Mkhasibe N.O. and Another v Atlas Financial Services (PTY) Ltd (JS 607/2018) [2022] ZALCJHB 300 (24 October 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JS 607/2018

In the matter between:

ANDREW BONGANI MKHASIBE N.O.

First Applicant

(Authorised by the letter of Authority

To act on behalf of the late Zandile Maureen Nkosi)

NTSHIKI MAGUBANE

Second Applicant

And

ATLAS FINANCIAL SERVICES (PTY) LTD

Respondent

Heard: 21 October 2022

Delivered: 24 October 2022

(This judgement was handed down electronically by circulation to the parties’ legal representatives, by email, publication on the Labour Court’s website and released to SAFLI. The date on which the judgment is delivered is deemed to be 24 October 2022.)

JUDGMENT

VAN NIEKERK, J

[1] This an application filed on behalf of the estate of the late Ms ZM Nkosi (the deceased) and the second applicant, seeking condonation for the late referral of a dispute to this court for adjudication.

[2] The late Ms Nkosi was employed by the third respondent until 31 August 2017, when she was retrenched. She referred a dispute to the CCMA and on 7 December 2017, a certificate of outcome was issued. Any referral of the dispute to this court for adjudication ought to have been made within 90 days of that date. The statement of case was filed only on 17 December 2020, 1096 days out of time.

[3] The explanation for the delay is set out by the deponent to the founding affidavit, an attorney who acts under a letter of authority issued by the High Court on 17 December 2020. In the affidavit, the deponent records that in early 2018, the deceased was diagnosed with breast cancer and that she died on 11 February 2019. He states that the deceased was in possession of all of the documents relating to the dispute concerning her dismissal and that of the second applicant, who had lost contact with the deceased on 7 December 2017 when they were at the CCMA. The deponent Avers that the second applicant was unaware that the deceased had passed away, and only became aware of the matter when she was called upon by the deponent to sign a confirmatory affidavit in the present application, after having been located by the deponent’s office. The instruction to move the present application was received after the deceased’s family discovered documents relating to the case ‘around December 2020’ and the letter of authority issued. Insofar as the prospects of success are concerned, the deponent Avers that the dismissal of the deceased and the second applicant was automatically unfair, since it amounted to a breach of section 197 of the LRA, the dismissal having occurred

on the transfer of a business as a going concern, signature of a new contract of employment and a subsequent retrenchment.

[4] The condonation application was filed without a notice of motion, together with a confirmatory affidavit attested to by the second applicant, on 10 March 2021.

[5] In the answering affidavit, the respondent disputes that the applicants have made the proper case for condonation. In particular, the respondent records that both applicants entered into an agreement on 17 August 2017, in which they accepted payments as a voluntary retrenchment package, in full and final settlement of all claims and in acknowledgment that none of the parties will institute any further action against the other. In these circumstances, the respondent submits that the applicants have no prospects of success.

[6] The general principles to be applied are well-established. Condonation is not there merely for the asking, nor are applications for condonation a mere formality (see NUMSA v Hillside Aluminum [2005] ZALC 25; [2005] 6 BLLR 601 (LC); Derrick Grootboom v National Prosecuting Authority & another [2014] 1 BLLR (CC)). A party seeking condonation must make out a case for the indulgence sought and bears the onus to satisfy the court that condonation should be granted.

[7] This court is required to exercise a discretion, having regard to the extent of the delay, the explanation proffered for that delay, the applicant’s prospects of success, and the relative prejudice to the parties that would be occasioned by the application being granted or refused.

[8] In this court, that formulation, which has its roots in Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A), has long been qualified by the rule that where there is an inordinate delay that is not satisfactorily explained, the applicant’s prospects of success are immaterial. In National Union of Mineworkers v Council for Mineral Technology [1999] 3 BLLR 209 (LAC) the LAC said the following:

… 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.

[9] In the present instance, the delay is inordinate, on any reckoning, being some three years. The explanation for the delay amounts to this – almost exactly 3 years after the deceased passed away, documents relating to the dispute concerning her alleged unfair retrenchments were discovered. At some point, some undisclosed person realized that the dispute had never been referred to this court, and an attorney duly secured authority to act on behalf of the estate and made the referral, without any application for condonation. The application for condonation was made almost three months later, in circumstances where the second applicant relies entirely on the explanation for delay proffered on behalf of the deceased in order to secure condonation, and without any explanation of any attempt made during the three- year period to prosecute the claim herself. The second applicant is no more than that she attempted to make some telephone calls to the deceased regarding the matter.

[10] The explanation for delay only has to be stated to appreciate that it is highly unsatisfactory. In regard to the second applicant in particular, her averments that she had lost contact with the deceased and that the deceased possessed order of the documents relevant to the claim, is no explanation at all. The second applicant was present at the conciliation hearing, when the certificate of outcome was issued, and must have appreciated, from the face of the certificate, that the matter was to be referred to this court for adjudication.

[11] In any event, the prospects of success are limited, if they exist at all. There is no replying affidavit to dispute the contents of the settlement agreements produced by the respondent which, in clear terms, constitute a settlement of the dispute and a waiver of any right to institute legal proceedings. The first applicant sought in his heads of argument to contend that the agreement was unenforceable. It is trite that a case may not be made in heads of argument and the submissions in regard to the settlement agreement are entirely without any factual foundation. In the absence of any explanation that might serve to call the settlement agreement into question, it must be accepted on its own terms, at least for the purposes of determining whether there are any prospects of success in the main action. In any event, in terms of the Practice Manual, in the case of a referral in terms of Rule 6, when a period of six months has elapsed from the date of delivery of a statement of case without any steps taken by the referring party from the date on which the statement of claim was filed, or the date on which the last process was filed, the registrar must archive the file. When a file is placed in, it has the same consequences as to the further conduct

of any party as to the matter having been dismissed. The party to dispute in which a file has been archived may apply, on affidavit,

for the retrieval of the file. In the present instance, the respondent’s statement of defence was filed on 25 January 2021.

There have been no further developments. The matter must therefore be regarded as archived in terms of the Practice Manual, in

circumstances where there is no application before the court to retrieve the file.

[12] In relation to the question of prejudice, it is self-evident that the respondent will be greatly prejudiced should condonation be grounded and the matter proceed to trial. The events that give rise to the dispute occurred in August 2017, more than five years ago. The primary defence disclosed in the statement of response to the effect that the employees had compromised any claim they might have had by signing settlement agreements, is one that will necessarily require evidence by the employees who would bear an evidentiary burden to establish that the agreements are not binding. In the present circumstances, that is not possible. Finally, the statutory purpose of expeditious dispute resolution would be undermined if the matter were to proceed in circumstances where it is unlikely that the matter would be enrolled for trial prior to mid-2024.

[13] For all of these reasons, condonation for the late referral of the statement of claim is refused. In the circumstances, it is not necessary for me to consider the respondent’s submissions in relation to prescription. The requirements of the law and fairness are best served by each party bearing its own costs.

Order

1. The application for condonation for the late filing of the statement of claim is dismissed.

André van Niekerk

Judge of the Labour Court of South Africa

Appearances:

For the Applicants:

AB Mkhasibe, Smith Van der Watt Inc.

For the respondent: H Wissing, Henk Wissing Inc.