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[2018] ZALCJHB 320
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National Education Health and Allied Workers Union (NEHAWU) v Minister of Health and Another (J3321/18) [2018] ZALCJHB 320 (2 October 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: J 3321/18
In the matter between:
THE NATIONAL EDUCATION
HEALTH AND
ALLIED WORKERS UNION
(NEHAWU)
Applicant
and
THE
MINISTER OF
HEALTH
First
Respondent
THE
NATIONAL DEPARTMENT OF
HEALTH
Second
Respondent
Heard:
28 September 2018
Delivered:
2 October 2018
Summary:
Urgent application to declare that the Applicant’s members who
have not been reporting for duty since 15 August 2018
have not
breached their contracts of employment and that they are entitled to
remuneration. The Respondents filed an application
to strike out
averments that constitute hearsay, opinion evidence and new matter.
JUDGMENT
PRINSLOO,
J
Background
[1]
The
Applicant seeks an order to declare that its members, employed by the
Second Respondent (the Department) and who render services
at the
Civitas building (Civitas) and who have not been reporting for duty
at the said building since 15 August 2018, have not
breached their
contracts of employment by failing to so report and that they be
remunerated for the period from 15 August 2018
up to the date on
which either Respondent designates a site other than Civitas at which
the said members are to render their services
or the date on which
the National Institute for Occupational Health (NIOH) has certified
that the recommendations contained in
two reports by the NIOH, have
been implemented.
[2]
The
matter was enrolled on the urgent Court roll of 21 September 2018
when the parties agreed to postpone the matter to the urgent
roll of
28 September 2018 and on the filing of further affidavits.
[3]
On 28
September 2018 when the matter was to be argued, the Respondents
filed a notice to strike out certain averments in the Applicant’s
papers. Mr Beaton, for the Applicant, submitted that the application
to strike out should be dealt with first so that the Applicant
could
be in a position to know what was left in its application and on
which averments argument should be presented.
The
application to strike
[4]
The
Respondents applied for certain paragraphs in the Applicant’s
affidavits to be struck out on the basis that the averments
therein
constitute inadmissible hearsay evidence, opinion evidence and new
material in reply. The Respondents submitted that the
failure to
strike out the specific averments, which I will deal with
infra
,
will prejudice them.
Hearsay
evidence
[5]
The
Respondents took issue with averments made in the founding and
replying affidavits and for certain averments to be struck out
as
they constitute hearsay evidence.
[6]
Issue is
taken with averments made in respect of ailments. Specific issue is
taken with portions of paragraphs 7.1.1 and 7.1.2 of
the founding
affidavit and paragraphs 5 and 6.1, 8, 15, 17 and 27 of the replying
affidavit, relating to alleged ailments suffered
by the Applicant’s
members and ailments suffered by Dr Andrews and their experiences in
this regard. Ms Hassim for the Respondents
submitted that the
deponent referred to health issues that affected ‘many’
of the Applicant’s members as at February
2018, without stating
who the ‘many’ members are and without any supporting
evidence. In respect of Dr Andrews’
symptoms, Ms Hassim
submitted that there was no affidavit from Dr Andrews to support this
statement, nor was there any medical
evidence or any report about
these symptoms experienced by Dr Andrews to the Department.
[7]
In
answer, Mr Beaton referred to paragraph 6.1 of the replying affidavit
where Mr Mugagadeli’s version has been set out, with
a
confirmatory affidavit appended to the replying affidavit. In
paragraph 34 of the replying affidavit it is averred that Mr
Mugagadeli
obtained access to his office on 25 September 2018 and
found three employees in his immediate proximity still suffered from
the
symptoms described in the founding affidavit. Mr Beaton submitted
that Mr Mugagadeli did not say what their symptoms are, but stated
what he saw and that was not hearsay. Mr Beaton also referred to
paragraph 8 of the replying affidavit wherein the deponent referred
to paragraph 9.4 of the founding affidavit where Ms Mohlahla
confirmed, as per a confirmatory affidavit, that she frequents the
doctor with various symptoms as a result of the unhealthy building
conditions at Civitas. Insofar as paragraph 9.4 of the founding
affidavit provides evidence of the symptoms, it is not hearsay. The
deponent further stated that the Applicant’s members
consulted
her and reported to her about the problems in Civitas, in her
capacity as deputy secretary of the Gauteng Provincial
Committee of
the Applicant and as such she gained personal knowledge of their
ailments and this does not constitute hearsay evidence.
[8]
Ms Hassim
argued that in respect of the hearsay evidence, the Respondents will
be prejudiced in that they have to come to Court
to meet and defend a
case where there is no admissible evidence placed before Court. There
is merit in this argument and the prejudice
in this regard is
obvious.
[9]
Mr Beaton
on the other hand argued that there is no prejudice as there is no
hearsay in the Applicant’s papers before Court.
