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 47
|
|
Mokoena v Credit Guarantee Insurance Corporation Africa Limited and Others (J1829/18) [2019] ZALCJHB 47 (7 March 2019)
The
Labour Court of South Africa, JOHANNESBURG
Not
Reportable
case
no:
J
1829/18
In
the matter between:
GLORIA
TSAKANI MOKOENA
Applicant
and
CREDIT GUARANTEE
INSURANCE CORPORATION
AFRICA
LIMITED
First
Respondent
OLD
MUTUAL LIFE ASSURANCE COMPANY
LIMITED
Second Respondent
ADVOCATE
RAIMUND SYNDERS
Third Respondent
Heard
:
01 March 2019
Delivered
:
07 March 2019
Summary:
A preliminary point of lack of jurisdiction – when the point
was timeously raised and the party against whom it is raised ignores
the point, there would be no reason why a cost order should not be
made. Held (1): The special pleas are upheld. (2): The applicant
to
pay the costs of the respondents.
JUDGMENT
MOSHOANA,
J
[1]
It has
become crystal clear that some practitioners believe that since
section 151(1) of the Labour Relations Act
[1]
(LRA) refers to this Court as one of law and equity, this Court is
incapable of making cost orders. Such a belief is wrong and
inconsistent with section 162 of the LRA. Before me is an
interlocutory application dealing with the special pleas raised by
the
respondents against the applicant’s claim as set out in the
statement of case.
[2]
For the purposes of this judgment, it is unnecessary to traverse all
the
facts pertaining to the dispute between the parties. The
applicant’s statement of case filed in terms of Rule 6
comprised
of a solid 27 pages. In it the applicant raises allegations
of unfair discrimination, grievances lodged, the so-called Act Now
principles, Constitutional issues, Disciplinary hearing issues,
analysis of the evidence and the Commission for Conciliation,
Mediation
and Arbitration (CCMA) arbitration process. In one word,
the statement of case is unintelligible and a mixed bag.
[3]
It was not surprising for the respondent to raise almost six
points
in limine
. As if that wasn’t enough, the applicant’s
attorney filed a 21 paged heads of argument in respect of this
interlocutory
application.
Background
[4]
Pertinent to this case is that the applicant was employed by Credit
Guarantee
Insurance Corporation of Africa Limited (CGICA) on 19
October 1994. Pursuant to a disciplinary enquiry, she was found
guilty and
dismissed on 19 December 2014. Aggrieved by her dismissal,
she referred a dispute alleging unfair dismissal to the CCMA. At the
scheduled arbitration, the parties settled the dispute and all other
claims of any nature that may arise between the parties. The
settlement agreement was concluded on 2 June 2015.
[5]
The terms of the settlement may be summarized thus: (a) The employer
(CGICA)
was to pay to the applicant an amount of R 1 018 274.96,
which was an equivalent of eight months’ salary. (b) The
employer was to pay an amount of R 509 137.48, which was an
equivalent of four months’ salary, as a contribution towards
her legal fees. (c) The parties also agreed about future conduct with
regard to specific matters.
[6]
The employer complied with the terms related to the financial
settlement.
Almost three years later, on 23 May 2018, the applicant
launched a statement of case seeking reliefs of unfair discrimination
and
post-retirement benefits. On or about 18 October 2018, the
respondents filed a statement of response and raised the special
pleas
I mentioned above. As required by the Practice Manual, the
special pleas were enrolled on the opposed motion roll.
[7]
Before I deal with the special pleas, it is befitting for me to
deliver
this comment. It is absolutely unclear to me as to what
prompted this litigation after almost three years of the resolution
of
the dispute. The applicant was paid almost R1 700 000.00.
That amounted to maximum compensation. This aspect would reign
supreme in my mind when I decide the issue of costs. I now turn to
the special pleas.
The
special pleas
[8]
As pointed out earlier, the respondents raised about 6 special pleas.
The bulk of the pleas attack the jurisdiction of this Court. The
first plea relates to the lack of jurisdiction following a settlement
agreement, which settled all disputes of any nature. The applicant’s
representative, attorney Makhanya, submitted that not
all disputes
were resolved. The outstanding issue was one that was recorded in
annexure A of the settlement agreement. Clause 3
of annexure A read
thus: “
The applicant will contact the respondent in the
event she wishes to discuss possible pension fund contributions from
the compensation
referred to in this agreement
.”
[9]
Properly construed, this clause simply means that if for any reason
the
applicant harboured the desire to have pension fund contributions
deducted from the amount of compensation settled on, she could
contact the employer to discuss that. I fail to understand the basis
upon which it could be said that the dispute was not settled.
Also,
the ball would have been in the applicant’s court to initiate
the discussions contemplated in this clause. The applicant,
whom it
is apparent was under legal advice at the time of settlement, hence
the half a million legal fees contribution, understood
that the
settlement agreement resolved all the disputes. It must be for this
reason that she went lull for almost three years.
This special plea
is upheld. There is no longer a dispute justiciable in this court.
This court lacks jurisdiction.
[10]
Ordinarily,
the judgment should end here. However, for the sake of posterity, I
venture to deal with the remaining pleas. The second
plea relates to
a failure to adhere to the timeframes set out in the LRA and the
Employment Equity Act
[2]
(EEA).
