FAIS Ombud v Commission for Conciliation, Mediation and Arbitration and Others (JR192/18) [2021] ZALCJHB 281; (2021) 42 ILJ 2603 (LC) (27 August 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: JR 192/18

In the matter between:

FAIS OMBUD Applicant

and

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION First

Respondent

L NOWESENETZ N.O Second

Respondent

NOMFUNDO DHLOMO Third

Respondent

Heard: 5 August 2021

Supplementary heads of argument filed on 13 August 2021

Delivered: 27 August 2021 (In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be on 27 August 2021)

JUDGMENT

PRINSLOO, J

Introduction

[1] The Applicant seeks to review and set aside an arbitration award dated 29 January 2018 wherein the Second Respondent (the arbitrator) found that the Third Respondent’s (the Respondent) dismissal was procedurally and substantively unfair and he ordered the Applicant to pay the Respondent compensation in the sum of R 372 050.00 within 14 days of receipt of the arbitration award. The review application was filed on 15 May 2018 and the Applicant also seeks condonation for the late filing of the application.

[2] The Respondent opposed the review application.

[3] On 4 October 2018 the Respondent filed an application in terms of Rule 11 of the Labour Court Rules (the Rules) to dismiss the Applicant’s review application and to make the arbitration award issued under case number GATW6433-17 an order of Court. The Applicant opposed the Rule 11 application.

[4] On 8 March 2021 the parties were notified that the matter was enrolled for hearing on 5 August 2021.

[5] On 19 July 2021 the Applicant filed an application in terms of the provisions of Rule 11, read with Rule 12 as well as paragraph 11.2.3 of the Practice Manual of the Labour Court, for an order to reinstate the review application filed under case number JR 192/2018 and for condonation of the late filing of the record in the review application. The Respondent opposed this application.

[6] The matter was heard on 5 August 2021 and in accordance with the provisions of the directive issued in respect of access to the Labour Court and the conduct of proceedings during the Covid-19 pandemic, the parties agreed to present arguments virtually via Zoom.

[7] Therefore, the following applications are before this Court: a review application with an application for condonation filed by the Applicant, a Rule 11 application filed by the Respondent with an application to make to the arbitration award an order of Court and a Rule 11 and 12 application filed by the Applicant to re-instate the review application and to condone the late filing of the record.

The Rule 11 applications

[8] The Applicant filed a review application on 15 May 2018 and the founding affidavit was deposed to by Noluntu Nellisa Bam (Ms Bam) in her capacity as the Applicant’s former accounting officer, also referred to as the Ombud. She stated that she was “authorised to bring this application and to depose to this affidavit on behalf of the Applicant as per annexure ‘NB1’.”

[9] It is evident from an email sent by the Respondent’s attorney to the Applicant’s attorneys, dated 14 May 2015, that the review application was served as an incomplete one in that Annexure NB1 was not attached to the founding affidavit and the attorneys were requested to provide a copy of Annexure NB1. As the said annexure was not provided, the Respondent’s attorneys filed an application in terms of rule 7 of the Uniform Rules of Court (the Uniform Rules). The Applicant’s attorneys responded that Rule 7 of the Uniform Rules does not apply in the Labour Court and requested the Respondent’s attorneys to withdraw the rule 7 application as it was ill conceived and constitutes an irregular step.

[10] This is of course incorrect. In CEPPWAWU and others v Express Payroll CC[1] the authority to act on behalf of the applicant was also disputed and the Court held that:

‘Can Rule 11(3) be used to adopt the procedure for Rule 7(1) of the High Court Rules in the instant application? The answer has to be in the positive. Rule 11 was meant for exactly the situation that the present parties find themselves in. There is a demand for proof of Applicant’s and its attorneys authority to act on behalf of all the Applicants. It is common cause that the Labour Court Rules do not make provision for such proof. To cure such a “lacuna” in the Labour Court Rules, nothing precludes the adoption of the Rules of the High Court.’

[11] The Respondent’s attorneys responded that they had requested the authority as referred to in Annexure NB1 on numerous occasions as “NB1” to the founding affidavit purports to give Ms Bam locus standi to launch a review application on behalf of the Applicant, which annexure was still not provided. Annexure NB1 was once again requested from the Applicant’s attorneys on 16 July 2018 and it was eventually provided to the Respondent’s attorneys on 27 July 2018.

