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IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO. 1372/06

In the matter between:

MOGODIRI SELLO ELLY Applicant

and

MAFIKENG LOCAL MUNICIPALITY Respondent

JUDGMENT

APPLICATION

MMABATHO

DATE OF HEARING : 22 February 2007

DATE OF JUDGMENT : 29 March 2007

COUNSEL FOR APPLICANT : Adv. W. Mokhari

COUNSEL FOR RESPONDENT : Adv. K. Lengane

GURA J:

Introduction

[1] The applicant brought an application which is couched in the following terms:

“1. An order directing respondent to submit to a private arbitration to be conducted under the auspices of Arbitration Foundation of Southern Africa (AFSA) regarding the employment dispute which has arisen between applicant and respondent which led to the applicant’s subsequent dismissal thereof.

2. Costs of the application on attorney and own client scale to be paid by respondent, alternatively

3. Costs de bonis propis (sic) to be paid by the respondent’s attorney (Motaung Incorporated) on attorney and own client.

4. Further and/or alternative relief.”

[2] After listening to argument on 22 February 2007, the Court made the following order:

“1. Respondent is directed to submit to private arbitration to be conducted under the auspices of Arbitration Foundation of Southern Africa or any other private arbitration in terms of clause 23 of the written employment contract concluded between applicant and respondent (Annexure A) regarding the dispute which has arisen between applicant and respondent regarding applicant’s dismissal.

2. Respondent is ordered to pay the costs of the application on the scale as between attorney and own client.

3. Reasons for judgment are reserved.”

Here then are the reasons.

Factual background

[3] The following facts are either common cause between the parties, are admitted or are not denied

3.1 The applicant was employed by the respondent in a capacity as Director: Public Safety.

3.2 The contract of employment is contained in a document which is entitled Annexure “A” before court.

3.3 The duration of the contract of employment would be from 1 March 2003 up to and including 29 February 2008.

4. Applicant assumed duties as agreed on 1 March 2003.

4. During the subsistence of this contract, applicant was deployed by respondent (within the same institution) to perform the services of Municipal Manager, in an acting capacity.

4. He was subsequently charged with and convicted of misconduct.

4. His sanction was a dismissal, with effect from 22 August 2006.

4. In a letter dated 24 August 2006, addressed to respondent, applicant indicated his desire to have this matter brought before an independent arbitrator either in terms of clause 14.4 of the respondent’s disciplinary code or in terms of clause 23 of the contract.

4. On that same day, the respondent advised applicant to direct his appeal to the respondent’s council.

4. Although applicant did not agree with respondent he filed an appeal with the respondent which was not entertained.

4. Later the respondent suggested that the dispute relating to his dismissal be referred to a private arbitrator.

4. Applicant agreed and he referred the matter to private arbitration by the Arbitration Foundation of Southern Africa (AFSA).

4. On 5 September 2006 AFSA accepted the brief subject to a payment of R5 700-00 by each party.

4. Applicant paid a deposit of R1000-00 into AFSA’s bank account.

4. Applicant notified respondent about the decision of the arbitrator and asked it to pay its portion into AFSA’s bank account not later than 26 September 2006.

4. On 26 September 2006 respondent informed AFSA and applicant that applicant was not entitled to private arbitration.

4. When respondent received applicant’s letter, expressing his disappointment at this latest development, respondent advised him to refer this matter to the CCMA instead.

4. In response to applicant’s further communication, respondent advised applicant, this time, to take “the matter to the appropriate forum like any other employee of the Mafikeng Local Municipality.”

The issues

[4] The dispute between the parties centres around the following:-

1. Is the present dispute between the parties a “dispute” as envisaged in clause 23 of the contract?

2. Was the condition in clause 4 of the contract ever fulfilled?

3. Is the application fatally defective because it does not comply with Rule 6 (5) (b) of the Uniform Rules of Court?

Interpretation of clause 23 of the contract of employment

[5] Cause 23.1 provides:

“That for the purpose of this clause, ‘disputes’ includes (sic), without prejudice to the generality of that term, any dispute arising out of or in connection with this agreement and/or the interpretation thereof and/or transaction contemplated thereby”. (The underlining is mine).

