Mathekga and Others v Bidvest Prestige Cleaning Services and Another (JS541/19) [2024] ZALCJHB 265 (9 July 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JS 541/19

In the matter between:

PORTIA MATHEKGA & 11 OTHERS

Applicant

and

BIDVEST

PRESTIGE CLEANING SERVICES First Respondent

MILICARE

CARPET CLEANING SERVICES Second Respondent

Heard: 2 July 2021

Delivered: 9 July 2024

Summary: application for the condonation of the late service and filing of an amended Statement of Claim – claims for: a declarator that a section 197 transfer of the Applicants from the first to the second Respondent was unfair; a finding that the dismissal of the Applicants was automatically unfair in terms of section 187(1)(g) of LRA, and relief for the substantively and procedurally unfair retrenchment of the Applicants.

Legal principles on exercise of judicial discretion on condonation considered – delay in service and filing of amended Statement

of Claim egregious and continuous – explanation proffered amounting to no explanation and, therefore, unreasonable – poor prospects of success – prejudice – other interests of justice requirements: main action not ripe for hearing – no basis for exercise of Jurisdiction established – claim Excipiable - condonation refused.

JUDGMENT

MASUKU, AJ

[1] The Applicants approach this Court for an order condoning the late service and filing of their amended Statement of Claim, which has yet to occur.

[2] To that end, this Court is called upon to exercise a judicial discretion in determining whether the interests of the proper administration of justice demand that the Applicants be indulged to proceed and have their claim against the Respondent(s) determined on the merits

despite the delay in their prosecution thereof.[1]

The issues

[3] The facts of this matter are largely uncontroversial. The Applicants are 11 individual employees among approximately 150 originally employed by the fist Respondent (Bidvest).

[4] They were contracted to Standard Bank of South Africa Limited (the Bank) at its Simmonds Street, Johannesburg business premises.

[5] The Applicants allege that on 28 March 2019, Bidvest transferred them to the second Respondent (Milicare) as part of a transfer in terms of section 197 of the Labour Relations Act[2] (the LRA) transfer of a part of its business as a going concern.

The Litigation history

[6] On 09 May 2019, the Applicants referred a dismissal dispute against Bidvest to the Commission for Conciliation, Mediation and Arbitration (the CCMA). In describing the dispute, the Applicants indicated that they were transferred by Bidvest to Milicare but that the “…transfer procedure was not followed, in terms of section 197” in that they were transferred “… without as a going concern” (sic). As relief, they sought to be transferred as a going concern or retrenchment.

[7] On 03 June 2019, a certificate of non-resolution was issued by the CCMA in that dispute.

[8] On 11 June 2019, the Applicants referred their dispute to Arbitration before the CCMA. In their LRA Form 7.13, they indicated that the issues in dispute related to a section 187(1)(g) (of the LRA) dismissal that was related to a section 197 transfer and sought to be “… transfer[red] as a going concern / operational requirement[s] to be applied.”

[9] On 12 August 2019, CCMA Commissioner Nsibanyoni issued a jurisdictional ruling in the matter. In essence, Commissioner Nsibanyoni ruled that the CCMA lacked the jurisdiction to arbitrate the matter in the absence of written consent thereto by both parties as required by section 141 of the LRA,[3] and that the matter was to be referred to this Court for adjudication.

[10] On 21 August 2019, the Applicants commenced their action before this Court, now against Bidvest and Milicare, as the second Respondent. To that end, a notice and the accompanying founding and eleven confirmatory affidavits were served and filed.

[11] On 5 September 2019, Bidvest filed its notice to remove causes of complaint in terms of rule 11 of the Rules for the conduct of proceedings in the Labour Court read together with uniform rule 23. Briefly, Bidvest complained, in essence, that the founding affidavit lacked averments necessary to sustain an action for an automatically unfair dismissal – the existence of any alleged dismissal.

[12] On 07 October 2019, Bidvest filed its notice of exception.

[13] On 22 November 2019, the exception was upheld via an order of this Court, issued by Coetzee AJ. In terms of the court order, the Applicants were granted a period of a further 20 days within which to remove the causes of complaint – they were to serve and file an amended statement of claim as contemplated in rule 6 of the Rules of this Court.

