Ditsoane v ACWA Power Africa (Pty) Ltd (JS 259/2017) [2022] ZALCJHB 1 (31 January 2022)

Not reportable

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Case No. JS 259/2017

In the matter between

SEIPATI JOYCE DITSOANE Applicant

and

ACWA POWER AFRICA HOLDINGS (PTY) LTD Respondent

Date of hearing: 28 January 2022

Date of judgment: 31 January 2022

JUDGMENT

VAN NIEKERK J

[1] On 3 November 2017, by consent, this court ordered that an application enrolled for hearing

be postponed sine die and that the applicant be afforded 10 days from the date of the order to file an affidavit explaining why the statement of case filed by the applicant ought to be revived, ‘failing which the statement of case will remain withdrawn in its entirety’.

[2] The order has its roots in an application brought by the applicants seeking to set aside a notice of withdrawal filed by the applicants’ erstwhile attorney of record. The applicants had been retrenched in November 2016, and filed a statement of claim in May 2017 contending that they had been unfairly dismissed. The applicants state that they terminated the mandate of their then attorneys of record, and due to miscommunication, the entire case was withdrawn in terms of Rule 13, the attorneys erroneously under the impression that the applicants were no longer pursuing the matter. That notice was filed in October 2017, and reads “Kindly take notice that the Applicants hereby withdraws the matter altogether – Rule 13’. On 3 November 2017, the court granted the order referred to above, in the context of a hearing on an exception that the respondent had raised in response to the statement of case. On 24 January 2018, the applicant filed an application to set aside the notice of withdrawal.

[3] The applicant failed to comply with the terms of the order dated 3 November 2017, more particularly,

she failed to file an affidavit as directed. The application to set aside the notice of withdrawal was set down for hearing on 28 January 2022. A week before the application the applicant filed an application seeking condonation for the failure to comply with the order dated 3 November 2017. The respondent abides by the decision of the court.

[4] The affidavit was to have been filed by 17 November 2017, granting that the reference in the order was to court days. It was filed on 24 January 2018, 68 calendar days late. By any account, that is an excessive delay. The delay is explained by the applicants’ current attorney of record, who states that the draft order was sent to his offices only on 19 January 2018. The respondent’s attorney apologised for the delay, and agreed that the period within which the applicants were to file the affidavit would commence only on 19 January 2018. The application to set aside the notice of withdrawal was made less than a week later.

[5] In the circumstances, the delay must be viewed in the light of the explanation for it. I am satisfied that the applicant’s attorney was unaware of the order granted on 3 November 2017 until 19 January 2018, and that he acted with due diligence once he became aware of it, both by securing an agreement with the respondent’s attorneys as to a date by which the application should be filed and securing service and filing within the agreed period.

[6] At the hearing, only the issue of condonation was canvassed. In so far as the merits are concerned, the substantive application remains opposed, and ought properly to be heard on the interlocutory roll.

I make the following order:

1. The applicant’s failure to comply with the order granted on 3 November 2017 is condoned.

2. The Registrar is directed to enrol the application to set aside the applicant’s notice of withdrawal

on the interlocutory roll.

André van Niekerk

Judge of the Labour Court

REPRESENTATION

For the applicant: Mr B Ntsokontsoko from Ndumiso Inc Attorneys