IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN Case
No. J306/97
NATIONAL UNION OF METALWORKERS
OF SOUTH AFRICA FIRST
APPLICANT
DAVID MAHLALELA AND OTHERS SECOND & FURTHER
APPLICANTS
And
PONTIES TRUCK & COMMERCIAL CC FIRST
RESPONDENT
PONTIES TRUCK & TRACKER CC SECOND
RESPONDENT
JUDGMENT
ZILWA A J
INTRODUCTION
1. This matter consists of two applications by both the
applicant and the second respondent. The second
respondent is applying for condonation for the late filing of
an exception to the applicant’s statement of case in the
main application. On the other hand the applicant is
opposing the said application for condonation and is, in
turn, applying for a default judgment against the first and
the second respondents.
APPLICATION FOR CONDONATION FOR LATE FILING OF
EXCEPTION
2. The second respondent had made an application before
this court for condonation for the late filing of its statement
of defence. This was after the second respondent had been
joined in these proceedings in terms of an order of this
court dated 16 th August 2000. In fact, the second
respondent had been prompted by the application for
default judgment that was set down for hearing on the 16 th
May 2001.
3. This application for condonation supported by an affidavit
of Esterhuizen, its managing member, was based broadly
on the following grounds:
1. Although he was aware that a joinder application was
pending against the second respondent, he only
became aware that it had been granted on the 14 th
May 2001;
2. He did not deem it necessary to respond to the
applicant’s allegations moreso that the second
respondent was not cited as a party to the
proceedings in the applicants’ statement of case,
therefore, no allegations are made which would found
any claim against the second respondent, and no
relief was sought against it;
4. In the said application no attempt was made by the second
respondent to explain what steps it took between the 18 th
August 2000, when the court order for the joinder was
served by the sheriff on the second respondent, and May
2001.
5. The prospects of success seemed, although sketchy, to be
based on the fact that there were no allegation against the
second respondent and no relief sought against it in the
applicant’s amended statement of claim.
6. The said application for condonation was heard in this court
on the 22 nd March 2002 before the Learned Judge
Ngcamu. During the said hearing the second respondent
argued in the main that it was not necessary for it to apply
for any condonation for the late filing of the statement of
defence as it was not cited in the proceedings and that no
relief was sought against it.
7. Mr. Justice Ngcamu ruled that the joinder order made it
clear that the applicant was not obliged to file any further
amendments and the second respondent should have filed
its statement of defence within ten days from date of
service of the joinder order. He also dismissed the
application for condonation basically on three grounds that:
1. The second respondent has not explained fully why
steps were not taken to deal with the matter after the
joinder order had been served:
2. A period of seventeen moths had not been explained
for the delay;
3. The was no proper explanation on the prospects of
success.
8. The matter was then again set down for hearing for a
default judgement in this court on the 24 th April 2002. The
matter was postponed at the instance of the second
respondent, which was granted until the 2 nd May 2002,
and it was further order to file further papers by the 26 th
April 2002.
9. On the 26 th April 2002 the second respondent filed its
application for condonation for the late filing of an
exception. The reasons for the late filing were identical to
those of the original application for condonation which was
dismissed by this court on the 22 nd March 2002. In fact,
this application merely attached the former application and
incorporated it into the supporting affidavit and no further
facts were canvassed. The second respondent merely
contends that applicants’ claim has become prescribed on
the 28 th February 2000 and the second respondent was
only joined in August 2000.
10.In my view the second respondent is abusing the process
of this
court. It is clear that in essence there is no difference
between
a statement of defence and exception to the statement claim in
so far as both are responses which a respondent is entitled to
make when faced with a statement of case.
11.This court as per Mr. Justice Ngcamu had already made a
finding in respect of the facts and law upon which the
second respondent was basing its application for
condonation for late filing of its statement of defence and
had dismissed it. The second respondent has now placed
the same facts before this court in an attempt to persuade
this court to find otherwise. Further, it has been the second
respondent’s contention all along that it was not obliged to
seek any condonation in this matter as it was not cited in
the proceedings.
12.In the premises I am of the same view that the second
respondent has failed to proffer a satisfactory explanation
for its delay in filing the exception. Due to the excessive
delay in this regard this application must fail moreso that
the prospects of success are not good.
13.In view of the aforegoing I make the following order:
1. that the second respondent’s application for the late
filing of
an exception is dismissed;
2. the dismissal of the second and further applicants, listed in
Annexure A, is declared automatically unfair;
3. the first and the second respondent are ordered jointly and
severally, to pay compensation to each of the second and
further applicants amounts equivalent to 24 months wages
calculated in accordance with Annexure A to this order;
4. the second respondent is ordered to pay costs of this
application for condonation in respect of the exception;
5. the first and the second respondent are ordered, jointly and
severally to pay costs of the default judgment application.
ZILWA AJ
DATE OF JUDGMENT : 02 JUNE 2003
FOR APPLICANTS : CHEADLE THOMPSON &
HAYSOM INC.
FOR SECOND RESPONDENT : WANDRAG & MARAIS INC.