The applicant alleges unfair discrimination within the contemplation
of section 187(1)(f) of the LRA and one contemplated
in section 6 of
the EEA
[3]
. Section 10 of the
EEA, requires referral to the CCMA within six months of the alleged
unfair conduct. Section 191 of the LRA first
requires a referral to
the CCMA within 30 days of the dispute and thereafter, 90 days of
non-resolution. It is common cause that
there was no referral to the
CCMA in any of the disputes alleged. The Labour Court therefore,
lacks jurisdiction. For these reasons,
the second special plea is
also upheld.
[11]
The third
plea relates to making no case in terms of section 77(3) of the Basic
Conditions of Employment Act
[4]
(BCEA). In setting out the nature of the claim in the statement of
case, the applicant alleges a civil claim as contemplated in
section
77(3). This section grants this Court concurrent jurisdiction to deal
with matters arising from the contract of employment.
I enquired from
Mr. Makhanya as to which contract is alleged to have been breached.
He mentioned the settlement agreement, in particular
clause 3 quoted
above. Nowhere in the statement of case does the applicant allege any
facts of breach of that clause. Other than
referring to the section,
no case at all was made that relates to the section. Ordinarily, if a
party does not comply with a term
of a settlement agreement, parties
approach this court in terms of section 158(1)(c) of the LRA.
Therefore, this court’s
jurisdiction contemplated in section
77(3) of the BCEA has not been raised. This plea must be upheld too.
[12]
The fourth plea relates to non-compliance with the Rules of this
Court in particular Rule
6(1)(b)(ii) and (iii). The statement of case
contains a whole host of facts that are not relevant to a claim. The
legal issues
raised therein are not concise and are not actually
relevant. This plea goes to the statement of case, and it ought to
have been
raised before responding to the claim. However, I agree
that the statement is not compliant. Striking it and or directing the
applicant
to amend it would have been an appropriate order to make.
Since the horse has bolted such an order would be academic.
Accordingly,
this plea is not upheld at this stage of the
proceedings.
[13]
The fifth plea relates to a material misjoinder. It is common cause
that the applicant
had an employment relationship with the first
respondent only. Therefore, the other respondents had no material
interest to the
outcome of these proceedings. In that regard, there
is a material misjoinder and the point is equally upheld.
[14]
The sixth and the last plea is actually an exception. Like the fourth
plea, this plea is
belated. Again, I agree that the averments do not
sustain a cause of action. However, in the light of its belatedness,
this point
is not upheld.
[15]
Regard had to the above, it follows that this claim must be dismissed
for want of jurisdiction.
The
issue of costs
[16]
During argument, I invited Makhanya to address me as to why cost
de
boni propiis
should not be considered. In response, he pleaded
for leniency and submitted that this Court is a court of equity. This
case was
poorly pleaded from the onset. Mr Makhanya is the attorney
that drew up the 27 paged document. It is clear to me that he did not
have regard to the Rules of this Court when he drafted the document.
He did not care to consider the provisions of the LRA, the
EEA and
the BCEA. Other than employing good language, the statement of case
lacks the necessary averments. To my mind, Mr Makhanya
was not
diligent. I can only attribute this to lack of experience in labour
matters. It is for that reason that I do not find any
measure of
recklessness on his part. Otherwise, I was minded to mulct him with
costs
de boni propiis
.
[17]
However, I am of a firm view that the applicant and her attorney
would not have proceeded
with this litigation had they brought their
mental faculties to bear. This litigation was frivolous and vexatious
from the get
go. The applicant waited for almost three years after
having being paid a huge sum in settlement before springing this
vexatious
litigation on the respondents. This litigation was sprung
onto the respondents like manna from heaven. There was a lull for
almost
three years. One wonders what prompted this action.
[18]
During the proceedings, I adjourned the matter after debating the
legal issues with Mr
Makhanya. I had hoped that the applicant would
realise the difficulties in her case and abandon it. This did not
help. To my mind,
the applicant was unreasonable in proceeding with
this application despite stern warnings from the bench with regard to
the deficiency
in her case. For the above stated reason, I believe
that fairness dictates that a cost order must be made. The applicant
and his
attorney were warned of the deficiency in her case as early
as October 2018, when the respondents responded to her case. She
ought
to have abandoned her case then. The warning clearly fell on
deaf ears. It is elementary by now that this court cannot exercise
its jurisdiction when a, which ought to be referred has not been
referred to conciliation. I expected the applicant’s attorney
to at least know that. If he did not know, at least by October 2018,
he was told. I was actually minded to make a cost order at
a punitive
scale, however, I observed that the applicant was not necessarily
reckless. She was a victim of poor legal advice.
[19]
For all the above reasons, the special pleas dealt with above must be
upheld and I accordingly
make the following order:
Order
1.
The applicant’s claim in terms of section
187(1)(f) of the LRA and section 6 of the EEA is dismissed for want
of jurisdiction.
2.
The applicant’s claim in terms of section
77(3) of the BCEA is also dismissed for want of jurisdiction.
3.
The applicant to pay the respondents’ costs.
_______________________
GN Moshoana
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Attorney F M Makhanya, of Floyd Makhanya Inc,
Lynwood, Pretoria.
For
the Respondents:
Attorney F Malan of ENSafrica, Sandton.
[1]
66 of 1995, as amended.
[2]
55 of 1998.
[3]
This is a duplication of claims.
[4]
75 of 1997.