National Commissioner of Correctional Services N.O and Another v Zono (P54/24) [2024] ZALCPE 30; [2024] 10 BLLR 1060 (LC) (22 July 2024)

THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

Not Reportable

Case No: P54/24

In the matter between:

THE NATIONAL COMMISSIONER OF CORRECTIONAL SERVICES, N.O. Applicant THE REGIONAL HEAD: CORPORATE SERVICES, DEPARTMENT OF CORRECTIONAL SERVICES, N.O. Second Applicant and VUYANI KENNETH ZONO Respondent

Heard: 03 July 2024.

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date and time for hand-down is deemed to be on 22 July 2024.

JUDGMENT

THYS, AJ

Introduction

[1] Prior to dealing with the merits of the matter, it is prudent to set out the facts and context leading up to this urgent action. On 31 October 2017, Mr Zono (the respondent in the current litigation) faced dismissal, by the Department of Correctional Services (the applicant currently), leading to a dispute that reached the General Public Service Sectoral Bargaining Council.

[2] The appointed arbitrator, on 27 May 2019, ruled that Mr Zono’s dismissal was unfair and reinstated him, along with back-pay. The Department contested the arbitrator’s decision and delivered a review application.

[3] On 29 July 2020, Judge van Niekerk (as he then was) rejected the Department’s bid – dismissing the review application and confirming the award as a court order. The Department sought leave to appeal, but it was dismissed. A subsequent petition to the Labour Appeal Court met the same fate. On 25 November 2021, the Department’s attempt to appeal to the Constitutional Court also failed.

[4] On 18 August 2022, Mr Zono approached this Court, seeking payment for outstanding remuneration. The Department delivered its statement of defense but disagreement exists about the ‘status’ thereof. The Department claims that Mr. Zono allowed it additional time to submit its statement of response. The Department, for that reason, argues that the statement was filed by the stipulated deadline of 7 November 2022, as per the agreed-upon grace period. Consequently, the Department asserts that the statement should not be deemed late.

[5] Mr Zono holds a different view and (in his written submissions, in opposition to this application) avers that “the statement of response was filed out of time and condonation [is] sought for the late filing”. Mr Zono, in essence, contends that the late delivery of the statement of defense, without an approved application for condonation, allows him to pursue default judgment.[1] On 23 April 2024, Mr Zono, accordingly initiated default judgment proceedings.[2]

[6] Mr Zono’s initial application was allocated to Daniels J who issued an ex tempore judgment – which is the subject matter of this application. Following Judge Daniels’ directive that he “file an application for default judgment”, Mr Zono promptly ‘re-filed’ his application.[3]

Purpose of application

[7] To circumvent the legal repercussions associated with a default judgment, the Department delivered an urgent application, and based on the abovementioned disagreement, seeking an order declaring that its statement of defense was delivered regularly – consequently, no condonation was necessary for its delivery. Alternatively, ‘if needed’ condonation for the late submission of its statement of defense was also requested. To make it clear the phrase “if needed” is used or pleaded because the Department maintains that its statement of defense was submitted in time and it, therefore, has a right to be heard (in the main case).

[8] In an effort to protect its rights, especially the right to be heard, the Department contends that Judge Daniels’ judgment does not completely prohibit its participation in the main case. Furthermore, it does not preclude the Department from seeking condonation (if necessary), which is why it brought this application.

[9] The Department asserts that this application seeks clarity regarding the correct interpretation and application of the judgment and/or aims to “address the incorrect procedure followed by [Mr. Zono] in making application for default judgment on the basis of the Department being barred whereas in fact there was an agreement to extend the period for the Department to file its statement of defense, which [it] adhered to”.

[10] Based on the reasons outlined, the Department in essence or ultimately campaigns that Mr Zono’s request for default judgment should not be entertained as such and/or be denied and/or the Department urges the court to promptly intervene and halt the default judgment proceedings – i.e. given that the matter is currently being ‘contested’.

[11] To succeed in its application, the Department must establish urgency (for the speedy relief sought), justification (for the declaratory relief), and/or good cause (for the condonation) – in its papers and/or according to the ‘pleaded’ case. Additionally, the Department must demonstrate that the court has the power and jurisdiction to entertain the matter, as pleaded.

Declaratory relief

[12] Generally, disputing parties approach the court seeking remedial relief, in the form of a court order, to resolve their dispute. However, a claim for declaratory relief stands as an exception. Unlike other court orders, a declaratory order does not prescribe specific actions or remedies. Instead, it serves to declare the parties’ rights without imposing penalties or sanctions. Declaratory relief issued by a court (or tribunal) thus aims solely to clarify the legal rights or obligations of the parties involved in a dispute.

