Potgieter v Technical Support Service International (Pty) Ltd and Another (JS367/2017) [2021] ZALCJHB 353 (8 October 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Not of interest to other judges

Case no: JS367-2017

In the matter between:

NICHOLAS J POTGIETER Applicant

and

TECHNICAL SUPPORT SERVICE First

Respondent

INTERNATIONAL (PTY) LTD

ZTE CORPORATION SA (PTY) LIMITED Second

Respondent

Heard: 7 October 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 8 October 2021.

Summary: Application to condone the late filing of an answering affidavit – granted

JUDGMENT

COETZEE AJ

[1] The matter by agreement was heard on a virtual platform.

[2] I refer to the parties as in the referral of the dispute.

[3] The second respondent applied for condonation for the late filing of its notice to oppose and its answering affidavit in opposing the main condonation application.

[4] The applicant referred to the Labour Court an alleged unfair dismissal for operational reasons and two claims for payment of travelling costs and salary for the alleged unexpired portion of his alleged fixed term contract.

[5] The applicant alleged that the first respondent alternatively the second respondent is liable for payment of his claims.

[6] The second respondent denies that it ever employed the applicant.

Late filing of the answering affidavit by the second respondent

[7] Pursuant to a direction of the Labour Court on 6 November 2018, the applicant launched a condonation application to condone its late referral of the dispute to the Labour Court.

[8] The second respondent received the main application on 11 December 2020 and its answering affidavit was served on 24 February 2021. The delay is one month and three weeks. This constitutes a long delay.

[9] The second respondent explained the delay in detail. According to the second respondent, the applicant at all times was an employee of the first respondent. The first respondent is a Temporary Employment Service that employed the applicant and placed the applicant with the second respondent to render services to the second respondent.

[10] The second respondent on 14 December 2020 established from its outsourcing department that there was no record of it having employed the applicant.

[11] The second respondent then approached the first respondent for the relevant documentation and information in order to oppose the main application. The second respondent alleged that it was not involved in the termination of the contract of employment of the applicant.

[12] The process to obtain the necessary information from the first respondent was tedious as a result of the festive season and internal referrals within the first respondent. The second respondent's efforts are all substantiated by emails and messages.

[13] As early as possible after acquiring the information, counsel was instructed and supplied with the required information and the answering affidavit to the main application was finalised and served.

[14] The second respondent has prospects of success if it could show that it never employed the applicant.

[15] There is no real prejudice to the applicant if condonation is granted.

[16] Having regard to the delay, the explanation for the delay, prejudice and prospects of success, the late filing of the notice to oppose and the service of the answering affidavit are condoned.

Costs

[17] Having regard to the considerations there is no reason to make a cost order.

[18]

Order

[19] I make the following order:

1. The second respondent's (ZTE Corporation) application for condonation is granted with no order as to costs.

F. Coetzee

Acting Judge of the Labour Court of South Africa

Appearances

For the applicant: Adv Ori Ben-zeev

Instructed by: Muller

& Co Attorneys

For the Respondent: No appearance

Instructed by: