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[2017] ZALCCT 27
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Mngomezulu v Vodacom (Pty) Ltd and Others (C801/13) [2017] ZALCCT 27 (21 June 2017)
REPUBLIC
OF SOUTH AFRICA
Not
reportable
OF
INTEREST TO OTHER JUDGES
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: c 801/13
In
the matter between:
STEPHEN
FIRE MNGOMEZULU
First applicant
and
VODACOM
(PTY) LTD
First respondent
CCMA
Commissioner
N E ISAACS N.O.
Commissioner D I K WILSON
N.O.
Second
respondent
Third
respondent
Fourth respondent
Heard:
12
May 2017
Delivered:
21 June 2017
SUMMARY:
Application to re-open case. Review application withdrawn by previous
attorney. Actual authority, ostensible authority and
estoppel
considered. Application dismissed with costs.
JUDGMENT
STEENKAMP
J
Introduction
[1]
The applicant, Mr Stephen Fire Mngomezulu, has applied to re-open a
review application that was withdrawn by his erstwhile attorney,
Mr E
J Simons of Simons van Staden attorneys, on 18 August 2014. He only
brought this application more than two years later, on
15 November
2016.
[2]
The applicant represented himself in these proceedings. The matter
was set down for hearing on the opposed motion roll on 3
May 2017. On
that day, for the first time – and despite the fact that all
previous pleadings and correspondence, including
internal emails
drafted by the applicant, had been in English – he requested
the services of a Zulu-speaking interpreter.
No interpreter fluent in
isiZulu was available. The matter was postponed to 12
th
May in order to obtain the services of an interpreter. The Registrar
made the necessary arrangements with the High Court on the
very same
day. Despite having received confirmation on 8
th
May, when
the matter was called on 12 May, there was no interpreter to be
found. The Court had to adjourn once again. After further
calls to
the responsible person at the High Court, Mr Christopher Blow, an
interpreter eventually arrived at 11:00.
Background
facts
[3]
The applicant faced various
allegations of misconduct. On 23 May 2013, after a disciplinary
hearing, he agreed to be issued a final
written warning and five
days’ unpaid suspension as an alternative to dismissal. Despite
the agreement, he referred an unfair
labour practice dispute to the
CCMA
[1]
.
Commissioner N E Isaacs
[2]
found that the CCMA did not have jurisdiction as there was an
agreement and thus no dispute to be decided in terms of s 186(2)(c)
of the LRA.
[3]
[4]
Undeterred, the applicant – represented by Simons van Staden
attorneys – brought a review application to this Court
under
this case number (C 801/2013) on 21 October 2013.
[5]
On 16 December 2013 the applicant was called to a disciplinary
hearing concerning different, unrelated and subsequent allegations
of
misconduct pertaining to insubordination, insolence and his refusal
to follow reasonable instructions. He was dismissed on 2
January
2014. He referred an unfair dismissal dispute to the CCMA.
[6]
On 18 August 2014 the
applicant’s attorneys filed a notice of withdrawal in the first
review application (pertaining to the
ruling on the unfair labour
practice complaint by Commissioner Isaacs) under this case number (C
801/2013). It is headed “
NOTICE
OF WITHDRAWAL OF APPLICATION
”,
signed by the applicant’s attorney, E J Simons of Simons van
Staden, delivered to all the respondents, and
reads
[4]
:
“
KINDLY
TAKE NOTICE THAT
Applicant
hereby withdraws his application,
filed
under the abovementioned case number
against
the abovementioned respondents.
[5]
FURTHER
TAKE NOTE
that the parties are to carry their own respective
legal costs.”
[7]
In early 2015, the dismissal
dispute was referred to arbitration, conciliation having failed. It
came before Commissioner D I K
Wilson.
[6]
The applicant was still legally represented by Mr Simons. In the
applicant’s presence, the following exchange occurred:
[7]
“
ARBITRATOR: Just looking
through the file I see that the matter was previously postponed
because of the pending Labour Court proceedings.
MS BOGATSHU: Yes.
ARBITRATOR: Which I
gather was a review in relation to the final written warning.
MS BOGATHSU: Yes.
ARBITRATOR: Is that
correct?
MS BOGATSHU: The applicant withdrew
that …
ARBITRATOR: That was
withdrawn.
MS BOGATSHU: Yes.
MR SIMONS:
I’ll address you on that Mr Commissioner.”
