Nortje and Others v Regenesys Management (Pty) Ltd (J1824/15, JS766/15) [2017] ZALCJHB 328 (11 September 2017)
- Citation
- [2017] ZALCJHB 328
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Labour Court Johannesburg
- Panel
- Lagrange
- Case number
- J1824/15, JS766/15
More details
- Court
- Labour Court Johannesburg
- Panel
- Lagrange
- Case number
- J1824/15, JS766/15
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the respondent was not in a position to proceed with the trial due to the absence of key witnesses, and that proceeding would effectively result in a default judgment against the respondent. Although the application for postponement was not brought timeously and the reasons for witness unavailability were not entirely convincing, the court considered that denying the postponement could result in fundamental unfairness. To mitigate prejudice to the applicants, the court ordered that the respondent pay wasted costs on an attorney and own client scale, reimburse all actual travel and accommodation expenses, and compensate for lost wages due to the postponement. The amounts must be paid before the recommencement of trial proceedings, failing which the respondent will be barred from opposing the matter.
Court disposition
The trial is postponed sine die with costs and compensation awarded to the applicants.
Orders
- The trial is postponed sine die and the registrar is directed to enrol the matter at the earliest available date.
- The respondent must pay the applicants wasted costs of the postponement, on the attorney and own client scale.
- The respondent must reimburse the applicants all their actual travel and accommodation costs incurred as a result of the postponement and reimburse the applicants any lost wages incurred as a result of taking time off work or, in the case of applicants currently performing temporary work, wages lost as a result of not availing themselves of temporary work they could have performed during the period the trial was set down from 11 to 16 September 2017, inclusive, at the usual rate of pay they have been receiving for performing such temporary work.
- The above amounts must be paid before trial proceedings recommence, failing which the respondent shall be barred from opposing the matter, which shall proceed on a default basis.
02
Material facts
Parties
Susara Maria Nortje & 7 Others
Applicant Counsel: L ErasmusRegenesys Management (Pty) Ltd
Respondent Counsel: D Groenewald03
Procedural history
Posture
Interlocutory Application / Postponement Application Before Trial
04
Questions and positions
Legal issues
- 01
Whether the respondent's application for postponement should be granted despite its late filing.
- 02
Whether the applicants should be protected from financial prejudice resulting from the postponement.
- 03
Whether the respondent's reasons for witness unavailability are credible.
Party arguments
- Applicant
- The applicants opposed the postponement, arguing that the respondent failed to timeously notify them of the unavailability of key witnesses and did not adequately explain why alternative arrangements were not made. They contended that the delay would cause them financial prejudice and that the respondent's conduct was unreasonable.
- Respondent
- The respondent submitted that its main witnesses were unavailable due to overseas travel for business and pleasure, and that another witness, Ms Brownlee, was also unavailable due to frequent travel. The respondent argued that proceeding without these witnesses would be fundamentally unfair and offered to pay wasted costs.
05
Court’s reasoning
Legal principles
- 01
Myburgh Transport v Botha t/a SA Truck Bodies 1991 (3) SA 310 (Nm)
A postponement should only be granted if refusal would result in fundamental unfairness to a party unable to present its case.
- 02
Greyvenstein v Neethling 1952 (1) SA 463 (C)
Past loyalties of former employees do not guarantee their willingness or availability to testify, especially when no longer employed.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the respondent was not in a position to proceed with the trial due to the absence of key witnesses, and that proceeding would effectively result in a default judgment against the respondent. Although the application for postponement was not brought timeously and the reasons for witness unavailability were not entirely convincing, the court considered that denying the postponement could result in fundamental unfairness. To mitigate prejudice to the applicants, the court ordered that the respondent pay wasted costs on an attorney and own client scale, reimburse all actual travel and accommodation expenses, and compensate for lost wages due to the postponement. The amounts must be paid before the recommencement of trial proceedings, failing which the respondent will be barred from opposing the matter.
Obiter and limits
- Any attorney with reasonable experience in litigation should not rely on past loyalties of former employees to ensure their availability as witnesses.
- The respondent's explanations for witness unavailability were not entirely convincing and may be subject to scrutiny under cross-examination.
Court disposition
The trial is postponed sine die with costs and compensation awarded to the applicants.
- The trial is postponed sine die and the registrar is directed to enrol the matter at the earliest available date.
