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[2017] ZALCJHB 446
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Moodley v Eon Consulting (Pty) Ltd (JR968/16) [2017] ZALCJHB 446 (28 November 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case no: JR 968/16
In
the matter between:
VINOTHEN
MOODLEY
Applicant
and
EON
CONSULTING (PTY)
LTD
Respondent
Heard:
17 November 2017
Delivered:
28 November 2017
JUDGMENT:
CONDONATION APPLICATION
MAMOSEBO
AJ
[1]
This
is an application to condone the late filing of a Statement of
Response by Eon Consulting (Pty) Ltd (Eon Consulting), the respondent
in the main action. For convenience, I will refer to the parties as
they appear in the papers.
A
brief factual background
[2]
On
06 December 2016 the applicant, Mr Vinothen Moodley, served a default
judgment on the respondent, Eon Consulting. The respondent
claims
that the said default judgment was retrieved from the junk mail
folder by Ms Sithole, its employee, only in March 2017.
[3]
The
applicant filed its statement of claim on 22 November 2016. Eon
Consulting, although aware of the statement of claim by 13 March
2017, only served its statement of response on 27 June 2017. The
explanation proffered by Eon Consulting is that it was experiencing
an upheaval caused by large scale retrenchment processes and
resignations of its employees, including senior personnel. No one
was
designated to monitor its fax to email through which all its legal
documents were received. The problem of an unmonitored fax,
according
to Eon Consulting persisted for four months and is responsible for
the statement of response being filed 135 days out
of time. The
applicant on the other hand contends that the statement is 201 days
out of time. On either construction it must be
determined whether
such delay is inordinate and stands to prejudice the applicant.
[4]
Mr
Itzkin, counsel appearing for Eon Consulting, sought to convince me
that the allegations in the applicant’s statement of
claim are
disingenuous and this Court lacks jurisdiction to hear the matter on
procedural aspects because the applicant failed
to approach this
Court by way of an application in terms of section 189A (13) and (18)
of the Labour Relations Act
[1]
(the LRA) and, instead, seeks relief based on section 191(5)(b)(ii)
of the LRA. Counsel submitted that Eon Consulting has good
prospects
of success and that if condonation was not granted Eon Consulting
will still be able to defend the matter as the Court
will not be
closing the door in its face. It will, however, be precluded from
opposing the employee’s unfair dismissal claim
on the basis of
its pleaded case as alleged in its statement of response.
[5]
Condonation may be granted at the discretion of the
Court. In
Mankanyi
v Anglo gold Ashanti Ltd
[2]
the
Constitutional Court stated:
“
The
test for the grant of condonation is whether the interests of justice
permit. Factors relevant to this enquiry 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 enquiry
entails weighing each factor against others
and determining where the
interests of justice ultimately lie.”
[6]
Condonation is not to be had merely for the asking. The
Constitutional Court in
Grootboom
v National Prosecution Authority and Another
[3]
made
the following instructive remarks:
“
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. It is not in
the interests of justice to do so, it will
not be granted. 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.”
[7]
The applicant’s claim in the main action is based on an unfair
dismissal following a restructuring and retrenchment process.
The
applicant served its statement of claim by fax on 24 November 2016.
Of significance is that Eon Consulting does not allege
that the
statement of claim was faxed to the wrong fax, but that there was no
one from its side to monitor that the fax is received.
After the
resignation of Ms Pamela Apps on 31 October 2016 whose duty it was to
monitor faxes, no one was assigned to perform the
function.
[8]
It
is required of Eon Consulting to show good cause for the delay and
account in full therefor before condonation can be granted.
Mr
Gibson, counsel for the applicant, has demonstrated the four gaps
where Eon Consulting has not furnished any explanation justifying
reasonable cause for the delay. These are between 22 November 2016
and 06 March 2017; 13 March 2017 to 25 May 2017; April 2017
to 24 May
2017; On 26 May 2017; 12 June 2017 to 27 June 2017.
[9]
Eon Consulting has not shown good cause for referring the dispute
late. A period of 6 months is substantial. Mr Itzkin argued
that the
right to fair labour practices
[4]
must also be afforded to Eon Consulting. I agree. I am, however, not
satisfied with the explanation furnished by Eon Consulting
for the
delay. In my view, it was pure negligence and short-sightedness
coupled with a flagrant disregard for the Rules of this
Court. The
explanation does not even attempt to cover the entire period for the
inordinate delay. The Labour Appeal Court in
NUM
v Council of Mineral Technology
[5]
restated the following principle:
“
Without a
reasonable and acceptable explanation for the delay, the prospects of
success are immaterial.”
[10]
I am of the view that the applicant stands to be prejudiced if
condonation is granted. It would also not be in the interests
of
justice to condone the late filing of the statement of response
.
Therefore,
this condonation application stands to fail.
Costs
[11]
Although Eon Consulting asked for costs in the notice of motion, it
did not press for costs in oral argument. Mr Itzkin
did not
seek any costs order notwithstanding
opposition. Mr Gibson argued for the dismissal
of the application
with costs. There is no reason why costs should not follow the
results.
[12]
In the premise, the following order is made:
Order
1.
The
late filing of the statement of response is not condoned.
2.
The
respondent, Eon Consulting (Pty) Ltd, is ordered to pay the costs of
this application.
_______________
MC Mamosebo
Acting
Judge of the Labour Court of South Africa
Appearances
For
the applicant:
Advocate Christopher
Gibson
Instructed
by:
Ismail & Dahya Attorneys
For
the respondent:
Advocate Riaz Itzkin
Instructed
by:
Cowan- Harper
Attorneys
[1]
Act.
66
of 1995 as amended.
[2]
[2011] BLLR 527
at para 8.
[3]
2014 (2) SA 68
(CC) at paras 50 –
51.
[4]
Section 23 of the Constitution of the
Republic of South Africa, 108 of 1996, as amended.
[5]
(1999) 2 BLLR 209
(LAC)
.