[12] Annexure NB1 is an affidavit deposed to by Naresh Tulsie, who deposed to the affidavit in his capacity as the Ombud. The affidavit was deposed to on 8 May 2018. He confirmed that he had been appointed in the position of the Ombud with effect from 1 May 2018, replacing Ms Bam. Mr Tulsie stated that “ I have authorised my predecessor in title, Ms Noluntu Bam to depose to the founding affidavit in this matter as the person who has intimate knowledge of the matter and can swear positively to the facts.”

[13] In her opposing affidavit to the review application, filed on 31 October 2018, the Respondent took issue with this and stated that at the time the review application was filed, Mr Tulsie had the requisite authority and not Ms Bam. Reference was made to the Rule 11 application relating to Ms Bam’s authority to launch the review application on the Applicant’s behalf.

[14] In the replying affidavit, Mr Tulsie conceded that at the time of launching the review application, he had succeeded Ms Bam as the Ombud, but stated that he had lacked the necessary and intimate knowledge of the issues pertaining to the matter at the time.

[15] Why this was a reason for Ms Bam to depose to the founding affidavit is unclear. At the time the review application was filed, Ms Bam was no longer the Ombud and she held no official position with the Applicant. It is not uncommon where individuals depose to affidavits in their nominee officio capacity to explain that the predecessor is no longer holding office and for the current incumbent to depose to the papers, with a confirmatory affidavit deposed to by the predecessor in whose personal knowledge some of the facts deposed to fall.

[16] The Respondent had filed an application in terms of the provisions of rule 11 on 5 October 2018, seeking the dismissal of the Applicant’s review application. The Rule 11 application was premised on two grounds: firstly that the Applicant had failed to establish that the deponent to the founding affidavit, Ms Bam, had the authority to bring the application on behalf of the Applicant and secondly that the Applicant had failed to prosecute the review application diligently and timeously by failing to file the record within the prescribed time period.

[17] Ms Bam’s authority was challenged on the grounds that she was no longer the Ombud at the time she had deposed to the founding affidavit and that the Applicant had failed to show that Ms Bam was authorised to bring the application on behalf of the Applicant.

[18] The Respondent stated that “NB1”, which was deposed to by Mr Tulsie and commissioned before Michelle Wilken, as commissioner of oath, on 8 May 2018, was defective. Ms Wilken deposed to an affidavit wherein she stated that she did not affix her stamp to the purported affidavit, she did not commission the affidavit and she did not sign it on 8 May 2018 or any other time. Her stamp was used and the signature used was a poor execution of the signature she had used prior to getting married, where after she had changed her surname.

[19] At the time the Respondent had filed the Rule 11 application, the Applicant had not yet provided a valid Annexure NB1, confirming Ms Bam’s authority to depose to the affidavit and to bring the review application on behalf of the Applicant. The aforesaid allegations were responded to in a vague and unsubstantiated denial. In fact, the Applicant presented no more than a bare denial to allegations which were serious and material.

[20] The parties were notified on 16 March 2021 that the matter was enrolled for hearing on 5 August 2021 and it is evident from the set down notice, that the Rule 11 application was set down for hearing.

[21] On 19 July 2021, eleven Court days before the hearing of the Respondent’s Rule 11 application, the Applicant filed a notice of motion seeking an order to reinstate the review application filed under case number JR 192/2018 and for condonation for the late filing of the record in the review application. The founding affidavit is once again deposed to by Ms Bam, who indicated that she was authorised to bring the application and to depose to the affidavit. She attached Annexure NB1.1, which is a confirmatory affidavit deposed to by Mr Tulsie, indicating that he had previously authorised Ms Bam to depose to the founding affidavit in the review application as well as the Rule 11 and 12 application, brought by the Applicant in July 2021. There is a further affidavit deposed to by Ms Nonku Tshombe, the current Ombud, to state that she authorised Ms Bam to depose to the founding affidavit in the review and interlocutory applications.

[22] The Respondent once again took issue with Ms Bam’s authority and raised a point in limine. The Respondent’s case is that the review application was deposed to by Ms Bam on 9 May 2018, at a time when she was no longer employed as the Ombud and she was not authorised to launch the review application on behalf of the Applicant. The affidavit deposed to by Mr Tulsie on 8 May 2018, was fraudulent and the Respondent persisted with the point that Ms Bam had no authority to launch the review application in the first place.

