Maduludi (Pty) Ltd v Jojo (JS931/20) [2021] ZALCJHB 208 (26 July 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No.: JS 931/20

In the matter between:

MADULUDI (PTY) LTD Applicant

and

OLWETHU S

JOJO Respondent

Heard: 08 July 2021

Delivered: 26 July 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 26th July 2021.)

JUDGMENT

MOFOKENG, AJ

Introduction

[1] The applicant filed its statement of defence late. As a result of that, it now seeks condonation for the late filing of its statement of defence. The application is opposed by the respondent on the basis that the delay is excessive, and that the applicant does not have prospects of success on the merits.

[2] There are three claims that have been pleaded by the respondent in his statement of claim. Claim 1 is in respect of the alleged unpaid salary from February 2018 to November 2019 in the amount of R1 536 171.00. Claim 2 is in respect of the payment of solatium in the amount of R250 000.00. The justification for this claim is that the applicant injured the respondent’s feelings when it failed to pay his salary from February 2018 up to November 2019. It is alleged that the injury caused the respondent to downgrade his standard of living, was belittled and undermined by his wife, and was subsequently divorced by the wife.

[3] Claim 3 is in respect of the payment of the respondent’s 49% dividends as a shareholder of Maduludi Pipe Jacking, an entity that is alleged to be a subsidiary of the applicant.

[4] All of the above claims arise because of the allegations that the respondent was an employee of the applicant and a shareholder of Maduludi Pipe Jacking. The Labour Court sitting as a trial Court is called upon to decide all of these claims.

Explanation for the delay

[5] The statement of claim was emailed to the applicant on 04 December 2020. The statement of claim was sent to the email address of Mokiri Mangwale and Lebogang Rikhotso. Mangwale is a brother of Rikhotso. The applicant is a family business, and the operations of the business are conducted by family members.

[6] In her founding affidavit, Rikhotso avers that she did not see the email containing the statement of claim up until 15 December 2020. After seeing the email, she then forwarded it to the applicant’s attorneys.

[7] The explanation by Rikhotso was that the applicant had a project that it was busy with at Randwater and during the beginning of December 2020, the applicant had an industrial action at the Randwater site.

[8] As the HR personnel, she was busy attending to the strike and addressing the striking employees with a view of ending the strike. The matter ended up in Court where the applicant had to request an interdict against the striking employees. During this time, she was out of the office and not monitoring her emails.

[9] The offices of the applicant closed for the December break on 18 December 2020. Even the offices of the applicant’s attorneys closed for the December holidays. The closure of the offices for the December holidays prevented the applicant from consulting with its attorneys for the preparation of its statement of defence.

[10] The applicant resumed operations on 05 January 2021 and upon return from the December break, the father of Rikhotso passed on and that necessitated the family to be in Limpopo for a week in order to prepare and attend the funeral.

[11] The brother of Rikhotso returned to the office on 18 January 2021 and upon his return, there was a crisis at the applicant’s Brakpan site, for which there were several meetings that took place in an attempt to resolve the crisis.

[12] Rikhotso only returned to the office on 25 January 2021. Upon her return another crisis befell on the family as their mother’s health deteriorated.

[13] On 20 January 2020, Rikhotso tested positive for Covid-19 and had to quarantine until 03 February 2021. She resumed work on 08 February 2021 and only then was she able to attend to this matter with the applicant’s attorneys.

[14] The respondent disputes the applicant’s explanation. In summary, the essence of the dispute is that there was no need for the applicant to consult with its attorneys because, so went the argument, the applicant’s attorneys already had a historical background of the litigation between the parties. This is absurd because legal practitioners are creatures of instructions. The applicant through Rikhotso or her brother had to provide the attorneys with facts and those facts had to be formulated into a statement of defence. Consultations are necessary in the production of properly formulated legal documents.

[15] The fact that a legal practitioner possesses some background regarding the dispute between the parties does not mean that the practitioner has a licence to simply prepare a legal document without the benefit of a consultation with her client.

