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IN THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

 

Reportable

Case No P 124/21

 

In the matter between:

 

SAMWU OBO MEMBERS                                                                  Applicant

 

and

 

MANGAUNG METROPOLITAN MUNICIPALITY                              Respondent

 

Heard: 4 July 2022

Supplementary submissions received on 11 July 2022

Delivered:     This judgment was handed down electronically by circulation to the Applicant and the Respondent’s Legal Representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing- down is deemed to be 11h00 on 21 October 2022.

 

JUDGMENT

 

KROON, AJ

 

Introduction

 

[1]          This matter concerns an application to make an arbitration award (the award) an order of court. The application raises, inter alia, issues as to the circumstances in which an arbitration award will not prescribe, the proper procedure to be followed where the authorization to bring an application has been put in issue as well as the circumstances in which, in application proceedings, a court will consider granting absolution from the instance even where those proceedings have been opposed.

 

[2]          The award is the fruit of an arbitration which was convened to determine a dispute about the interpretation and/or application of a collective agreement. This happened after the Applicant (SAMWU) referred a dispute in terms of section 24 of the Labour Relations Act[1] (the LRA) to the South African Local Government Bargaining Council (the Bargaining Council). The relief sought by SAMWU at the arbitration was opposed by the Respondent (the Municipality).

 

[3]          On a perusal of the body of the award, although not entirely clear[2], what appears to have occurred, is the following. A dispute was referred to the Bargaining Council about the interpretation and/or application of two collective agreements, namely the Mangaung Local Municipality Employment Policy (the Employment Policy) as well as a Placement Policy read together with what were described by the Arbitrator as local labour forum (LLF) ‘resolutions’. There were two issues for the Commissioner to determine. The first was whether the Employment Policy applied to ‘political employees’ who, in the award, are described as officials who were employed by either the Office of the Speaker or that of the Mayor. The second was whether a vacancy which arises within the organization of the Municipality was required to be tabled at the LLF before being advertised. Only SAMWU led evidence at the arbitration. That evidence, so it is recorded in the award, was in substance that a number of appointments within the Municipality were irregular because they were made, if I understand it correctly, in breach of the provisions of the two collective agreements referred to above.

 

[4]          After the finalisation of the arbitration proceedings, the Arbitrator issued an award during or about September 2017 in the following terms:

 

‘AWARD

 

20.       The Employment Policy of 2003 is still binding on all parties to the agreement.

 

21.       The “political employees” are not excluded from the application of the Employment Policy 2003.

 

22.       There is no obligation on the respondent to first table all vacancies before the LLF prior to being advertised.

 

23.       There is no order as to costs.’

 

[5]          The award is in the nature of declaratory relief as envisaged by section 138(9)(c) of the LRA. Importantly, it does not grant any consequential relief. It does not, for example, contain any ruling in respect of the individual alleged irregular appointments nor could it have done so, such appointees not having been joined in the arbitration proceedings. The award also does not direct the Municipality to perform any act. Rather its purpose is to explain to the parties what the correct legal position is when it comes to the interpretation and/or application of the two collective agreements. In that sense it determines the rights of the parties insofar as findings are made in respect of each of the collective agreements.

 

[6]          Some four years after the award had been issued, during or about December 2021, SAMWU brought an application to have it made an order of court. Before dealing with the merits of the application, it is necessary to consider the two preliminary points raised by the Municipality.

 

Preliminary points

 

Preliminary point no. 1: Prescription

 

[7]          The Municipality invoked the Prescription Act[3] (the Prescription Act) contending that the award had prescribed. Under this heading, the answering affidavit reads as follows:

 

‘POINT IN LIMINE

 

6          It is common cause that the arbitration award that the Applicants seek to make an order of court is dated 11 September 2017.

 

7          The respondent humbly submits that the arbitration award has prescribed.

 

8          It is trite that claims under the LRA do prescribe. In light of this, the Prescription Act, 68 of 1969 does apply to arbitration awards and such claims prescribe after three years.

 

9          An application to have the award made an order of the Labour Court must be brought within three years of the issuing of the award, failing which the right to do so will have prescribed.

 

10        The Applicants ought to have launched this application on or before 10 September 2020. This application was launched on 2 December 2021, more than a year and two months later. Accordingly, the arbitration award has prescribed.

 

11        In the circumstances, I respectfully submit that this Honourable Court lacks jurisdiction to grant the order sought by the Applicants.’

 

[8]          The heads of argument drafted by the respective counsel dealt extensively with the question of prescription and in particular they addressed the period of prescription applicable to arbitration awards issued in terms of the LRA. The submissions, it would seem, were made on the assumption that all arbitration awards are liable to prescribe irrespective of their content.

