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[2018] ZALCJHB 338
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Carrington-Hall v Safintra Roofing (Pty) Ltd (J825/07; JS647/07) [2018] ZALCJHB 338 (18 September 2018)
Not
reportable
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
Case
Nos: J 825/07 & JS 647/07
In
the matter between:
BEVERLEY
CARRINGTON-HALL
Applicant
and
SAFINTRA
ROOFING (PTY) LTD
Respondent
Heard
:
6 September 2018
Delivered
:
18 September 2018
Summary:
(Trial – condonation application – pre-trial minute not
concluded – condonation application pending – further
steps to finalise condonation application and pre-trial minute not
taken – extraordinary delay in prosecuting matter not
fully
explained – prejudice of delayed trial significant)
JUDGMENT
LAGRANGE
J
Background
[1]
Two matters were enrolled for determination: the applicant’s
original application to condone the late referral of her
statement of
case and the respondent’s application to dismiss her
condonation application and, by implication, her referral,
on account
of her failure to prosecute her application timeously. Because the
two applications are closely interrelated they have
to be considered
together. In this judgment, I shall refer to the parties by their
citation in the original condonation application.
Supplementary
affidavit filed by the applicant
[2]
After the matter was heard, but the day before judgment was due to be
handed down, the applicant filed ‘supplementary
submissions’
in the form of an affidavit couched as an application to submit
further evidence. The document was prefaced
with a disclaimer by the
applicant reaffirming her ‘lack of familiarity’ with
labour law and requesting the court’s
indulgence of her
request. Despite the belated submission of what was effectively
an irregular submission of supplementary
affidavit after pleadings in
the matter had closed, the respondent was requested by the court to
respond thereto, which it did.
[3]
Understandably, the respondent
objected to the irregular nature of the step, and referred to the
decision of this court in
Impala
Platinum Ltd v Monageng Mothiba N.O. and Others
[1]
,
which reaffirms the principles governing the admission of
supplementary affidavits:
[4] The rules of this court regulating
motion proceedings make no provision for the filing of a
supplementary answering affidavit.
The rules accord with those of the
uniform rules of the High Court, which do not permit the filing of
further affidavits, without
the leave of the court. In the present
instance, that leave has not been sought. In Hano Trading CC v JR 209
Investments (Pty)
Ltd
2013 (1) SA 1
61 (SCA), the Supreme Court of
appeal stated that the filing of further affidavits in motion
proceedings is permitted only with
the indulgence of the court, and
that the court has the sole discretion whether or not to allow such
affidavits. Where there is
no reason place before the court for
requesting it to permit the filing of further affidavits, the court
would be correct in ruling
that the affidavits are inadmissible. This
decision is consistent with a recent decision in this court. In
Bafokeng Rasimone Platinum
Mine (Pty) Ltd v CCMA & others (2015)
36 ILJ 3045 (LC), the court held that a party to review proceedings
should be careful
to ensure that its case is canvassed in full at the
time of drafting and that after close of pleadings, additional
affidavits will
not be permitted, except perhaps in exceptional
circumstances. In particular, it is not open to a party to raise
points in additional
affidavits that ought to have been raised at the
appropriate time; ultimately, the admission of additional affidavits
is a matter
fairness to both parties.
[4]
In this instance pleadings in the original condonation application
had closed years ago. The applicant took several years to
file her
opposing affidavit in the dismissal application and the replying
affidavit in that application was filed by mid-June 2018.
The
applicant had at least a couple of months to think about whether or
not she wanted to place further facts before the court
and apply to
file a supplementary affidavit with a request to have it admitted. It
was only after the matter was argued that she
saw fit to try and
place additional information before the court. To permit such a
practice where there is no justification why
the information could
not have been provided in the original pleadings or at least before
the matter was argued would lead to interminable
motion court
proceedings. To admit the admission of belated supplementary
allegations under such circumstances would require
an extraordinary
justification in my view. Merely claiming to be unfamiliar with court
procedure is not a good enough justification
in the circumstances of
this matter.
[5]
In any event, even if I was prepared to admit the supplementary
affidavit, it would not materially assist the applicant in overcoming
the biggest problem she has, namely the delay of several years before
she filed her opposing affidavit or took any other steps
to prosecute
her claim, for which her explanation is woefully inadequate. In her
supplementary papers, the key points she raises
are that her advisor
in 2009 who was corresponding with the respondent’s attorneys
on her behalf did not receive a letter
which was faxed to him in
which they explained what was expected of her at that stage. However,
this is hearsay evidence as it
is unsupported by a confirmatory
affidavit from the advisor and there is no explanation why it was not
received despite the respondent
attaching a fax transmission slip
showing it was successfully transmitted to the fax number which
appears on his letterhead. The
other material point she raises is
that, correspondence was served on an address she no longer used, but
nowhere does she claim
that she notified the respondent of an
alternative address they should use for service.
Summary
of the factual narrative
[6]
The application for condonation appears to have been filed in
September 2007. The certificate of outcome was issued on 30 October
2006. The applicant should have referred her case to court by 28
January 2007 in terms of
s 191(11)(a)
of the
Labour Relations Act, 66
of 1995
(‘the LRA’). The referral was only made on 7
September 2007. Accordingly, the degree of lateness was considerable.