[13] To succeed in litigation, aggrieved parties must establish that they have a legal right to bring a lawsuit (or participate in legal proceedings) and that their legal rights have been violated. In other words, our courts, upon the application of any interested party, possess the authority to investigate and the jurisdiction to adjudicate existing, future, or contingent rights or obligations. Consequently, our legal system effectively addresses uncertainties and conflicts related to such rights or obligations – by way of applications for declaratory relief.

[14] To achieve a declaratory order, litigants (in this case, the Department) must, therefore or at the very least, satisfy this Court that they meet the following criteria: that (1) the court indeed has the power and jurisdiction to make the declaratory order, (2) they have a legitimate interest in the subject of the dispute (3) and they have demonstrated a specific ‘right’

or ‘obligation’ that requires declaratory relief (i.e. clarification).

[15] In terms of section 158(1)(a)(iv) of the Labour Relations Act[4] (LRA) the Labour Court may grant declaratory relief. This section in full provides that:

“The Labour Court may (a) make any appropriate order, including – (iv) a declaratory order.”

[16] Section 157(1) of the LRA, in turn, states that:

“The Labour Court has exclusive jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of any other law are to be determined by the Labour Court.”

[17] It would then follow that “in respect of all matters that elsewhere in terms of the Act” refers to matters specifically “provided for” in terms of the LRA.

[18] Given that declaratory orders are explicitly ‘provided for’ in section 158(1) of the LRA, it is my perspective that when section 158(1)(a)(iv) is read and applied in conjunction with section 157(1), it empowers the Labour Court with both the authority/power and jurisdiction to issue declaratory orders – related to matters of declarators.

[19] The court’s jurisdiction in this matter arises from the Department’s legitimate need or right to clarify a court judgment and safeguard its rights (i.e. to be heard) by seeking a declarator.

[20] Considering the impact of Judge Daniels’ court order, if the current situation persists or develops to its logical outcome, and if Mr Zono’s interpretation of the judgment (by default) prevails, it is probable that the Department would be unable to contest the matter on its substantive merits and may thus be negatively affected by the ultimate judgment of this Court. Therefore, I find that the Department also satisfies the ‘interest’ requirement in the matter, given its clear stake in the issue.

[21] To fully comprehend the determination regarding the remaining criteria, it is essential to examine specific paragraphs of Judge Daniels’ judgment – that offer crucial insights. Judge Daniels, in this regard, remarked that:

21.1 On 7 November 2022, the [Department] filed its statement of response, which was approximately two months late, with no condonation application being filed with the pleadings. In the circumstances, the statement of defense is not properly before court. [Mr Zono’s] case is not yet opposed and must be treated as unopposed.

21.2 Clause 10.1 of the Practice Manual requires that Mr Zono seeking default judgment must file an application. The supporting affidavit must set out the details and information required by clause 10.1.3. It is trite that the Practice Manual is binding on the parties before court. I do not intend to deviate from the Practice Manual, which would invite a rescission application.

21.3 In the circumstances, the matter is postponed to the unopposed motion roll of 30 May 2024. Mr Zono is required to file his application for default judgment on or before 30 May 2024. The [Department] is not entitled to be heard given it has failed to comply with the Rules of this court by filing a condonation application

21.4 It must be noted that the first and second respondents in this matter are not [Mr Zono’s] employer. Mr Zono should therefore amend the citation to correctly reflect the identity of his employer. This issue may be dealt with on 30 May 2024.

21.5 I make the following order:

a. The matter is postponed to 30 May 2024.

b. [Mr Zono is directed to file an application for default judgment in accordance with clause 10.1 of the Practice Manual.

[22] From the legal submissions between parties, it can be established that Ms Laher (who appeared unassisted on behalf of the Department and is presently being led by Mr van der Linde, SC) attended Mr Zono’s first default judgment sitting with the sole intention of having the matter postponed. In this regard, Mr Zono admits that “in the first appearance on 23 April 2023 before Daniels J the Department’s junior [Ms Laher] appeared unprepared and uninstructed and sought a postponement, with a tender of costs”.

[23] Based on the facts of matter and my interpretation of the judgment, I conclude that Judge Daniels simply postponed the case, rendering a ‘postponement judgment’.

