Brits and Others v Combined Manufacturers National (Pty) Ltd (JS812/2011) [2014] ZALCJHB 321 (26 August 2014)

REPUBLIC

OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case No: JS 812/2011

In the matter between:

ELIZABETH

DORATHEA BRITS First

Applicant

HELENA

MARIAL BESTER Second

Applicant

KIZELLE SPOHR Third

Respondent

MIRANDA

STRACHAN

Fourth

Respondent

LINDI BEKKER Fifth

Respondent

MATHEW

JOHN MATTHYSEN Sixth

Applicant

and

COMBINED MANUFACTURERS NATIONAL (PTY) LTD Respondent

Heard: 15 August 2014

Delivered: 26 August 2014

Summary: An application for condonation may not succeed when the period of the delay is excessive, the applicant fails to proffer reasonable explanation and is without reasonable prospects of success.

Condonation for the late filing of the response to a counter-claim.

LALLIE, J

Introduction

[1] This is an application for condonation of the late filing of the opposing papers to the respondent’s counter-claim.

Factual background

[2] On 28 September 2011, the applicants’ served their statement of claim on the applicant pursuant to their dismissal for operational requirements of the respondent. The respondent delivered its response to the statement of claim incorporating a counter-claim on the applicants’ attorneys on 7 November 2011. On 17 July 2012, the first to fifth applicant (‘the applicants’) filed their response to the respondents ‘point in limine and counter-claim. They also filed an application for condonation as the response to the point in limine and counter-claim was filed eight months after the said documents were filed. It is common cause that the counter-claim relates to the first respondent only.

[3] An applicant for condonation needs to show good cause. In determining whether good cause has been shown, it is trite that the court has a discretion which needs to be exercised judicially. In doing so, all the facts need to be taken into account with a view to achieve fairness to both parties. Some of facts, which are interrelated, are the degree of lateness, its explanation, prospects of success and the importance of the case. An objective conspectus of all the facts is necessary.[1]

[4] In the recent judgment of the Constitutional Court in F v Minister of Safety and Security and Another (Institute for Security Studies, Institute for Accountability in Southern Africa Trust and Trustees of the Woman’s Legal Centre as Amici Curiae),[2] the following was stated:

‘[28] It is now trite that condonation will be granted if it is in the interests of justice to do so, and if there appear to be reasonable prospects of success on appeal. Factors to be considered with regard to the interests of justice include the reason for the delay, and the extent of the prejudice, if any, that was suffered by the other party.’

[5] It common cause that the delay is excessive as it is about eight months. The reason proffered by the first applicant for the delay is that as she did not know the origin of the counter-claim, she was under the impression that the issue of the counter-claim would be dealt with at the pre-trial conference. The counter-claim is not a liquid claim and the respondent failed to file documents supporting its counter-claim. The first applicant further relied on the communication between the attorneys of the parties which convinced her that the issue of the counter-claim would be dealt with at the pre-trial conference. From February 2012, the counsel responsible for her case was not available as he was working on a forensic issue in Durban.

[6] The reasons proffered by the first applicant proved implausible and unreasonable against the respondent’s submissions. It needs to be mentioned that evidence which counsel for the first applicant attempted to lead from the bar did not assist her case. It is common cause that the parties attempted to resolve their dispute amicably. However, the attempts fell through when, on 29 October 2011, the first applicant withdrew from the process. On 20 January 2012, the respondent’s attorneys addressed a letter to the first applicant’s attorneys in which they, inter alia, expressed their intention to proceed with an application for default judgment with regard to the counter-claim as the first applicant had failed to respond to the counter-claim. Again in a letter dated 26 January 2012, the respondent unequivocally expressed its disagreement to have the issue of its counter-claim incorporated in the pre-trial conference and reminded the applicant of its intention to proceed with the default judgment. On 18 June 2012, the respondent’s attorney informed the applicant’s attorneys that the unopposed counter-claim was set down for default judgment on 12 September 2012. The response to the counter-claim and this condonation application were filed almost a month later on 17 July 2014.

[7] In the counter-claim, the respondent seeks an amount of R 197 721.68 which the first applicant failed to pay over to the respondent pursuant to an agreement that the first applicant would move over to the respondent clients of her business when taking up employment with the respondent. There is also an undetermined amount which the respondent intends claiming from the first applicant arising from her breach of the agreement.

[8] The first applicant should have applied for condonation as soon as she became aware of the necessity to file the application. When the circumstances of this matter are considered, the duty arose when the first applicant withdrew from the attempts to settle the dispute on 29 October 2011. On 20 and 26 January 2012, when the respondent expressed the intentions to apply for default judgment in respect of the counter-claim, the applicant could not reasonably have expected to deal with the counter-claim at the pre-trial conference. The applicant submitted that her counsel was not readily accessible since February 2012. The submission does not assist the applicant explain why her condonation application was not filed before 17 July 2012.

[9] There was a duty on the first applicant to explain the entire delay. She failed to do so. Her explanation does not cover the period running from 26 January 2012 to 16 July 2012. The unavailability of her counsel since February 2012 is insufficient. In Waverly Blankets Ltd v Ndima and Others; Waverley Blankets Ltd v Sithukuza and Others,[3] a decision which was referred to with approval in SA Post Office Ltd v Commissioner for Conciliation, Mediation and Arbitration and Others,[4] it was held that an applicant seeking condonation cannot rely on the negligence of its representatives as a reason for not complying with the prescribed time periods. The unreasonableness of the reason for the delay is not affected by the first applicant’s reliance on her attorneys for filing the response to the counter-claim and condonation application on time.

[10] It was urged on behalf of the first applicant that she has good prospects of success in the main application as her dismissal for the respondent’s operational requirements was unfair. The counter-claim was also said to be expiable. The first applicant did not raise any exception against the counter-claim. Her conduct of pleading to the counter-claim without raising an exception on the grounds that it is vague and embarrassing or for any other reason flies in the face of her allegation of her inability to answer to it owing to the manner in which the counter-claim had been pleaded. The first applicant made no valid submission to prove her prospects of success in the counter-claim. Her submissions on her prospects of success in the main application are not sufficient.

[11] The respondent submitted that it was prejudiced by the delay as it is in its interest to have the main dispute resolved expeditiously. The first applicant’s submission that she will suffer more prejudice in the event of this application being refused has merit.

[12] On a conspectus of all the facts and circumstances, it cannot be concluded that the first applicant has shown good cause. Even in determining whether it is in the interest of justice that condonation be granted, the reason for the delay becomes relevant. The extent of the delay is excessive, its explanation is not reasonable and the first applicant has no prospects of success in the counter-claim. Her application cannot succeed.

[13] The respondent sought a costs order against the first applicant. The first applicant did not act unreasonably in bringing this application. It will therefore not be fair to grant a costs order against her.

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

14.1 The application for condonation of the late filing of the response to the respondent’s counter-claim is dismissed.

_____

Lallie J

Judge of the Labour Court of South Africa

Appearance

For the Applicants: Advocate Crouse

Instructed by: Malan and Hitge Attorneys

For the Respondent: Mr Randt of Du Randt Du Toit Pelser Attorney

[1] See Malane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532C-D.

[2] (2012) 33 ILJ 93 (CC) at para 28.

[3] (1999) 20 ILJ 2564 (LAC) at para 10.

[4] (2011) 32 ILJ 224 (LAC) at para 21.