IN THE LABOUR COURT OF SOUTH AFRICA
Sitting in Cape Town
Case No : C335/98
In the matter between :
D NAIDOO Applicant
and
DULUX (Pty) Ltd Respondent
JUDGEMENT
ZONDO J:
[1] This is a claim in which the applicant’s complaint is that the respondent,
which interviewed the applicant and other job seekers for a certain position and
appointed another candidate and did not appoint the applicant, committed an
unfair labour practice in not appointing the applicant on grounds of
discrimination.
[2] After the matter had been called this morning I heard explanations on
certain issues and arguments. I then adjourned the matter sine die and ordered
the applicant’s attorney (and not the applicant) to pay the respondent’s wasted
costs. The circumstances surrounding, and the reasons for, that order appear
below.
[3] By notice of set down dated the 4th November 1998 the parties were
informed by the registrar that this matter was set down for trial for today, the
19th April 1999, at 10h00. It appears that no pretrial minute had been filed with
the registrar at that time. The pretrial minute that was filed appears to have
been signed by the respondent on the 30 th November 1998 whereas the
applicant’s attorney appears to have signed it on the 1 st December 1998.
[4] On the 13 th April 1999 (last week) I noticed when I read the pleadings
and the pretrial minute that had been filed in this matter that that minute was
wholly inadequate. I caused the parties lawyers, as I normally do in such
circumstances, to have the lawyers attend a further pretrial conference in my
Chambers. Such further pretrial conference was held in my Chambers. I used it
to highlight to the attorneys the issues which needed to be addressed which they
were to go away and try and reach agreement on and prepare and file
supplementary pretrial minute.
[5] I initially indicated to the parties’ attorneys that I needed such
supplementary pretrial minute to be filed on Thursday the 16th April 1999 but
the applicant’s attorney, Mr Van der Schyff, asked if this could be done on
Friday the 17 th April. I then directed that it had to filed by 09h00 on Friday. I
indicated that once it had been filed, I would study it and determine whether if it
properly addressed all the issues I raised. I also told the attorneys that, if it did
not address all such issues adequately, I would call them for a further pretrial
conference or fax them a memorandum indicating such inadequacies as I would
have found so that those could be addressed.
[6] I did all the above so as to ensure that a postponement of the matter
necessitated by a failure on the part of the parties to properly address relevant
issues in the pretrial minute could be avoided and also to ensure that at the time
fixed for the commencement of the trial, namely, 10h00 today, the trial would
indeed commence.
[7] On Friday morning a document purporting to be a supplementary pretrial
minute was filed by the respondent’s attorneys. It was only signed by them. The
applicant’s attorney had not signed it. I was given the message that the
respondent’s attorney said that document represented only the respondent’s
version of the pretrial minute. By 15h30 no document signed by the applicant’s
attorney had been filed purporting to be the supplementary pretrial minute I
had directed should be filed. No explanation had thus far been given to me for
the failure to comply with my direction.
[8] This morning I was handed the same document which had been filed by
the respondent’s attorney on Friday as the respondent’s version of the pretrial
minute but now signed by the applicant’s attorney as well. Apparently minor
amendments had been effected to the document at the instance of the applicant’s
attorney.
[9] When the matter was called this morning, I raised with the parties the fact
that no supplementary pretrial minute duly signed by both parties had been
filed in accordance with my direction. From this it transpired that the
respondent’s attorney had taken all the steps necessary for the supplementary
pretrial minute to be filed with the registrar timeously and that the reason this
had not occurred was the unavailability of the applicant’s attorney.
[10] The applicant’s attorney did not suggest that there was any fault on the
part of the respondent or its attorneys. Indeed, he also did not suggest that this
occurred because of any conduct or fault attributable to the applicant. He said
on Friday his office was being painted and things were being moved around
leading to some documents being temporarily not available. Later on the
leading to some documents being temporarily not available. Later on the
applicant’s attorney said he was appearing in the regional court on Friday in
connection with some murder trial which had been arranged a long time ago.
