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IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

 

Not Reportable

Case no: JR2651/12

 

 

In the matter between:

 

ELLIOT MAJOLA                                                 Applicant

 

and

 

POPCRU GROUP OF COMPANIES

WORKERS LIFE                                                  Respondent

 

 

Heard:         08 November 2022

Delivered:   25 May 2023

 

 

JUDGMENT

 

 

BALOYI AJ

 

Introduction

 

[1]    The applicant approached this Court seeking relief which is crafted in his notice of motion as follows:

 

1.   Quantification of the outstanding amounts under the order made by the above Honourable Court and payment of the interest accrued thereto.

2.   Payment of the medical, pension and leave days that were not in the order made by the Court, to be determined by the Court.

3.   That the respondents) is hereby ordered to pay the costs of the application.'

 

[2]    The applicant relies on an actuarial report to suggest that the respondent is liable to pay him R579 639.00. The application is opposed, and the respondent has also raised a point of misjoinder. The applicant cited the respondent as POPCRU Group of Companies t/a Workers Life, whereas the arbitration award was obtained against POPCRU Group of Companies (Pty) Ltd t/a Lesaka Employee Benefits.

 

Factual background

 

[3]    Following the applicant's dismissal on 21 September 2012, the CCMA arbitrator issued an arbitration award in terms of which the dismissal of the applicant was found to be substantively unfair. The applicant was awarded a relief of reinstatement retrospective to the date of his dismissal. The respondent challenged the arbitration award by way of review and this Court dismissed it, per Patel Ad's order made on 7 July 2015. The application for leave to appeal and the petition to the Labour Appeal Court (LAC) were both refused.

 

[4]    After the LAC's refusal of the petition in February 2015, the applicant enforced the order through a writ of execution in respect of back pay, interest, costs and Sheriffs fees in the total of R1 618 680.59. Thereafter, the applicant engaged the services of an actuary and the report dated 4 July 2018 was issued. According to the report, the amount of R579 639.00 is recorded as the total due at calculation date excluding leave day: R462 621.00 and leave Cavs: R117 018.00.

 

[5]    In paragraph 14 of the founding affidavit, the applicant describes the claim as follows:

 

'This claim I based on the loss of earnings determined by the Actuaries in the amount of R579 639.00 (FIVE HUNDRED AND SEVENTY-NINE THOUSAND SIX HUNDRED AND THIRTY-NINE HUNDRED RANDS). The report is attached hereto and marked annexure "TF04" [sic]

 

[6]    In paragraph 16 of the founding affidavit, the applicant concludes that:

 

'I can attest to the fact that the respondent is being unfairly deprived of his earnings that he is lawfully entitled to [sic].'

 

[7]    There is nothing pleaded in the founding affidavit supporting the application in respect of the second prayer. The respondent submits that the claim should be dismissed for lack of merit and that it has complied with the arbitration award by effecting the payment as calculated by the applicant and further reinstated the applicant. The applicant placed a denial to the respondent's allegation that he has been reinstated and further "put the respondent to proof thereof'.

 

[8]    The respondent has, amongst others, further pleaded that the applicant's attorneys were first informed through a letter dated 5 July 2018, denying any indebtedness towards the applicant and that there were discrepancies in the actuarial report. A similar letter was sent to the applicant's attorneys dated 30July 2018. It bears mention that when these two letters were dispatched, this application was not filed yet.

 

[9]    On 25 October 2018, after being served with this application, the respondent's attorneys sent another letter to the applicant's attorneys indicating how ill-considered the application was. The letter went further to state that the applicant has been paid more interest than what he was supposed to receive as it was calculated from the date of the award, instead of the date of the order dismissing the review application. A copy of the LAC judgment supporting the respondent's assertion was attached to the letter for the applicant's information. The applicant, as the letter stated, was afforded an opportunity to withdraw the application. The applicant's attorneys, instead, posted a response that they do not litigate through correspondence. In the replying affidavit, the applicant merely posted denials and emphasized the applicant's entitlement to the monies claimed.

 

Discussion

 

[10]  It is worth stressing that the applicant's pleaded case in the founding affidavit is not consistent with the prayers in the notice of motion. In terms of the first prayer, the applicant is looking for payment of the outstanding amounts under the order made by this Court together with interest. There is nothing pleaded in the founding affidavit to suggest that the order was made by this court reflecting an amount owed to him by the respondent. The only part of the affidavit in paragraph 12 only reflects the amount of R579 639.00 as loss of earnings calculated in terms of the actuarial report.

 

[11]  This Court in Mangu v City of Johannesburg[1] emphasized the elementary principle applicable in motion court proceedings as follows

 

'It is trite that an applicant must set out its case in the founding affidavit and must stand or fall by his or her founding affidavit. In my view the Applicant must fall by her founding affidavit as she dismally failed to make the necessary averments to sustain her case in terms of section 77(3) of the BCEA.'

 

[12]  What is further notable, from the replying affidavit, is the elaborative arguments made in an attempt to diffuse the respondent's point of misjoinder and gave some breakdown on why it is alleged that there is an outstanding amount of R579 639.00. This clearly denotes the existence of a dispute of facts which was foreseeable even before the application was filed. The applicant knew as early as 5 July 2018 that the matter was about the respondent's disputed indebtedness to him and that the report relied upon for the calculated amount has discrepancies. The applicant nevertheless proceeded with the matter in the motion court and made no attempt to apply for the referral of the matter for oral evidence.[2] In Room Hire Co (Pty) Ltd v Jeppe Street Mansion (Pty) Ltd[3], the court held that:

 

'It is obvious that a claimant who elects to proceed by motion runs the risk that a dispute of fact may be shown to exist. In that event (as is indicated infra) the Court has a discretion as to the future course of the proceedings. If it does not consider the case such that the dispute of fact can properly be determined by calling viva voce evidence under Rule 9, the parties may be sent to trial in the ordinary way, either on the affidavits as constituting the pleadings, or with a direction that pleadings are to be filed. Or the application may even be dismissed with costs, particularly when the applicant should have realised when launching his application that a serious dispute of fact was bound to develop. It is certainly not proper that an applicant should commence proceedings by motion with knowledge of the probability of a protracted enquiry into disputed facts not capable of easy ascertainment, but in the hope of inducing the Court to apply Rule 9 to what is essentially the subject of an ordinary trial action.

 

[13]  In Hudson and another v South African Airways SOC Ltd,[4] the LAC held that where in application proceedings there is a factual conflict on the papers and the employer putting up a complete defence in an answering affidavit, the application must fail because the Court is obliged to accept the respondent's version. The following conclusions were made

 

'[15] On these papers, the application of the well-known principles of Plascon-Evans dictated that the application stood to be dismissed for insufficient evidence. There was no need, therefore, to go any further in dealing with the relevant disputes. The appellants chose an ill-considered form of motion proceedings in this case. They bore the risk and were unable to surmount the problem.

 

[16] For these reasons, the ultimate result reached by Walele AJ was correct although for different reasons. The dispute of facts cannot be resolved on these papers. There was no recourse to oral evidence and thus, on these papers, the dispute cannot be resolved in favour of appellants.'

 

[14]  In Gbenga-Oluwatoye v Recket Ben Kaizer South Africa (Pty) Ltd and Another,[5] the LAC said the following:

 

'The Appellant elected to proceed by way of notice of motion in the matter and did not seek a referral to oral evidence or trial. Having made such election, he could only have been successful if the facts as stated by the respondents, together with the admitted facts in his affidavit, justified the grant of the relief he sought. In the face of a real, genuine and bona fide dispute of facts put up by the Respondent, which amounted to a substantiated and clear defence, the Labour Court, on an application of the relevant principles, could not properly have granted the relief sought by the Appellant...

 

[15]  The applicant elected to approach this Court by way of motion proceedings rather than through action proceedings in terms of the rule [6] procedure for adjudication. It is clear from the applicant's founding affidavit, replying affidavit and heads of argument that the applicant's case is based on claims which, in their pursuit, it was foreseeable that a genuine dispute of facts will arise. With no attempt to apply for the referral of the matter to oral evidence, there is no other order to make other than one dismissing the application. In the circumstances, this application falls to be dismissed.

 

Costs

 

[16]  It is now a settled position that the rule that costs follow the result does not automatically apply in labour matters. Given that the order of reinstatement brought about the restoration of the employment relationship, it will not be within the requirements of law and fairness to make a cost order.

 

[17]  In the premises, the following order is therefore made

 

1.   The application is dismissed.

 

2.   There is no order as to costs.

 

 

M Baloyi

Acting Judge of the Labour Court of South Africa

 

Appearances:

 

For the Applicant:                       T Faku of Faku Attorneys

For the First Respondent:          Adv PH Kirsten

Instructed by:                             Grosskopf Attorneys

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