[23] The Respondent submitted that Ms Tshombe deposed to an affidavit on 10 July 2021, whereby she purportedly authorised Ms Bam to depose to the affidavit in the review application that was filed in May 2018, when Ms Tshombe did not have such powers in 2018, as she was only appointed in November 2019. The Respondent submitted that the authorisation of the institution of proceedings is incapable of rectification. The Applicant’s replying affidavit addressed this issue and it stated that the confirmatory affidavits deposed to by Mr Tulsie and Ms Tshombe ‘squarely’ addressed the problem with authority in respect of the Applicant’s review application and that the Respondent’s Rule 11 application and point in limine should be “dismissed with the contempt they deserve, on account of their spurious and vexatious nature.”

[24] It is evident that the issue of authority has to be decided before the Court could consider the merits of the application to reinstate the review application and to condone the late filing of the record in the review. The merits of the review application will only become an issue for consideration in the event that the Court has ordered the reinstatement of the review application.

[25] When the matter was argued, it became apparent that the issue of authority was a pertinent issue to be decided by this Court as it goes directly to the issue raised in the Respondent’s Rule 11 application and the question as to whether the review application should be dismissed because the institution thereof was never authorised. The issue of locus standi was also raised in respect of the Applicant’s Rule 11 and 12 application. The parties were afforded an opportunity to file supplementary heads of argument on the issue of locus standi and costs only by 13 August 2021. Both parties filed supplementary heads of argument.

Locus standi and the institution of legal proceedings

[26] The issue raised by the Respondent calls for consideration as the question of locus standi is not a matter of mere formality.

[27] In Ganes v Telecom Namibia Ltd[2](Ganes) the Supreme Court of Appeal held that:

‘The deponent to an affidavit in motion proceedings need not be authorized by the party concerned to depose to the affidavit. It is the institution of the proceedings and the prosecution thereof which must be authorized.’

[28] There must be evidence before the Court that the person purporting to represent an applicant has been authorised accordingly with regard to the particular proceedings. Litigation has to be duly authorised before this Court can determine the merits of the application.

[29] In my view the main issue is whether the institution of legal proceedings was indeed authorised by the Applicant.

[30] It is evident from the statement by Ms Bam in the founding affidavit in the review as well as Rule 11 and 12 applications that she alleged that she is authorised to bring the application and to depose to the affidavits on behalf of the Applicant.

[31] In the supplementary heads of argument Mr Makhambeni for the Applicant submitted that the Respondent’s Rule 11 application has to fail because it did not contain a locus standi challenge, calling for a resolution. What the Respondent called for, was an affidavit from Mr Tulsie, not a Board resolution, as the authority of Mr Tulsie was accepted at the time and a Board resolution did not come into the picture. Mr Makhambeni submitted that the Respondent cannot be allowed to raise locus standi as a point in limine as it was not contained in the papers and even if it was to be allowed by this Court, the challenge cannot be sustained because the Applicant’s explanatory affidavit proves beyond any measure of doubt that Ms Bam was authorised to depose to the affidavit and to bring the review application on behalf of the Applicant.

[32] There are numerous difficulties in the Applicant’s case and the submissions made by Mr Makhambeni.

Further affidavit

[33] The parties were permitted by this Court to file supplementary heads of argument on a limited issue. The Applicant however went beyond and further and filed a ‘supporting and explanatory affidavit’, deposed to by the Applicant’s attorney, Mr Samuels. In the affidavit Mr Samuels explained the nature and purpose of the affidavit as “In light of the fact that on Thursday, 5th of August 2021, when the Rule 11 and Rule 12 applications were argued in this Honourable Court, the Court mero motu raised the locus standi question, which locus standi question was never ever on the papers taken or raised by the Third Respondent, and that being the case, it has now become necessary for the Applicant to respond to that challenge meaningfully, and such a response can only be made through the filing of resolution authorising the deponent to the affidavits in the review which resolution was taken by the Board.”

[34] The statement made by Mr Samuels, explaining the nature and purpose of his affidavit is shocking to say the least and is a spectacular display of the Applicant’s lack of understanding of the challenge raised throughout the Respondent’s papers, as well as the Rules and practices of this Court. I will deal with these aspects in turn.

[35] The ordinary rule is that in motion proceedings three sets of affidavits are allowed namely a founding, answering and replying affidavit. The Court may in its discretion permit the filing of further affidavits and the relevant authorities indicate that leave will be granted for filing further affidavits only in ‘exceptional circumstances’[3] or in ‘special circumstances’[4] or if the Court considers it advisable[5].