[11] The explanation proffered by the applicant’s attorney was simply not
acceptable because the deadline for the filing of the supplementary pretrial
minute had been extended at his request and, if the arrangement for him to
appear in the regional count on a trial had been arranged long before, as he
said, which I have no reason not to accept, then he should have foreseen on
Wednesday that he would need to make suitable arrangements to ensure that
the direction I issued was complied with. There is also nothing in the
explanation given by the applicant’s attorney which suggests that anything
occurred between Wednesday and Friday which had not been expected which
interfered with his plans or schedule.
[12] I also asked the applicant’s attorney in Court why on Friday the
registrar’s office or my assistant was not contacted by him to indicate what
problems there were. No explanation was given for this. Another point I raised
with the applicant’s attorney was the fact that, when the matter was called at
10h00 this morning, the Court file had not been indexed and paginated. The
applicant’s attorney said he had previously instructed his secretary to come to
Court and index and paginate the Court file. He had not taken any steps to
confirm whether his secretary had done this.
[13] There were many areas in the supplementary pretrial minute which
demonstrated that the applicant’s attorney might not have dealt with the
supplementary pretrial minute in a manner that would make it easy for the
Court and the respondent to understand what the applicant’s case was on certain
issues. One or two examples should suffice in this regard. These are dealt with
below.
[14] One of the issues the parties were required to deal with was whether there
was agreement on what the requirements were for the position which had been
advertised. In the supplementary pretrial minute it is said that as far as
Rademan (who, I assume, represented the respondent in the interviews) was
concerned, the requirements for the position were the following :
“2.1 Some experience in sales, not necessarily in paint sales, but
preferably in the sale of fastmoving customer goods.
2.2 An ability to sell respondent’s products and to market both
respondent and its products.
2.3 The ability to relate well with customers, to service existing
customers and to acquire new customers for the respondent. The ability,
particularly, to represent the respondent and to liaise with customers, both
existing and new customers, in the main, retail customers, and dealing with
their various requirements.
their various requirements.
2.4 All of the above requirements needed to be met and evaluated in the
context of the problems the respondent was facing at the time, which
included lack of stock and a competitive environment”.
It is then said in par 2.5 that as far as the applicant was concerned, the
requirements for the position were the following :
“2.5.1Sales experience in the FMCG sales field.
2.5.2 Sales experience with wholesalers and chainstores”
[15] There is no indication in the supplementary pretrial minute whether the
applicant was admitting or disputing that the requirements for the position as
given by the respondent were indeed the requirements for the position. What is
stated is the applicant’s own understanding of what the requirements for the
position were. The parties would have had to still deal with this issue and
amend the pretrial minute to indicate the extent of their agreement or
disagreement on this issue. One also does not know what the basis was for the
applicant’s understanding that the requirements for the position were the ones
given in par 2.5.1 and 2.5.2. The question this raises is : If the requirements for
the position were those given by the respondent, did the applicant meet them?
[16] In par 4 of the supplementary pretrial minute, it is stated that the
respondent held the view that the successful candidate met the requirements for
the position as listed by the respondent in par 2.1 to 2.4. It is then stated that this
was being disputed by the applicant. No basis is given why the applicant was
disputing this.
[17] In par 5 the respondent gave the basis for alleging that the applicant did
not meet most of the requirements for the position as listed in paragraphs 2.1 to
2.4. In particular the respondent singled out the requirement that the successful
candidate would be required to perform “in an environment where there
would often be lack of stock or out of stock situations” . In this regard the
respondent stated that the applicant had stated in his curriculum vitae already
that his reason for wanting to leave his then employer was that there was “no
back up and support from management and constant lack of stock” . Due to
this the applicant had said he felt that in the long term he was going to lose
this the applicant had said he felt that in the long term he was going to lose
credibility with his clients. It is also said that the environment which the
applicant would have found himself in if he was appointed, was similar to the
one he was seeking to leave. At the end of paragraph 5 it is said that what is said
in that paragraph is disputed by the applicant without giving the basis of such
dispute on the issue.
[18] One of the matters which I raised in the conference in Chambers on
Wednesday related to the basis for the allegation in the applicant’s statement of
claim that he was discriminated against because the successful candidate and
the interviewing representative of the respondent were friends. In par 8 of the
supplementary pretrial minute this is dealt with in a manner which does not
make any sense. After a statement to the effect that it was not being suggested
that the two were friends, the following sentence appears : “The averment is
not that there was a positive indication that they were friends or that they
just knew each other” . This makes no sense.
