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REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: JS 228-2014

In the matter between

NUMSA OBO                                                                                                     First Applicant

N BUNU AND 63 OTHERS                                                    Second and Further Applicants

And

AVENG AFRICA LIMITED                                                                                      Respondent

Heard:           22 April 2016

Delivered:     22 April 2016

Summary:     Application for condonation for the late service of a statement of claim – excessive delay – inadequate explanation for the delays – application dismissed with costs

EX TEMPORE JUDGMENT

COETZEE AJ

[1] This is an ex tempore judgment in cases JS228/2014 and JS227/2014 with reasons. In case JS227/2014, there is a statement of case filed with a statement of response thereto in the case between Mr Masiza and the same respondent as in this matter. The application in matter JS227/2014 is for Mr Masiza to be joined in the condonation application in this case JS228/2014.

[2] In this case JS228/2014, National Union of Mineworkers is the First Applicant and the Second Applicant is N Bunu and 63 others. The respondent is Aveng Africa Limited and reference is made to a Division thereof being Aveng Grinaker LTA Division. 

[3] This is an application to condone the late filing of the applicant’s statement of case.

[4] The first applicant launched the condonation application and subsequently filed a supplementary affidavit. The respondent opposes the introduction of the supplementary founding affidavit and that is the second issue to be dealt with. 

[5] The third issue is a point raised that the founding affidavit to the condonation application has been signed before a Commissioner of Oaths but it was not been properly commissioned because the Commissioner did not sign or initial every page or any of the annexures thereto, as it is required in law.

[6] A further objection is that two of the confirmatory affidavits referred to in the founding affidavit were not filed and served simultaneously with the founding affidavit filed in the condonation application.

[7] There is also a point that the applicants previously, when the matter was on the roll, failed to file heads of argument in terms of the practice manual, which is indicative of the vigour or lack thereof, on behalf of the applicants to pursue this matter.

[8] I deal with the various aspects as follows: 

8.1         Firstly, there is no objection on behalf of the respondent to joining Mr Masiza to the application for condonation in case JS228/2014. I therefore join Mr Masiza as an applicant in this matter.

8.2         There are two matters with two statements of case and statements of defence. The two cases are now combined and will be heard together today and later if they continue. That deals with the case of Mr Masiza.

[9] The introduction of the second supplementary affidavit is a bone of contention between the parties. The condonation application was filed on 27 October 2014. The additional supplementary affidavit was filed on 21 August 2015, 10 months later.

[10] The objection to admitting this document is that the applicants had all the information available to them when they filed the founding affidavit in the condonation application. The argument is that there is now no new material or any explanation that there was any new material that came to hand subsequently thereto, which forced the applicants into formulating a further affidavit for consideration in support of the condonation application. 

[11] The legal position, as I understand it, is that the court has a discretion to admit further affidavits. By further affidavits, I mean any other affidavits than the three sets of affidavits that normally constitute an application.

[12] The court will, however, only exercise its discretion in favour of admitting a further affidavit where there is good reason for doing so. When filing an affidavit both late and out of its ordinary sequence, a party tendering it is not relying on a right but asks an indulgence from the court.

[13] Such a party must advance both its explanation of why the affidavit is out of time and satisfy the court that although the affidavit is late, it should having regard to all the circumstances of the case, nevertheless be received. The adequacy or otherwise of the explanation for the late tendering of the affidavit will always be an important factor in the inquiry. 

[14] In this case, the explanation for the filing of an additional affidavit is tendered in the supplementary affidavit as:

‘Supplement and address the shortcomings in my founding affidavit, in so far as I have not dealt with the delay in bringing the condonation application.’

[15] There is no explanation why the supplementary affidavit is only introduced as late as 21 August 2015. The shortcomings in the founding affidavit were already partly highlighted in the answering affidavit and more specifically by denying some of the allegations and lack of explanations in the founding affidavit; and again in more detail in the heads filed in 2015, when the matter was first before court.

[16] The applicants failed to address these issues in their replying affidavit after having received the answering affidavit or otherwise immediately thereafter dealt with it in a supplementary founding affidavit.  

[17] It is only after having received the heads of argument, on behalf of the respondent, that steps were taken without any explanation as to why only at that point in time. There is also no explanation as to whether any of this information was new information. According to the explanation for the introduction of the supplementary affidavit, it is merely said that the affidavit was necessary to cure some defects.

[18] The late affidavit in terms of its stated purpose was necessary to address the shortcomings of the founding affidavit.

[19] In my view, there is, under the circumstances, no facts upon which this court can exercise a discretion in favour of the applicants to introduce the further affidavit. It is both very late and out of the ordinary sequence and there is no explanation for why it was filed at the time when it was nor what was new evidence that was not available at the time of launching the application. 

