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[2018] ZALCJHB 349
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National Education Health and Allied Workers Union (NEHAWU) v Minister of Health and Another (J 3321/18) [2018] ZALCJHB 349 (31 October 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
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:
24 October 2018
Delivered:
31 October 2018
Summary:
The Applicant filed an application to admit into evidence further
affidavits. Application dismissed as the evidence was
available at
the time of the filing of the application with no acceptable
explanation why it was not placed before Court earlier.
Consideration
of the explanation and prejudice.
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 the Respondent designates a site other than Civitas at
which the said members are to render 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 has developed somewhat of a history. It was initially 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. On 28
September 2018 the Respondents filed a notice
to strike out certain
averments in the Applicant’s papers.
[3]
On
2 October 2018 judgment in the application to strike out was handed
down and the matter was once again enrolled for urgent hearing
on 24
October 2018. On this occasion the Applicant filed an application for
an order admitting into evidence further affidavits.
The Respondents
opposed the said application.
The
general principles
[4]
The
ordinary rule of practice is that three sets of affidavits are
allowed, namely, a founding, an answering and a replying affidavit.
The court may, on its discretion, permit the filing of further
affidavits and the relevant authorities indicate that leave will
be
granted for filing further affidavits only in ‘exceptional
circumstances’
[1]
or in
‘special circumstances’
[2]
or if the court considers it advisable
[3]
.
[5]
In
James
Brown & Hamer (Pty) Ltd (previously named Gilbert Hamer & Co
Ltd) v Simmons
[4]
the Appellate Division held as follows:
‘
It
is in the interests of the administration of justice that the
well-known and well-established general rules regarding the number
of
sets and the proper sequence of affidavits in motion proceedings
should ordinarily be observed. That is not to say that those
general
rules must always be rigidly applied: some flexibility, controlled by
the presiding Judge exercising his discretion in
relation to the
facts of the case before him, must necessarily also be permitted’.
[6]
There must
be a proper and satisfactory explanation as to why the facts or
information contained in the additional affidavit were
not placed
before the court earlier and the court must be satisfied that no
prejudice is caused to the other party that cannot
be remedied by an
appropriate order as to costs
[5]
.
[7]
It is trite
that an applicant has to make out a case in the founding affidavit
and the general rule is that the applicant must stand
or fall by the
founding affidavit and the facts alleged in it, although it is
sometimes permissible to supplement the allegations
contained in the
founding affidavit. If the applicant merely sets out a skeleton case
in the founding affidavit, any fortifying
paragraphs in the replying
affidavit will be struck out.
[8]
In
Bafokeng
Rasimone Platinum Mine (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitrations and Others
[6]
the Court considered an application to permit an additional affidavit
after the close of pleadings and held that:
[4] When the matter was argued it
became apparent that the issues that the applicant wished to raise in
the additional affidavit
had come to light after counsel had perused
the application. All the material on which the additional affidavit
was based was already
before the applicant's attorneys by the time
the supplementary affidavit was filed. Review applications by their
nature give the
applicant party ample time to consider the merits of
its case before filing a supplementary affidavit. No reasons were
advanced
why the matters raised in the additional affidavit could not
have been raised in the supplementary affidavit. The fact that an
applicant subjects the record to more careful scrutiny after
pleadings have closed and discovers further points it could have
raised
previously but did not, does not amount to exceptional
circumstances justifying the reopening of the pleadings. The
applicant argued
that there would be no prejudice to the third
respondent, because the court would obviously grant him an
opportunity to respond
if the additional affidavit was admitted. On
this principle, an applicant could keep adding to its case
ad
nauseam
and a respondent party would have to keep incurring
further costs for each additional perusal of the record required to
consider
the new points raised as and when the applicant deigned to
reconsider its case. Insofar as the admission of additional
affidavits
is a matter of fairness to both parties, there is nothing
fair about allowing a party to add to its case in the absence of a
very
satisfactory explanation for the earlier omission.
[5]…Pleadings are intended,
amongst other things, to identify the nature and parameters of a
dispute. Care must be taken
at the time of drafting to ensure that
the full ambit of a party's case is canvassed.’
[9]
Although
the aforesaid judgment was given in the context of a review
application, the application of the principles identified in
respect
of exceptional circumstances and prejudice is not limited only to
review applications.
[10]
In
Bafokeng
Rasimone
[7]
the
Court concluded that:
‘
There
may be exceptional circumstances where issues come to light that a
party exercising reasonable diligence in the preparation
of its case
could not have been aware of, or where there is some other
justifiable reason why a material issue is omitted. In this
case no
such reason has been provided to excuse omissions from the
applicant's founding papers. I see no justification for the
third
respondent to be burdened months later with having to consider
answering further matters that should have been raised at
the time
the supplementary affidavit was filed.’
The
application to admit further affidavits
[11]
In an
application such as the present one, there are two main
considerations namely; exceptional circumstances and prejudice. I
deal with these considerations
infra.
Exceptional
circumstances
[12]
There must
be a proper and satisfactory explanation as to why the facts or
information contained in the additional affidavits were
not placed
before the court earlier.
