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South Africa Judgment

Labour Court Johannesburg

Nkosi v Imperial Air Conditioning (Pty) Limited (JS358-20) [2021] ZALCJHB 109 (27 May 2021)

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Source document

01

Holding and result

The court found that the respondent's delay in filing its statement of defence was minimal, amounting to only three days. The explanation provided was reasonable, as the delay was caused by an administrative oversight during the Covid-19 pandemic. The respondent acted promptly upon discovering the omission. There was no prejudice to either party, and the respondent demonstrated prospects of success in the main matter by relying on fair procedure and substantive reasons for the retrenchment. Accordingly, condonation for the late filing was granted.

Court disposition

Condonation for the late filing of the statement of defence is granted with no order as to costs.

Orders

  • The late filing of the statement of claim is condoned with no order as to costs.

02

Material facts

Parties

Mbuso Eric Nkosi

Applicant

Imperial Air Conditioning (Pty) Limited

Respondent

03

Procedural history

  1. Posture

    Condonation Application / Interlocutory

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant did not oppose the condonation application and did not allege any prejudice resulting from the late filing of the statement of defence.
Respondent
The respondent argued that the delay in filing the statement of defence was minimal, being only three days. The delay was due to an administrative oversight during the Covid-19 pandemic, where the statement of claim was not scanned and sent to the responsible person. Upon discovery, the respondent acted promptly. The respondent submitted that there is no prejudice to either party and that it has prospects of success in defending the retrenchment on both procedural and substantive grounds.

05

Court’s reasoning

  1. 01

    National Union of Mineworkers v Council for Mineral Technology [1999] 3 BLLR 209 (LAC)

    Condonation may be granted where the delay is not excessive, the explanation is reasonable, there is no prejudice to the parties, and there are prospects of success.

  2. 02

    Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A)

    The interests of justice require consideration of the length of delay, explanation, prejudice, and prospects of success.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the respondent's delay in filing its statement of defence was minimal, amounting to only three days. The explanation provided was reasonable, as the delay was caused by an administrative oversight during the Covid-19 pandemic. The respondent acted promptly upon discovering the omission. There was no prejudice to either party, and the respondent demonstrated prospects of success in the main matter by relying on fair procedure and substantive reasons for the retrenchment. Accordingly, condonation for the late filing was granted.

Obiter and limits

  • This is an interlocutory matter and the respondent was successful; therefore, no costs order is warranted.
  • The matter was determined on paper without oral argument due to the circumstances.

Court disposition

Condonation for the late filing of the statement of defence is granted with no order as to costs.

  • The late filing of the statement of claim is condoned with no order as to costs.

Source and reliance status

Labour Court Johannesburg

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Judgment reading view

Judgment text

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Source document

Labour Court Johannesburg

Judgment

[2021] ZALCJHB 109

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JS358-20

In the matter between:

MBUSO

ERIC

NKOSI Applicant

and

IMPERIAL AIR CONDITIONING (PTY) LIMITED

Respondent

Heard: 25 May 2021

Delivered: This judgment was handed down electronically by circulation to the parties’ representatives by email and release to SAFLII. The date and time for hand-down is deemed to be 10h00 on 27 May 2021.

Summary: Condonation

JUDGMENT

COETZEE, AJ

[1] The respondent seeks condonation for the late filing of its statement of defence.

Delay

[2] The respondent served the statement of defence 3 days late. It is not excessive.

The explanation for the delay

[3] The respondent received the statement of case by hand on 3 July 2020. At the time the respondent was busy addressing the Covid-19 pandemic effects.

[4] Mr Nunes received the statement of defence on behalf of the respondent and on the same day scanned the documents and emailed them to the deponent who was the responsible person.

[5] Nunes, however, for some reason did not scan die statement of claim with the other documents. For that reason, the deponent only became aware of the statement of claim when he met with the applicant on 21 July 2020 when the applicant collected his UIF form. The respondent filed the statement of defence the next day.

[6] The explanation is acceptable.

Prejudice:

[7] There is no prejudice to either party.

Prospects of success:

[8] The respondent relies upon a fair procedure and a fair substantive reason for the retrenchment of the applicant. The respondent has prospects of success.

Costs

[9] This is an interlocutory matter where the respondent is successful. Having regard to the relevant factors there is no reason to make a costs order.

[10] The following order is hereby made:

Order

1. The late filing of the statement of claim is condoned with no order as to costs.

F. Coetzee

Acting Judge of the Labour Court of South Africa

Appearances:

The matter has been determined on paper.

Source wording is retained. Consult the source document for its original formatting and pagination.

Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

National Union of Mineworkers v Council for Mineral Technology [1999] 3 BLLR 209 (LAC)

Case cited

Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A)

Case cited

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