[10]
Hearsay
evidence is defined
[1]
as
evidence, the probative value of which depends on the credibility of
any person other than the person giving such evidence.
[11]
In
Mgobhozi
v Naidoo NO and others
[2]
the
Labour Appeal Court considered the Law of Evidence Amendment Act and
held that:
‘
Section
3(4) above makes it clear that hearsay evidence includes that given
in writing by a person other than the person deposing
to the
affidavit that includes the evidence in question. The fact that the
appellant on oath in an affidavit refers to the medical
certificates
of other witnesses does not rescue such affidavit from the stigma of
hearsay There obviously have to be affidavits
from the doctors in
question themselves’.
[12]
In
Mgobhozi
the
Labour Appeal Court held that the medical certificates should not
have been considered by the Labour Court.
[13]
In
casu,
the
deponent, in her replying affidavit and in explaining the issues,
stated that she gained personal knowledge of the ailments
when the
Applicant’s members consulted her and reported to her about the
problems in Civitas. This falls squarely within
the definition of
hearsay evidence. Furthermore, the deponent’s reference to the
letter from Dr Andrews wherein she stated
that she suffers symptoms
as a result of working in Civitas, does not rescue it from being
hearsay.
[14]
There is
merit in the Respondents’ compliant that the deponent does not
state who the many members are and that there is no
supporting
evidence in this regard. The Applicant’s averments in respect
of the ailments of many members and the experiences
of the members,
are based on what unidentified members told or conveyed to the
deponent and that constitutes hearsay evidence.
Averments containing
hearsay are to be struck out with the exception of instances where
the averments are confirmed by the member
suffering from the alleged
ailments and confirming the experiences as described by the deponent.
[15]
Issue is
also taken with paragraph 7.8 of the founding affidavit to the extent
that the deponent was not present at the meeting
held on 10 August
2018. A proper perusal of the founding affidavit shows that there is
no merit in this complaint. The deponent
specifically stated in
paragraph 7.7 that the meeting was attended by the Applicant, whom
she represented, and it is clear that
she attended the meeting.
[16]
The
Respondents took issue with paragraph 30 of the replying affidavit to
the extent that it relies on events with representatives
of the
Department of Labour. There is no merit in this complaint as
reference is made to Messrs Mugagadeli and Mzolo, who were
present
and in respect of whom confirmatory affidavits are appended.
[17]
In
summary, there is merit in the Respondents’ complaints in
respect of paragraphs 7.1.1 and 7.1.2 of the founding affidavit
and
paragraphs 5, 6.1, 8, 15, 17, 27 and 34 of the replying affidavit to
the extent that averments in the said paragraphs constitute
hearsay
evidence relating to ailments and experiences of individuals or
members of the Applicant that are not identified and not
supported by
any confirmatory affidavits. Where the averments are supported by
confirmatory affidavits, they do not constitute
hearsay evidence.
Opinion
evidence
[18]
The Respondents took issue with
several paragraphs in the Applicant’s replying affidavit as
opinion evidence insofar as they
purport to provide medical expert
evidence of the cause of any alleged ailment or purport to provide
expert evidence.
[19]
Ms Hassim submitted that the
Applicant’s averments complained of all deal with the ailments
of the Applicant’s members
and the conclusion that the
environment is unsafe and the building unhealthy. She submitted that
only a medical doctor can provide
evidence in respect of the ailments
and only a mechanical engineer can confirm the issues raised in
respect of the air conditioners,
the flow of air, the quality of the
air etcetera. The deponent made averments that Civitas has sick
building syndrome, that the
environment is unhealthy and unsafe and
that the turning on of the air conditioning units in each room in
Civitas would not address
the problems raised by the Applicant.
[20]
Ms Hassim argued that no one
who deposed to any affidavit in the Applicant’s case is
qualified to express an opinion on the
aforesaid issues. Only experts
can express an opinion on the said issues and there is no expert
evidence placed before this Court.
[21]
Mr Beaton conceded that there
was some opinion expressed in the Applicant’s papers but he
submitted that it is not a basis
for this Court to strike out the
averments, as argued by the Applicant. Mr Beaton submitted that the
Court has to be satisfied,
on a whole, that the symptoms and ailments
complained of are there and that the problem with the airflow is the
most probable cause
of those. He submitted that the opinion evidence
should not be struck out, but that the Court should give it
appropriate weight.