 

[9]          Aside from the circumstance that the raising of a plea of prescription does not bring in its train a jurisdictional issue (as alleged by the Municipality in paragraph 11 of the answering affidavit), it occurred to me that the assumption by both counsel that the Prescription Act was applicable may not be correct. I enquired as to whether prescription was not a red herring and whether the award could, as a matter of law, prescribe given that, on the face of it, it did not embrace the recovery of a debt but was rather, as described above, in the nature of a declarator. Counsel agreed to furnish supplementary submissions addressing this question. In their respective supplementary submissions, having reflected on my enquiry, both counsel, in my view correctly so, took the stance that prescription did not come into play.

 

[10]       In Makate v Vodacom (Pty) Ltd[4] the Court endorsed the definition of a debt expounded in Electricity Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd[5] recording as follows:

 

‘[85]  ...In Escom the Appellate Division said that the word “debt” in the Prescription Act should be given the meaning ascribed to it in the Shorter Oxford English Dictionary, namely:

 

“1.        Something owed or due: something (as money, goods or service) which one person is under an obligation to pay or render to another.

 

2.         A liability or obligation to pay or render something; the condition of being so obligated.

 

Escom was cited and followed in subsequent cases. It was also cited as authority for the proposition in Desai NO.

...

 

[93]   To the extent that Desai went beyond what was said in Escom it was decided in error. There is nothing in Escom that remotely suggests that “debt” includes every obligation to do something or refrain from doing something apart from payment or delivery. It follows that the trial Court attached an incorrect meaning to the word “debt”. A debt contemplated in section 10 of the Prescription Act does not cover the present claim. Therefore, the section does not apply to the present claim, which did not prescribe.’[6]

 

[11]       In respect of labour matters, in the judgment Food and Allied Workers’ Union obo Gaoshubelwe v Pieman’s Pantry (Pty) Limited[7] it was held that:

 

‘[156]            If regard is had to this, then it must follow that a claim for [unfair] dismissal is, as pointed out in the second judgment in Myathaza, a claim that seeks to enforce three possible kinds of obligations against an employer: reinstatement, re-employment, and compensation. All three obligations fit neatly within the definition of debt that Escom and Makate accepted, as they constitute either an obligation to pay or render something.

 

[157]             I accordingly conclude on this aspect that an unfair dismissal claim activates proceedings for the recovery of a debt as contemplated in section 16(1) of the Prescription Act...’

 

[12]       Thus whilst it has been held that an obligation to pay compensation or to reinstate or re-employ an employee constitutes a debt, applying the straightforward test endorsed by the Constitutional Court as to what constitutes a debt then, given that the award does not oblige the Municipality to pay any money or render any goods or services, it is clear that the Prescription Act does not apply.

 

Preliminary point no. 2: Authority

 

[13]       The Municipality raised a second preliminary point. It contended that the application was not properly authorised. The heads of argument of the Municipality, in this context, read as follows:

 

‘6.      The deponent does not state that he is a SAMWU member or refer to any authority from SAMWU to bring the application at all.’

 

[14]       The immediate difficulty with the authority challenge is that it was raised, for the first time, in the heads of argument of the Municipality. A challenge to authority It is not a legal point which is capable of being addressed solely by way of heads of argument[8].

 

[15]       Given that authority challenges are frequently brought in the Gqeberha Labour Court, I wish to say something about the procedure which is applicable. In the High Court, the position is governed by Rule 7 of the Uniform Rules of Court (the Uniform Rules), which provides that where it is alleged that proceedings are not properly authorized, a challenge of this nature must be raised by way of a notice.

 

[16]       Rule 7(1) of the Uniform Rules provides as follows:

 

‘… the authority of anyone acting on behalf of a party may, within 10 days after it has come to the notice of a party that such a person is so acting, or with the leave of the court on good cause shown at any time before judgment, be disputed, whereafter such person may no longer act unless he satisfies the court that he is authorized so to act, and to enable him to do so the court may postpone the hearing of the action or application.’ (my emphasis)

 

[17]       Thus, if such notice has been timeously delivered, or delivered with leave of the Court, then the legal representatives whose authority is challenged are restrained from acting until they have produced a power of attorney or any other equivalent or comparable satisfactory proof of their authority. There is no onus or evidentiary burden on the party challenging the mandate of an attorney representing another party to demonstrate that the attorney was unauthorized to act in the proceedings. A party is entitled, as of right, in terms of Uniform Rule 7 to challenge the authority of an attorney and Uniform Rule 7 expressly places the onus on the legal representatives whose authority has been challenged to furnish proof of such authority. In my view the decision of National Union of Metalworkers of SA obo members v Bell Equipment Co SA (Pty) Ltd[9] which held that, notwithstanding the delivery of a Uniform Rule 7 notice, there remained an obligation on a party challenging the authority of a legal representative to set out the basis for the challenge in the answering affidavit[10] is clearly wrong for reasons more fully described below.

