Engelbrecht v South African Local Government Bargaining Council and Others (JR908/11) [2016] ZALCJHB 395 (13 October 2016)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: JR908/11

In the matter between

ABRAHAM HERCULES ENGELBRECHT

Applicant

and

SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL

First Respondent

MABHOKO MATHOLE N.O

Second Respondent

EKURHULENI METROPOLITAN MUNICIPALITY

Third Respondent

Heard: 20 April 2016

Delivered: 13 October 2016

TLHOTLHALEMAJE, J.

[1] This is an opposed application in terms of which the Applicant seeks leave to file a further supplementary affidavit in the main (Review) application. This matter has a protracted history dating back to 1 May 2006 when the Applicant was dismissed on account of allegations of misconduct. A dispute was referred to the First Respondent (SALGBC) resulting in an arbitration award on 6 April 2011 in terms of which the Second Respondent (Commissioner) had found that the dismissal of the Applicant was substantively fair.

[2] The Applicant, represented by his erstwhile attorneys of record, Phillip Du Toit Attorneys launched a review application on 23 May 2011. The Third Respondent filed its Notice of Intention to Oppose on 31 May 2011. On 8 June 2011, the SALGBC filed the records of proceedings in terms of Rule 7A (3) of the Rules of this Court. On 19 April 2012, the Applicant in terms of the provisions of Rule 7A (8) delivered his amended notice of motion and an amended founding affidavit. The Third Respondent’s attorneys of record objected to the amendment.

[3] The record of proceedings was not filed as contemplated in Rule 7A (6) of the Rules, and on 19 June 2012, the Third Respondent served the Applicant with a Notice of Non-Compliance. On 19 June 2012, the Applicant withdrew his amended notice of motion and the answering affidavit in the light of the Third Respondent’s attorneys of record’s objection.

[4] On 18 September 2012, the Applicant in terms of Rule 7A (8) purported to serve an amended Notice of Motion and Supplementary Affidavit by leaving copies at the premises of the Third Respondent instead of serving them on its attorneys of record. He in the same fashion left a copy of the transcript of the proceedings on 26 October 2012 without proper service on the appointed attorneys of record. On 17 April 2013, the Third Respondent delivered its answering affidavit, and the Applicant then filed his replying affidavit on 7 August 2013.

[5] On 6 January 2014, the Applicant’s current attorneys of record, OJ Botha came on board and had on 26 June 2014, delivered an affidavit seeking leave to re-open his case (to supplement and amend the grounds of review). On 16 October 2014, the parties were then directed by this Court to deliver heads of argument within 15 days, with the Third Respondent required to do so within 10 days of receipt of the Applicant’s heads of argument.

The Applicant’s submissions:

[6] The Applicant in essence seeks leave to file a supplementary affidavit on the basis that his previous attorneys, who had prepared the initial founding affidavit and the supplementary affidavit in the review application failed to include all the grounds of review necessary to make out a proper case for the relief sought. He contended that it was only when his new set of attorneys came on board that it was realised that the pleadings as they stood did not make out a case for the review of the arbitration award.

[7] Further submissions made on his behalf were to the effect that the Court should exercise its discretion and admit further supplementary affidavits in that as a lay person, he had trusted his previous attorneys of record to prepare papers in the review application in a manner that a proper case would have been made out for the relief that he seeks and was poorly advised. He further contended that his previous attorneys had attempted to amend the original notice of motion which was objected to by the Third Respondent’s attorneys. However, that objection was bad in law and his attorneys had followed an incorrect process in pursuing the review application. This illustrated that the attorneys were not well versed in matters of Labour Law or applicable rules and procedures of the Court.

[8] It was further submitted that the grounds of review in the founding papers and supplementary papers were of a general nature and not sufficiently specific to the relief claimed. To this end, the papers failed to deal with the aspect of whether the decision of the Commissioner was one that a reasonable decision maker could not reach on the material available. The material contained in

the further supplementary affidavit on the other hand was relevant to the review application, and fairness dictated that the Applicant be given an opportunity to supplement his papers with the correct facts and allegations to support that application.