- The respondent must pay the applicants wasted costs of the postponement, on the attorney and own client scale.
- The respondent must reimburse the applicants all their actual travel and accommodation costs incurred as a result of the postponement and reimburse the applicants any lost wages incurred as a result of taking time off work or, in the case of applicants currently performing temporary work, wages lost as a result of not availing themselves of temporary work they could have performed during the period the trial was set down from 11 to 16 September 2017, inclusive, at the usual rate of pay they have been receiving for performing such temporary work.
- The above amounts must be paid before trial proceedings recommence, failing which the respondent shall be barred from opposing the matter, which shall proceed on a default basis.
Source and reliance status
Labour Court Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Labour Court Johannesburg
Judgment
Not Reportable
THE LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
Case No: J 1824/15 & JS 766/15
In the matter between:
SUSARA MARIA NORTJE & 7 OTHERS Applicants and REGENESYS MANAGEMENT (PTY) LTD Respondent
Heard: 11 September 2017
Delivered: 11 September 2017
INTERLOCUTORY
JUDGEMENT ON POSTPONEMENT
[1] The respondent belatedly filed a formal postponement application on the date of the trial hearing (11 September 2017), having previously advised the applicants on 28 August of its intention to do so, ostensibly because to of its main witnesses were out of the country. On 1 September it identified the two main witnesses in question as Dr Penny Law (“Law”) and Dr Marko Saravanja (‘Saravanja’) who were away for mixed “business and pleasure” purposes, but ostensibly could not postpone the trip to a later stage because of business purposes.
[2] Apparently on the same day, the respondent’s attorney learnt that another witness, the former chief executive officer of the respondent, Ms Brownlee, who had left the respondent’s employment as far back as May 2017 would not be available either
because “she was travelling a lot.” In all the correspondence exchanged with the applicant’s attorney no mention was made of her unavailability until the respondent filed its postponement application, even though it is attorney of record claims
to have known of this difficulty since 1 September. It also appears that in fact Law would have been available but was not a crucial
witness anymore. The applicant could offer no explanation for not contacting Brownlee prior to 1 September except to say that it had no reason to believe she would not make herself available to testify notwithstanding her not having worked for the respondent for a few months. Any attorney with reasonable experience in litigation would know that past loyalties of an employee are an insufficient guarantee that such person will be willing and available to testify, quite apart from the fact that since they are no longer employed they are not guaranteed that they will be compensated for any loss of current remuneration they may suffer as a result of not being at work while they are testifying.
[3] I accept that as things stand, the respondent is not in a position to commence proceedings as it is obliged to do and that the matter would be decided virtually on a default basis if it proceeds, which would be tantamount to it conceding the case. It is only because of the possible fundamental unfairness that might result if the matter proceeded today that I am willing to grant a postponement notwithstanding the fact that it was not timeously brought.[1] That said, I am not entirely convinced of the veracity of the various reasons given for the unavailability of its key witnesses, but no doubt that is something that will be explored under cross examination. On the other hand, there is no reason why the applicants
should suffer any more prejudice than the court can prevent under the circumstances. Accordingly, I am of the view that the applicants
should not suffer any financial prejudice whatsoever as a result of this delay and that the respondent’s tender of wasted costs must be augmented.
Order
[1] The trial is postponed sine die and the registrar is directed to enrol the matter at the earliest available date.
[2] The respondent must pay the applicants wasted costs of the postponement, on the attorney own client scale.
[3] The respondent must reimburse the applicants’ all their actual travel and accommodation costs incurred as a result of the postponement and reimburse the applicants any lost wages incurred as a result of taking time off work or, in the case of applicants currently performing temporary work, wages lost as a result of not availing themselves of temporary work they could have performed during the period the trial was set down from 11 to 16 September 2017, inclusive, at the usual rate of pay they have been receiving for performing such temporary work.
[4] The above amounts must be paid before trial proceedings recommence, failing which the respondent shall be barred from opposing the matter, which shall proceed on a default basis.
_______
Lagrange J
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANTS:
L Erasmus instructed by DD P Attorneys
FIRST RESPONDENT:
D Groenewald instructed by CHJ Higgs
[1] See e.g Myburgh Transport v Botha t/a SA Truck Bodies 1991 (3) SA 310 (Nm) and Greyvenstein v Neethling 1952 (1) SA 463 (C).
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