 

[18]       In Ganes and Another v Telecom Namibia Ltd[11] the Supreme Court of Appeal explained the position as follows:

 

‘[19] There is no merit in the contention that Oosthuizen AJ erred in finding that the proceedings were duly authorised. In the founding affidavit filed on behalf of the respondent Hanke said that he was duly authorised to depose to the affidavit. In his answering affidavit the first appellant stated that he had no knowledge as to whether Hanke was duly authorised to depose to the founding affidavit on behalf of the respondent, that he did not admit that Hanke was so authorised and that he put the respondent to the proof thereof. In my view it is irrelevant whether Hanke had been authorised to depose to the founding affidavit. The deponent to an affidavit in motion proceedings need not be authorised by the party concerned to depose to the affidavit. It is the institution of the proceedings and the prosecution thereof which must be authorised. In the present case the proceedings were instituted and prosecuted by a firm of attorneys purporting to act on behalf of the respondent. In an affidavit filed together with the notice of motion a Mr Kurz stated that he was a director in the firm of attorneys acting on behalf of the respondent and that such firm of attorneys was duly appointed to represent the respondent. That statement has not been challenged by the appellants. It must, therefore, be accepted that the institution of the proceedings were duly authorised. In any event, rule 7 provides a procedure to be followed by a respondent who wishes to challenge the authority of an attorney who instituted motion proceedings on behalf of an applicant. The appellants did not avail themselves of the procedure so provided. (See Eskom v Soweto City Council 1992 (2) SA 703(W) at 705C-J.)’ (my emphasis)

 

[19]       Thus, when it comes to a challenge to the authority to institute legal proceedings, what is dispositive is the authority or otherwise of the legal representatives who have brought the application on behalf of the litigant in question. In application proceedings, if the notice of motion has been signed by a legal representative then, in the absence of a challenge to the mandate of the instructing attorney, it is to be accepted that the proceedings have been properly authorized. The obligation to establish this authority only arises when the authority to prosecute the process is challenged.[12]

 

[20]       In Candy and Others v Coca Cola[13], Snyman AJ pithily summarised the position as follows:

 

‘[15]  ... The point is simple. If an attorney brings process to Court and signs pleadings, it is accepted that the attorney has the necessary authority to do so. It however remains open for this authority to be challenged by way of simple notice. Once challenged, all the attorney needs to do is provide proof of authority by way of a power of attorney (or other acceptable form of proof) and that is the end of the issue without further evidence being required.’

 

[21]       It follows from what is stated above that a witness who deposes to an affidavit does not need to have authority to bring the application. Self-evidently the object of deposing to the affidavit is to give evidence and not to authorize proceedings already authorized. Once the proceedings are authorized, then the attorney who is conducting the litigation is entitled to identify any person to give evidence if the attorney is of the view that such evidence will support the case of his client irrespective of the status or authority of such person.

 

[22]       Practitioners in this Court nonetheless continue to mistakenly focus on whether the deponent, by virtue of his position or for any other reason, has the authority to bring the application. In Inxuba Yethemba Municipality v South African Local Government Bargaining Council and Others[14] the Court reiterated that this approach is erroneous commenting as follows:

 

‘106. …In identifying Msweli as the deponent, the Municipality appears to have laboured under the impression that the affidavit must be deposed to by the City Manager presumably because of his title and authority. The correct position is that once the bringing of an application has been authorised in the sense that legal practitioners have been instructed to bring that application, the identity of the deponent should depend solely on whether he has personal knowledge of the facts to which he is required to attest.’ (my emphasis)

 

[23]       As to the procedure to be followed when the authority to institute legal proceedings is the subject of a challenge, the oft relied on authority of Mall (Cape) (Pty) Ltd v Merino Ko-operasie BPK[15], which held that authority challenges can be raised in an answering affidavit, is no longer good law on this point and has not been good law since the revision of Uniform Rule 7 in 1987. Merino Ko-operasie has, repeatedly been either expressly or implicitly overruled[16] insofar as it held that the question of authority is an issue which must of necessity be canvassed in the evidence as contained in the application papers. That Merino Ko-operasie has been overtaken by subsequent decisions was explained in Umvoti by the full bench as follows:

 

‘[27]  ... Whether or not the litigation has been properly authorised by the artificial person named as the litigant should not be dealt with by means of evidence led in the application. If clarity is required, it should be obtained by means of rule 7(1) since this is the procedure which safeguards the interests of both parties...