[20] The objection to the introduction of the supplementary affidavit is upheld.

[21] The next issue is the commissioning of the founding affidavit. The respondent’s argument is that because it was not properly commissioned, there is no founding affidavit and, therefore, there is no application for condonation. The law is that a proper commissioning must have the initials of the commissioner on every page. That is not the case with this affidavit.

[22] The founding affidavit has been deposed to by the deponent who initialled all the pages of the affidavit but not the annexures thereto. The commissioner of oaths did not initial any of the pages. I do not intend to treat the founding affidavit as a nullity. There is an affidavit although it is not properly commissioned. 

[23] The deficiencies affect the value of the content of the affidavit. I have regard to the affidavit as a document, containing information, but not properly commissioned. I am having regard to the contents of the affidavit.

[24] The missing confirmatory affidavits have two effects. The one is to stretch the delay even further, albeit only by a few days. Secondly, it shows a lack of urgency and attention to the case. However, they do form part of the founding affidavit as reference has been made to them although they were filed only at a later point in time.

[25] I now deal with the application for condonation for the late filing of the statement of case. The last date for filing the statement of case was 3 February 2014. It was filed on 19 March 2014 and the application for condonation itself was only filed on 27 October 2014. 

[26] The rules of this court require that an application for condonation must accompany the process which is filed out of time. There is a need for two explanations. The one is for the delay in filing the statement of case and the second for filing the condonation application much later and also out of time.

[27] Firstly, the degree of lateness. The statement of claim was filed 44 days late and adding thereto, a few days for the confirmatory affidavits which I will ignore for purposes of calculating the delay. 

[28] A delay of 44 days is an excessive delay in this matter. It is more than the permitted six week period within which the statement of case had to be filed. The application for condonation filed on 27 October 2014, comes after a further delay of approximately seven months. That of course is also an excessive period.

[29] The explanation for the delay is in respect of the statement of claim. The certificate was issued on 5 November 2013. The six week period within which to launch the application commenced the next day. For the period from 6 November to 6 December, the applicants tender no explanation as to what was done to prepare an application. They seem to have relied on the fact that they had six weeks to file the application and need not to have to take any steps during the first month.

[30] The explanation simply is that the certificate was issued on 5 November 2013 and the regional organiser on 6 December 2013 submitted the matter to the union’s legal department at regional level. There is a lack of an explanation for 30 days out of the six weeks and additional 44 days of the period within which the application was served. 

[31] What is surprising is that the First Applicant then proceeds to explain the delay from 6 December on the basis of a holiday period and people going on leave. This exacerbates the absence of an explanation between 6 November and 6 December because that was the period within which the regional organiser should have realised that there was a holiday period looming and that people may go on leave as they usually do during that period and that steps had to be taken in order to pursue this matter before the holiday period when some difficulties might be foreseen in dealing with a matter of this nature.

[32] By not attending to the matter during the first month and tendering no explanation for the failure the applicants deprived themselves from relying on the holiday period as a reason and an explanation for the delay that followed.

[33] For the period 6 December 2013 to middle January 2014, the explanation is that one or the other legal officer in the national office was on leave.

[34] What is lacking in this regard are the names of the legal officers. Some names are mentioned. The dates when they were on leave, when they left on leave, when they returned from leave, who else was in the office, whether there was anybody else in the office, whether everybody went on leave at the same time, all of that information was not disclosed and no persuasive reason has been given why it was impossible to get hold of an attorney to instruct him/her to pursue this matter.

[35] The explanation for this part of the period of delay is also lacking in detail. It amounts to a bold statement that the legal officers went on leave and, therefore, the matter could not be attended to.

[36] It appears from the papers that there may have been a 14 day period in January too, when legal officers were in fact at the office but did not do anything in pursuing the matter by instructing an attorney. This occurred towards the end of January 2014. An attorney was instructed followed by a call on 3 February 2014 from the attorney requesting instructions. 

[37] The first consultation is set up for 25 February 2014, a further 22 days later. In the replying affidavit, the applicants say that that was the first available date when the attorney became available. There is no confirmatory affidavit in this regard.

[38] The consultation, however, did not materialise because the applicant says that the shop stewards who had to attend the consultation on 25 February were not released by the employer. The applicant could not produce any evidence as to when exactly the request for the release was made, to whom it was made, and whether there was any response.

[39] The respondent denies that any such request was made. It says that it has no record of it, it was not made and therefore disputes that it did not release the shop stewards as requested

[40] In the replying affidavit, the applicants stated that they could not find the documentation supporting this contention.  .