[36] This was confirmed in MISA / SAMWU obo Members v Madikor Drie (Pty) Ltd[6] where the Court held that:

“As a general rule, there are three sets of affidavits in motion court proceedings, namely the founding affidavit, the answering affidavit and the replying affidavit. Rule 7 of the Labour Court Rules incorporates this general rule. Under certain circumstances the filing of further affidavits are permitted. The principles followed and developed the High Court authorities are basically that a court has a discretion as to whether further affidavits will be permitted. This discretion must be exercised judicially, having considered whether a proper explanation for its belated filing exists, whether the material contained in the affidavits are relevant and whether the filing of such affidavits would be prejudicial to the other party (See: Transvaal Racing Club v Jockey Club of South Africa 1958(3) SA 599 (w) at 604 A-E.) Rule 6(5)(e) of the High Court Rules also provides for the filing of further affidavits subject to the Court’s discretion.”

[37] In James Brown and Hamer (Pty) Ltd (previously named Gilbert Hamer and Co Ltd) v Simmons[7] the Appellate Division held as follows:

“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 applied: 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.”

[38] In Bafokeng Rasimone Platinum Mine (Pty) Ltd v CCMA and Others[8] (Bafokeng) the Court considered an application to permit an additional affidavit after the close of pleadings and held that:

“When the matter was argued it became apparent that the issues that the applicant wished to raise in the additional affidavit had come to light after counsel had perused the application. All the material on which the additional affidavit was based was already before the applicant's attorneys by the time the supplementary affidavit was filed. Review applications by their nature give the applicant party ample time to consider the merits of its case before filing a supplementary affidavit. No reasons were advanced why the matters raised in the additional affidavit could not have been raised in the supplementary affidavit. The fact that an applicant subjects the record to more careful scrutiny after pleadings have closed and discovers further points it could have raised previously but did not, does not amount to exceptional circumstances justifying the reopening of the pleadings. The applicant argued that there would be no prejudice to the third respondent, because the court would obviously grant him an opportunity to respond if the additional affidavit was admitted. On this principle, an applicant could keep adding to its case ad nauseam and a respondent party would have to keep incurring further costs for each additional perusal of the record required to consider the new points raised as and when the applicant deigned to reconsider its case. Insofar as the admission of additional affidavits is a matter of fairness to both parties, there is nothing fair about allowing a party to add to its case in the absence of a very satisfactory explanation for the earlier omission.

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.

[39] In Bafokeng the Court concluded that:

“… There may be exceptional circumstances where issues come to light that a party exercising reasonable diligence in the preparation of its 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 omissions 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.”[9]

[40] In summary: there must be a proper and satisfactory explanation as to why the facts or information contained in the additional affidavit

were not placed before the Court earlier and the Court must be satisfied that no prejudice is caused to the other party that cannot

be remedied by an appropriate order as to costs[10].

[41] In casu the Applicant has not made any attempt whatsoever to seek leave from this Court to admit a further affidavit and there is no satisfactory explanation as to why the facts the Applicant now seeks to introduce, were not placed before the Court earlier. In fact, the Applicant filed a further affidavit, without seeking leave from this Court to do so and acted as if it is of right entitled to file a further affidavit. That is not the case.

[42] It appears that the Applicant seeks to introduce a Board resolution of May 2018 in the explanatory affidavit. This information was available at the time the review application was launched and there is no explanation as to why it was not made available at the time.

[43] The further affidavit filed by the Applicant is not permitted and the affidavit deposed to by Mr Samuels is struck out.

Locus standi challenge

[44] The Applicant’s statement that the issue of locus standi was “never ever on the papers taken or raised by the Third Respondent” and that it was raised by this Court mero motu is not only disingenuous, but is a deliberate attempt to mislead and is disconnected from the affidavits filed by the Respondent, wherein Ms Bam’s authority to institute proceedings on behalf of the Applicant had been raised from the onset and throughout, until it finally culminated in a Rule 11 application, seeking the dismissal of the review application on the ground that Ms Bam had no authority to institute proceedings. It raises question marks as to the Applicant’s ability to comprehend the issue

relating to Ms Bam’s authority that had been raised from the onset.

[45] I have fully dealt with the papers filed in this matter supra and it is evident that the authority of Ms Bam was challenged throughout.

[46] This Court has not mero moto raised the issue of locus standi. The Court dealt with a material and pertinent issue raised by the Respondent and which was evident from the papers. It is astonishing

that the Applicant is of the view that it was raised by the Court mero moto. It is rather indictive of the fact that the Applicant was of the view, as per the averments in its replying affidavit in the Applicant’s Rule 11 and 12 application, that the issue of authority was “squarely” addressed and covered by the filing of two confirmatory affidavits. The Applicant was too confident that the two confirmatory affidavits had resolved the issue regarding Ms Bam’s authority, and as such it was taken by surprise that the obvious issue was raised by the Court, hence the outrageous perception and statement that it was raised by the Court mero motu.