The Third Respondent’s submissions:

[9] It was submitted on behalf of the Third Respondent that to the extent that the Applicant sought an indulgence, he ought to have applied for condonation in that there was a period of five months’ delay after his new set of attorneys came on board.

[10] It was submitted that the Applicant had not properly served the application to plead de novo, and had further failed to prosecute the review with due diligence. On these grounds, the application for review ought to be dismissed. It was also submitted that the Third Respondent would suffer prejudice should the supplementary affidavits be allowed, and to the extent that the relief might not be granted, the Applicant had a remedy against Phillip Du Toit Attorneys

[11] The Third Respondent had also initially contended that the Applicant sought to establish a new cause of action after a period of three years had lapsed (between 6 April 2011 and 26 June 2014), and thus the provisions of the Prescription Act 68 of 1996 applied. This issue was nevertheless abandoned during arguments and correctly so.

The legal framework and evaluation:

[12] It is trite that in motion proceedings, only three sets of affidavits are allowed. Given the unique nature of review proceedings in this court, Rule 7A (8) (a) of the Labour Court Rules nevertheless makes provision for the filing of a supplementary affidavit. The purpose and effect of the supplementary affidavit is to amend, add to or vary the terms of the notice of motion and supplement the founding affidavit. The purpose of a supplementary affidavit within this context, and bearing in mind that the founding affidavit was in most cases filed without the benefit of a transcribed record of arbitration proceedings, is for the applicant to provide allegations that are necessary for the relief that is sought, to give further elaboration on the grounds of review relied upon, and to bring to the attention of the Court, facts which were unavailable at the time that the founding affidavit was filed, and

which had since become available as a result of the record of proceedings having become available.

[13] The Applicant in this case however wishes to file a further supplementary affidavit. It is settled law that in deciding such an issue, the Court has a discretion which is exercised judicially. The then Appellate Division in James Brown & Hammer (Pty)(Previously named Gilbert Hamer & Co Ltd) Ltd v Simmons, NO[1] in this regard held that;

“It is in the interests of the administration of justice that the well-known and well established general rules regarding the number of sets and the proper sequence of affidavits in motion proceedings should ordinarily be observed. That is not to say that those general rules must always be rigidly observed: some flexibility, controlled by the presiding Judge exercising his discretion in relation to the facts of the case before him, must necessarily also be permitted. Where, as in the present case, an affidavit is tendered in motion proceedings both late and out of its ordinary sequence, the party tendering it is seeking, not a right, but an indulgence from the Court: he must both advance his 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.”

[14] From the above and other authorities[2] relevant to the issue, the position can then be summarised as follows;

a) The benchmark rule is that three sets of affidavits are allowed, namely: founding/supporting affidavits, answering affidavits, and replying affidavits;

b) The Court may however at its discretion, allow the filing of further affidavits, including in application or motion proceedings;

c) In exercising its discretion, the Court will do so with a measure of flexibility, taking into account all the facts of the case;

d) Allowing the filing of further affidavits is not a right that a party has, but an indulgence from a Court;

e) Leave to file further affidavits, out of sequence, may be allowed, for example, where there was something unexpected in the applicant’s

replying affidavits or where a new matter was raised, or where the information/evidence was not available to the respondent (or could not be made available) when the founding affidavits were filed and before the answering affidavits could be filed;

f) The material sought to be raised in the supplementary affidavit must be relevant to the issues for determination of the main claim or application;

g) The applicant must give a satisfactory explanation which negatives mala fides or culpable remissness as to why the information/evidence could not be put before the Court at an earlier stage;

h) The Court must be satisfied that no prejudice is or will be caused to the opposite party which cannot be remedied by an appropriate order as to costs.

