IN THE LABOUR COURT OF SOUTH AFRICA
CASE NO: JS1034/2001
In the matter between:
Applicant
and
First Respondent
ENSEMBLE TRADING 341 (PTY) LIMITED
Second Respondent
JUDGMENT
FRANCIS J
Introduction
1. The respondents are applying for condonation of the late filing of its response to
the applicant’s statement of claim. The applicant is opposing the application and
raised an objection that Schalk Eybers (“Eybers”) who deposed to an affidavit for
the respondents did not have the necessary locus standi to bring the application.
Background facts
2. The applicant was employed by the first respondent with effect from 14 October
1997 until his services were terminated by the first respondent for operational
reasons on 7 June 2001. During or about June 2001 the second respondent took
over the first respondent’s business as a going concern.
1. 3. On 21 June 2001, the applicant referred a dispute to the Commission for
Conciliation, Mediation and Arbitration (“the CCMA”) for conciliation. After
conciliation failed, the applicant referred his dispute to this Court for adjudication
on 6 September 2001. A copy of the statement of claim was served on the
respondents per telefax. The respondents were required to file its response on or
before 19 September 2001.
4. On 14 September 2001 Eybers, on behalf of the respondents, transmitted a
facsimile to the applicant’s attorneys of record stating that it would be opposing
the matter and would be filing its papers early in the following week as its counsel
was not available at the time. A copy of the letter was also transmitted to the
Registrar of this Court.
5. On 10 October 2001 the applicant’s attorney applied to this Court for the matter to
be set down for default judgment. On or about 12 October 2001 the applicant’s
attorneys were contacted by the respondents attorneys requesting a roundtable
meeting. The round table meeting took place on 17 October 2001. The parties
were unable to resolve the dispute. There were no discussions about whether the
pleadings were going to be suspended.
6. On 7 October 2001 the Registrar of this Court notified both parties that the matter
had been set down for default judgment on 31 October 2001 which prompted the
respondents to launch this condonation application. The respondents filed its
application for condonation on 26 October 1997 at 15h07 which was served 26
court days out of time.
1. 7. The respondents contended that they were under the bona fide impression that
the period for filing its response would be suspended pending the round table
meeting, and was surprised to learn that the applicant had filed a notice of set
down for hearing for default judgment the same day of the round table meeting.
8. The applicant raised an objection that the respondents’ application for condonation
was deposed to by Eybers who does not allege that he is duly authorised to bring
the application on behalf of the respondents, nor does he set out facts in his
affidavit to support any inference that he is entitled and/or authorised to do so. He
did not show that he has locus standi to bring this application and the application
should be dismissed.
Does the Respondents have locus standi?
9. It is common cause that the respondents are artificial or juristic persons. It is trite
that a party may object if there is nothing before a Court to show that a juristic
person duly authorised the institution of notice of motion proceedings. A juristic
person can only function through its agents and can only take decisions by the
passing of resolutions in the manner provided by its constitution. It is trite that
where a close corporation or a company commences proceedings by way of notice
of motion, it must appear that the person who makes the application on behalf of
the juristic person is duly authorised to do so by the said juristic person. In such a
case some evidence should be placed before a Court to show that the juristic
person has duly resolved to institute the proceedings and that the proceedings are
instituted at its instance.
1. 10. It was held in Mall (Cape)(Pty) Ltd v Merino Kooperasie Bpk 1957(2) SA347
CPD at 352 paragraph A:
“The best evidence that the proceedings have been properly authorised would be
provided by an affidavit made by an official of the company annexing a copy of
the resolution but I do not consider that that form of proof is necessary in every
case. Each case must be determined on its own merits and the Court must decide
whether enough has been placed before it to warrant the conclusion that it is the
applicant which is litigating and not some unauthorised person on its behalf.
Where, as is in the present case, the respondent has offered no evidence at all to
suggest that the applicant is not properly before the Court, then I consider that a
minimum of evidence will be required from the applicant.”
11. Eybers deposed to an affidavit and stated the following at paragraphs 1 to 4 of his
supporting affidavit:
“1. I am an adult male businessman employed by Ensemble Trading 341 (Pty)
Limited of Shop 14, Linksfield Road, Linksfield.
2. The facts herein contained are, unless otherwise stated, within my personal
knowledge and are both true and correct.