Issue raised by the Court mero motu

[47] Mr Makhambeni submitted that:

“ the issue with regard to the resolution was not a matter raised in the papers, but rather a concern raised by this Honourable Court mero motu, and if the authority of Ms Bam with a view to locus standi was not challenged, then it goes without saying that this Honourable Court cannot descend into the arena and substitute an unmeritorious challenge with one it deems of great merit, given the fact that on the papers a resolution was not called for…”

[48] I have already dealt with the issue that the question of locus standi was sufficiently raised in the Respondent’s papers and that it was not an issue raised by this Court mero motu.

[49] In Roebuck v Aerial Exchange CC and another[11] (Roebuck) the Court considered the question of locus standi and held that:

‘It is common cause that the respondents are artificial or juristic persons. It is trite that a party may object if there is nothing before a court to show that a juristic person duly authorized the institution of notice of motion proceedings. A juristic person can only function through its agents and can only take decisions by the passing of resolutions in the manner provided by its constitution. It is trite that where a close corporation or a company commences proceedings by way of notice of motion, it must appear that the person who makes the application on behalf of the juristic person is duly authorized to do so by the said juristic person. In such a case some evidence should be placed before a court to show that the juristic person has duly resolved to institute the proceedings and that the proceedings are instituted at its instance.’

[50] It is trite that the institution of legal proceedings by a juristic person has to be authorised and that is done by passing a resolution to that effect.

[51] The Applicant is a statutory body established in terms of the Financial Advisory and Intermediary Services Act[12] (FAIS). The Applicant has been represented by legal representatives from the onset and from the filing of the review application. The legal representatives should know that the institution of legal proceedings on behalf of the Applicant has to be authorised by the Board and that a resolution to that effect should have been attached to the founding papers. This cannot be news to trained lawyers.

[52] The Applicant’s submission is that the Respondent’s Rule 11 application has to fail because it did not contain a locus standi challenge, calling for a resolution because what the Respondent called for, was an affidavit from Mr Tulsie, whose authority was

accepted at the time. This submission has no merit.

[53] The Applicant is legally represented and should have attached a Board resolution to the founding affidavit in the review application to show that the institution of the application was authorised. It is not the duty of the Respondent to ‘call for’ a resolution and the Respondent cannot be blamed for the fact that such a resolution was not attached when it was supposed to be attached. Furthermore, even if Mr Tulsie’s authority was accepted by the Respondent as the Applicant averred, it is of no moment as Mr Tulsie did not institute the proceedings and he had no authority to authorise Ms Bam to institute proceedings on behalf of the Applicant, as that authority lies with the Applicant’s Board and not Mr Tulsie. In any event, this should have been dealt with at the time when the founding affidavit was filed, which is before the Respondent became involved in the matter.

[54] Be that as it may, in CUSA v Tao Ying Metals Industries and Others[13] (Tao Ying) the Constitutional Court has held that:

‘In particular, the LRA specifies the grounds upon which arbitral awards may be reviewed. A party who seeks to review an arbitral award is bound by the grounds contained in the review application. A litigant may not on appeal raise a new ground of review. To permit a party to do so may very well undermine the objective of the LRA to have labour disputes resolved as speedily as possible.

'These principles are, however, subject to one qualification. Where a point of law is apparent on the papers, but the common approach of the parties proceeds on a wrong perception of what the law is, a court is not only entitled, but is in fact also obliged, mero motu, to raise the point of law and require the parties to deal therewith.’

[55] It is evident that the point of law (locus standi) is apparent from the papers and this Court is entitled to deal with it and as the Applicant is a juristic person, the Court is obliged to address the issue of locus standi in the obvious absence of a Board resolution. Mr Makhambeni’s submission that “it goes without saying that this Honourable Court cannot descend into the arena and substitute an unmeritorious challenge with one it deems of great merit, given the fact that on the papers a resolution was not called for” is ill-conceived and misplaced in view of the principles set out by the Constitutional Court in Tao Ying.

Ms Bam’s authority to institute proceedings

[56] It is evident from the statement by Ms Bam in the founding affidavit in the review as well as Rule 11 and 12 applications that she alleged that she is authorised to bring the application and to depose to the affidavits on behalf of the Applicant.