[15] The above is not by any means exhaustive. This court has on occasion, permitted the filing of further supplementary affidavits in motion proceedings[3]. In so doing, the Court exercised its judicial discretion, having considered the factors as summarised above[4]. Similarly, the Court has also refused to allow the filing of further supplementary affidavits where circumstances and the facts of the case so require. In Bafokeng Rasimone Platinum Mine (Pty) Ltd v CCMA & others[5], Lagrange J held that;

“Pleadings are intended, amongst other things, to identify the nature and parameters of a dispute. Care must be taken at the time of drafting to ensure that the full ambit of a party’s case is canvassed. In the case of the review application an applicant has the added advantage that a weak founding affidavit can be completely replaced or augmented by a supplementary affidavit. It is at that point of the applicant’s preparation of the application that it must focus its mind on the merits of its case. It should not regard the supplementary affidavit as merely a preliminary exploration of issues to be more fully developed when heads of argument are prepared. Still less should it consider the supplementary affidavit as anything less than its final statement of its grounds of review. There may be exceptional circumstances where issues come to light that a party exercising reasonable diligence in the preparation of their case could not have been aware of, or where there is some other justifiable reason why a material issue is omitted. In this case no such reason has been provided to excuse admissions from the applicant’s founding papers. I see no justification for the third respondent to be burdened months later with having to consider answering further matters that should have been raised at the time the supplementary affidavit was filed.”

[16] In this case, it was correctly pointed out on behalf of the Third Respondent that an explanation for the belated filing of the additional supplementary affidavit was required, and this ordinarily means that the Applicant must give a complete and detailed account of the delay[6]. As I understand the authorities, such an explanation cannot be akin to an application for condonation as all that is required is inter alia, the explanation for the late filing of the application.

[17] I however have no reason to doubt that given the background of this matter, and as can further be gleaned from the Applicant’s own averments, it is one of those characterised by severe dilatoriness and ineptness in the conduct of proceedings. The starting point as pointed out by the Applicant is that his erstwhile attorneys of record were not familiar with the Court’s Rules and procedures insofar as the filing of review applications is concerned. To the extent that the Applicant may have wisely chosen to seek alternative legal advice, it is taken into account that his current attorneys came on record on 6 January 2014. This was some two years since the original review papers were filed.

[18] In his founding affidavit in respect of the application before the court, the Applicant is clearly liberal with details regarding the reasons it took him and his new attorneys of record, a further six months to file this application. Scant reference is made to him having decided to obtain second opinion on the merits of the review application[7]. It is not stated as to when he had indeed first approached his new set of attorneys, or when he had set an appointment and met with them for the first time, or when Mr. Botha of his new attorneys of record had recommended that opinion from counsel should be sought on the merits of the review application, and/or when counsel had looked at the papers[8].

[19] The Applicant further raises the issue of his finances and indicates that he had difficulty in paying his attorneys of record and counsel feels. He nevertheless does not indicate when in 2007 he had obtained alternative employment, when he had secured the necessary fees, and/or when his attorneys and counsel had started working on his case in earnest.

[20] Other than the fact that a lack of finances will not always be acceptable as an excuse[9] for failing to timeously prosecute matters, the Applicant’s reliance on the fact that his erstwhile attorneys of record were

clueless about labour law matters can hardly be an acceptable excuse. The reason for this conclusion is that laypersons generally approach legal practitioners with the hope and trust that the practitioner would be familiar with relevant legal matters and procedures of the court, and be able to give proper legal advice on how to approach and deal with those matters. The cardinal rule of legal practice is that representatives may only take upon matters that they are fully equipped to deal with. If they are not so equipped, there is a duty on them to advise their clients accordingly, instead of taking risks with their clients’ cases.

[21] Where legal practitioners take up matters which they are clearly not equipped to deal with, it is not for the Courts to come to the assistance of the clients who subsequently find out that their chosen legal representatives had ‘botched’ up their cases. In such instances, the well-known principles that a litigant cannot be absolved from the negligence, ineptness and tardiness of his or her chosen legal representative should be applicable[10]. The Labour Appeal Court stated in Superb Meat Supplies cc v Maritz[11]

It has never been the law that invariably a litigant will be excused if the blame lies with the attorney. To hold otherwise would have a disastrous effect on the observance of the rules of this court and set a dangerous precedent. It would invite or encourage laxity on the part of practitioners."

