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[2019] ZALCJHB 54
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Mokoena v Old Mutual Life Assurance Company (JS 123/2016) [2019] ZALCJHB 54 (19 March 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JS 123/2016
In
the matter between:
MARY
MOKOENA
Applicant
And
OLD
MUTUAL LIFE ASSURANCE COMPANY
Respondent
Heard:
8
March 2019
Delivered:
19 March 2019
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction
and background:
[1]
This is an opposed application in terms of which the applicant seeks
leave
to deliver a further affidavit in support of the application
for condonation.
[2]
The application is brought before the Court against the following
background;
2.1
The applicant was employed by the respondent in June 2003 at the
age of
51. Her contract of employment was to be terminated in
January 2013 when she reached the age of retirement at 61. In
January 2013
her contract was however extended until
January 2015 when she was informed that it was to be terminated.
2.2
She subsequently referred a dispute to the Commission for
Conciliation Mediation
and Arbitration (CCMA) claiming unfair
discrimination based on age, as a younger employee had replaced her.
The dispute was unresolved
on 10 April 2015 and a
certificate of outcome was issued. The dispute was then referred to
the CCMA for arbitration in
August 2015. On 7 December 2015,
the CCMA issued a ruling to the effect that it lacked jurisdiction to
hear the
matter.
2.3
A statement of case was then delivered in February 2016. When no
response
was forthcoming she had then sought and obtained a default
judgment on 14 March 2017. The default judgment was
rescinded
on 22 February 2018, and the respondent delivered
its statement of response on 6 March 2018, raising several
preliminary points, including that the statement of case was
delivered outside of the statutory time periods without seeking
condonation.
2.4
The applicant delivered an application for condonation on
26 March 2018,
stating that her statement of claim was
delivered some 8 months outside of the statutory time periods. She
gave a timeline and
reasons for the delay. In its answering
affidavit, the respondent attacked the adequacy of the reasons
proffered by the applicant
for the delay.
2.5
Upon receipt of the answering affidavit, the applicant sought and
obtained legal
advice from SASLAW Pro Bono clinic, and was informed
that the respondent’s challenge pertained to the way the
condonation
application was crafted, as it did not cover the entire
period of the delay. She was further advised that no attachments were
attached
in support of the submissions she had made in her founding
affidavit. To this end, she seeks to supplement the condonation
application
at its paragraphs 6 to 21, and contends that the
respondent would not suffer any prejudice.
2.6
She averred that even though she was legally represented, she was
failed by
her legal representatives and wished to present evidence to
that effect through a further affidavit, and attach communications
which would highlight the prejudice she would suffer if the
application proceeded with her pleadings as they currently were.
[3]
In opposing the application to supplement, the respondent through the
affidavit of its Senior HR Manager: Stakeholder Relations and IR, Ms
Yvonne Mkefa, averred the following;
3.1 The
applicant merely seeks to make out a different case to that contained
in her original condonation application.
3.2 In
the original application for condonation, the applicant’s
reasons for the delay were threefold, in
that first, she blamed the
respondent’s Managing Director; second, she had alleged that
the respondent did not want to settle
the dispute; and third, that
her erstwhile representative had assured her that the statement of
case would be delivered.
3.3 The
objection to supplement was further based on the fact that all
affidavits had been exchanged and it was
more than six months after
the answering affidavit was filed that the applicant now sought to
supplement her reasons.
3.4
When the condonation was set down for 17 August 2018, the
applicant had sought a postponement
in order to deliver her replying
affidavit and heads of argument.
3.5
No exceptional circumstances existed to allow the applicant to
supplement as the facts and reasons for
lateness had not changed from
the date of the filing of the founding affidavit, and that the same
allegations could have been made
in the original founding affidavit.
3.6
With the application to supplement, which was some seven months since
the original application, the
applicant merely sought to ‘plug
holes’ in the deficient founding papers, and in the result, it
was not in the interests
of justice and fairness to allow her to keep
filing further affidavits, as the respondent kept incurring costs for
each occasion
that the applicant reconsidered her case. It was
averred that the applicant’s application was an abuse of the
court process
and unfairly prejudiced the respondent
3.7
The respondent further took issue with the fact that the applicant
failed to comply with the court
order of 17 August 2018 to
file her replying affidavit and heads of argument by
7 September 2018. In this regard,
it was pointed out that
an undated copy of the Heads of argument was delivered on
7 September 2018, whilst the replying
affidavit was only
filed on 10 September 2018 without a further application
for condonation in that regard.
[4]
In her replying affidavit, the applicant denied that she sought to
make
out a different case to that contained in the founding affidavit
to the condonation application, and contended that the intention
was
merely to clarify and bring to the attention of the Court by way of
supporting documents which were not attached to the founding
papers.