The
deponent to the Applicant’s founding and replying affidavits,
Ms Rikhotso, deposed to a supplementary affidavit in support
of the
application to admit further affidavits as evidence. Ms Rikhotso
explained that the striking out of the specific content,
as per the
Court order of 2 October 2018, has the effect that the Court may deem
the application wanting for a lack of evidence,
specifically in
relation to the health issues raised by the Applicant’s
members, as a result of the conditions at the Civitas
building.
[13]
The
Applicant seeks to admit further affidavits deposed to by specific
members of the Applicant that confirm the symptoms they experience
and that give further evidence that the symptoms are related to the
environment at the Civitas building.
[14]
The
Applicant’s case is that the affidavits merely confirm that the
issues raised in the founding papers are not hearsay,
but are
symptoms actually experienced by the Applicant’s members in the
building.
[15]
There
are a number of difficulties with the explanation tendered by Ms
Rikhotso. It is evident that the facts the Applicant now
seeks to
place before this Court, existed and were known at the time of the
filing of the application. Ms Rikhotso’s explanation
as to why
the facts were not placed before Court earlier, is that the founding
papers were drafted on an urgent basis and that
the concerns of the
Applicant’s members with regard to the Civitas building are
well known to the Respondents and she was
of the view that her
experience of the members’ conditions and the letter from Dr
Andrews would suffice to prove the effect
of the building’s
defects on the members. Ms Rikhotso stated that she only now
realised that her view was mistaken.
[16]
I
accept that where papers are prepared on an urgent basis, there may
be
exceptional
circumstances where issues come to light that a party exercising
reasonable diligence in the preparation of its case
could not have
been aware of, or where there is some other justifiable reason as to
why a material issue was omitted.
[17]
This
is however not such a case.
In
casu,
Ms
Rikhotso was of the view that her experience of the members’
conditions and a letter from Dr Andrews would suffice to make
out a
case that the Respondents were not complying with their duty to
ensure reasonably healthy and safe working conditions in
the Civitas
building. Some of the averments made by Ms Rikhotso amounted to
hearsay and were struck out for that reason. It should
have been
evident from the onset that Ms Rikhotso’s statements in respect
of health issues that affected ‘many’
of the Applicant’s
members without stating who the ‘many’ members are and
without any supporting evidence, would
amount to hearsay evidence.
[18]
Ms
Hassim for the Respondents, submitted that the explanation given by
Ms Rikhotso that she was of the view that her experience
of the
members’ conditions would suffice, is to be rejected as she
made no attempt in the founding affidavit to set out what
her
experience of the members’ conditions was, how she obtained the
knowledge and why her version of the facts should be
accepted in the
absence of any evidence from the affected members.
[19]
I
am not satisfied that the Applicant has provided a satisfactory
explanation for the omission to place the facts and versions it
now
seeks to introduce before Court earlier. There is also no exceptional
circumstance present that justifies the permitting of
further
affidavits.
[20]
In
casu,
holes
were poked in the Applicant’s case and this application is no
more than an attempt to plug those holes.
Prejudice
[21]
This Court
must be satisfied that by permitting further affidavits, no prejudice
is caused to the other party that cannot be remedied
by an
appropriate order as to costs.
[22]
The
Applicant submitted that in the event that this Court does not admit
the filing of the said affidavits, the Applicant would
have to issue
a fresh application which would serve only to burden the Court roll
and result in unnecessary costs for all the parties
in having to
duplicate the papers as well as a further delay in the adjudication
of the merits of this dispute.
[23]
In
my view this can hardly be said to be a reason to admit further
affidavits, more so in a case such as the present where the matter
had already been allocated for hearing on the urgent roll on three
different occasions. The Applicant has already burdened this
Court
roll and that
per
se
is
not a reason to admit further affidavits. If the Applicant has
arrived at the point where it has to issue a fresh application,
so be
it.
[24]
Mr
Beaton for the Applicant submitted that it is in the interest of
justice to admit the further affidavits, considering the question
of
fairness to both parties, and the fact that the Respondents were
afforded the opportunity to file a response to the further
affidavits.
[25]
This
aspect was considered in
Bafokeng
[8]
where
the
applicant
also argued that there would be no prejudice to the respondent,
because he would obviously be granted an opportunity to
respond if
the additional affidavit was admitted. The Court rejected the
argument because on this principle, an applicant could
keep adding to
its case
ad
nauseam
and a respondent party would have to keep incurring further costs for
each occasion when the applicant deigned to reconsider its
case.
[26]
Ms
Hassim submitted that the further affidavits should not be allowed
because the said affidavits seek to introduce inadmissible
evidence
in the form of hearsay and opinion evidence. Reference is made to
medical certificates attached to the affidavits to
inter
alia,
show
and confirm that the symptoms “were caused as a result of the
stuffiness at work/lack of proper air circulation in my
office and
the dirty carpets.”
[27]
In
Mgobhozi
v Naidoo NO and Others
[9]
the
Labour Appeal Court (LAC) considered the Law of Evidence Amendment
Act
[10]
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.’