 

[28]   I am therefore of the view that the position has changed since Watermeyer J set out the approach in the Merino Ko-Operasie Beperk case. The position now is that, absent a specific challenge by way of Rule 7(1), “the mere signature of the notice of motion by an attorney and the fact that the proceedings purport to be brought in the name of the applicant”[17] is sufficient. It is further my view that the application papers are not the correct context in which to determine whether an applicant which is an artificial person has authorised the initiation of application proceedings. Rule 7(1) must be used. This means that I disagree with Mr Gajoo’s submission that Rule 7(1) provides only one possible procedure and that, if a respondent elects to challenge the matter of authority on the application papers, the applicant is required to prove such authority on the papers.’[17] (my emphasis)

 

[24]       The question arises as to whether the Uniform Rule 7 procedure should find application in this Court. The Labour Appeal Court has authoritatively held that where there is a lacuna in the Rules for the Conduct of Proceedings in the Labour Court (the Labour Court Rules), this Court is entitled to look outside for guidance as to how to deal with the particular situation. In Public Servants Association of South Africa v Minister: Department of Home Affairs and others[18] it was held that:

 

‘[7]     The Labour Court Rules do not make provision for the striking out of matter from affidavits. It is trite that where the Labour Court Rules are silent on a particular aspect the Uniform Rules of the High Court may be applied. Rule 6(15) of the Uniform Rules of Court should, therefore, be applied.’ (my emphasis)

 

[25]       Given that the Labour Court is a Court of equity, which places a premium on the values of expedition and economy, it makes eminent sense for it to borrow from the procedure set out in Uniform Rule 7 by exercising the discretion accorded it by Rule 11(3) of the Labour Court Rules[19]. This is because the very purpose of Uniform Rule 7 is, as explained in Umvoti[20], to do away with the unnecessary wastage of time, effort and costs which accompanies the obtaining and filing of resolutions and delegations and the like where authority may not even be in dispute. This is in fact the approach which the weight of authority has endorsed[21]. In adopting this procedure this Court would not be bound by the time limits contained in the Uniform Rules[22] but it would, in my view, be imperative that it honour the principle that authority challenges be raised at the earliest available opportunity. Unjustified delays in raising a challenge to authority are, in their nature, unfair to the party who is the recipient of the challenge and inimical to the efficient administration of justice[23].

 

[26]       I mention all of the above because a practice has developed both in this Court as well as in arbitrations conducted under the auspices of the LRA in terms of which points about an alleged lack of authority are taken in answering or replying affidavits, as a matter of course, and often as part of a strategy to avoid having to engage with the substantive merits of the matter. Given that, for obvious reasons, there will seldomly be a motive for an attorney to institute or defend legal proceedings without a mandate, the practice of routinely challenging the authority of legal proceedings has been decried in the Civil Courts where it has been described as ‘unnecessary and wasteful’[24]. An example of cynical point taking occurs where there is no authority challenge when legal proceedings are initiated and the authority challenge is only belatedly raised when a party is faced with an uncomfortable interlocutory application. The knee-jerk response to such an interlocutory application is often to challenge the authority of the deponent to bring it. In the majority of such cases it is difficult to see how an authority challenge can be said to be sincere because one would have thought that, if the party making the challenge was genuinely concerned about the mandate of the legal representatives on the opposing side, it would have so objected at the outset of the proceedings. It is inherently contradictory for a party to accept that there is no difficulty with the authority of the legal representatives to institute application proceedings or issue summons but then at some later stage to contend, without a factual basis, that an ancillary or interlocutory application, incidental to the main proceedings, is not authorized. That aside, as alluded to above, a party and its legal representatives are entitled to certainty and to be timeously informed as to whether the authorisation to institute or oppose the proceedings in question is going to be placed in issue.

 

[27]       To sum up, if there is a challenge to authority then such challenge must be directed at the authority of the legal representatives who have instituted (or opposed) the litigation. This must be done by way of the Rule 7 procedure envisaged by the Uniform Rules. In my view, such a challenge must be both timeous and bona fide and the grounds on which the challenge is based must be stated clearly in the notice so that the challenge can be properly met by the production of the necessary proof of authority.