[57] I already alluded to the fact that the deposing to an affidavit needs not be authorised, it is the institution of legal proceedings that must be authorised by the Applicant.

[58] In deposing to the review application, Ms Bam stated that she was “authorised to bring this application and to depose to this affidavit on behalf of the Applicant as per annexure ‘NB1’.

[59] It is common cause that Annexure NB1 was not attached to the founding affidavit and that it was only provided to the Respondent’s attorneys on 27 July 2018. Annexure NB1 is an affidavit deposed to by Naresh Tulsie, stating inter alia that “ I have authorised my predecessor in title, Ms Noluntu Bam to depose to the founding affidavit in this matter as the person who has intimate knowledge of the matter and can swear positively to the facts.”

[60] It is evident that ‘NB1’ states that Ms Bam was authorised to ‘depose’ to the affidavit, not that she was authorised to institute the proceedings on behalf of the Applicant. No authority is required to depose to an affidavit. Apart from the fact that it is the Applicant’s Board that had to authorise the institution of proceedings by Ms Bam and that such a resolution should be attached to the founding affidavit, the wording of ‘NB1’ clearly does not constitute authority to institute proceedings.

[61] Ms Bam’s was no longer the Ombud at the time she had deposed to the founding affidavit and as such the Applicant had to show that Ms Bam, who could no longer act in any official capacity, was indeed authorised to bring the application on behalf of the Applicant.

[62] The Respondent’s statement that “NB1”, which was deposed to by Mr Tulsie and commissioned before Michelle Wilken, as commissioner of oath, on 8 May 2018, was defective and fraudulent, was not opposed or disputed. The affidavit by Mr Tulsie was purportedly signed by Ms Wilken, a commissioner of oath, who did not affix her stamp to the purported affidavit, who did not commission the affidavit and who did not sign it on 8 May 2018 or any other time.

[63] “NB1” does not constitute any proof that Ms Bam had the requisite locus standi to institute review proceedings on behalf of the Applicant.

[64] On 19 July 2021 the Applicant filed another application and the founding affidavit is once again deposed to by Ms Bam, who indicated that she was authorised to bring the application and to depose to the affidavit. She attached Annexure NB1.1, which is a confirmatory affidavit deposed to by Mr Tulsie, indicating that he had previously authorised Ms Bam to depose to the founding affidavit in the review application as well as the Rule 11 and 12 application, brought by the Applicant in July 2021. There is a further affidavit deposed to by Ms Nonku Tshombe, the current Ombud, to state that she authorised Ms Bam to depose to the founding affidavit in the review and interlocutory applications.

[65] There are obvious questions that leap out – Mr Tulsie was no longer the Ombud in July 2021 and it is unclear how and in what capacity he could authorise Ms Bam to depose to an affidavit on behalf of the Applicant in July 2021, at a time when neither of them were employed by the Applicant. Equally so Ms Tshombe was not the Ombud in May 2018 and it is unclear how and in what capacity she could authorise Ms Bam in July 2021 to depose to an affidavit on behalf of the Applicant in May 2018, a time when she held no position of authority at the Applicant.

[66] Once again, “NB1.1” states that Ms Bam was authorised to ‘depose’ to the affidavit, not that she was authorised to institute the proceedings on behalf of the Applicant. No authority is required to depose to an affidavit. The Applicant’s Board has to authorise the institution of proceedings by Ms Bam and that such a resolution should be attached to the founding affidavit, which is not the case. The wording of ‘’NB1.1’’ clearly does not constitute authority to institute proceedings.

[67] In Roebuck the Court concluded that:

‘Eybers has placed no evidence in his affidavit to show that he has the necessary authority to bring these proceedings. He did not display the requisite authority to depose to his affidavit on behalf of either of the respondents. As an employee of the second respondent he cannot be authorized to depose to the affidavit on behalf of the second respondent without being authorized specifically in terms of a resolution of the board of the second respondent. Mr Roodt, who appeared for the respondents, conceded that there was nothing that indicated that Eybers had the authority to bring the application. He submitted that Eybers was an employee of the respondents who was tasked with dealing with those types of procedures. Eybers was the only person who was authorized by the respondents to bring the application. He admitted however that there was no formal declaration or that there was nothing in the papers before me that shows that Eybers had been given the necessary authority to bring the application for condonation.

Eybers has not shown that he has the necessary locus standi to bring this application on behalf of either the first or second respondent. The application for condonation stands to be dismissed on this ground alone.’