She further averred that the respondent would not be prejudiced
should leave to supplement be granted as it would be afforded
an
opportunity to respond.
The
legal framework and evaluation:
[5]
The principles applicable in instances where a party seeks leave to
file
further affidavits or to supplement original affidavits can be
said to be trite. The starting point is that as a rule, three sets
of
affidavits in motion proceedings are allowed, namely:
founding/supporting affidavits, answering affidavits, and replying
affidavits.
[6]
It is
further trite that an applicant must stand or fall by his/her
founding affidavit.
[1]
In the
founding affidavit, it is thus expected of the applicant to
accordingly
disclose facts that would make out a case for the relief sought, and
sufficiently inform the other party of the case
it was required to
meet
[2]
.
Thus,
the
filing of further affidavits in motion proceedings is permitted only
with the indulgence of the Court, which has the sole discretion
whether or not to allow such affidavits. Where there are no reasons
placed before the Court for requesting it to permit the filing
of
further affidavits, any such application ought to be refused
[3]
.
[7]
Flowing from the above and other authorities, the legal position can
therefore
be summarised as follows;
i.
Allowing the filing of further affidavits is not a right that a party
has, but an indulgence
from a Court in the exercise of its
discretion;
ii.
The material sought to be raised in the supplementary affidavit must
be relevant to
the issues for determination of the main claim or
application;
iii.
In exercising its discretion, the Court will do so with a measure of
flexibility,
taking into account all the facts of the case and in
further consideration of what is fair to the parties.
iv.
Leave to
file further affidavits, out of sequence, may be allowed, for
example, where there was something unexpected in the applicant’s
replying affidavits or where a new matter was raised, or where the
information/evidence was not available to the respondent (or
could
not be made available) when the founding affidavits were filed and
before the answering affidavits could be filed.
[4]
Even then however, the party seeking to supplement must give a
satisfactory explanation which negatives
mala
fides
or culpable remissness as to why the information/evidence could not
be put before the Court at an earlier stage;
v.
When
considering whether to allow the filing of further affidavits,
prejudice is not the test, and it is incumbent on the applicant
to
establish exceptional circumstances which render it fair to permit
the filing of the additional affidavit
[5]
[8]
The applicant faces certain insurmountable hurdles with this
application
for a variety of reasons including the following;
8.1
The application to file a further supplementary affidavit came at a
time when
the pleadings in respect of the application for condonation
were closed, and the matter was ripe for hearing.
8.2
As to what gave rise to the need for this application some two
months
after the replying affidavit in the condonation application
was filed is immediately not discernable, as no attempt was made to
give any explanation in that regard.
8.3
The initial founding affidavit was filed with the assistance of a
legal representative
from the SASLAW Pro Bono clinic. One assumes
that the applicant was requested to make available all relevant
information necessary
for the drafting of the founding affidavit.
8.4
It is trite
that with every application for condonation, an applicant is required
to give a detailed account of the reasons for
the delay, and to
further give an account of each period of the delay
[6]
.
To this end, when the respondent in its answering affidavit contended
that the explanation for the delay in the founding affidavit
was not
adequate, this in my view could not have been construed as something
out of the extra-ordinary or unexpected, or the raising
of a new
matter. Thus, the respondent was merely informing the applicant that
she had not done what she was supposed to do in the
founding papers.
This was not an invitation to have a re-look at her case and close
the gaps.
8.5
Central to
the applicant’s contentions however is that she seeks to attach
certain documentation in support of her contentions
that her
erstwhile legal representative was to blame for the delay, in
circumstances where the applicant had paid her an amount
of
R70 000.00 for legal services which turned out to be
unsatisfactory. As to why this reason (
albeit
not entirely reasonable or acceptable on its own in the light of
established authorities)
[7]
was not mentioned in the founding affidavit if it was so important is
not known. Furthermore, nothing is said by the applicant
as to where
the documents she seeks to attach were at the time that the initial
founding affidavit was filed, and why they were
not attached then. In
this regard, there is merit in the respondent’s contentions
that what the applicant seeks is merely
to ‘plug holes’
in her founding affidavit.
8.6
It was correctly submitted on behalf of the applicant that as to what
constitutes
exceptional circumstances has not been defined. It can
only be added that any precise definition would be hard to come by,
as the
facts of each case would determine what those exceptional
circumstances are.
8.7
In this case however, even on a liberal interpretation of what
exceptional circumstances
may entail, I am not satisfied that the
facts of this case point to any, particularly in the light of what
has been stated above.
In my view, exceptional circumstances would
have existed had it been the applicant’s case for example, that
she had drafted
the pleadings on her own, and as a lay person, it
could not have been expected of her to know what the requirements of
a proper
founding and replying affidavits were. This was not however
her case.
