VIC & DUP/JOHANNESBURG/LKS
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO. J2407/99
In the matter between:
MOKUENA, M M Applicant
and
LAND AND AGRICULTURAL BANK OF SOUTH AFRICA Respondent
J U D G M E N T
KENNEDY, AJ :
[1] In this matter the applicant, Ms Mokuena, seeks
default judgment in circumstances where the respondent filed
its statement of defence late. The statement of case was
served and filed on 17 June 1999. In terms of the court
rule the respondent was required to file its statement of
defence within ten days, i.e. ten court days of the filing
of the statement of case. Accordingly the statement of
defence was required to be filed on 1 July. It was in fact
filed only on 2 August 1999, in other words approximately
four weeks after the due date.
[2] The applicant saw fit to set down the matter for
default judgment notwithstanding the fact that it was aware
through the correspondence with the respondent's attorney
that the respondent intended to oppose the
matter and to file a statement of defence. The respondent's
attorney, Ms Stein of the firm Cheadle Thompson & Haysom,
wrote to the applicant's attorneys on 8 July 1999 stating as
follows in the relevant part of the letter:
"Our client is unable to file a response to the claim within
the time period specified by the Rules of the Court because
Dr Dolny whose instructions are necessary for the filing of
a response is out of the country until 22 July 1999. We
hope to consult with Dr Dolny as soon as possible after her
return to South Africa and anticipate that the response will
be filed not later than 30 July 1999. In the event of you
not granting us an indulgence to file our response late, we
will apply to the Labour Court for condonation."
A week thereafter, namely on 14 July 1999, the matter was
enrolled for hearing on the basis of a default judgment.
The applicant declined the request for any extension and
accordingly proceeded on that basis.
[3] The matter was set down before this court for default
judgment on Wednesday, 11 August 1999. On that morning, or
perhaps the afternoon before that, an application for
condonation was filed comprising an affidavit by Ms Stein
explaining in brief terms the difficulty in failing to file
the statement of defence earlier. The relevant passage of
the affidavit setting out the most important part of the
explanation is to be found in paragraph 6 in which Ms Stein
states as follows:
"On 17 June 1999, nearly two months later [i.e. after the
outcome of proceedings at the CCMA] the applicant filed a
statement of case with this Court. When I contacted the
respondent on 25 June 1999 to set up a consultation I was
advised that Dr Dolny was unable to consult until after she
returned from leave on 22 July 1999. In the interim I
consulted with other employees of respondent."
When the matter came before me on Wednesday, 11 August, Mr
Kruger, counsel who appeared for the applicant, indicated
that his instructions were that in fact, notwithstanding
what was stated in paragraph 6 , Dr Dolny was present in the
country and had not left on here overseas trip at the most
relevant time, being 25 June 1999. The matter was
accordingly postponed to enable the applicant to file an
affidavit to deal with that aspect and any other aspect that
it wished to in
response to the application for condonation and for the
respondent to file a reply.
The filing of those papers took place in the last few days
and the matter accordingly comes before me for final
determination on the application for condonation and the
request for default judgment if condonation is refused.
[4] In the answering affidavit that has been filed on
behalf of the applicant, evidence is given including a
letter or memorandum circulated by Dr Dolny herself
indicating that her absence from the office due to her
overseas trip related to the period from 5 July 1999 until
16 July 1999.
[5] The replying affidavit that has been filed is that of
Ms Stein supported by a confirmatory affidavit by Dr Dolny,
who is the managing director of the respondent. The
affidavit of Ms Stein indicates in paragraph 1.6 the
following:
"It is correct that I wrote to the applicant's attorney only
on 8 July 1999 and up until that day I thought I would be
able to get full instructions from the acting manager
director on all of the allegations made in the applicant's
statement of case, including those relating to Dr Dolny.
However, this was not possible and hence I wrote to the
applicant on 8 July 1999 when it became
clear on that day that I could not file the statement of
case until I had consulted with Dr Dolny .