[8]
Then, in the applicant’s presence, Mr Simons explained the
reasons for the applicant withdrawing his review application
under
this case number pertaining to the unfair labour practice ruling by
Commissioner Isaacs. He stated:
“
What complicated the matter
even further Mr Commissioner was the fact that now we were faced with
the issue as to whether our review
application is not an academic
exercise at best because even [if we] get the ULP overturned we’re
still faced with the issue
that the applicant has effectively been
dismissed and in order to alleviate this problem much of last year
was spent in postponing
the arbitration proceedings in order to
finalise the review application.”
[9]
During this exchange the applicant was present, yet he did not
dispute that the unfair labour practice review had been withdrawn
on
his instructions.
[10]
The arbitrator, Commissioner Wilson, found that the applicant’s
dismissal was fair. The applicant then brought another
review
application, still represented by Simons Van Staden, to this court
under case number C 370/15 on 20 May 2015.
[11]
Five months later, on 23 October 2015, Simons van Staden withdrew as
the applicant’s attorneys of record. And another
four months
later, on 18 February 2016, the applicant addressed a letter to the
Registrar alleging that he had not instructed his
attorneys to
withdraw the unfair labour practice review. He did not copy Simons
van Staden in on that letter. Another nine months
passed before he
brought this application to reopen his case on 15 November 2016 –
in other words, two years after his attorneys
had withdrawn the
application to review the unfair labour practice ruling of
Commissioner Isaacs.
Did
Simons van Staden have authority to withdraw the application?
[12]
The applicant now says that, when his attorneys withdrew the review
application in 2015, they did so without his authority
or
instructions. He did not include a confirmatory affidavit (or any
other affidavit) by Mr Simons or any other attorney at that
firm.
[13]
The employer, Vodacom, argues that Simons had actual authority to
withdraw the application; alternatively, he had a sensible
authority;
and in any event, the applicant is estopped from now claiming that
his attorney did not have such authority.
[14]
The principles on actual
authority, central authority and estoppel were recently set out by
the Constitutional Court in a case involving
the same respondent,
Makate v Vodacom (Pty)
Ltd
[8]
:
“
Actual authority and ostensible
or apparent authority are the opposite sides of the same coin.
If an agent wishes to perform
a juristic act on behalf of a
principal, the agent requires authority to do so, for the act to bind
the principal. If the
principal had conferred the necessary
authority either expressly or impliedly, the agent is taken to have
actual authority. But
if the principal were to deny that she had
conferred the authority, the third party who concluded the juristic
act with the agent
may plead estoppel in replication. In this
context, estoppel is not a form of authority but a rule to the effect
that if
the principal had conducted herself in a manner that misled
the third party into believing that the agent has authority, the
principal
is precluded from denying that the agent had authority.”
[15]
On the evidence before me, I am satisfied that, on a balance of
probabilities, Mr Simons did have actual authority to withdraw
the
application on the applicant’s instructions. That should be
clear from the following facts:
15.1 Having withdrawn the
application in August 2014, Mr Simons continued to represent the
applicant. In the applicant’s
presence, and at the unfair
dismissal dispute arbitration proceedings some months later, Simons
explained to the Commissioner in
clear terms that the applicant had
withdrawn his review application in this matter.
15.2 The applicant did not
take issue with that assurance or indeed, with the earlier
withdrawal. He only raised the
alleged absence of authority in
February 2016, more than a year after the withdrawal of the review
application and many months
after Simons had brought that fact to the
attention of Commissioner Wilson in the applicant’s presence.
And when the applicant
did write to the registrar claiming that
Simons did not have authority, he did not copy Simons van Staden in;
and until today he
has not put any version by Simons before the
court.
[16]
But even if Simons did not have
actual authority to withdraw the matter, he had ostensible or
apparent authority to do so. The Constitutional
Court set out the
relevant principles as follows in
Makate
:
[9]
“
The same misrepresentation may
also lead to an appearance that the agent has the power to act on
behalf of the principal.
This is known as ostensible or
apparent authority in our law. While this kind of authority may
not have been conferred by
the principal, it is still taken to be the
authority of the agent as it appears to others. It is
distinguishable from estoppel
which is not authority at all.
Moreover, estoppel and apparent authority have different elements,
barring one that is common
to both. The common element is the
representation which may take the form of words or conduct.