[19] Finally the last two sentences of par 8 read thus “the reasons that the
respondent did not appoint the applicant are set out herein above. The
applicant did not meet the requirements for the position” . Thereafter is the
end of the supplementary pretrial minute and the signatures of the attorneys for
both parties. Strange as it may seem, the last sentence of par 8 appears to be an
admission by the applicant that he did not meet the requirements for the
position. Although it may be unlikely that this is what was intended, when one
has regard to the fact that what the requirements for the position were as far as
the applicant was concerned differed from the requirements for the position as
given by the respondent and the fact that the applicant did not indicate whether
or not it admitted the requirements as given by the respondent, one is not sure of
the extent of the admission or the dispute in this regard if at all there is a
dispute.
[20] In the light of all the above I concluded that the supplementary pretrial
minute was not adequate mainly, if not exclusively, because the applicant’s
attorney had not performed his task in the manner he was supposed to have
performed it. A number of issues still needed to be properly dealt with if the
trial was to run smoothly. I was not prepared to stand the matter down while
attempts were made to deal with these issues as there had been ample time for
that and, due to the applicant’s attorney’s unavailability, that time had not been
put to proper use. Also this matter was set down for today and, if it was
proceeded with on the basis that it would start late, there would be a risk for it to
be a partheard matter or that the time for other matters set down for tomorrow
could be taken up by it. I was not prepared to put at risk other litigants’ right to
be heard by the Court in order to accommodate the applicant’s attorney when he
could easily have avoided all this by doing his work properly and timeously.
The matter had to be adjourned.
[21] The adjournment of this matter could have been avoided if, in the first
place, the parties lawyers’ had done a proper pretrial minute or at the latest, if
the applicant’s attorney had given serious, proper and timeous attention to
ensuring that the supplementary pretrial minute properly addressed all the
issues it needed to address. This Court will not tolerate parties who do not take
pretrial conferences seriously and who do not make serious and bona fide
efforts to agree issues and shorten proceedings. Usually any judge would easily
detect from a reading of a pretrial minute if the parties or their representatives
in attending a pretrial conference and preparing a pretrial minute simply went
through the motions because they needed to file a minute in order to get a trial
date.
[22] Practitioners and all litigants have a duty to ensure that, when their
date.
[22] Practitioners and all litigants have a duty to ensure that, when their
matters come to be heard by the Court, they do not take one minute of the
Court’s time more than is necessary. Court time must be used for as many
matters as possible. The holding of a proper pretrial conference and agreeing as
many issues as possible to shorten court proceedings is one very important
feature in our justice system aimed at achieving that goal. I think the Court has a
duty to ensure that, as far as possible, every step is taken which will help
achieve that goal.
[23] I also need to say a word or two about another issue in this matter. That is
that the Court file was not indexed and paginated. The indexing and paginating
of the Court file are steps aimed at ensuring a smooth and uninterrupted hearing
of a matter once its hearing by the Court begins. If the Court papers have not
been paginated and indexed, this causes unnecessary delays and interruptions
during the hearing of a matter when attempts have to be made either to locate a
document or a page in the Court file. The Court file must accordingly be
indexed and paginated long in advance of the Court hearing. This is also
necessary so that when the file is taken to the judge who will hear the matter,
and sometimes this is a week or over a week before the day of the hearing, the
judge can read a properly paginated and indexed court file. If the Court file is
not paginated and indexed timeously, the parties are risking a postponement of
the matter with such costs as are usually attendant upon such a postponement.
[24] On the issue of costs, the applicant’s attorney conceded that fault did not
lie with the applicant. Obviously it lay with him. I can see no reason why I
should, in those circumstances, order the applicant to pay the respondent’s
wasted costs occasioned by the adjournment. Having given the applicant’s
attorney the opportunity to be heard, I adjourned the matter sine die and ordered
that he (and not the applicant) should pay the respondent’s wasted costs.
R. M. M. ZONDO
Judge in the Labour Court of S.A.
Date of Trial : 19/4/1999
For the applicant : Mr Van Der Schyff
Instructed By : Van der Schyff Roelf & Associates
For the Respondent : Mr Stelzner
Instructed By : Perrott Van Niekerk Woodhouse