IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN DURBAN
CASE NO D1729/01
DATE HEARD:
2003/05/09
DATE DELIVERED:
2003/05/09
In the matter between:
BONUS BUILDING SUPPLIES (PTY) LIMITED Applicant
and
SACCAWU & OTHERS Respondents
JUDGMENT
NDLOVU AJ
[1] This matter was set down for the 5th May 2003, which was last
Wednesday, being an application for rescission of a default
judgment, which was granted by this Court on the 2nd April
2003.
[2] However, on the 5th May 2003 the applicant had not filed its
heads of argument and, for that reason, I had not read the file
and it necessitated that the matter should be adjourned.
[3] Mr Kirchmann, the attorney for the applicant handed up an
application for condonation of the late filing of the heads of
argument. I considered the condonation application and
granted it. That, however, did not detract from the fact that,
since I had not read the file, I was not in a position to proceed
with the matter and the person or the party responsible for
that situation was the applicant.
[4] As a result, the matter, as I have said, had to be adjourned. An
indulgence was granted to Mr Kirchmann that the matter be
heard today (only 4 days later).
[5] Indeed, this morning Advocate Dutton has appeared for the
applicant, duly instructed by Mr Kirchmann thereto. Mr Dutton
is now applying for the postponement of the matter. In fact,
he has handed up a substantive notice of motion, whereby a
request is being made that the matter be adjourned sine die.
[6] The grounds for the adjournment include the fact that the
applicant company, i.e. the applicant in the rescission
application, would need to file a replying affidavit in response
to the respondent's answering affidavit.
[7] I should point out that the answering affidavit, as such, was
served on the company on 2 May 2002. In other words, if
things went normally in terms of the Rules of this Court,
particularly Rule 7(5)(a), the applicant ought to have filed its
replying affidavit within 5 court days, calculated from the 2nd
May 2002. This had not been done. It was not a case that
some accident occurred, for instance of the nature such as the
office having misdiarised the date on which the process should
have been attended to, or the like. It was, as I have been told,
as a result of Mr Kirchmann having initially held the view that
there was no need for the applicant to file a replying affidavit.
[8] Of course, Mr Dutton alluded to some factors that contributed to
Mr Kirchmann holding that view which, in any event, as he put
it, could only serve as mitigating fault on the part of
Mr Kirchmann, as the applicant's attorney. According to
Mr Dutton, it was his view that, without the applicant's replying
affidavit, there were some crucial issues that were raised by
the respondents in their answering affidavit which would
remain unchallenged and which could render some detriment
to the case of the applicants.
[9] The other point raised by Mr Dutton was the fact that the
applicant company had essentially ceased to exist or to trade.
All employees had since been retrenched and only the
directors were there. In other words, the company was merely
existing by name. For that reason, even if the matter were to
proceed and the order for rescission refused, it would be
impossible for the company to reinstate the respondents,
i.e. the 47 former employees, back to their jobs.
[10]Of course, this was an issue which subsequently was addressed
by Ms Reddy that the default judgment, as such, did not only
relate to the issue of reinstatement, but there was also the
issue of the payment of arrear salary, etcetera, which would
still be executable.
[11]The application before me at the present time is presented as
one for a postponement, but it would appear that, in essence
and substance, it is an application that seeks an indulgence to
allow the applicant, in the rescission application, to file a
replying affidavit. That is what the essence of it is about.
[12]As I have said before, the replying affidavit in this particular
instance ought, in terms of rule 7(5)(a), to have been filed
within five days from the 2nd May 2002, which was not done. I
have not been told that an application for condonation of the
late filing of the replying affidavit has been lodged or that it
would be lodged. One would perhaps argue on behalf of the
applicant that naturally the Court would expect that that would
be done, but it was an issue which one would expect to have
been mentioned in the affidavit that was filed to the Court this
morning.
[13]In any event, it does appear that the attorney for the applicant,
Mr Kirchmann, has been at fault on more than one occasion
now. Apart from the mere fact that the present rescission
application is about the very fact that the company failed to
respond in time, namely, that it failed to file its statement of
defence in time, hence a default judgment was granted. As I
have indicated already, this application ought to have been
heard last Wednesday, on the 5th May, but due to the fact that
the applicant and, in particular, Mr Kirchmann had not filed his
heads of argument on behalf of the applicant timeously, the
case could not proceed. It was clear from the reasons that he
advanced on the 5th May as to why such heads were not filed
in time, that the fault was squarely upon his shoulders and
that the applicant company itself had nothing to be blamed
about in that regard.
[14]When I adjourned the matter to this date from the 5th May, I
ordered, among other things, that the wasted costs would be
paid by the applicant. Now today everybody came to court
well-prepared that the matter would proceed. By "everybody"
now, I am referring to the respondent's party, because I would
not say the applicant's party was ready in the light of the
present developments. The Court itself was also ready to
proceed with the matter.
[15]I reiterate that, for the case to be adjourned for hearing to this
date, only 4 days away, some kind of a special indulgence, as
it were, was accorded to Mr Kirchmann, despite the fact that
he was clearly at fault for the matter not proceeding on the
5th May. Today again he is coming to court to ask for yet a
further indulgence. I say so because the request for a further
postponement by Mr Dutton is upon his (Mr Kirchmann’s)
instructions. Indeed, I would think that he has stretched this
Court too far.
[16]It is clear that he (Mr Kirchmann), and he alone, is solely to blame
for this delay. By the delay now, I am referring to the case not
proceeding on the 5th May. if it does not proceed today, for
that delay as well. That being the case, and taking into
account the developments of the 5th May in respect whereof
Mr Kirchmann was again responsible, that, in the event of this
matter being further adjourned, the Court's disapproval of
such behaviour by him should reflect in the Court's order for
costs.
[17]On the question of the application for the adjournment itself, I
have pointed out that this is essentially an application seeking
an indulgence to file a replying affidavit. The period within
which to file a replying affidavit having long expired, the
pleadings were deemed to be closed. However, nothing
would prevent or preclude the Court, in the exercise of its
discretion, to allow the replying affidavit to be filed if, in the
opinion of the Court, it would be in the best interests of justice
to do so. Even though the other party, would obviously feel
prejudiced by a further adjournment, such prejudice and
inconvenience, it seems to me, would be mitigated by an
appropriate order for costs.
[18]I have considered the matter carefully. It is my view that, for the
interests of justice to be best served, the application for
adjournment should be granted, subject to my remarks which I
have alluded to above on the issue of costs and which I
propose to reflect in my order.
[19]In the result, I make the following order:
(1) The matter is adjourned to 24 June 2003 on the opposed roll.
(2) The applicant, in the rescission application, is directed to file its
replying affidavit not later than the 23rd May 2003.
(3) Today's wasted costs are to be paid on attorney and own client
scale, by the applicant's attorneys, namely Messrs Kirchmann
Incorporated, de bonis propriis.
(4) The wasted costs for 5 May 2003 and for today, as respectively
ordered, are to be taxed and paid by no later than 13 June
2003.
_______________
NDLOVU, AJ
APPEARANCES:
For the Applicant : Advocate Dutton
: Kirchmann Inc.
For the Respondent : Ms S Reddy
of Shanta Reddy Attorneys