The same principles apply in casu.

[68] Another difficulty in the Applicant’s case is that authority has to be established in the founding affidavit. In Roebuck it was held that:

‘It is trite that a party cannot establish its authority in a replying affidavit. Appropriate allegations to establish the locus standi of an applicant should be made in the founding affidavits and not in the replying affidavits.’

[69] In Kouga Municipality v SA Local Government Bargaining Council and others[14]it was held that:

‘The applicant is a juristic or artificial person. It can only function through its agents. It must therefore appear from the founding affidavits that the person launching the proceedings is duly authorized to do so. The onus is on the petitioner to show that the launching of the proceedings has been authorized by the applicant. The petitioner must therefore place sufficient evidence before the court to enable it to decide whether enough evidence has been placed before it to warrant the conclusion that it is the applicant which is litigating and not some unauthorized person on its behalf. See Griffiths & Inglis (Pty) Ltd v Southern Cape Blasters (Pty) Ltd 1972 (4) SA 249 (C); Mall (Cape) (Pty) Ltd v Merino Ko-operasie Bpk 1957 (2) SA 347 (C) at 351H-352C.

It is trite law that in motion proceedings the essential factual averments necessary to obtain the relief sought must be made in the founding affidavit. In Shephard v Tuckers Land & Development Corporation (Pty) Ltd (1) 1978 (1) SA 173 (W) at 177-8 Nestadt J stated:

'Courts will not allow an applicant to make or supplement his case in his replying affidavits and will order any matter appearing therein which should have been in the founding affidavits to be struck out. (See Herbstein and Van Winsen p. 75.) In Titty's Bar and Bottle Store (Pty.) Ltd., v A.B.C. Garage (Pty.) Ltd. and Others, 1974 (4) SA 362 (T), VILJOEN, J., at p. 368 stated:

"It has always been the practice of the Courts in South Africa to strike out matter in replying affidavits which should have appeared in petitions or founding affidavits, including facts to establish locus standi or jurisdiction of the Court... In my view this practice still prevails.'

This is not however an absolute rule. It is not a law of the Medes and Persians. The Court has a discretion to allow new matter to remain in a replying affidavit, giving the respondent the opportunity to deal with it in a second set of answering affidavits. This indulgence, however, will only be allowed in special or exceptional circumstances....'

See also Roebuck v Aerial Exchange CC & another (2002) 23 ILJ 523 (LC) at para 13.

The petitioner must make out a prima facie case in the founding affidavit. Poseidon Ships Agencies (Pty) Ltd v African Coaling & Exporting Co (Durban) (Pty) Ltd & another 1980 (1) SA 313 (D) at 315-6. The applicant does not have to authorize Rabela and Mosiane to depose to affidavits. They should, however, be authorized by the applicant to institute and prosecute the proceedings. See Ganes & another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA); (2004) 25 ILJ 995 (SCA) at para 19.’

Conclusion

[70] Litigation has to be duly authorised before this Court can determine the merits of the application.

[71] Considering the facts placed before me, I cannot but find that the Applicant has failed to place evidence before this Court to show that Ms Bam was indeed authorised by the Applicant to institute review proceedings on its behalf in May 2018. There is also no Board resolution to show that she was subsequently authorised to institute the rule 11 and 12 applications on behalf of the Applicant in July 2021.

[72] The Rule 11 application filed by the Respondent has to succeed to the extent that Ms Bam’s authority to institute proceedings has been successfully challenged. It follows that the Applicant’s review application and subsequent applications were instituted without proper authority. In my view, the appropriate order in these circumstances is to strike the applications from the roll.

[73] The institution of the review application as well as the Applicant’s Rule 11 and 12 application was not properly authorised and the applications are to be struck off the roll.

[74] The arbitration award was issued on 29 January 2018 and more than three and a half years later the review application is not one step closer to finality. The primary objective of the Labour Relations Act[15], namely the speedy resolution of labour disputes, had been undermined by the delay in the prosecution of the review application. The Respondent is entitled to finality and I can see no reason as to why the relief sought by the Respondent to make the arbitration award an order of Court, cannot be granted.

Costs

[75] This Court has a wide discretion in respect of costs, considering the requirements of law and fairness.

