affidavit, a distinction
must, necessarily, be drawn between a case in which the new material
is first brought to light by the
Applicant who knew of it at the time
when his founding affidavit was prepared and a case on which facts
alleged in the Respondent’s
answering affidavit reveal the
existence of possible existence of a further ground for relief sought
by the Applicant. In the latter
type of case the Court would
obviously more readily allow an Applicant in his replying affidavit
to utilise and enlarge upon what
has been revealed by the Respondent
and to set up such additional ground for relief as might rise there
from.”
[7]
To the extent that the replying affidavits did contain new matter the
Court has a discretion to allow such material to remain
in the
replying affidavit, giving the Respondent an opportunity to reply
thereto should special or exceptional circumstances exist
- Shephard
v Tuckers Land and Development Corporation F (Pty) Ltd (1) SA 173 (T)
at 177G-178A.’
[8]
The Court in Fick v
Walter
[3]
and Another set out the circumstances in which the court will allow
an applicant to include new material in the replying affidavit:
[9]
I refer to the case of Nedbank Ltd v Hoare
1988 (4) SA 541
(E ) at
543 E, where Mullins J said:
‘
I do not
read this Rule as implying that a deponent to an affidavit can in no
way depart from the terms thereof. If this were so,
a party could
not, in a supplementary affidavit, vary or explain the terms of a
founding affidavit. This is a matter of frequent
occurrence, more
particularly where it is not sought to withdraw or vary factual
allegations, but only to amplify or amend legal
conclusions or
submissions, which are frequently incorporated in an affidavit, in
order to clarify a cause of action.’
[10]
In Pat Hinde & Sons
Motors (Brakpan) (Pty) Ltd v Carrim and Others
[4]
the Court pointed out that, although the principle is that the Court
will not allow an Applicant to supplement an application in
the
replying affidavit in order to cure a defect in the founding
affidavit, it has a discretion to either strike out the new
matter
or allow the respondent to file a second set of answering affidavits
to deal with the new matter.
[11]
That there is this principle supporting the argument emerges from
Schreuder v Viljoen,
1965 (2) SA 88
(O
). In this case it was
held that:
“
A Court
should not permit an Applicant in motion proceedings, where it is not
certain on the application as a whole that the Respondent
has no
defence, to supplement his application in his replying affidavit in
order to cure the defect where the application does
not disclose a
cause of action and the Respondent has taken an objection in limine
against it.”
[12]
In Kleynhans v Van der Westhuizen, N.O.,
1970 (1) SA 565
(O).
On p. 568 De Villiers, J., goes on to state the following:
“
Normally the
Court will not allow an applicant to insert facts in a replying
affidavit which should have been in the petition or
notice of motion
(cf.
Mauerberger v
Mauerberger,
1948 (3) SA 731
(C);
De Villiers v De
Villiers
,
1943 T.P.D. 60
;
John
Roderick's Motors Ltd. v Viljoen
,
1958
(3) SA 575
(O);
Berg v Gossyn
(1),
1965 (3) SA 702
(O);
Van Aswegen v
Pienaar
,
1967 (1) SA 571
(O)), but may
do so in the exercise of its discretion in special circumstances (cf.
Bayat and Others v Hansa and Another,
1955 (3) SA 547
(N); Schreuder v Viljoen
,
1965 (2) SA 88
(O). Once such a discretion has been exercised in
favour of an applicant a Court of appeal will only interfere if it
comes to the
conclusion that the Court a quo has not exercised its
discretion judicially,'
[13]
In exercising my discretion, I shall firstly take into account the
Third Respondent’s response. When I inquired from
the Third
Respondent why it did not file an affidavit in response to the
replying Affidavit it was left unanswered. I shall also
consider the
explanation for lateness and prospects of success in the review
application. I also consider the fact that the facts
(the need for a
condonation application) were known to the Applicant at the time of
deposing to the founding affidavit. The Applicant
lays the blame for
lateness at the doorstep of the Trade Union and the attorney it
appointed. Apparently, a fee dispute arose between
those parties
which had the result of the application not been launched timeously.
The Applicant seeks to lay the blame with his
representative who
ought to have known that the dispute with their attorney may cause
prejudice to the Applicant. There are limits
to which a litigant is
able rely on the negligence of his representative,
[5]
The Trade Union ought to have understood the time limits and acted
sooner. The explanation is unconvincing.
[14]
The Applicant’s prospects of success in the review are
fundamentally linked and shall be considered in exercising my
discretion. The Applicants’ case rests on the crisp point that
the arbitrator held that the employment relationship had
irretrievably broken down and it is averred that no such evidence had
been led. The arbitrator deals with this in his award
[6]
.
The arbitrator considers the argument raised by the employer that the
employment relationship had irretrievably broken down. The
employee
was working with the supply of diesel and that diesel disappeared
during the Applicants tenor. Although the theft of diesel
could not
be linked to the employee, the employer found it difficult to trust
the employee and therefor renders the employment
relationship
intolerable. The arbitrator drew the conclusion that compensation
should be the appropriate remedy.
[15]
I do not necessarily agree with the conclusion of the Arbitrator but
this is not the test I am required to consider. I am not
convinced
that the Arbitrator’s decision was obviously wrong or such that
no reasonable decision maker would reach such a
conclusion after
considering the evidence. It is trite that substantive unfairness
does not as an absolute rule give rise to automatic
reinstatement. It
may be the primary remedy but practical considerations are to be
applied by the Arbitrator. The Arbitrator had
the opportunity to gage
the parties conduct during the procedure and I have not been
persuaded and therefore I cannot interfere
with the conclusion
reached by the Arbitrator.
[16]
I have considered the merits of the review application and find that
it cannot succeed and as a consequence the condonation
application is
dismissed.
Order
1.
The condonation application is dismissed.
2.
The review application is dismissed.
3.
There is no order to costs
_________________________
THOMPSON AJ
Acting Judge of the
Labour Court of South Africa
APPEARANCES
For
the Applicant:
Advocate M.L. Khomola
Instructed
by:
Lennon Moleele Attorneys
For
the Respondent:
Advocate N. Gaffoor
Instructed
by:
A.M. Carrim Attorneys
[1]
1994 (3) SA
499
T at 508 B-D
[2]
2005 (1) SA
475 (C)
[3]
2005 (1) SA
475
(c)
[4]
1976 (4) SA
88
(T) at 63 A-64 A
[5]
See
Hardrodt ( SA) (pty) ltd v Behardien and others ( 2002) 23 ILJ 1229
(LAC) at para 21
[6]
see
paragraph 33 of page 24 of the indexed pleadings.