Minister of Home Affairs v PSA obo Khoza and Another (P40/2020) [2022] ZALCPE 44 (7 December 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

Not Reportable

CASE NO: P 40/2020

In the matter between:

THE MINISTER OF HOME AFFAIRS Applicant

And

PSA obo L.W. KHOZA AND ANOTHER Respondent

Heard: 2 June 2022

Delivered: This judgment was handed down electronically by circulation to the Applicant’s legal representatives and the respondents by email, publication on the Labour Court website and release to SAFLII. The date and time for handing - down is deemed to be 12h00 on 7 December 2022.

JUDGMENT

LALLIE, J

[1] The respondents instituted legal proceedings in this court against the applicant. On 15 March 2022 an order in the following terms was issued:

“1. The respondent will file its answering affidavit (if any) on or before 13 April 2022;

2. The applicant will file its replying affidavit (if any) on or before 16 May 2022;

3. The respondent will pay wasted costs occasioned by this postponement;

4. The matter will be enrolled for the 2 June 2022.”

[2] The applicant failed to comply file the answering affidavit in terms of paragraph 1 of the order of 15 March 2022 which will be referred to as the order in this judgment. He, however, filed an application for condonation of its late filing. It was argued on behalf of the respondents who did not file a replying affidavit that the condonation application is ill-placed. It was further argued that rule 12 that the applicant based the condonation application on applies to a direction and not a court order. The respondents persuaded me to adjudicate the main dispute in terms rule 16 on the basis that the non-compliance with the order justified the enrolment of the matter for judgment by default. The applicant argued that the respondents’ technical approach was unacceptable and sought an order condoning their non-compliance with the order as a refusal

would unjustifiably deny him the right to oppose the matter.

[3] It is common cause that the applicant failed to comply with the court order. He deemed it appropriate to file an application seeking condonation of the delay. The crisp issue before me is whether the condonation application could cure the non-compliance with the order or the non-compliance is fatal to the applicant’s case and justified denying him the right to oppose the proceedings against him. A party against whom a court order has been granted has a legal obligation to comply with that order. For non-compliance with a court to constitute a punishable offence it must be deliberate and mala fide. In the condonation application, the applicant has given a detailed account of the circumstances which led to the non-compliance

with the order. If non-compliance with a court order on its own is insufficient to justify punishment what would the legal basis for punishing the applicant by non-suiting him for non-compliance with the order be? I could find none and none was provided by the respondents.

[4] The applicant’s obligation to comply with the order stands and his non-compliance cannot be overlooked. It, however, does not constitute grounds to non-suit him. This court does not take the step of closing its doors to litigants lightly. The applicant has shown that it is in the interest of justice that his late compliance with the order be condoned. In light of the condonation, the respondents are granted leave to file their replying affidavit on or before 20 January 2023.

[5] The parties presented no arguments justifying a costs order. Granting one will therefore not be appropriate.

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

1. The late filing of the answering affidavit and confirmatory affidavits in breach of the court order dated 15 March 2022 is condoned.

2. The respondent are granted leave to file their replying affidavit on or before 20 January 2023.

3. There is no order as to costs.

Z. Lallie

Judge of the Labour Court of South Africa

APPEARANCES

For the Applicant: Adv. JP van den Berg

Instructed by

PGMO Attorneys

For the Respondent: Adv.

N Sieberhagen

Instructed by

The

State Attorney, Kimberly