Motloung and Others v Hesmona Plaster (Pty) Ltd (JS 129/21) [2021] ZALCJHB 163 (20 July 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JS 129/21

In the matter between:

THULANI TIMOTHY MOTLOUNG & 31 OTHERS

Applicants

and

HESMONA PLASTER (PTY) LTD

Respondent

Heard:

02 JULY 2021

Delivered: 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 20 July 20201.

Summary: Application for Condonation of late filing of statement of claim. Referral for conciliation by applicants within the statutory time frames. Statement of claim filed nine months late. Attorney waiting to consult with everyone else. Court hesitant to debar litigants from relief.

JUDGMENT

MATYOLO AJ

Introduction

[1] The applicants have approached this Court seeking an order in terms of which the late filing of their statement of claim be condoned. The applicants are former employees of the respondent and have worked for the respondent for a period of about 20 years.

[2] According to the applicants, they were dismissed on 31 January 2020, and they referred a dispute to the Commission for Conciliation Mediation and Arbitration, the CCMA. Conciliation proceedings at the CCMA took place on 21 February 2020. The matter could not be resolved through conciliation and a certificate of non-resolution was issued.

[3] The matter was then referred to this Court in a statement of Claim that was filed on 20 November 2020. The statement of claim is late. The applicants have filed this application and are seeking an order that the late filing of the statement of claim be condoned. The application is opposed by the respondent.

Background

[4] On their version, the applicants travelled from their dwellings to their workplace being the premises of the respondent on 31 January 2020. When they got to the premises, they found the main gate closed and blocked by security officers that refused them access into the premises. One of the Directors told them that the company was closed and that they should go home.

[5] The applicants submitted that they understood this to constitute dismissal that is both procedurally and substantively unfair in that they were dismissed with immediate effect and without an opportunity to be heard.

[6] They referred an unfair dismissal dispute to the CCMA and the dispute was set down for conciliation on 21 February 2020. As earlier indicated, the dispute could not be resolved, and the CCMA issued a certificate non-resolution indicating that the matter ought to be referred to this Court for adjudication.

[7] On the other hand, the version of the respondent is that the applicants were never dismissed and are therefore not entitled to the relief they are seeking, and that the application should be dismissed.

[8] According to respondent, the applicants took part in an unprotected strike that arose in relation to an accommodation dispute wherein the applicants burnt beds and clothes at their compound. This led to chaotic scenes that necessitated the calling of security officers and members of the South African Police Services.

[9] On the papers, the respondent raised a number of preliminary issues on the basis of which it argues that the application for condonation ought to be dismissed. Before this Court, another preliminary point was raised. I get to this later.

[10] I deal with the preliminary points raised on the papers below:

10.1 The first point is couched in the following terms: “failure to fully elucidate on every part of the “delay” by giving a blow-by-blow account. In this regard, the respondent made various submissions in relation to the periods that are unaccounted for in the condonation application and the lack of supporting evidence in the form of passport stamps in answer to the submission that some of the applicant had gone to Lesotho. The Court’s ruling on this point is that there is no reason for this issue to be raised as a preliminary point. It is not an issue that can be separated from the respondent’s submission in opposing the application. In this regard, this preliminary point is dismissed.

10.2 The second preliminary point is that this court lacks jurisdiction to adjudicate on this condonation application. The first reason for this submission is that the statement of claim is fatally defective because the applicants were not dismissed, and the second reason is that the applicants are seeking to rely on the provisions of the Basic Conditions of Employment Act and yet they have been withdrawn from the statement of claim. My finding is that this Court is seized with the condonation application and not the merits of the issues raised in the statement of claim. The statement of claim is of interest to this Court only to the extent that this Court has to assess the prospects of success. Once again, this issue cannot be decided outside the merits of the condonation application. In this regard, this preliminary point is also dismissed.

Submissions before the Court

[11] As earlier indicated, Mr Jooste, for the respondent introduced a further preliminary point which was that only the first (4) four pages of the founding affidavit that is filed on behalf of the applicants was initialled at the bottom of the page. It was then submitted that there was no proper affidavit before the Court in that the version of the applicants was not confirmed.

[12] In this regard, the Court was referred to the decision of the High Court in Absa Bank Ltd v Botha NO and Others [2013] 5 SA 563 (GNP) and it was submitted that in order for the evidence in the affidavit to be admitted, it is incumbent on the deponent to ensure

that the papers before the Court are in order and that the version is confirmed.

[13] Mr Monera, for the applicants submitted that there was substantial compliance in that most of the pages were initialled and that the deponent signed at the end of the affidavit and the commissioner confirmed that the deponent confirmed knowledge of the contents of the affidavit and that he is bound by the contents thereof.

[14] In ABSA Bank Ltd v Botha, NO and Others referred to in [Para12] above, the Court held [ at Para 8 of the judgment] that: “…subject to whether there has been substantial compliance with the regulations, the Court has a discretion to refuse an affidavit which does not comply with the regulations.”

[15] In Exparte Du Toit [1962] 1 SA 445 (E.C.D), it was held that the requirement of signature is merely directory and not peremptory in that there is no endorsement that says in the absence of a certificate by a commissioner of oaths the affidavit would be invalid.

[16] It is to be noted that in the matter before this Court, only a few pages were not initialled. The deponent initialled some of the pages and appended his signature at the end of the affidavit and the commissioner of oaths signed the certificate that deponent understood the contents thereof. In this regard, I find that there was substantial compliance with the regulations. Accordingly, this preliminary point must also fail.