 

[28]        I would add only that, in this matter, in refusing to entertain the authority challenge, I do not mean to suggest that the reservations expressed by the Municipality under this heading were without merit. The difficulty is that the Municipality did not follow the correct procedure. On the face of it, the paragraphs in the founding affidavit dealing with authority are problematic. At its highest, the deponent appears to convey no more than he is a member of SAMWU and for that reason possesses authority to bring an application on behalf of SAMWU. That is a non sequitur. Ordinarily if authority in such circumstances is going to be an issue, what would be required to be produced, as with any corporate entity, would be a copy of a resolution (as envisaged by the constitution of that union[25]) authorizing the litigation in question which could then be appended to a power of attorney or form part of an application for authorization[26].

 

Has SAMWU made out a case?

 

The pleadings

 

[29]       The affidavit deposed to in support of the application is, by reason of its skeletal nature, an unimpressive document. It does not identify, let alone describe, the parties. In substance, it does no more than baldly assert that there has been non-compliance with the award. The nature of the alleged breach is not canvassed. The affidavit reads cryptically as follows:

 

‘3.2   To date, the Respondent has failed to implement the Arbitration Award.

 

3.3    Despite due and proper demand, the Respondent has failed and / or refused to comply with the said Arbitration Award.’

 

[30]       The answering affidavit is, understandably so given the lack of meaningful detail in the founding affidavit, similarly brief. Although it does not make an issue about the failure by SAMWU to describe the parties (the identity of the parties as appears from the heading in the Court process appears to be common cause), it is denied by the Municipality that there has been non-compliance with the award. The answering affidavit contains a pertinent, and in my view justified, criticism of the fact that the Municipality has not been properly apprised by SAMWU of the case which it has to meet. The relevant paragraph reads as follows:

 

’15    AD PARAGRAPHS 3.2 – 3.2

 

15.1     I deny the contents of these paragraphs.

 

15.2     The Respondent puts the Applicants to the proof of such sweeping averments.

 

15.3     There is no failure, refusal or fault on the part of the Respondent that necessitates this application and, in any event, as I have indicated above, the arbitration award has prescribed.

 

15.4     The Applicants fail to take this Honourable Court into its confidence by letting it know when, how and where due and proper demand was made by the Applicants.’ (my emphasis)

 

[31]       No replying affidavit was delivered.

 

Analysis

 

[32]        It is trite that an applicant is required, in the founding affidavit, to allege sufficient facts to disclose a cause of action in the sense that it must contain facts upon which the Court may find in the applicant’s favour. Put otherwise, the founding affidavit must make out a prima facie case.

 

[33]        In Palace Group Investments (Pty) Ltd and Another v Mackie^[27] the Labour Appeal Court emphasised that an opposing party is, as a matter of fairness, entitled to be apprised of the factual circumstances which will be relied on to justify the relief sought. It observed as follows:

 

‘[13] … In motion proceedings, the facts are set out in the affidavits. The affidavits as such constitute pleadings and evidence. It is trite that an applicant’s case is made in its founding affidavit and the respondent’s case in its answering affidavit. It is settled law that the facts must be set out in the affidavits with sufficient particularity to enable the opposing party to respond thereto.’ (my emphasis)

 

[34]       As was also pointed out in Comtech (Pty) Ltd v Commissioner Shaun Molony NO and others[28] by Zondo JP (as he then was), the mere recordal of conclusions of law is not sufficient. The Learned Judge observed as follows:

 

‘[16]  In my view, the contents of par 15 of the founding affidavit relate to conclusions of law. There is nothing either in par 15 or anywhere else in the founding affidavit which sets out the factual grounds upon which the appellant sought to base its legal grounds of review. In par 15 of the founding affidavit the deponent said that the commissioner erred in his award in that he “failed and or neglected and/or refused to apply his mind to the evidence led at the arbitration proceedings” but did not motivate this bald allegation by reference either to the evidence or the award.’ (my emphasis)

 

[35]       Rule 7 of the Labour Court Rules, in a sense, codifies the above position in that it requires an affidavit in support of an application to clearly and concisely set out:

 

‘7(3)

 

(b)     a statement of the material facts, in chronological order, on which the application is based, which statement must be sufficiently particular to enable any person opposing the application to reply to the document;

 

(c)     a statement of the legal issues that arise from the material facts, which statement must be sufficiently particular to enable any party to reply to the document; …’

 