[14] On that day, the Applicant also and/or had earlier filed a notice of intention to amend. In that notice, the Applicants pursue a claim of automatically unfair dismissal in terms of section 187(1)(g) in that they allege that the transfer was and/or occasioned the alleged dismissal. In the alternative, they pursue a declarator as to the fairness of the transfer itself in that, subsequent to the transfer, their long service was not recognised by Milicare – the new employer in terms of section 197, and that this occasioned financial prejudice to them as most of them were nearing retirement at the time of their transfer. As a second alternative claim, the Applicants seem to pursue relief for the Respondents’ failure to comply with any of the requirements of section 189 of the LRA.

[15] On 20 December 2019, an application for the review and setting aside of Commissioner Nsibanyoni’s jurisdictional ruling was filed on behalf of the Applicant but was subsequently abandoned.

[16] On 20 January 2021, another explanatory affidavit was filed on behalf of the Applicants, and an opposing affidavit was filed on behalf of Bidvest.

[17] In the meantime, and to dovetail into the current issues in these proceedings, over the period from 09 - 11 December 2019, the Applicants’ representative, Mr. Abraham Tsietsi (Mr. Tsietsi), was seen by a Dr K.J. Kobela of Pholosong Hospital - he was declared medically unfit for duty on those days.

The condonation application

The delay

[18] As alluded to above the amended statement of claim is yet to be filed by the Applicants in this matter. In their papers in the current application, the Applicants make no attempt to quantify the period of delay.

The explanation

[19] As alluded to above, as an explanation for the delay, the Applicants rely, in toto, on the medical unfitness of Mr. Tsietsi for a brief period in December 2019.

[20] The written request for an extension of the further 20-days period granted by the order of this Court issued on 22 November 2019 did not meet the written approval of any of the Respondents. Thereafter, the Applicants seem to have been content to simply not proceed to file the amendment.

Prospects of success

[21] As to prospects of success, the Applicant’s contend that they have good prospects in the main claim(s) and incorporate by reference into their Founding Affidavit in this Application their case as made out in their Founding Affidavit in the main claim.

[22] There, the Applicants contend that their transfer was unfair in that their terms of service became less favourable pursuant thereto and that the transfer amounts to a dismissal, which is automatically unfair, in that it relates to a section 197 transfer as contemplated in section 187(1)(g). As relief, the Applicants claim 24 months compensation. Alternatively, they sought to be retrenched.

Prejudice

[23] As to prejudice, the Applicants contend that they stand to suffer substantial prejudice should condonation be refused in that they would be deprived an opportunity to challenge their “unreasonable and unjustifiable transfer…”

The Legal Principles

[24] It is trite law that considerations to be evaluated by this Court in deciding an issue of condonation were set out by the Appellate Division (as it then was) in Melane v Santam Insurance Co. Ltd[4], where the Appellate Division formulated the following test:

“In deciding whether sufficient cause has been shown, the basic principle is that the court has a discretion, to be exercised judicially upon a consideration of all facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant is the degree of lateness, the explanation thereof, the prospects of success, and the importance of the case. Ordinarily these facts are interrelated: they are not individually decisive, for that would be a piece meal approach incompatible with a true discretion, of course if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong. Or the importance of the issue and strong prospects of success may tend to compensate for a long delay. And the respondent’s interest in finality must not be overlooked.”

[25] In Brummer v Gorfil Brothers Investment (Pty) Ltd and others[5], the Constitutional Court held that:

"… It is appropriate that an application for condonation be considered on the same basis and that such an application should be granted if that is in the interests of justice and refused if it is not. The interests of justice must be determined by reference to all relevant factors including the nature of the relief sought, the extent and cause of the delay, the nature and cause of any other defect in respect of which condonation is sought, the effect on the administration of justice, prejudice and the reasonableness of the applicant’s explanation for the delay or defect.”