[41] In motion proceedings, in dealing with a dispute of fact in the absence of probabilities to the contrary, one has to accept the respondent’s version, which in this case means that there was no request for a meeting on 25 February.

[42] A further consultation, according to the applicant, was then set up for 13 March 2014 and the shop stewards were released for this consultation. According to the respondent, this was the first request and it released the shop stewards. Again, there is no explanation why this could not have been done earlier.

[43] It is also not clear on the explanations why consultations could not have been held over weekends. It appears that eventually that was what happened. In that case, it is not clear why it was necessary to release the shop stewards in the first place to attend a consultation.

[44] I accept in favour of the applicants that the shop stewards had to be released. These long periods in between, however, suggest a lack of urgency in pursuing this matter. 

[45] The attorney diligently filed the statement of claim within six days after receiving instructions.

[46] According to the documentation, the union was involved in the proceedings relating to the dispute between the parties that gave rise to the dismissal of the second and further applicants. There is no explanation as to why it did not have, at hand, the documentation that formed part of the application for condonation and referred to in the statement of case to instruct an attorney in good time.

[47] The rules of this court do not require a party in detail to plead its evidence in a statement of claim. There is no explanation as to why a statement of claim based on the information and evidence that the First Applicant should have had in its possession by reason of its involvement in the matter from inception was not sufficient to file a statement of claim or brief an attorney to file one. 

[48] There is no explanation as to the need for the input of the shop stewards in order to formulate the statement of claim except to say that further information was required. It is unclear what the information was and why the union was not in possession of that information having regard to its involvement in the matter from inception.

[49] Just short of a month later, a consultation with the shop stewards was set up with the attorney in order to formulate the application for condonation. There is no explanation as to why the application for condonation could not have been done simultaneously with the statement of claim.  

[50] Having regard to the fact that the shop stewards were present at the consultation with the attorney and having regard to the union’s involvement in this matter from 6 November 2013 until the statement of claim was filed, the shop stewards do not seem to have had any particular role to play in explaining the delay from the date that the statement of claim had to be filed to when it was actually served. This was a matter peculiar to the union who dealt with the matter internally and eventually made the arrangements with an attorney.

[51] The applicants state that the meeting of 14 April 2014 did not materialise because the company did not release the shop stewards. There are two sets of communication from the union to the respondent and it seems correct that the shop stewards were not released. The respondent denies the request. On the probabilities, the request was made and ignored.

[52] A bald statement follows that from 15 April 2014 to 20 May 2014, arrangements were made to meet the shop stewards and the attorney. This court is not privy to what those arrangements were, when they were made, between whom they were made and what caused the delay.

[53] The consultation for purposes of the condonation application was held on 7 June 2014. The legal representative commenced preparation of the condonation papers on 18 June 2014. The documents handed to the legal representative, were misplaced and in the absence of those documents, say the applicants, the application for condonation could not be finalised.

[54] The documents were traced in the second week of October 2014 at the home of the legal representative where after the application was finalised on 21 October 2014, signed on 22 October 2014 and filed on 27 October 2014. 

[55] The explanation during the period from January to October 2014 in respect of the application for condonation really only covers one consultation when the employer on the probabilities did not release the shop stewards and the period when the legal representative misplaced the documents.

[56] The applicants have, however, not explained what the documents were that were misplaced and whether it was possible to obtain them from a different source, such as the employer. There does not seem to be any documentation in the application for condonation that did not arrive from or was not privy to the employer party.

[57] The court simply does not know whether any attempt was made to find substitute papers for those that were misplaced during this period. 

[58] Is this an adequate explanation for the delay in respect of the statement of claim and that of the filing of an application for condonation? Firstly, this is a well-established union with a centralised legal function and it quite clearly is experienced in matters of this nature and has knowledge of the time periods and what is required to pursue a matter. 

[59] The explanation, especially, for the first month is absent. For a month, nothing was done and no explanation was tendered. This, well knowing that the holiday season was approaching when people might not be available.

[60] The matter was then sent to head office and the organiser did not follow up to see if someone is dealing with the matter and what arrangements had been made. The matter is handed from one to another internally and nothing is done to pursue the matter until the end of January 2014.

[61] There is a lack of detail in the explanation as to who was not there, when they were not there and whether anybody else could have handled the matter or what the position was. The attorney, according to the explanation of the applicants, had to ask for information. The arrangements proceeded went at a snail’s pace.

[62] The explanation for the late filing of the statement of case and for the filing of the condonation application is insufficient to warrant condonation in this matter. 