[36]       An analysis of the founding affidavit reveals the following. Paragraph 3.1 does no more than refer to the award. Paragraph 3.2 contains a bald allegation that the Municipality has to date failed to implement the award. No factual foundation is however laid to support this claim. It is not explained as to which paragraph in the award was breached and how it was breached. As mentioned in Comtech[29], a mere conclusion of law, is not sufficient. I would add that a contention, in the absence of factual evidence underpinning it, does not constitute a fact and is in truth irrelevant[30]. In paragraph 3.3, it is contended that there has been a demand for compliance to which there has been no adherence. The demand, assuming it was in writing as it would surely have been, is not however attached to the founding affidavit. The deponent does not apprise the Municipality and indeed the Court as to the content of the demand and in particular as to what in fact was demanded of the Municipality. The failure to provide any detail under this heading takes on an added significance when one considers that a demand is being made that there be compliance with a declaratory award. The position may have been different if the award had required the Municipality to perform a particular act or to comply with a particular obligation but such a situation is a far cry from the facts which apply in this matter.

 

[37]       In my view, the matter at hand may be compared with a situation wherein an employee claims a breach of his employment contract but does not state what term of the contract has been breached and how it has been breached with the result that the opposing party is not made aware as to what case it has to answer. In the final analysis, on reading the anaemic affidavit the Court is at a loss as to what the real issues are upon which it is required to adjudicate. In this context, the following words were endorsed by the Supreme Court of Appeal:         

 

‘The object of pleading is to ascertain definitely what is the question at issue between the parties; and this object can only be attained when each party states his case with precision.’^[31]

 

Yet in this matter the Court is in the dark[32] as to what the real issues are and it is a case of an applicant asking the Court to make an award an order of Court without laying a foundation for the granting of such relief.

 

[38]       When I raised, with Mr Grobler, my concerns about the content of the founding affidavit and in particular the absence of the necessary averments when it comes to the alleged non-compliance with the award, he made two submissions.

 

[39]       Firstly, he urged me to have regard to the contents of the body of the award. If I understood the import the submission, it was that I should infer the nature of the alleged non-compliance from the content of the award itself. In particular he mentioned that the award referred to alleged irregular appointments.

 

[40]       I have two difficulties with this submission. In the first place it is trite that, as a matter of proper pleading, it is not sufficient for a party, without more, to attach an annexure to an affidavit and then to expect the opposing party and the Court to sift and trawl through the annexure with a view to speculating as to what case is being made out. In Swissborough Diamond Mines (Pty) Ltd v Government of the Republic of South Africa^[33] it was observed as follows:

 

‘Regard being had to the function of affidavits, it is not open to an applicant or a respondent to merely annexe (sic) to its affidavit documentation and to request the Court to have regard to it. What is required is the identification of the portions thereof on which reliance is placed and an indication of the case which is sought to be made out on the strength thereof. If this were not so the essence of our established practice would be destroyed. A party would not know what case must be met. See Lipschitz and Schwarz NNO v Markowitz 1976 (3) SA 772 (W) at 775H and Port Nolloth Municipality v Xahalisa and Others; Luwalala and Others v Port Nolloth Municipality 1991 (3) SA 98 (C) at 111B--C.’ (my emphasis)

 

[41]       This principle was endorsed in National Director of Public Prosecutions v Zuma^[34]:

 

‘[47] The trial judge, again, failed to comply with basic rules of procedure. Judgment by ambush is not permitted. It is not proper for a court in motion proceedings to base its judgment on passages in documents which have been annexed to the papers when the conclusions sought to be drawn from such passages have not been canvassed in the affidavits. The reason is manifest ─ the other party may well be prejudiced because evidence may have been available to it to refute the new case on the facts. A party cannot be expected to trawl through annexures to the opponent’s affidavit and to speculate on the possible relevance of facts therein contained. The position is no different from the case where a witness in a trial is not called upon to deal with a fact and the court then draws an adverse conclusion against that witness.’ (my emphasis)

 

[42]       The sentiments expressed above would be all the more applicable where, as in this case, the founding affidavit does not even allege that the non-compliance with the award is apparent from the contents of the award. Submissions made on behalf of SAMWU in the heads of argument and at the hearing about what the basis was for the alleged non-compliance with the award amounted, par excellence, to litigation by ambush.

 

[43]       The other difficulty with the submission is that the contents of the award concern events which occurred prior to the issuance of the award. As a matter of logic, it would not then be permissible to rely on such events to demonstrate non-compliance with an award which was not in existence at the time the events occurred. The Arbitrator has already given her award in relation to those events. Alleged non-compliance with the award would self-evidently have to relate to events which happened after the issuance of the award. That is not to say that the award cannot be relied upon in a different context, such as in an unfair labour practice dispute about promotion in terms of which appointments made before the issuance of the award are challenged, with a view to contending that issues which arise therein are res judicata because they are covered by the award. But reliance thereon, in that context, would have nothing to do with non-compliance with the award.