The Concise Oxford English Dictionary, Eleventh Edition defines a dispute as:

“a disagreement or argument, a disagreement between management and employees that leads to industrial action.”

In my view, the language used in clause 23.1 is wide enough to encompass the present disagreement between the parties.

Clause 4 of the contract of employment

[6] The heading to cause 4 is “conditions precedent” and it reads as follows:

“4.1 That notwithstanding anything to the contrary contained in this agreement, the Employee shall be required to conclude a performance agreement with the Municipal Manager of the Municipality within 90 (ninety) days after the signing of this agreement failing which no agreement shall come into force or effect.

2. That, alternatively this agreement shall automatically terminate immediately upon the expiry of the period referred to in this clause for which such performance agreement ought to have been concluded or upon the expiry of such reasonable extension of the period as may be agreed to by the Municipality for such purposes.”

[7] Counsel for the respondent argued as follows: The court is precluded from determining whether the alleged contract of employment did not fail to come into force or effect in as much as the applicant’s founding affidavit contains no allegation whatsoever to suggest that the condition precedent thereto, as envisaged in clause 4 thereof, was ever fulfilled. The Court’s response to this submission was to ask counsel whether there is any sober employer who can keep a worker in its service from 1 March 2003 up to 22 August 2006 when he had not submitted the required performance agreement in terms of Clause 4.1. In my view, there is no substance in this argument especially that respondent never averred, in its answering affidavit, that clause 4.1 was never complied with.

Rule 6 (5) (b) of the Uniform Rules of Court (“the Rules”)

[8] Rule 6 (5) (b) provides that:

“(b) In such notice the applicant shall appoint an address within eight kilometres of the office of the registrar at which he will accept notice and service of all documents in such proceedings, and shall, subject to the provisions of section 27 of the Act, set forth a day, not less than five days after service thereof on the respondent, on or before which such respondent is required to notify the applicant, in writing, whether he intends to oppose such application, and shall further state that if no such notification is given the application will be set down for hearing on a stated day, not being less than 10 days after service on the said respondent of the said notice.”

It was submitted on behalf of the respondent that the application had to be dismissed because applicant failed to appoint an address which is within eight kilometres from the Court. Reference was made to two cases in support of this point; Minister of Prisons and Another v Jongilanga 1985 (3) SA 117(A) and Small Business Development Corporation Ltd v Kubheka 1990 (2) SA 851 (T) .

[9] In both of these cases the Court was dealing with Rule 17 (3) and not Rule 6 (5) (b) of the Rules. However, because the wording of both these Rules is almost similar, the sentiments expressed in both cases must be taken to be applicable to the present case mutatis mutandis. In Jongilanga it was held that Rule 17(3) did not set a requirement concerning any of the essential elements of an action; it related to an ancillary feature of the summons and was merely intended to serve the purpose of facilitating exchange between the litigants and, although the Rule was couched in mandatory terms, the Court had a discretion to condone a breach of its requirements. In Kubheka, although there was no formal application in terms of Rule 27(3) to condone the irregularity, the Court did consider whether or not to condone the irregularity. It finally refused to condone it because the address which was reflected was not that of an attorney.

[10] In casu the original Application documents bore an address beyond eight kilometres of this Court. If one looks carefully at the address it is clear that subsequent to that, a correct address (within 8 kilometres) was typed on a piece of paper and then pasted on top of the incorrect one. In its answering affidavit, the respondent stated:

“4.1 the Notice of Motion is irregular in that it does not comply with the requirements of Rule 6 (5) (b) of the Uniform Rules …. ”

Applicant’s response to that (in his replying affidavit) was as follows:

“I do not understand in what respect is it alleged that the Notice of Motion is irregular. In view of the fact that respondent chose not to substantiate its allegations in this regard I need not deal with this save to say that the point raised is without merit. If this relates to the appointment of an address within 8 km of the Court, same has been complied with.”

