About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2019
>>
[2019] ZALCJHB 12
|
|
Mofokeng v Telkom SA SOC Ltd (JS388/18) [2019] ZALCJHB 12 (22 January 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case no: JS 388/18
In
the matter between:
SIBUSISO
MOFOKENG Applicant
and
TELKOM
SA SOC
LTD Respondent
Date
heard: 16 November 2018
Delivered:
22 January 2019
JUDGMENT
RABKIN-NAICKER,
J
[1] This is an opposed application for
condonation. The dispute between the parties involves an alleged
substantively unfair dismissal
for operational requirements.
[2] A certificate of outcome was
issued on 11 December 2014. The applicant served a statement of claim
on the respondent and on
the Court by fax on 10 April 2015, However
the original statement of claim was only duly lodged on 4 May 2015.
[3] On 24 May 2016, the applicant
applied for default judgment as the respondent had failed to oppose
the matter. The respondent’s
legal representative appeared in
Court on 24 May 2016 to oppose the default judgment contending that
the referral was ‘extremely
late’ and that the applicant
had to apply for condonation as there was no referral before Court.
In a transcript made of
the hearing for default judgment, (filed by
the applicant), before Whitcher, J on 25 May 2016, the respondent’s
representative
stated as follows:
“…
when
the Statement of Case was actually filed or when we received it from
our client, which is Telkom, under the circumstances,
it did not have
a fax transmission report from the Labour Court to actually indicate
that on the same particular day the application
or the referral was
made and it was only filed later, therefore it prompted us to
actually take the approach that the referral
before court was
improper in that there was no condonation application. That is why,
M’Lady, we proceeded to actually reply
as late as we did….”
[4]
The respondent’s representative proceeded to argue that there
was no need for it to apply for condonation for the late
filing of
its response, there being no notice of objection in terms of clause
11 (4) of the Practice Manual
[1]
and further stated: “
Under
the circumstances, I will humbly request the Honourable Court to
refer the matter to the opposed roll and direct that the
parties hold
a pre-trial conference and file the Pre-trial minute and costs to be
costs in the cause.”
I note that Clause 11(4) applies to applications on motion and had no
bearing on the matter before Whitcher J.
[5] Whitcher, J proceeded to remove
the matter from the roll but ordered the respondent to pay the wasted
costs. She made no order
directing the applicant to apply for
condonation. The parties proceeded to have a pre-trial conference and
to draft pre-trial minutes.
When the matter came to trial it was
postponed by Nkutha-Nkontwana J, the applicant was ordered to pay
wasted costs.
[6] Rule 5 of the Labour Court Rules
states that:
“
(1)
Documents may be filed with the registrar in any one of the following
ways, namely-
(a)
by handing the document to the registrar;
(b)
by sending a copy of the document by registered post; or
(c)
by faxing the document.
(2)
A document is filed with the registrar-
(a)
on the date on which the document is handed to the registrar;
(b)
on the date on which the document sent by registered post was
received by the registrar; or
(c)
on completion of the whole of the transmission of the fax.
(3)
The original document must be lodged with the registrar. In the case
of filing by faxing the document, the original document
must be
lodged within 5 days of it being faxed.”
[7]
On the date that the statement of claim was served on the respondent
and filed with the Registrar of this Court in terms of
Rule 5(2)(c)
on 10 April 2015, 89 calendar days had passed since the certificate
of outcome was issued. It was thus not filed and
delivered
[2]
out of time on a clear reading of the Rules. In fact, the submissions
by the respondent’s representative before Whitcher
J referred
to above, reflect as much. The pre-trial minute reads:
“
8.
PRELIMINARY POINTS
8.1
The Respondent contends that the dispute was referred to the Court
outside the prescribed 90 days following the issuing of a
certificate
of non-resolution.
8.2
Therefore, the Respondent submits that the Court lacks requisite
jurisdiction to adjudicate this matter.
8.3
The Applicant contends that the Respondent delivered its reply to the
statement of claim outside the prescribed 10 days following
service
of statement of claim. The Applicant therefore objects to the
acceptance of the Respondents reply.”
[8] I have determined that the
statement of claim was not out of time when it was filed at Court.
This is a matter that could have
been decided by the trial court on
the basis of the papers filed on record. At most, the applicant
should have sought condonation
for the late lodgment of the original
papers on May 4 2015 (rather than on 15 April 2015). The respondent
was exceedingly late
in opposing the matter and it beggars belief
that it has taken the stance that it need not apply for condonation
and asked for
the referral to be dismissed with costs. The statements
made in the answering papers and in argument that the matter was
postponed
because the trial court judge agreed that a condonation
application by the applicant was necessary is not reflected in the
order
dated 6 June 2018.
[9] In as far as it is necessary, I
therefore will grant condonation for the short delay in lodging the
original statement of claim.
The applicant, has had to pay
unnecessary costs herein. The respondent sat on a referral for more
than a year and only filed its
statement of response on the date of
the default judgment. The question of whether it’s statement of
response will serve
before the trial court, or not, is a matter for
that Court to deal with.
[10] In all the above circumstances, I
make the following order:
Order
1.
Condonation
is granted;
2.
The
respondent is to pay the costs;
3.
The
Registrar is directed to set the matter down for trial on notice to
all parties.
_________________
H. Rabkin-Naicker
Judge of the Labour Court of South
Africa
Appearances:
For the Applicant: Mashiane, Moodley
and Monama Inc
For the Respondent: Maserumule
Attorneys
[1]
Practice Manual of
the Labour Court, April 2013.
[2]
Rule 1 of the
Rules of the Labour Court provides that 'deliver' means serve on
other parties and file with the registrar;