[28]
In
Mgobhozi
[11]
the Labour Appeal Court held that the medical certificates should not
have been considered by the Labour Court.
In
casu,
there
are no affidavits deposed to by the medical practitioners and any
evidence in respect of the medical certificates and the
confirmation
that the symptoms experienced were caused by the working conditions
at the Civitas building, is hearsay and cannot
be considered by this
Court.
[29]
To
the extent that the deponents to the further affidavits stated that
the only cause of their symptoms is the air quality and air
circulation at their workplace and the conditions at the Civitas
building, they express an opinion.
[30]
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.
[31]
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 for example the age of a person (young,
middle aged or
old), the state of the weather during a particular event (hot, cold,
rainy, sunny) or whether a person is tall,
short, fat or thin.
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. The opinion of expert witnesses
is relevant and admissible
because experts, as a result of their specialist, technical skills or
knowledge, are better qualified
than a court to draw proper
inferences on certain facts in issue. The expert can provide the
court with specialist knowledge which
falls outside the competence
and experience of a court.
[32]
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
[12]
.
To the extent that a witnesses informs the Court of his/her own
observations, the evidence is admissible. Insofar as an opinion
is
expressed, 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.
[33]
In casu,
whether
the Applicant’s members’ ailments are caused by the
conditions at the Civitas building, is a fact in issue.
The deponents
to the further affidavits express an opinion as to the cause of their
ailments or conditions and they present to
the Court, the conclusion
that
the
only cause of their symptoms is the air quality and air circulation
at their workplace and the conditions at the Civitas building.
Ms
Hassim submitted that
only
a medical doctor can provide evidence in respect of the ailments and
only a mechanical engineer or other expert can confirm
the issues
raised in respect of the air conditioners, the flow of air, the
quality of the air, etcetera.
[34]
The
deponents to the further affidavits have not stated that they are
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. To the extent that
expert evidence
is required, this Court cannot attach any weight to the evidence
presented as it is no more than an opinion expressed
by a layperson.
[35]
This Court
has a discretion to allow further affidavits, considering the
explanation and prejudice. I am not inclined to allow further
affidavits in circumstances where the Applicant failed to
provide
a satisfactory explanation for the omission to place the facts and
versions it now seeks to introduce before Court earlier.
[36]
The
Respondents would be prejudiced should the further affidavits be
permitted as they would in all probability have to answer to
the
affidavits and incur further costs in doing so. It is evident that
the affidavits the Applicant seeks to admit, contain inadmissible
hearsay and opinion evidence and that allowing those affidavits,
would not be in the interest of justice as it would not assist
this
Court at all to decide the main application. The further affidavits
do not establish causation and do not cure the holes in
the
Applicant’s case.
[37]
This Court
has a broad discretion in terms of section 162 of the Labour
Relations Act
[13]
(LRA) to
make orders for costs according to the requirements of the law and
fairness. Ms Hassim submitted that this application
is an abuse of
process and should be dismissed with costs, to include the costs of
two counsel. Mr Beaton submitted that the application
is not an abuse
of process but merely an attempt to fix the application after the
Respondents’ application to strike out
was granted and that
cost should be cost in the cause.
[38]
Considering
the merits of this application and the arguments presented in respect
of costs, I can see no reason to reserve the costs
for determination
at a later stage and I see no reason why the costs should not follow
the result. I am however not inclined to
grant the costs of two
counsel as the opposition of this application did not justify
appointment of two counsel.
[39]
In the premises, I make the following order:
Order
1.
The
application to permit further affidavits is dismissed with costs, to
include the cost of one counsel.
Connie
Prinsloo
Judge
of the Labour Court of South Africa
Appearances:
Applicants:
Advocate R Beaton SC
Instructed by:
Finck Attorneys
Respondents:
Advocate S Hassim SC with Advocate L Pillay
Instructed by:
TRG Attorneys
[1]
Kasiyambhuru v
Minister of Home Affairs
[1998]
3 All SA 166
(W); 1991(1) SA 643 (W) at 649-650 applying
Transvaal
Racing Club v Jockey Club of South Africa
1958(3)
SA 599 (W) at 604.
[2]
Joseph and
Jeans v Spitz
1931
WLD 48.
[3]
Riesenberg v
Riesenberg
1926
WLD 59.
[4]
1963 (4) SA 656
(A) at 660 D-F.
[5]
Herbstein &
Van Winsen, “The Civil Practice of the High Courts of South
Africa’, Fifth Edition, Volume 1, page
433 – 444.
[6]
(2015) 36 ILJ 3045
(LC).
[7]
Id
n
6 at para 5.
[8]
Supra.
[9]
(2006) 27 ILJ 786
(LAC) at para 22.
[10]
Act 45 of 1988.
[11]
Id
n 9.
[12]
The Law of
Evidence in South Africa, Basic Principles,
Bellengere
et
al
,
Oxford University Press, 2014 at p 255 – 257.
[13]
Act 66 of 1995 as amended.