3. Since the facts contained herein are within my knowledge as opposed to being
within the knowledge of anyone in the employ of the Second Respondent, it is I
who deposes to this Affidavit on behalf of the First and Second Respondents.
1. 4. I was the sole member of the First Respondent, Aerial Excellence CC,
a Close Corporation which has since been sold to the Second Respondent
Ensemble Trading 341 (Pty) Limited t/a Aerial Excellence. I am currently an
employee of the Second Respondent.
12. In response to the applicant’s objection, Eybers filed a supplementary affidavit
and deposed to the following at paragraph 3 and 4:
“3. It is averred by the applicant that I do not display the requisite authority required
to depose to the Supporting Affidavit attached to the Application for Condonation.
This is an erroneous assumption as the facts contained herein are within my
exclusive knowledge, as opposed to being within the knowledge of anyone else in
the employ of the second respondent. I am consequently competent and
authorised to depose to this Affidavit on behalf of the First and Second
Respondents.
4. I was the sole member of the First Respondent ........ I am currently an employee
of the Second Respondent.”
13. It is trite that a party cannot establish its authority in a replying affidavit.
Appropriate allegations to establish the locus standi of an applicant should be
made in the founding affidavits and not in the replying affidavits. Thus, if it is
indeed so that the challenged passages in the replying affidavits are not legitimate
responses to the objection and have been included solely to remedy an omission in
the founding affidavits, they are liable to be struck out.
1. 14. It will be noted from the respondents supplementary affidavit that Eybers
avers that he is an employee of the second respondent and thus “competent and
authorised to depose to the affidavit” in support of the first application for
condonation. The deponent in Mall (Cape)(Pty) Ltd v Merino Kooperasie Bpk
supra was the secretary of the applicant Society who had stated that “I am duly
authorised to make this affidavit.” That Court found that even though it was not
stated that it was the applicant Society which had conferred the authority upon the
deponent. The word “duly” showed that the authority conferred on the deponent
had been properly conferred, i.e., that all the necessary formalities prescribed by
the applicant’s Society constitution had been complied with. That Court found
that what the deponent was saying is that he is duly authorised to speak on behalf
of the applicant Society. In other words, it is really the applicant’s affidavit and
not the deponent’s. That Court found that there was no reason to think that the
applicant did not pass a proper resolution authorising the institution of
proceedings against the respondent and that the proceedings are those of the
applicant. The Court found that the respondent had put no evidence whatsoever
to suggest that was not the case, and in the circumstances was held that the
applicant had put sufficient evidence before that Court.
15. The same cannot be said about the respondents in this case. The second respondent
took over the first respondent’s business as a going concern. Eybers stated that he is
an employee of the second respondent which is now a company. He did not state in
his founding affidavit that he was “duly authorised” by the respondents to bring the
application. In his supplementary affidavit he did not state that he was “duly”
authorised by the respondents to do so. Eybers has placed no evidence in his affidavit
to show that he has the necessary authority to bring these proceedings. He did not
display the requisite authority to depose to his affidavit on behalf of either of the
respondents. As an employee of the second respondent he cannot be authorised to
depose to the affidavit on behalf of the second respondent without being authorised
specifically in terms of a resolution of the board of the Second Respondent. Mr
Roodt, who appeared for the respondents, conceded that there was nothing that
indicated that Eybers had the authority to bring the application. He submitted that
Eybers was an employee of the respondents who was tasked with dealing with those
types of procedures. Eybers was the only person who was authorised by the
respondents to bring the application. He admitted however that there was no formal
declaration or that there was nothing in the papers before me that shows that Eybers
had been given the necessary authority to bring the application for condonation.
16. Eybers has not shown that he has the necessary locus standi to bring this application
on behalf of either the first or second respondent. The application for condonation
stands to be dismissed on this ground alone.
17. I see no reason why in law and equity costs should not follow the result.
18. In the circumstances I make the following order:
(a) The application for condonation is dismissed with costs.
FRANCIS J
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
FOR THE APPLICANT: M WESLEY INSTRUCTED BY BOWMAN GILFILLAN INC
FOR THE RESPONDENT: ROODT INSTRUCTED BY FRIEDLAND HART INC
DATE OF JUDGMENT: 8 MARCH 2002