8.8
In her initial founding affidavit, the applicant clearly made
references to
being unsatisfied with the manner with which her
erstwhile legal representative handled her matter. In certain
instances she had
made reference to certain attachments or annexures
in support of her contentions. As to why there was a need for this
application
to make available further documents when the applicant’s
contention is that she was not making out a new case is unclear.
If
indeed she was not making out a new case, the respondent’s
contentions in the answering affidavit could have been adequately
dealt with and addressed in the replying affidavit. There is
therefore clearly merit in the respondent’s contentions that
the applicant merely seeks to close the loopholes in her founding
affidavit, which unfortunately she must stand and fall by.
8.9
To the extent that the applicant has not established exceptional
circumstances
for the filing of a further affidavit, it is further my
view that it cannot be in the interests of fairness, nor of
expeditious
resolution of disputes, nor fair to the respondent that a
discretion be exercised in favour of allowing the filing of an
affidavit
in support of the application for condonation.
[9]
In the light of the protracted history and nature of this case, there
is no justification for the respondent to be burdened long after the
pleadings have closed to have to answer further matters that
should
have been raised at the time the founding affidavit was filed. The
applicant has not demonstrated exceptional circumstances
requiring
the Court to exercise its discretion and to allow the delivery of a
further affidavit.
[10]
I have further had regard to the requirements of law and fairness in
regards to the issue
of costs. The respondent did not pursue such an
order, and I am satisfied that none is appropriate.
[11]
Accordingly, the following order is made;
Order:
1.
The application for leave to deliver a further affidavit in support
of the application for condonation
under the present case number is
refused.
2.
The Registrar of the Court is directed to set the matter down for the
determination of the applicant’s
application for condonation
for the late filing of her statement of claim.
3. There
is no order as to costs
____________________
Edwin Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPERANCES:
For
the Applicant:
S Mabaso of Mabaso Attorneys
For
the Respondent:
H Vrey of Cliffe Dekker Hofmeyr INC
[1]
Mashamaite
and others v Mogalakwena Local Municipality and others, Member of
the Executive Council Coghsta, Limpopo and another
v Kekana and
others
[2017] ZASCA 43
;
[2017] 2 All SA 740
(SCA) at para 21
[2]
See
Swissborough
Diamond Mines (Pty) Ltd and Others v Government of the Republic of
South Africa and Others
1999
(2) SA 279
(T);
Juta
& Co Ltd v De Koker
1994
(3) SA 499
(T) at 508 B-D.
[3]
See
Hano
Trading CC v JR 209 Investments (Pty) Ltd
2013
(1) SA 161
(SCA);
James
Brown & Hammer (Pty)(Previously named Gilbert Hamer & Co
Ltd) Ltd v Simmons, NO
1963 (4) (SA) 656 at 660E-G where it was held that;
“
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 observed: 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.
Where, as in the present case, an affidavit
is tendered in motion
proceedings both late and out of its ordinary sequence, the party
tendering it is seeking, not a right,
but an indulgence from the
Court: he must both advance his explanation of why the affidavit is
out of time and satisfy the Court
that, although the affidavit is
late, it should, having regard to all the circumstances of the case,
nevertheless be received.”
[4]
See
Bafokeng
Rasimone Platinum Mine (Pty) Ltd v CCMA & others
CASE NO: JR 2296/12 at para [5], where Lagrange J held that;
“
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.
In the case of the review application an applicant
has the added
advantage that a weak founding affidavit can be completely replaced
or augmented by a supplementary affidavit.
It is at that point of
the applicant’s preparation of the application that it must
focus its mind on the merits of its
case. It should not regard the
supplementary affidavit as merely a preliminary exploration of
issues to be more fully developed
when heads of argument are
prepared. Still less should it consider the supplementary affidavit
as anything less than its final
statement of its grounds of review.
There may be exceptional circumstances where issues come to light
that a party exercising
reasonable diligence in the preparation of
their case could not have been aware of, or where there is some
other justifiable
reason why a material issue is omitted...”
[5]
Impala
Platinum Ltd v Monageng Mothiba N.O. and Others
(JR2567/13) [2016] ZALCJHB 475 (10 June 2016)
[6]
eThekwini
Municipality v Ingonyama Trust,
2013
(5) BCLR 497
(CC) at para [32], where the Constitutional Court held
that:
“
An
applicant for condonation must give a full explanation for the
delay. In addition, the explanation must cover the entire period
of
delay. And, what is more, the explanation given must be reasonable.”
[7]
See
Salojee
and another NNP v Minister of Community Development
1965 (2) SA 135
(A);
Superb
Meat Supplies cc v Maritz
(2004)
25 ILJ 96 (LAC)