[16] The argument by the respondent that it was unlikely that Rikhotso would not see the statement of claim in circumstances where she receives emails on her phone, laptop and office computer is based on pure speculation. Condonation applications are not decided on the basis of speculations. The standard for considering an application for condonation is the interests of justice. If it is in the interests of justice for condonation to be granted, it will be granted.[1]

[17] The respondent contends that the passing of Rikhotso’s father is irrelevant. The respondent’s contention is callous towards the loss suffered by Rikhotso and her family. A loss of a family member, especially a father cannot be dismissed as irrelevant simply because a party wants to close the doors of Court to his adversary.

[18] In view of the fact that the material before me shows that the applicant became aware of the statement of claim on 15 December 2020, the 10-day period within which to file its statement of response lapsed on 30 December 2020.

[19] The applicant filed its statement of response on 11 February 2021. That means the statement of response is 30 days late, not 55 or 64 days late as alleged by the parties. Both parties got the computation of the Court days wrong.

[20] Rule 1 of the Rules for the Conduct of Proceedings in the Labour Court defines a day as “any day other than a Saturday, Sunday or public holiday, and when any particular number of days is prescribed for the doing of any act, the number of days must be calculated by excluding the first day and including the last day.”

[21] It bears mention that the respondent served his statement of claim in the first week of December 2020. Under the circumstances, some leeway should be allowed when considering the applicant’s delay in filing its statement of defence.[2] In Lentsane & Others v Human Sciences Research Council (2002) 23 ILJ 1433 (LC)[3], it was stated that it is manifestly obvious and sensible that any legal practitioner who institutes an action in the first week of December must appreciate that there will be considerable hardship, done unnecessarily.

[22] In South African Airways (Soc) Ltd v CCMA & Others[4], the Court stated that when dealing with delays in the filing of documents, some leeway must be allowed during the festive season. The absence of a Labour Court Rule stipulating dies non during the ordinary annual shutdown period over December and January should be taken into account when delays over this period are considered.

[23] The two pillars of the Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) approach consist of a consideration of whether or not a reasonable explanation is offered for the delay and whether or not the defaulting party has reasonable prospects of success.

[24] The applicant’s explanation for the delay in filing its statement of defence is reasonable and acceptable. I now turn to consider the issue of the prospects of success.

[25] The respondent’s contention is that the applicant does not have prospects of success on the merits. On a reading of the material before me, I am unable to reach that conclusion.

[26] For claim 1, the duration of the non-payment of the respondent’s salary is in dispute.

[27] Claim 2 which is a solatium claim requires evidence of the loss suffered by the respondent and there must be proof that the loss was caused by the applicant and that the conduct of the applicant was wrong in law.

[28] Claim 3 is a claim for the payment of the dividends. This claim is based on the contention that the applicant is a shareholder of Maduludi Pipe Jacking. I am not certain about the jurisdiction of the Labour Court in respect of claim 3. This is an issue that must be ventilated at trial.

[29] Therefore, on the material before me, I am unable to conclude that the applicant’s case on the merits disclosed a glaring weakness or that the respondent adduced a deadly piece of evidence. In the circumstances, it is fair to conclude that the applicant’s prospects are reasonable and that there is a case to be tried.

[30] In the premises, I make the following order:

Order

1. Condonation is granted in respect of the late filing of the applicant’s statement of response.

2. There is no order as to costs.

X. Mofokeng

Acting Judge of the Labour Court of South Africa

Appearances:

For the applicant: K Letsholo of Letsholo Manasoe Attorneys

For the respondent: SM Gwabeni of Gwabeni Inc

[1] Van Wyk v Unitas Hospital [2007] ZACC 24; 2008 (2) SA 472 (CC), para 20.

[2] See: Transport and General Workers Union and others v Hiemstra NO and Another (1998) 19 ILJ 1598 (LC).

[3] At 1440, para 24.

[4] [2019] JOL 44397 (LC) at para 4.