[24] In this context, any references by Judge Daniels to issues unrelated to the matter of postponement were mere passing remarks and they do not constitute binding pronouncements. By implication, the opposition now put forth by Mr Zono does not form an integral part of the postponement judgment or order.

[25] My view is that if someone, for example, seeks to demonstrate that a judgment benefits them, they must prove that the claimed benefit is an essential component of that ‘judgment’ and its ‘order’. This means for Mr Zono’s counter-argument (or opposition to this application) to succeed, he must demonstrate that the court expressly and with authority addressed his opposition as part of its terms of reference on the day of the hearing and in its judgment/order. Regrettably, Mr Zono’s failure to demonstrate this crucial point leaves his opposition vulnerable to rejection – also on this basis.

[26] Another reason for endorsing the Department’s application arises from the fact that it is (as stated above), common cause, that the Department attended the first default judgment court sitting to move an application for postponement. Although this application was granted for different reasons, it implies that the Department achieved its desired outcome - i.e. a ‘postponement’. The result is that the Department is now effectively precluded from appealing Judge Daniels’ judgment/order – being the successful party ‘so-to-speak’. Simpler put, if a court grants certain orders in favour of a party (such as a postponement application), that party may find itself in a position where appealing the judgment itself becomes legally challenging. The rationale behind this is that appealing an order that was successfully obtained could be contradictory.

[27] The interlocutory nature of the ruling puts the Department at a further disadvantage, because it widely acknowledged that interlocutory

judgments are generally not appealable[5] – unless exceptional circumstances exist. Circumstances which are notably absent in this case.

[28] Considering that the Department does not contest the ‘order’ portion of the judgment, and given that it is well-established that a party cannot appeal the ‘reasons’ provided in a judgment, the Department also cannot appeal on this basis.[6] Furthermore, in the present instance, the Department cannot apply for rescission due to the absence of the necessary jurisdictional

requirements.

[29] Effectively, this leaves the Department with no legal recourse other than the current cause of action – besides a formal ‘clarification application’, which has a similar effect. However a focus on the executive part of the judgment (i.e. order) shows that Judge Daniels did not contemplate a scenario that would leave the Department without legal recourse. Otherwise he would have said so.

[30] It is also essential to note that Mr Zono effectively asserts that Judge Daniels, in his ‘reasons’ for the judgment, has issued a declaratory statement regarding the rights of the parties. However, this assertion is, with respect, incorrect because such reasons do not align with the ‘order’ part of the ‘judgment’. In fact, even if Judge Daniels intended to do so, he lacked authority/jurisdiction to issue such a declaratory order – regarding the rights of the parties –

he was effectively seized with a postponement.

[31] Even if I am mistaken in the above regard, I hold the respectful view that certain phrases within the judgment imply uncertainty and serve as a basis for seeking declaratory relief. To illustrate this point:

31.1 The statement “Mr Zono’s case is not yet opposed and must be treated as unopposed” suggests that the situation could evolve in the future. Considering the specific circumstances of this matter, it implies that the case might later develop into an opposed matter. The phrase could also mean the matter, as of the time when Judge Daniels heard the matter and issued the order on 23 April 2024, remains unopposed. The uncertainty lies in whether opposition will arise later and how the court will ‘then’ handle this unopposed status.

31.2 The phrase “The statement of response is not properly before court” suggests that the Department’s response has not been correctly submitted or accepted by the court. However, it leaves room for the possibility that at a later stage, it could be properly placed before the court. Alternatively, the order does not explicitly state whether the Department will have an opportunity to rectify this deficiency.

31.3 The remark or conclusion that “The Department’s statement of response was approximately two months late” is unclear. The uncertainty lies in the exact reasons for the delay and whether condonation will impact the proceedings.

31.4 The statement “No condonation application was filed, with the pleadings” indicates that the Department failed to seek condonation for any procedural irregularity or delays. However, the uncertainty lies in whether the Department can still remedy this omission. This is an important consideration because condonation is the court’s

discretion – i.e. power to overlook non-compliance with procedural rules or time limits.

31.5 The statement that “The statement of defence is not properly before court” is unclear and the uncertainty pertains to whether this issue can be rectified.

31.6 The statement “The Department is not entitled to be heard given that it has failed to comply with the rules – by filing a condonation application” is also unclear. The uncertainty involves whether the Department will have an opportunity to address this non-compliance – “by filing a condonation application”.