[11] During argument, the Court asked both counsels when was the correct address pasted on the application. Here is the explanation from applicant’s camp. After the process was issued by the Registrar and when the sheriff had already taken it for service on the respondent (but before respondent was served), the applicant’s legal representative telephoned respondent’s legal representative and drew his attention to the incorrect address. In that conversation, he gave him the correct address within 8 kilometres of this Court. It is for that reason that applicant was surprised to see respondent raising this point in its answering affidavit. Immediately after communicating with respondent’s legal representative as aforesaid, applicant pasted the correct information in the papers before Court. The respondent’s counsel then informed the Court that his instructing attorney (who was also in Court) denied ever receiving such telephonic conversation). I am inclined to believe that there was such a conversation despite the denial of respondent’s attorney. An appraisal of all the evidence in Court convinces me that respondent or its attorney have not always been honest, candid and fair in dealing with the other party. The goal posts kept on shifting from one place to another time and again in so much that even a professional

goalkeeper would have to keep his eyes on the goalpost instead of facing the ball. It should be noted that this criticism does not refer to counsel who argued the case for the respondent in Court.

[12] The Court is convinced that the applicant corrected the error in the application immediately when it came to his notice but before service on the respondent. No prejudice was caused to the opposing party. In my view, this is a proper case where the Court must exercise its discretion to condone the irregularity and it is accordingly condoned.

[13] In my view, the applicant has discharged its onus that it is entitled to the relief sought.

Costs

[14] The Court must emphasise that it was least impressed by the attitude of the respondent or its attorney in the conduct of the whole case. Clause 23.5 provides that “the arbitration shall be held as quickly as possible after it is demanded with a view to it being completed within thirty (30) days after it has so been demanded”. In this case, it took more than six months for an arbitration to be started. The whole delay must be put squarely at the door of the respondent and its attorney. This attorney displays less respect or courtesy towards his colleagues who act for the other party. He makes an undertaking which he disregards with impunity. This attitude, unfortunately, is foreign to the attorneys’ profession and it does not serve as a good example for candidate attorneys. Attorneys are gentlemen and ladies of good integrity who are supposed to uphold acceptable ethical standards. As between themselves, in the persuit of their clients’ interests, they do not have to mislead each other.

[15] Out of sheer frustration, the applicant’s attorney wrote the following letter to respondent’s attorney on 27 September 2006. (Annexure L).

“1. We refer to your letter dated 20 September 2006 which was received by us on the 26 September 2006.

2. We wish to respond to the said letter as follows:

2.1 You will recall that the applicant in this matter filed a notice of appeal on 29 August 2006.

2.2 On 30 August 2006 you responded by way of a notice that stated that “the employee may seek recourse on private arbitration.” This is in line with clause 23 of the employment agreement between our respective clients.

2.3 The writer hereof, on 30 August 2006, had a telephone conversation with yourself and indicated that the matter will be referred to AFSA on 04 September 2006, you had another telephone conversation with the writer hereof, about referring the matter to AFSA. We promised to come back to you late in the afternoon on the same day about the referral.

2.4 In the afternoon of 04 September 2006, we advised you that the matter was referred to AFSA and that your client would be required to pay part of the administration fee charged by AFSA and you agreed to that.

2.5 On a number of occasions, you phoned the writer hereof and told him that you have not been contacted by AFSA regarding this matter. The writer hereof advised you that the statement of case had been filed with AFSA and that part of the administration fee was paid to AFSA.

2.6 On or about 17 September 2006 the writer hereof advised you telephonically that a letter was sent to your office by AFSA dated 18 September 2006 and you indicated that you have not received such a letter and requested it to be faxed to you. On 18 September 2006, the correspondence from AFSA was faxed to you.

2.7 You have never raised any objections about AFSA conducting this arbitration. Only on 26 September 2006, when your client is supposed to pay part of AFSA fee, you indicated that you do not agree to the arbitration being conducted by AFSA.

2. Your letter of 26 September 2006 is reneging from the agreement that the matter be referred to AFSA.

2. The writer hereof relied on your integrity as a colleague that there was an agreement that the matter be referred to AFSA and as such we viewed your conduct as being unethical.

2. In the light of the above we wish you to confirm or deny that there was such an agreement that the matter be referred to AFSA.

3. Our client’s rights are reserved.

2. We await to hear from you as a matter of extreme urgency.”

[16] It is this attitude on the part of the respondent and its attorney which calls for a sanction, in the form of a punitive cost order.

SAMKELO GURA

JUDGE OF THE HIGH COURT

Attorneys for the Applicant:

Attorneys for the Respondent:

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