[26] In Mohlomi v Minister of Defence[6], the Constitutional Court commented as follows as regards some of the policy considerations underlying the exercise of judicial discretion on the issues raised by this matter:

“… Rules that limit the time during which litigation may be launched are common in our legal system as well as many others. Inordinate delays in litigating damage the interests of justice. They protract the disputes over the rights and obligations sought to be enforced, prolonging the uncertainty of all concerned about their affairs. Nor in the end is it always possible to adjudicate satisfactorily on cases that have gone stale. By then witnesses may no longer be available to testify. The memories of ones whose testimony can still be obtained may have faded and become unreliable. Documentary

evidence may have disappeared. Such rules prevent procrastination and those harmful consequences of it. They thus serve a purpose to which no exception in principle can cogently be taken…”

[27] In NUM v Council for Mineral Technology[7], the Labour Appeal Court held the following:

"… What is needed is an objective conspectus of all the facts. A slight delay and a good explanation may help to compensate for prospects of success which are not strong. The importance of the issue and strong prospects of success may tend to compensate for a long delay. There is a further principle which is applied and that is that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused."

[28] Recently, in Grootboom v National Prosecuting Authority and another[8] the Constitutional Court resurrected the principles established in Brummer v Gorfil Brothers Investments (Pty) LTD and others[9] and Van Wyk v Unitas Hospital and another (Open Democratic Advice Centre as amicus curiae)[10]. In giving meaning to the concept of interests of justice, the Constitutional Court held:

"[22] … I agree with [Zondo J] that, based on Brummer and Van Wyk, the standard for considering an application for condonation is the interests of justice. However, the concept “interests of justice” is so elastic that it is not capable of precise definition. As the two cases demonstrate, it includes: the nature of the relief sought; the extent and cause of the delay; the effect of the delay on the administration of justice and other litigants; the reasonableness of the explanation for the delay; the importance of the issue to be raised in the intended appeal; and the prospects of success. It is crucial to reiterate that both Brummer and Van Wyk emphasise that the ultimate determination of what is in the interests of justice must reflect due regard to all the relevant factors, but it is not necessarily limited to those mentioned above. The particular circumstances of each case will determine which of these factors are relevant.

…

[51] … The interests of justice must be determined with reference to all relevant factors. However, some of the factors may justifiably be left out of consideration in certain circumstances. For example, where the delay is unacceptably excessive and there is no explanation for the delay, there may be no need to consider the prospects of success. If the period of delay is short and there is an unsatisfactory explanation but there are reasonable prospects of success, condonation should be granted. However, despite the presence of reasonable prospects of success, condonation may be refused where the delay is excessive, the explanation is non-existent and granting condonation would prejudice the other party. As a general proposition the various factors are not individually decisive, but should all be taken into account to arrive at a conclusion as to what is in the interests of justice."[11]

Analysis

[29] The Applicants have not persuaded the Court of a reasonable explanation so as to have regard to the prospects of success. The applicant has also not shown strong prospects of success, in any event. On a consideration of these, and the other factors in a conspectus, the Applicants have failed to make out a case for condonation in this matter.

[30] At the time of the argument of the condonation application in this matter, a period of seven months had elapsed since the order of this Court directing the Applicants to file their amended Statement of Claim was issued and brought to their attention. Inexplicably, no such an amendment was filed and that remains the case to date. Even at the time of the filing of this application, no amendment was simultaneously filed. As a result, the period of delay remains continuous.

[31] The explanation proffered by the Applicants for this continued failure to remove the cause(s) of complaint identified as early as September and confirmed in November 2019 covers only a period of 3 days of the total period of delay. For that reason, it fails to give an account for the entirety of the period of the delay and is, thus, unreasonable.

[32] The Applicants have no prospects of success in their main Claim for a number of reasons.

[33] In relation to the claim that the section 197 transfer was itself unfair, I find that the Applicants have failed to establish any prospects of success. In this regard, section 191(5)(a)(ii) of the LRA bestows the jurisdiction to arbitrate any disputes relating to whether any employee was subjected to less favourable terms of employment by a new employer subsequent to a section 197 transfer upon the CCMA. The Applicants have, accordingly, failed to lay a basis for this Court to exercise jurisdiction and/or power to determine the fairness of a section 197 transfer per se.

[34] In terms of section 187(1)(g) read together with section 191(5)(b), this Court enjoys the power merely to adjudicate automatically unfair dismissal disputes where the reason for the dismissal is a transfer or is related thereto.

[35] The Applicants have also failed to establish any prospects for a finding that a dismissal exists in this matter. In their own papers, at best, they pursue a finding that the section 197 transfer resulted in their dismissal. Put differently, the transfer itself constituted their dismissal by Bidvest. Bidvest, the only Respondent to file an opposing Affidavit, disputes the existence of any such alleged dismissal.