 

[44]       In his second submission, Mr Grobler, in defence of the content of the founding affidavit, urged me not to be unduly critical of the formulation of the founding affidavit. He referred me to Maleka v National Sorghum Breweries[35] where it was held:

 

‘While it is normally so that an applicant must make out its case in the founding papers, and may deal with new issues only if the respondent raised them in answer, the facts of this case are somewhat peculiar. It is customary for applicants to approach this Court using the pro forma affidavit issued by the CCMA. While this would not excuse an applicant from making essential disclosures, applicants can perhaps generally be forgiven if they assume that the bare allegations in the pro forma affidavit will suffice, at least until the respondent files its detailed answer. While I am aware that this Court must generally treat pleadings as they are treated in other superior courts, I am of the view that in the present circumstances it would not be in accordance with the objectives of the Act to place undue technical hurdles before the applicant.’

 

[45]       In my view, Maleka can be of no assistance to SAMWU for a number of reasons. Most importantly, it is clear from the judgment, which did not concern an award containing declaratory relief, that there was no dispute as to what the issue was on which the Court was required to adjudicate[36]. Secondly, this is not a case where an applicant approached the Court utilising a pro forma affidavit[37]. SAMWU was legally represented and a legal practitioner would or at least should know that his or her client is not to be shackled by a pro forma affidavit and that direction as to the content of the affidavit should be found in the Labour Court Rules and prevailing case law. Thirdly I do not read Maleka to go so far as to hold that the essential allegations do not have to be made. If it does, I have reservations as to whether the judgment correct in this regard (see below), Fourthly, Maleka appears to state that, in appropriate circumstances, the case of an applicant may be amplified in the replying affidavit as occurred in that matter. In this matter, SAMWU elected not to file a replying affidavit.

 

[46]       Insofar as Maleka held that an applicant is entitled to await the ‘detailed answer’ of a respondent in an answering affidavit and then to rely on that answer with a view to making out a case, I respectfully disagree for two reasons. Firstly, as has been mentioned above, the obligation is on an applicant to make out at least a prima facie case in the founding affidavit and, in so doing, to apprise the other side of the case which it has to meet. It must do so, irrespective of what may or may not be contained in an answering affidavit, if indeed one is to be delivered. Secondly, allied to the above and leaving aside the circumstance that there can be no guarantee that an answering affidavit will be delivered, Maleka appears to overlook the principle that it is not permissible for an applicant to make out a case based on material contained in the respondent’s answering affidavit.[38] The last point in this context is that, whilst it is true that this court will, in appropriate circumstances, accommodate the fact that persons are unrepresented[39], it will not do so to the extent that such accommodation will result in unfairness to the opposing party[40].

 

[47]       Mr Grobler then directed the attention of the Court to the answering affidavit delivered by the Municipality and referred to AB Civils (Pty) Ltd t/a Planthire v Barnard[41] and Soffiantini v Mould[42] in support of a contention that the bare denials by the Municipality in its answering affidavit were not sufficient. The obvious difficulty with this argument is that it is a case of the pot calling the proverbial kettle black. The simple answer to this contrived criticism is that the question of whether a bare denial in an answering affidavit will suffice will only arise if there exist particularized allegations in the founding affidavit to deny. In the present matter, given the formulation of the founding affidavit and its failure to describe how the award was breached, the Municipality was driven to a position where it had no alternative but to respond in the manner in which it did i.e. by denying in general terms that there had been non-compliance with the award.

 

[48]       Lastly, and leaving aside the circumstance that a case has not been made out in the founding affidavit I, in any event, have reservations as to whether any purpose will be served in, without more, making the award an order of Court. It is trite that a court has a discretion as to whether to make an arbitration award an order of court. It will not do so where the order will be ineffectual or of no practical significance. In my view if the award was to be made an order of Court it would amount to a brutum fulmen because doing so would not solve the conundrum because the Municipality would remain at a loss as to what was required of it to ensure compliance with the award and to ward off potential contempt of Court proceedings.

 

What is the appropriate remedy to grant?

 

[49]        It is clear from what I have stated above that SAMWU has failed to make out a case for the relief sought. In the ordinary course the Court would be to dismiss the application. But will justice be served if this is the outcome of the proceedings?