[63] That being the case, the other aspects of condonation are to be considered. Unless it is in the interest of justice to grant leave to the applicants to pursue their case and only for that purpose, I address the further aspects.

[64] First of which is the prospects of success, the applicants argue that the provocative conduct of the employer contributed to or caused the unprotected strike. According to them, there was a long standing practice to pay salaries bi-weekly, which practice the employer breached. They also state there was no formal disciplinary hearing and that both substantively and procedurally, the dismissal was unfair.

[65] The respondent has a different version. It says that, for historical reasons after having merged certain divisions, it needed to change the practice to a monthly payment practice in the place of paying the employees every second week. This resulted in a dispute and the applicants refer a minute of a meeting during August 2013 that clearly demonstrates that there was no agreement between the parties that a new payment structure would be implemented.

[66] What the union did not point out was that subsequently thereto, the dispute that it had referred to the CCMA was settled at the CCMA on the basis that there would be a change; that the change would be communicated and consulted on by the union but the change would be phased in from 1 July 2013 to 15 December 2013. The parties agreed on a dispute resolution mechanism, i.e. arbitration of the matter if the union could not get a mandate to deal with the matter.

[67] During late August 2013, the employer as agreed advised the union that it was going to introduce the new system. Naturally, in terms of the agreement reached at the CCMA, if there was no agreement on the matter, then the dispute had to go through the dispute resolution mechanism adopted by the parties.

[68] On 16 September 2013, the employees went out on strike demanding payment and according to them, promises were made on 16 of payment on 16, 17 or 18 which did not materialise. This, according to the union, was in breach of promises made. 

[69] The employer denied that and stated it followed the procedure that the parties agreed to at the CCMA. The employer advised that it was going to introduce the new way of payment which it then by reason of the strike agreed not to do for the time being but to make a payment on 19 in accordance with its pay roll systems. 

[70] Notwithstanding such a promise, the employees pursued their strike action. They were informed that they could attend a disciplinary inquiry which they refused to do and then advised to follow an appeal process which they also refused to attend. This resulted in their dismissal.

[71] The prospects of success, having regard to the fact that they were on a final written warning for similar conduct, is not a factor that makes it in the interest of justice to grant condonation. 

[72] The final issue is that of prejudice do the parties. The applicants do not address the issue of prejudice to the parties. It is, therefore, left to the applicants to merely argue what possible prejudice there could be. There is no special prejudice pleaded in the application for condonation that they would suffer. 

[73] The respondent argues that it is drawn into unnecessary and costly litigation in a matter where the applicants have not pursued their case with due diligence. In addition, it has completed the project where the applicants were employed and has since embarked upon a restructuring and large scale retrenchments as a result of further developments. 

[74] These developments, according to the employer, occurred after the matter had been on the roll during 2015 but had to be postponed as a result of the further affidavit that the applicants filed in support of the application for condonation. Also, the respondent may have to now incur additional expenses in having witnesses available that would otherwise have been available at no additional costs as they have left the employer's employ. 

[75] On the pleadings, the employer may have made out a case that it would suffer more prejudice than the applicants. The prejudice to the parties is not a factor that sways a decision one way or the other, as to whether condonation should be granted. 

[76] Having regard to the inadequacy of the explanation and whether the interest of justice demands condonation to be granted, I am of the view that the application for condonation stand to be dismissed.

[77] Both parties asked for costs. The court must have regard to the law on fairness and those additional factors specified in the Labour Relations Act, regarding costs. One of the factors is the manner in which a case is conducted and in this case:

77.1      The applicants conducted their case in a piece meal fashion;

77.2      It filed its statement of case late;

77.3      The late filing of the statement of case was followed by an even later application for condonation;

77.4      It attempted after expiry of a lengthy period to introduce a further affidavit in support of its application for condonation;

77.5      The applicants failed to have their founding affidavit properly commissioned;

77.6      They failed to file their confirmatory affidavits simultaneously with its founding affidavit;

[78] There also is the complaint about not abiding by the practice manual with regard to filing its heads at the previous occasion.

[79] In my view, fairness demands that a cost order be made.

[80] I make the following order:

80.1      Mr Masiza is joined as an applicant in the condonation application and it is ordered that the two matters under case number JS227/2014 and 228/2014 be heard together. 

80.2      The objection against the filing of a supplementary affidavit by the applicants is upheld

80.3      The condonation application is dismissed, the first applicant to pay the respondents’ costs.   

                                                                                              ______________

Coetzee, AJ

                                                                   ACTING JUDGE OF THE LABOUR COURT

Appearances:

For the applicant: Adv F Baloyi

Instructed by: KD Maimane      

For the Respondent: Roxanne

Instructed by: Geo(employers organisation)       

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