Regarding Dr Dolny's availability I confirm that I was
advised on 25 June 1999, the first time which I contacted
the respondent after receiving the statement of case, was
that she was not available until after her return from
leave. I did not pursue this issue because I thought that
other employees of the bank, in particular Adrian Thoms, the
acting managing director, would be able to give me
instructions for the statement of claim. She has advised me
that this was in any event correct as on 25 June she was
involved in a 'bosberaad'; on 28 June she had prior
engagements; on 29 June she had to attend a medical clinic
and a board subcommittee meeting; on 30 June she had pre
arranged arrangements; on 1 July she had taken medical
leave. She left for overseas on 2 July 1999 and was
scheduled to return on 18 June 1999 but returned to
Johannesburg on Saturday, 17 July 1999. This was in fact
earlier than she had expected to return but she returned
early because of a widely publicised controversy involving
her and the Land Bank. In this regard I attach a copy of
the Star newspaper dated 15 July 1999 marked PS2. Prior to
her leaving she had given
instructions that she was not available until 22 July 1999
for appointments on 19, 20 and 21 July 1999 as she would be
in briefing sessions. Dr Dolny was unable to consult
immediately due to the enormous pressure on her time in
dealing with this controversy and investigation into it... ”
[6] I heard lengthy argument in which it was submitted by
Mr Kruger that the application for condonation should be
refused because the explanation advanced is not
satisfactorily set out. He raised questions as to the
approach of the respondent, which he submitted showed a
flagrant and arrogant disregard, of the Rules of the Court.
He argued further that there was a wilful and, as I
understood it, almost a mala fide approach on the respondent
in dealing with this matter.
[7] In my view there may well be some merit in certain of
Mr Kruger's submissions regarding the lack of detail set out
particularly in the founding affidavit, required to give a
full explanation for the difficulties faced by the
respondent in filing a statement of defence timeously. Mr
Kruger correctly submitted that an applicant for indulgence,
such as for condonation, should set out in full, clear and
frank detail a proper explanation for why there has been
noncompliance with the rules. As I have indicated, certain
of his criticisms may be well founded. However, when viewed
realistically, I am not satisfied
that the contention that there has been flagrant, let alone
wilful disregard of the rules can be sustained. The court
must obviously be aware of and take into account, firstly,
the pressures and demands of any typical legal
practitioner's practice and, secondly, the realistic
situation of and commitments of people involved in commerce
and business, particularly such a senior official as Dr
Dolny.
[8] The court also takes into regard the fact that this is
not a case where there was an extremely lengthy period of
delay which has gone unexplained. On the contrary, there is
an explanation for the brief period that was allowed to
elapse and that, in my view, does seem to be a proper bona
fide and acceptable explanation.
[9] Parties to litigation must show the necessary
flexibility as must the court in assessing compliance or
noncompliance with the Rules of Court such as those
requiring pleadings to be filed within a certain time. Mr
Kruger, in his argument, laid emphasis on the point that
rules are to be respected and that if they are not justice
may be denied. He urged the court in this case to send out a
message to parties generally that there is a requirement to
comply with rules and a warning that those who do not comply
with the rules do so at their peril. He also urged me to
send out a warning that parties may not regard their other
commitments as
being more important than compliance with Rules of Court.
[10] While it is so that ordinarily rules should be complied
with, in my view the arguments of Mr Kruger in this
regard overemphasise the importance of the rules at the
expense of the necessary practical flexibility that must be
applied in such cases. There are various judgments in our
law which deal with the correct perspective to be applied in
enforcing the rules and in interpreting them and applying
them, particularly in situations where there has been a
failure by a party to comply with the strict provisions
thereof. In the case of Federated Trust Ltd v Botha 1978
(3) SA 645 (A) at 654D the following was stated:
"The court does not encourage formalism in the application
of the Rules. The rules are not an end in themselves to be
observed for their own sake. They are provided to secure
the inexpensive and expeditious completion of litigation
before the courts."