[32] My opinion is that given the divergent views of Daniels J’s judgment/order justifies that an order be made to clarify the parties’ rights and obligations under the judgment or order. I therefore, or also for this reason, endorse this part of Department’s claim.[7]

[33] I firmly believe that Judge Daniels could not have intended his judgment and/or order to imply that the Department is entirely barred

from participating in the main case. At best, Mr Zono’s interpretation of the remarks mentioned above does not accurately

reflect Judge Daniels’ true intention.

[34] It is in conclusion, on the issue of declarator, important to appreciate that in legal proceedings, when one party fails to contest a specific claim or argument, it often results in the court treating that claim as established or undisputed. Therefore another challenge Mr Zono faces is that by abstaining from providing an answering affidavit, he effectively allows the Department’s assertions (about the existence of an extension agreement) to go unchallenged. As a result, the court accepts the Department’s position without dispute and has no reason to reject it – specifically regarding the ‘extension agreement’. Based on the evidence currently before the court, it appears that the Department delivered its response in a timely manner.

[35] Next, I address or make remarks regarding the matters of condonation, urgency and costs. However, having arrived at the conclusions mentioned above and below, it is unnecessary for me to address the issue of condonation.

[36] Whilst on the topic of forgiveness/condonation. Another issue requiring determination on condonation relates to the fact that clause 12.3 of this court’s practice manual provides that the normal time for the bringing of an urgent application, whether during term or in recess, is 10h00 on Tuesdays and Thursdays. If the urgent application cannot be brought at 10h00 on Tuesday or Thursday of any week, it may be brought on any other day of the week at any time, but the applicant in the founding affidavit must set out facts which justify the bringing of the application at a time other than 10h00 on Tuesdays or Thursdays.

[37] In this case, the Department set the matter down at 9h30 but on a Thursday, which is not in compliance with clause 12.3. Mr Zono raises objections to this. The legal implication of non-compliance with clause 12.3 of the practice manual is significant, given its binding nature.[8]

[38] Clause 12.3 clearly stipulates that urgent applications should be brought at 10h00 on Tuesdays or Thursdays. If an application is brought at a different time, the applicant must justify this in the founding affidavit – by seeking obligatory condonation.

[39] A failure to do so could potentially lead to the application being struck off the roll for non-compliance, unless the applicant can provide a compelling reason in the founding affidavit for the deviation from the stipulated time. The court, nonetheless, has discretion in regard to the application of the Practice Manual.

[40] My view is that each case should be adjudicated based on its individual strengths and weaknesses. Depending on the circumstances, the court may decide to overlook/condone the non-compliance if it deems that justice would be better served by hearing the matter.

[41] Mr van der Linde, SC contends that due to Mr Zono’s application for default judgment being scheduled for a 10:00 hearing, the Department had no alternative but to bring this application at 9:30, on the day.

[42] While this argument (was presented verbally from the bar rather than in the formal papers/affidavit (as required)) it is reasonable and aligns with the ‘compelling reasons requirement’ contemplated by clause 12.3 of the Practice Manual, and does not upset the court’s discretion. Therefore, despite the Department’s oversight of clause 12.3, I have chosen to overlook and/or condone this lapse.

[43] In regard to urgency it is my view that the court also has a discretion to allow a case to proceed on an urgent basis. In light of the facts provided I have decided to exercise this discretion in favour of the Department because I hold the view that the urgency of this matter lies in a disagreement between parties which formally crystallized in Judge Daniels’ judgment. I am further mindful that the Department stands to suffer irreparable damage if the matter is not addressed and this justifies the invocation of rule 8, which provides for urgent applications.

[44] Regarding costs, I believe this litigation is not yet concluded. Therefore, in the interest of justice and fairness, it would be more appropriate to address and assess costs during the course of subsequent proceedings.

[45] Consequently, the following order is made:

Order

1. The application is granted – it declared that the statement of response was regularly filed.

2. The decision regarding costs is deferred.

Mark Thys

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr Hendrik Van der Linde, SC with Ms Razia Laher. Instructed by State Attorney For the Respondent: Mr John Grogan, SC. Instructed by Wheeldon Rushmere & Cole Inc.

[1] Default judgment proceedings refer to cases where a judgment is entered against a party who has failed to defend against an action brought against it.

[2] The initial, or first, default judgment application.

[3] The second application.

[4] No. 66 of 1995, as amended.

[5] H.J v P.J (285/2023) [2024] ZASCA 55.

[6] Both parties agree that the rescission cause of action is not applicable.

[7] Prayer two of the notice of motion.

[8] Ralo v Transnet Port Terminals and others [2015] 12 BLLR 1239 (LC).