[36] In these circumstances, as to the existence or otherwise of a dismissal, the probabilities favour the Respondent(s).[12]

[37] Finally in this regard, I find that the Applicants have also failed to establish any prospects in relation to their second alternative claim – retrenchment. Not only do the Applicants’ papers fail to establish a factual basis for the existence of any dismissal and/or any dismissal for operational requirements, but they appear to demand that a retrenchment be effected as an alternative to being granted what they claim in the main. That is, were they not to be granted a declarator that the transfer was unfair, they seek to compel the Respondent(s) to retrench them.

[38] Again, the Applicants have failed to lay a basis for this Court to exercise jurisdiction and/or power to make such an order as against an old and/or a new employer for purposes of section 197. Ultimately, the Applicants’ prospects vis-à-vis the amendment fail to complement any of the other factors relevant to the determination to be made herein.

[39] The balance of convenience favours the Respondent(s). While this Court must exercise caution against shutting its doors on Applicant parties, it is trite that prejudice ought to be considered at the instance of both parties. The prejudice to befall the Applicants should condonation be refused is not extraordinary in nature. It is a natural upshot of a failure to prosecute one’s claim

diligently. On the other hand, true Justice demands that real finality about their affairs be meted out to all parties coming before Court,[13] particularly where a dispute has been so egregiously protracted and the exists no acceptable explanation therefor or any prospects of success.

Conclusion

[40] In the premises, I am of the view that all of the considerations relevant in the determination of this Application count against an exercise of this Court’s discretion in favour of granting condonation.

[41] The interests of justice demand that real finality be granted to the Respondent parties and that the Applicants be denied the indulgence they seek in these proceedings.

Costs

[42] As to costs, it is trite that they do not ordinarily follow the result in litigation before this Court. There are no extraordinary circumstances that militate for a departure from that general rule in these proceedings.

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

Order

1. The application for the condonation of the late filing of the Applicants’ amended statement of claim is dismissed;

2. There is no order as to costs.

B. Masuku

Acting Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant

Workers Against Regression.

For the Third Respondent: Moodie & Robertson Attorneys.

[1] See generally: Grootboom v National Prosecuting Authority and another [2014] 1 BLLR 1 (CC).

[2] No. 66 of 1995.

[3] Section 141(1) & (3) provide the following: “(1) If a dispute remains unresolved after conciliation, the Commission must arbitrate the dispute if a party to the dispute would otherwise be entitled to refer the dispute to the Labour Court for adjudication and, instead, all the parties agree in writing to arbitration under the auspices of the Commission. (2) … (3) The arbitration agreement contemplated in subsection (1) may be terminated only with the consent of all the parties to that

agreement, unless the agreement itself provides otherwise.”

[3] Section 141(1) & (3) provide the following:

“(1) If a dispute remains unresolved after conciliation, the Commission must arbitrate the dispute if a party to the dispute would otherwise be entitled to refer the dispute to the Labour Court for adjudication and, instead, all the parties agree in writing to arbitration under the auspices of the Commission.

(2) …

(3) The arbitration agreement contemplated in subsection (1) may be terminated only with the consent of all the parties to that

agreement, unless the agreement itself provides otherwise.”

[4] 1962 (4) SA 531 (A) at 532 C – E.

[5] [2000] ZACC 3; 2000 (2) SA 837 (CC) at para 3.

[6] [1996] ZACC 20; 1997 (1) SA 124 (CC) at para 11.

[7] [1999] 3 BLLR 209 (LAC) at para 10.

[8] [2014] 1 BLLR 1 (CC).

[9] 2000 (5) BCLR 465 (CC).

[10] 2008 (4) BCLR 442 (CC).

[11] See: Grootboom at paras 22 and 51.

[12] See generally: Plascon-Evans Paints (TVL) Ltd v Van Riebeck Paints (Pty) Ltd 1984 (3) SA 623 (A).

[12] See generally: Plascon-Evans Paints (TVL) Ltd v Van Riebeck Paints (Pty) Ltd 1984 (3) SA

623 (A).

[13] See generally: Mohlomi v Minister of Defence [1996] ZACC 20; 1997 (1) SA 124 (CC).