[22] Applying the above principles to the current case, it can be concluded on the Applicant’s own averments that his erstwhile attorneys of record were not only grossly negligent in dealing with his review application, but were also grossly inept. They were clearly not equipped to deal with the Applicant’s review application. This on its own however does not assist the Applicant’s case as there is no indication whatsoever that he was in any event, diligent in pursuing his case. From his averments, the conclusion to be reached is that for a period of two years, he was content to leave the matter in the hands of his erstwhile attorneys.

[23] This is not a case where the Applicant had on his own approached the Court and it could be gleaned and concluded from his papers and circumstances that a further set of affidavits should be permissible. In my view, this is one of those cases where the limit has been reached beyond which the Applicant could escape the results of his chosen legal representatives’ ineptness. This court is inundated with a variety of matters of which review applications forms the bulk. It would be untenable for the Court to every now and then have to condone the ineptness and sloppiness of legal representatives, by allowing further supplementary affidavits outside of what its Rules permit. There are instances where the Court may exercise its discretion in allowing such further documents. This case is however not one of them.

[24] The Applicant has therefore not given a satisfactory explanation that negatives mala fides or culpable remissness as to why his additional supplementary affidavit as now sought, was not or could not have been filed at an appropriate earlier stage. Furthermore, other than the issue of ineptness on the part of his erstwhile attorneys of record, there is nothing placed before the Court to suggest that the information sought to be adduced in the additional supplementary affidavit could not be made available at the time the normal affidavit was filed, moreso since the complete record of proceedings was at his disposal.

[25] Given the protracted nature of this matter, it would be to the prejudice of the Third Respondent were the application to be granted. In the light of these conclusions, no purpose will be served by determining other factors the Applicant relied upon in launching this application. I have further had regard to the requirements of law and fairness, and given the circumstances of this case, a cost order is deemed not to be warranted.

Order:

i. The application to file a further Supplementary affidavit in respect of the review application is dismissed.

ii. The Registrar of the Court is directed to the matter down for the hearing of the Rule 11 and review applications.

iii. There is no order as to costs

_________________

Tlhotlhalemaje J

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Adv. Hein Gerber

Instructed by:

OJ Botha Attorneys

For the Third Respondent: Adv. TJ Magano

Instructed by:

R Masilo Attorneys

[1] 1963 (4) (SA) 656 at 660E-G

[2] See also Karpakis v Mutual & Federal Insurance Co Ltd 1991 (3) SA 489 at 503F-504E; Cohen, N. O v Nel and Another 1975 (3) SA 963 at 966B; Transvaal Racing Club v Jockey Club of South Africa 1958 (3) SA 599 at 604A-E: Long Beach Home Owners Association v Great Kei Municipality, Amathole District, Eastern Cape and Others (28064/14)

[2015] ZAGPPHC 642 (11 September 2015) at para [29]

[3] NUM obo Smith v Commission for Conciliation Mediation and Arbitration and Others (C 489/12) [2013] ZALCCT 7 (20 March 2013); See also MISA / SAMWU obo Members v Madikor Drie (Pty) Ltd [2006] 1 BLLR 12 (LC) at para [18]

[4] NUM obo Smith at para [17]

[5] CASE NO: JR 2296/12 at para [5]

[6] Independent Municipal & Allied Trade Union obo Zungu v SA Local Government Bargaining Council & Other (2010) 31 ILJ 1314(LC) para 13.

[7] Paragraph 6.23 of the Founding Affidavit

[8] Paragraphs 6.24 – 6.26

[9] Antoinette Du Plessis v WITS Health Consortium (Pty) Ltd Case no: JS 122/2011 at para 16; Gaoshubelwe and Others v Pie Man’s Pantry (Pty) Ltd (2009) 30 ILJ 347 (LC); Dyasi v Fort Cox College of Agriculture and Forestry and Another [1998] 6 BLLR 641 (Tk).