In the case of Vitorakis v Wolf 1973 (3) SA 928 (W) at 932F
G Coetzee J , as he then was, stated:
"...Courts generally do strive to assist litigants to get to
grips as inexpensively and expeditiously as possible without
enforcing sheer formality
whenever this is only calculated to produce a
litiscresence devoid of real legal content or procedural
advantages such as greater clarification of issues."
In TransAfrican Insurance Co Ltd v Maluleka 1956 (2) SA 273
(A) at 278FG it was stated that:
"Technical objections to less than perfect procedural steps
should not be permitted in the absence of prejudice to
interfere with the expeditious and, if possible, inexpensive
decision of cases on their real merits."
That dictum of Schreiner JA is, in my view, of particular
importance in the present matter. In my view, no real
prejudice has been shown to have resulted to the applicant,
particularly where the delay has been of a limited nature.
[11] The consequences of acceding to the applicant's
request, namely to refuse condonation for the late filing of
the statement of defence and the grant of a default
judgment, would, in my view, be excessive and unjustified.
It would certainly not serve the interests of justice which
Mr Kruger contended required the enforcement of the rules
strictly in the manner for which he contended. On the
contrary, justice would, in my view, clearly be denied in
circumstances where the respondent simply would have no
opportunity to have its version put before the court, either
by way of
pleadings or indeed by way of evidence and argument at the
trial. This effectively would nonsuit the respondent. It
would also deprive the court of the opportunity to decide
the matter on the merits with the benefit of both parties'
input. That, in my view, clearly cannot serve the objects of
justice or indeed the objects of the Labour Relations Act 66
of 1995, which are best served by deciding and resolving
labour disputes on their merits rather than on technical
points.
[12] I am therefore prepared to accede to the request to
condone the noncompliance and to condone the late filing of
the statement of defence and accordingly the application for
default judgment must fall away.
[13] There remains to be decided only the issue of costs.
Both Mr Kruger and Ms Stein contended that costs should be
awarded in favour of their clients. Costs are of course a
matter for the discretion of the court, to be exercised with
due regard to the requirements of the law and of fairness.
Ordinarily a party seeking the indulgence of the court
should bear the costs incurred as a result of the need for
condonation to be sought and to be granted. That general
approach would apply in the circumstances of this case but,
in my view, only up to a point. Regard must also be had to
the fact that the affidavit seeking the condonation was
lodged at a
relatively late stage, as I have indicated either on
the morning or in the afternoon immediately preceding the
day when the matter was set down for default judgment. In my
view, however, the approach of the applicant has been
unnecessarily technical and formalistic and has not shown
the necessary flexibility that the courts would generally
expect of practitioners in circumstances such as these. The
costs have, in my view, been unnecessarily increased as
indeed has the burden of the court as a result of the
approach of the applicant in taking such a strict approach
to compliance with the rules and in failing to accede to a
request, lodged at a relatively early stage by the
respondent's attorney, for the indulgence.
[14] In my view fairness would best be served if the
respondent were ordered to pay portion of the applicant's
costs incurred in relation to these proceedings. The matter
has come before the court for argument on two occasions,
both Wednesday 11 and today 13 August 1999. In my view it
would be fair to award costs on the following basis:
That the respondent is ordered to pay the applicant's costs
incurred in respect of the hearing on Wednesday 11 August
but that there should be no order for costs of today.
[15] In conclusion therefore I grant the following order:
(a) Condonation is granted for the late filing of the
respondent's statement of case.
(b) The application for default judgment is refused.
(c) Respondent is ordered to pay the applicant's costs in
respect of the hearing on Wednesday 11 August 1999 and the
parties are to bear their respective costs in respect of
today's hearing.
____________________
ACTING JUDGE KENNEDY
ON BEHALF OF APPLICANT : ADV M A KRUGER
Instructed by : Mokuena Attorneys.
ON BEHALF OF RESPONDENT : MS P STEIN
Instructed by : Cheadle Thompson & Haysom
Attorneys.
DATE OF HEARING : 13 AUGUST 1999
DATE OF JUDGMENT : 13 AUGUST 1999