[22]
A witness’
objective statement of fact about a directly observed event is
relevant and admissible. A witness’ opinion
about it is
irrelevant and inadmissible. As it has no probative value and cannot
assist the Court in proving a fact in issue. The
Court can draw its
own opinion from the received facts and does not need to rely on the
opinion of a witness. Opinion evidence
however becomes relevant and
admissible when it can assist the Court in deciding on a fact in
issue. There are two instances in
which opinion evidence becomes
relevant and admissible. First, the opinion of a layperson is
relevant and admissible on certain
issues which fall within the
competence and experience of laypersons generally and second, expert
opinion evidence in the form
of an appropriately qualified expert is
admissible to assist the Court in determining facts in issue that
require specialist knowledge
not available to the Court. A
layperson’s opinion must be shown to be based on such person’s
own observations of a
fact in issue before the Court and will be
admissible when it can assist the Court on a fact in issue
[3]
.
[23]
Many of the paragraphs
complained about, have been dealt with
supra
as part of the challenge to
hearsay evidence and I do not deem it necessary to deal with
averments that have already been struck
out.
[24]
To the extent that the
Applicant’s witnesses inform the Court of their own
observations, the evidence is admissible. The Court
itself must
evaluate their evidence, draw its own conclusions from them and apply
the law. Insofar as opinion evidence remains,
the witness expressing
an opinion must be competent to give an opinion about the subject in
question and to the extent that the
deponent or other witnesses for
the Applicant are competent to give an opinion, this Court has to
consider it. To the extent that
expert evidence is required, this
Court cannot attach any weight to the evidence presented by the
Applicant that is not expert
evidence.
[25]
Ms Hassim submitted that the
prejudice to be suffered by the Respondents is that expert evidence
is required and that the Court
cannot draw inferences from the facts
as presented. In my view, this prejudice, if it exists, is prejudice
the Applicant would
face rather than the Respondents.
[26]
I am not inclined to strike out
the paragraphs listed by the Respondents (except the ones already
struck out) as opinion evidence
as I am of the view that this Court
has to draw its own conclusions and can decide what weight to attach
to the evidence presented.
New
matter
[27]
The Respondents submitted that
new matter is raised in the Applicant’s replying affidavit.
[28]
In
De
Beer v Minister of Safety and Security and Another
[4]
it
was held that:
It
is trite law that an applicant must stand or fall by his or her
founding affidavit. The applicant is therefore not permitted
to
introduce new matter in the replying affidavit. The courts strike out
such new matter. New matter may be allowed in the absence
of
prejudice and in circumstances where the new matter amplifies and
enlarges upon the case made out by the applicant in the founding
affidavit. In this regard see
Union
Finance Holdings Ltd v IS Mirk Office Machines II
A
(Pty)
Ltd &
another
2001
(4) SA 842 (W)
and
unreported
case of
Nondwedwe
Kama & others v Nombulelo Anoria Kama & another
case no 1357/20050 of the Eastern Cape High Court.
[29]
The
Respondents seek to strike out paragraphs 6.2, 30, 34, 36, 37, 41 and
44 of the replying affidavit as new matter is raised in
the reply in
the said paragraphs.
[30]
Mr Beaton
submitted that the averments contained in these paragraphs are
responses raised in respect of allegations in the Respondents’
answering affidavit and relate to issues raised in the founding
affidavit and the answering affidavit and as such do not constitute
new matter.
[31]
A perusal of
the papers shows that paragraphs 6.2, 30, 34, 36, 37, 41 and 44 of
the replying affidavit are indeed responses to averments
made in the
answering affidavit and to strike out the aforesaid paragraphs will
defeat the purpose of filing a replying affidavit.
The Applicant has
not raised new matter in reply and it follows that the said
paragraphs are not to be struck out.
[32]
This Court
has a broad discretion in terms of section 162 of the Labour
Relations Act
[5]
to make orders
for costs according to the requirements of the law and fairness.
Considering that the parties are in a collective
bargaining
relationship, the interest of justice and fairness will, at this
point of the litigation, be best served by making no
order as to
costs.
[33]
In the premises, I make the following order:
Order:
1.
The
portion of paragraphs 7.1.1 and 7.1.2 of the founding affidavit and
paragraphs 5, 6.1, 8, 15, 17 and 34 of the replying affidavit
relating to ailments and experiences of individuals or members of the
Applicant are struck out;
2.
Paragraph
27 of the replying affidavit is struck out;
3.
The
parties may approach the Registrar of this Court to enroll the
application on the urgent Court roll;
4.
There is no order as to costs.
__________________
Connie
Prinsloo
Judge of the Labour Court
of South Africa
Appearances:
For the Applicants:
Advocate R Beaton SC
Instructed by: Finck
Attorneys
For the Respondents:
Advocate S Hassim SC with Advocate L Pillay
Instructed by: TRG
Attorneys
[1]
Section
3(4) of the Law of Evidence Amendment Act 45 of 1988.
[2]
(2006)
27 ILJ 786 (LAC) at para 22.
[3]
The
Law of Evidence in South Africa, Basic Principles,
Bellengere
et al, Oxford University Press, 2014 at p 255 – 257.
[4]
(2011)
32 ILJ 2506 (LC).
[5]
Act 66 of 1995 as
amended.