[76] I invited the parties to make submissions regarding the issue of costs. Mr Makhambeni submitted that the Respondent’s Rule 11 application has neither a factual not a legal basis and that it is without merit. He submitted that the Respondent should be paid by the Respondent on an attorney and own client scale to ensure that applications that are vexatious, spurious and lacking in merit are not brought before Court. Ms Slabbert for the Respondent on the other hand submitted that the Applicant should be ordered to pay the Respondent’s costs on a punitive scale, considering the principles of law and fairness. She submitted that the Applicant’s conduct justifies such an order as the Applicant brought its Rule 11 and 12 application more than three years late, brought it on such short notice that the dies for the filing of opposing papers had not expired by the time the matter was set down for hearing, the affidavit filed by Mr Tulsie was obtained fraudulently and the delay in finalising this matter is to the severe prejudice of the Respondent.

[77] In Zungu v Premier of Kwa Zulu-Natal and Others[16] the Constitutional Court confirmed that the rule that costs follow the result does not apply in labour matters. The Court should seek to strike a fair balance between unduly discouraging parties from approaching the Labour Court to have their disputes dealt with and, on the other hand allowing those parties to bring to this Court (or oppose) cases that should not have been brought to Court (or opposed) in the first place.

[78] The general accepted purpose of awarding costs is to indemnify the successful litigant for the expense he or she has been put through by having been unjustly compelled to initiate or defend litigation.

[79] In Public Servants Association of SA on behalf of Khan v Tsabadi NO and Others[17] it was emphasized that:

‘…unless there are sound reasons which dictate a different approach, it is fair that the successful party be awarded its costs. The successful party has been compelled to engage in litigation and incur legal costs. An appropriate award of costs is one method of ensuring that much earnest thought and consideration goes into decisions to litigate in the Labour Court, whether as applicant in launching proceedings or as respondent opposing proceedings.’

This is a case where the Court has to strike a balance.

[80] In my view this is a case where it is appropriate to make a cost order. The Applicant has filed a review application to which no proof of authority to institute the proceedings was attached, the record

was filed out of time, the effect of which is that the review application is deemed withdrawn, which called for another substantive

application to reinstate the review application. Such an application was filed only in July 2021, when the need to do so should have been obvious to the Applicant as far back as 2018. The institution of the review application was not authorised, notwithstanding the fact that this was raised by the Respondent, the Applicant filed a fraudulent affidavit, which did not constitute authority in the first place. Only after argument was presented, did the Applicant make an attempt to present a Board resolution. This is conduct that significantly delayed the finalisation of the review application, up to the point where the Respondent succeeded with her Rule 11 application.

[81] I am mindful of the fact that the Respondent is an individual and that she had spent significant resources to oppose this matter and to seek the relief she is ultimately entitled to. In the present circumstances, the interests of justice will best serve if the Applicant is to pay the costs.

[82] Accordingly, I make an order as follows:

Order

1. The Applicant’s review application and Rule 11 and 12 applications are struck off the roll;

2. The arbitration award dated 29 January 2018 and issued under case number GATW 6433-17 is made an order of Court;

3. The Applicant is to pay the Third Respondent’s costs on a scale a between attorney and client.

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Advocate

P M Makhambeni

Instructed by: P

L Samuels Inc Attorneys

For the Third Respondent: Advocate K A Slabbert

Instructed by: Gildenhuys

Malatji Inc Attorneys

[1] [2011] 11 BLLR 1061 (LC).

[2] 2004 (3) SA 615 (SCA) at 624.

[3] Kasiyambhuru v Minister of Home Affairs [1998] 3 All SA 166 (W) at 649-650 applying Transvaal Racing Club v Jockey Club of South Africa 1958 (3) SA 599 (W) at 604.

[4] Joseph and Jeans v Spitz 1931 WLD 48.

[5] Riesenberg v Riesenberg 1926 WLD 59.

[6] (2005) 26 ILJ 2374 (LC) at para 18.

[7] 1963 (4) SA 656 (A) at 660 D-F.

[8] (2015) 36 ILJ 3045 (LC) at para 4.

[9] Ibid at para 5.

[10] Herbstein & Van Winsen, “The Civil Practice of the High Courts of South Africa’, Fifth Edition, Volume 1, page 433 – 444.

[11] (2002) 23 ILJ 523 (LC).

[12] Act 37 of 2002.

[13] (2008) 29 ILJ 2461 (CC) at para 67 and 68.

[14] (2010) 31 ILJ 1211 (LC) at para 8 – 10.

[15] Act 66 of 1995.

[16] (2018) 39 ILJ 523 (CC) at para 24.

[17] (2012) 33 ILJ 2117 (LC) at para p 2119 I-J.