The condonation application

[17] Mr Moneri submitted that the statement of claim was filed late by a period of about 9 months but that in the circumstances of this matter, the 9 months’ period of delay was not excessive.

[18] In this regard, he referred the Court to the decision of the Labour Appeal Court in Motloi v South African Local Government Association [2006] 3 BLLR 264 (LAC) where the Court held that a decision to grant condonation must be arrived in the light of relevant considerations such as the length of the delay, prospects of success in the main case, possible prejudice to the other party and the blame attaching to the parties for the delay.

[19] In explaining the delay, on the papers, the applicants submitted that:

19.1 They were dismissed on 31 January 2020, and they referred their dismissal dispute to the Commission for Conciliation Mediation and Arbitration, the CCMA and the conciliation meeting was held on 21 February 2020.

19.2 The country was then put on National Lockdown level 5 from the end of March 2020. The Attorneys of record were approached by four (4) of the applicants in June 2020.

19.3 They had their second consultation on 2 July 2020 but not all the applicants could attend because half of the applicants had gone to Lesotho as they are Lesotho Nationals.

19.4 It was a struggle to arrange consultations and they were finally able to make a breakthrough on 23 September 2020 when they could finally hold proper consultations.

[20] With regard to the prospects of success, the applicants made the following submissions; that they were dismissed without any probable cause (sic) and without being provided an opportunity to be heard. They also submitted that the penalty of dismissal was too severe in circumstances where they were not in an unprotected strike. Lastly,

the applicants submitted that they would suffer immense prejudice and there would be no prejudice on the respondent if condonation were to be granted. They submitted further that their dismissal was in gross violation of sections 9;10;12;16;18;20; and 34 of the Basic Conditions of Employment Act 75 of 1995.

[21] The respondent on the other hand made the following submissions:

21.1 The applicants failed to provide a proper explanation for the late filing of their statement of claim in particular, the applicants do not explain the periods 21 February 2020 to 26 March 2020;

21.2 There was no explanation for the failure by the applicants to seek legal assistance during the period 1 April 2020 to 19 June 2020;

21.3 There was no explanation for period 19 June 2020 to 2 July 2020 as well the period 2 July 2020 to 23 September 2020;

21.4 Lastly there was no explanation for the period 23 September 2020 to 8 February 2021 when the applicants ultimately filed their condonation application.

[22] In what appears to be a submission regarding prospects of success on the papers, the respondent submits that the applicants were never dismissed. The respondent submits further that the commissioner’s

certificate of non-resolution that stated “unfair dismissal” is not correct because the applicants simply abandoned their employment voluntarily. The respondent did not address the Court on the issue of prejudice if condonation was granted.

The legal framework

[23] Section 191(11)(a) provides that;

23.1 (a) “the referral in terms of subsection (5)(b) of a dispute to the Labour Court for adjudication, must be made within 90 days after the council or (as the case may be) the commissioner has certified that the dispute remains unresolved;

23.2 (b) however, the Labour Court may condone non-observance of the time frames on good cause shown.

[24] What has been proffered as the reason for lateness before this Court is that the Country had been put on lockdown and it was therefore difficult to bring all the applicants together for a proper consultation. This was made even more difficult by the fact that half of the applicants are Lesotho Nationals and had left the Country.

[25] The respondent does not accept this explanation but does not suggest how the applicants could have been able to consult particularly during the period of level 5 lockdown.

[26] It is common cause or at least it is not disputed on the papers and in the arguments before this Court that on 19 June 2020 (4) four applicants approached the current attorneys of record. The attorney

required consultations with the rest of the applicants which proved to be difficult. In this regard, and in as far as it relates to the (4) four applicants the long delay was not of their making but as a result of the chosen approach by the attorney who wanted to consult with all the applicants.

[27] In Universal Products Network (Pty) Ltd v Mabaso & Others [2006] 3 BLLR 274 (LAC), the Court held inter alia that litigants should not necessarily be debarred because of the negligence of their attorneys. The prospects of success should also be considered.

[28] In its opposing affidavit, the respondent did not challenge any of the submissions of the applicants regarding the prospects of success except a submission that the applicants were not dismissed and that reliance on the breaches of the provisions of the Basic Conditions of Employment Act had been withdrawn.

[29] There were no submissions on the part of the respondent on the prejudice it would suffer if condonation was granted. The applicants’ case for condonation is also strengthened by the fact that they

timeously referred the dispute to the CCMA and a certificate of non-resolution was issued on 21 February 202 within 20 days of their alleged dismissal on 31 January 2020. They, at least (4) four of them sought assistance from an Attorney within the 90 days after the failed conciliation (if the period of hard lockdown is removed).

[30] Having considered all the above circumstance and the fact that the applicants have worked for the Respondent for a period of about twenty years, I am of the view that it is in the interests of justice that the late filing of the statement of claim should be condoned.

[31] Accordingly, I make the following order:

(i) The application for condonation is granted.

(ii) There is no order as to costs.

______________________

Matyolo AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES:

FOR THE APPLICANTS: Adv Moneri

Instructed by Madonsela (BZH) Attorneys

FOR THE RESPONDENT: Adv J Joste

Instructed by Serfontein Viljoen & Swart Attorneys, Pretoria