A closer examination of the original
statement on apparent authority by Lord Denning, quoted below,
reveals that the presence of
authority is established if it is shown
that a principal by words or conduct has created an appearance that
the agent has the power
to act on its behalf. Nothing more is
required. The means by which that appearance is represented
need not be directed
at any person. In other words the
principal need not make the representation to the person claiming
that the agent had apparent
authority. The statement indicates
the absence of the elements of estoppel. It does not mention
prejudice at all.
That statement of English law was imported as
it is into our law in
NBS Bank
and other cases that followed
it.”
[17]
In this case, it appeared to Vodacom that Simons did have the
authority to withdraw the application on behalf of the applicant.
[18]
Both the applicant and Vodacom were represented at the arbitration
proceedings before Commissioner Wilson when both parties
confirmed,
in the presence of the applicant, that the application to review
Commissioner Isaacs’s ruling had been withdrawn.
The applicant
did not object. Neither did he do so until a year later. In those
circumstances, Vodacom reasonably accepted that
Simons had acted on
the authority of the applicant.
[19]
Given my view on actual and
sensible authority, I need not strictly consider whether estoppel is
also applicable. But Vodacom would
also succeed in its plea of
estoppel. The relevant principles were again summarised by the
Constitutional Court in
Makate
:
[10]
“
It is significant to note that
in the statement
[11]
,
Lord Denning stressed that: ‘Ostensible or apparent authority
is the authority of an agent as it appears to others’.
This underscores the distinction between it and estoppel. The
features of estoppel make this distinction even more noticeable.
The essential elements of estoppel in the field of agency are the
following:
(a) a representation made in
words or by conduct, including silence or inaction;
(b) the representation must have
been made by the principal to the person who raises estoppel (the
representee);
(c) the principal must
reasonably have expected that her conduct may mislead the
representee; and
(d) the representee must
reasonably have acted on the representation to his own prejudice.”
[20]
In this case:
20.1 The applicant
made a representation – at least through his silence at the
CCMA arbitration – that
Simons, who remained his attorney, had
the authority to withdraw the review application.
20.2 The applicant must
reasonably have expected that Vodacom would have been misled by his
inaction, given that Vodacom
was led to believe through an official
notice to this Court that the applicant had withdrawn his review
application.
20.3 Vodacom acted on that
representation to its prejudice. It has accepted that the review
application had been withdrawn
and that Commissioner Isaacs’s
ruling in the unfair Labour practice dispute stands. It has an
interest in finality. It would
be to its prejudice now, two years
after the event, to have to incur further costs in defending a review
application that had been
withdrawn.
Conclusion
[21]
For all these reasons, the application to re-open the case cannot
succeed.
[22]
With regard to costs, I take into account that there is no longer any
relationship between the parties; that the employee had
initially
agreed to the sanction that he then challenged at arbitration; and
that the employer has had to incur further unnecessary
costs after
the dispute had been subject to final and binding arbitration at the
CCMA and after the applicant’s attorney
had withdrawn the
subsequent review application. In law and fairness, though, I do not
think that the applicant should be ordered
to pay the wasted costs
for the postponement on 3
rd
May 2017. Even though he did
not need to lead any evidence, he appeared to express himself well in
English, and he only asked for
an interpreter on the day. It is his
Constitutional right to do so. It is also due to no fault of his that
the Court had to stand
down for another hour on Friday 12
th
May to wait for an interpreter. Those costs must also be excluded.
Order
The
application is dismissed with costs, such costs to exclude the wasted
costs incurred by the postponement on 3 May 2017 and the
unavailability of an interpreter from 10:00 until 11:00 on 12 May
2017.
_______________________
Steenkamp
J
APPEARANCES
APPLICANT:
In person.
FIRST
RESPONDENT: Riaz Itkin
Instructed
by
Edward Nathan Sonnenbergs.
[1]
The second
respondent.
[2]
The third
respondent.
[3]
Labour
Relations Act 66 of 1995.
[4]
(Underlining,
capitalisation and bold lettering as in original).
[5]
The
respondents being Vodacom (Pty) Ltd, the CCMA and Commissioner
Isaacs.
[6]
The fourth
respondent.
[7]
Ms Bogatshu
was Vodacom’s representative in the dismissal arbitration.
[8]
2016 (4) SA
121
(CC) par 45.
[9]
Above paras
46-47.
[10]
Above par
45.
[11]
Hely-Hutchinson v Brayhead
Ltd and Another
[1968] 1
QB 549
(CA) (
Hely-Hutchinson
CA
) at 583 A-G.