 

[50]        In a Court of equity, such as the Labour Court, it is imperative that justice be properly administered. In embarking on the great and essential task of dispensing ‘simple justice between man and man’[43], or perhaps more aptly, between employer and employee[44], this Court must bear in mind that substantive laws and the hard won rights contained in the Constitution are not self-enforcing and that they contemplate, and indeed require, the just application of procedural or adjectival law. With this in mind, I am concerned that if this application was to be dismissed such an order may be interpreted as putting an end to any endeavours to enforce the award in future. Whilst dismissing the application would not destroy the award, it would raise the spectre of a plea of res judicata being invoked[45] which could then in turn be relied upon to support a contention that the award is no longer enforceable by way of contempt of Court proceedings.

 

[51]        This Court cannot lose sight of the fact that the award has far-reaching implications for the Municipality, the representative trade unions and most importantly the employees within the Municipality as well as any potential job applicants. It pronounces on how employment policies are to be applied when particular categories of employees are appointed. It would be a travesty of justice if this Court were to grant an order, the effect of which would be to undermine the award, purely on the strength of a poorly drafted application.

 

[52]       Having reflected on the matter, I have ultimately come to the conclusion that it would be appropriate to make no order on the application i.e. to grant what would be in substance equivalent to absolution from the instance[46]. This Court is empowered, in exercising its inherent jurisdiction, to grant absolution from the instance where it would be a convenient and sensible procedure to adopt, and where it would be in the interests of justice to do so. More than a century and a quarter ago in Corbridge v Welch[47] De Villiers CJ, on behalf of the Supreme Court of the Cape of Good Hope, observed as to how the application of the doctrine of absolution from the instance had been extended to matters which had been opposed or defended through the production of evidence:

 

‘By long practice in the courts of South Africa “absolution from the instance” has acquired a wider range than it possessed in the Dutch Courts. The latter courts confined this form of judgement to those cases in which a plea in abatement would be successfully pleaded according to the practice of the English Courts. In this Colony, however, and, I believe, in the neighbouring states, it has been a constant practice to grant absolution in cases where the plaintiff has not established the facts in support of his case to the satisfaction of the court. At first it was treated as equivalent to a nonsuit, and confined to cases in which evidence had been given for the plaintiff only. In course of time, however, it was extended to cases in which evidence for the defendant had also been given. It was found convenient to have a form of judgement which would enable the plaintiff to take fresh proceedings without exposing himself to a plea of lis finite.’ (my emphasis)

           

[53]       This practise may find application not only in unopposed motion proceedings but also in opposed motions. In Liberty Group Limited v K and D Telemarketing[48] it was held that:

 

‘[13] …In motion proceedings, usually [but not always] in unopposed matters, an applicant might be given leave to approach the court on the same papers, supplemented if so advised… (my emphasis)

 

[54]       In Purchase v Purchase[49] Caney J granted what amounted to an order of absolution from the instance notwithstanding the circumstance that the application had been opposed, recording as follows:

 

‘On 9th May I delivered my judgment, concluding as follows:

 

'I make no order on the application, but the applicant is at liberty to move again on the same papers, supplemented as she may be advised, on proper notice to the respondent'.’

 

[55]       What had happened in the above case is that the Court had decided that there was insufficient information before it for it to make an order on the application[50]. In my view justice demands that the same reasoning can and should be applied to the application before me. SAMWU may or may not have a case for the Municipality to answer. I do not know enough[51]. In making such an order, and in not pronouncing on the merits of the matter and deciding the matter on procedure, res judicata will not arise[52].

 

Costs

 

[56]       I am alive to the limited scope for the granting of adverse costs orders in this Court. I am also aware that, in this matter, there is an ongoing relationship between the parties. That notwithstanding, in my view this is a case where the Court should exercise its discretion and make a costs order in favour of the Municipality because it has been dragged to Court without being apprised of the case which it had to meet and was required to expend public funds, as it were, litigating in the dark. Further, even though the Municipality has been successful (in warding off the relief sought), given the approach which the Court has taken, it may have to incur further costs in the matter in future. Put simply, a costs order is warranted for procedural reasons[53] and because, what in substance has occurred in this matter, is that SAMWU has been granted an indulgence[54].

 

[57]       In the premises, the following order is made:

 

Order

 

1.         No order is made on the application.

 

2.         The Applicant is at liberty to move again on the same papers, supplemented as it may be advised, on proper notice to the Respondent.

 

3.         The Applicant is to pay the costs of this application.

 

P. N. Kroon

Acting Judge of the Labour Court of South Africa

 

Appearances:

 

For Applicant         : Adv S Grobler           

 

Instructed by          : Lovius Block Attorneys

 

For Respondent    : Adv M Euijen SC

 

Instructed by          : Poswa Incorporated

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