[10] See Saloojee v Minister of Community Development 1964 (2) SA 135 (AD) at 141 B-H, where it was held that; "In Regal v African Superslate (Pty) Ltd 1962 (3) SA 18 (AD) ... this court came to the conclusion that the delay was due entirely to neglect of the applicant’s attorney, and held that the attorney’s neglect should not, in the circumstances of the case, debar the applicant, who was himself in no way to blame, from relief. I should point out, however, that it has not at any time been held that condonation will not in any circumstances be withheld if the blame lies with the attorney. There is a limit beyond which a litigant cannot escape the result is of his attorney’s lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the rules of this court. Considerations ad misericordiam should not be allowed to become an invitation to laxity. In fact this court has lately been burdened with an undue and increasing number of applications for condonation in which the failure to comply with the rules of this court was due to neglect on the part of the attorney. The attorney, after all, is the representative the litigant has chosen for himself, and there is little reason why, in regard to

condonation of a failure to comply with a rule of court, the litigant should be absolved from the normal consequences of such a

relationship, no matter what the circumstances of the failure are.… A litigant, moreover, who knows, as the applicants did, that the prescribed period has elapsed and that an application for condonation is necessary, is not entitled to hand over the matter to his attorney and then wash his hands of it. If, as here, the stage is reached where it must become obvious also to a layman that there is a protracted delay, he cannot sit passively by, without so much as directing any reminder or enquiry to his attorney… and expect to be exonerated of all blame; and if, as here, the explanation offered to this court is patently insufficient, he cannot be heard to claim that the insufficiency should be overlooked merely because he has left the matter entirely in the hands of his attorney. If he relies upon the ineptitude or remissness of his attorney, he should at least explain that none of it is to be imputed to himself. That has not been done in this case. In these circumstances I would find it difficult to justify condonation unless there are strong prospects of success.”

[10] See Saloojee v Minister of Community Development 1964 (2) SA 135 (AD) at 141 B-H, where it was held that;

"In Regal v African Superslate (Pty) Ltd 1962 (3) SA 18 (AD) ... this court came to the conclusion that the delay was due entirely to neglect of the applicant’s attorney, and held that the attorney’s neglect should not, in the circumstances of the case, debar the applicant, who was himself in no way to blame, from relief. I should point out, however, that it has not at any time been held that condonation will not in any circumstances be withheld if the blame lies with the attorney. There is a limit beyond which a litigant cannot escape the result is of his attorney’s lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the rules of this court. Considerations ad misericordiam should not be allowed to become an invitation to laxity. In fact this court has lately been burdened with an undue and increasing number of applications for condonation in which the failure to comply with the rules of this court was due to neglect on the part of the attorney. The attorney, after all, is the representative the litigant has chosen for himself, and there is little reason why, in regard to

condonation of a failure to comply with a rule of court, the litigant should be absolved from the normal consequences of such a

relationship, no matter what the circumstances of the failure are.… A litigant, moreover, who knows, as the applicants did, that the prescribed period has elapsed and that an application for condonation is necessary, is not entitled to hand over the matter to his attorney and then wash his hands of it. If, as here, the stage is reached where it must become obvious also to a layman that there is a protracted delay, he cannot sit passively by, without so much as directing any reminder or enquiry to his attorney… and expect to be exonerated of all blame; and if, as here, the explanation offered to this court is patently insufficient, he cannot be heard to claim that the insufficiency should be overlooked merely because he has left the matter entirely in the hands of his attorney. If he relies upon the ineptitude or remissness of his attorney, he should at least explain that none of it is to be imputed to himself. That has not been done in this case. In these circumstances I would find it difficult to justify condonation unless there are strong prospects of success.”

[11] (2004) 25 ILJ 96 (LAC)