[7]
The applicant’s explanation for the delay in her referral, in
summary was that:
7.1 Initially, she enrolled the matter
for arbitration on 17 January 2007. An award was issued on 31 January
2007 and she applied
for it to be certified.
7.2 On 27 March 2007, the respondent
applied to rescind the award, which succeeded on 2 August 2007.
7.3 The matter was re-enrolled on 30
August 2007 for arbitration.
7.4 However, the commissioner ruled,
on the strength of a recent labour court judgement at the time that
the Labour Court had exclusive
jurisdiction in the matter even where
only one employee had been retrenched if procedural fairness was an
issue in dispute.
7.5 The applicant then promptly
referred the matter to the labour court.
[8]
Had the applicant prosecuted the matter timeously at that stage, in
all likelihood, the late referral of her case to the labour
court
would have been condoned. However, she took no further steps in the
matter for some years despite being advised of what she
needed to do,
as summarised below.
[9]
A pre-trial conference was held on 5 November 2007, but the matter
never proceeded as the applicant’s attorneys of record
withdrew
on 7 March 2008. The last step taken was that, the respondent was
waiting for responses to questions put to the applicant
in the course
of trying to finalise the pre-trial minute.
[10]
In April 2008, the respondent attempted to pursue the conclusion of
the pre-trial minute with the applicant herself, but she
never
responded to four letters, the last of which was sent on 9 September
2008 warning her that she needed to enrol the application
for
condonation and that if she did not index and paginate the file, an
application would be brought to dismiss her condonation
application
because fourteen months had elapsed since she had taken any further
steps to prosecute her claim. It must be stressed
that it was the
respondent who was taking the initiative in trying to get the
pre-trial process moving. In her opposing affidavit,
the applicant
did not attempt explain why she had not responded to any of that
correspondence and it was only in court that she
explained that she
had relocated to Port Elizabeth and that the respondent’s
correspondence was still been sent to her former
Johannesburg
address. Obviously though it was her responsibility to notify the
respondent of any change of address and the respondent
could not be
faulted if she only saw the correspondence later.
[11]
In any event, she was aware of the application to dismiss the
condonation application, which was launched on 12 February 2009.
The
same month, she appointed a person, supposedly with some expertise,
to correspond with the respondent’s attorneys about
the
dismissal application. Their unambiguous response in a letter dated 2
March 2009 was as follows:
We confirm that we have brought an
application to dismiss Ms Carrington-Hall’s Condonation
Application and Statement of Case
on the basis that she has done
nothing to further this matter for a lengthy period of time. In the
event that Ms Carrington-Hall
wishes to oppose the said Application
she is entitled to do so by filing a Notice to Oppose and an
Answering Affidavit. We are
of the view that the factual dispute
between the parties are best dealt with in this manner. In the event
that Ms Carrington-Hall
cannot deliver her Opposing papers timeously,
an application for condonation will be necessary.
[12]
Despite this clear message in 2009, and despite obtaining legal
assistance in 2016, the applicant only filed her
opposing affidavit
on 5 June 2018, some nine years later. Unsurprisingly, the employer
objects to the late filing of the answering
affidavit on the basis
that it is over nine years late. The applicant claimed to have been
seeking advice and assistance from various
quarters during this
prolonged period of delay. However, if she was in doubt about what
she needed to do, she never even attempted
in 2009 to follow the
advice in the abovementioned letter from the respondent’s
attorneys nor, if she was uncertain what
that advice meant, did she
contact them to obtain further clarity. She claims she was not
advised that it was her responsibility
to drive case.
Evaluation
[13]
In the circumstances, I am satisfied that the applicant had ample
opportunity and ample warning of the need to oppose the dismissal
application and what she needed to do if she intended to pursue her
claim and her condonation application. Even if she had no legal
expertise, it would have been clear from the notice of motion served
on her that she was expected to file a notice of opposition.
Moreover, from the letter written to applicant’s attorneys on
her behalf in February 2009, it was evident that she appreciated
the
need to file opposing papers at that point in time.
[14]
The applicant’s explanation for her inaction for a period of
approximately nine years is simply wholly inadequate given
the length
of the delay. The respondent complains that it will suffer enormous
prejudice if it has to defend the unfair retrenchment
after so long
in circumstances where many of the potential witnesses have left its
employment, quite apart from the difficulty
of reconstructing the
matter so many years later. In argument, the applicant submitted that
all of the potential witnesses were
still ‘around’ and
could be contacted. However, the mere existence of witnesses is not
the only issue to consider when
evaluating potential prejudice. It is
blatantly obvious that the party that bears the onus of proving the
fairness of a dismissal
is likely to be disadvantaged by lapses of
memory on the part of witnesses after such a lengthy period of time.
[15]
In my view, this is one of those instances where the extraordinarily
excessive delay and absence of a proper justification
for not
pursuing the condonation application or taking any other steps to
prosecute her unfair dismissal claim constitute sufficient
reason to
dismiss the condonation application without consideration of the
merits of her original case.
Order
[16]
The applicant’s belated application to file a supplementary
affidavit is dismissed.
[17]
The applicant’s condonation application for the late referral
of her statement of claim is dismissed and consequently
the referral
itself is dismissed.
[18]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
In
person
RESPONDENT:
I
Gwanza of Edward Nathan Sonnenberg Inc
[1]
(JR2567/13) [2016] ZALCJHB 475 (10 June 2016)