South African Clothing & Textile Workers Union and Others v Nutrichem (Pty) Ltd (J 841/21) [2021] ZALCJHB 179 (2 August 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J 841/21

In the matter between:

SOUTHERN AFRICAN CLOTHING & TEXTILE

WORKERS UNION First Applicant

ABEL MAHLABA AND OTHERS Second to Further Applicants

and

NUTRICHEM (PTY) LTD

Respondent

Heard: 29 July 2021 (Virtual Hearing)

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 the hand-down is deemed to be on 2 August 2021 at 19:00

JUDGMENT

TLHOTLHALEMAJE, J

[1] With this urgent application, the Applicants seek an order compelling the Respondent to discover certain documents under Rule 6(9)(b) of the Rules of this Court. It is submitted that the documents are required in respect of the determination of the main claim brought under case number JS 731/19, and that these documents are relevant to demonstrate the true reason for their dismissal. The application is opposed.

[2] The background to this urgent application to the extent that that it is not in dispute and relevant to the determination of the application is as follows;

2.1 The services of the individual applicants were terminated on 31 May 2019 on account of the respondent’s operational requirements. Their dispute with the respondents is now at a stage where the main claim is before the Court, and they allege that their dismissals were automatically unfair or alternatively unfair. The Notice of Set-down has since been issued, and matter is to be heard on 16 August 2021.

2.2 Since the pleadings were filed, the parties have held and concluded a pre-trial conference, and the minutes in that regard were signed on 27 November 2019. The applicants contend that since the pre-trial meeting, the respondent has provided them with certain documents as requested, but failed to discover some.

2.3 On 13 July 2021, the Applicants’ attorneys of record sent a letter of demand to the respondent, seeking an undertaking that further documents as contained in Annexure ‘A’ to the letter would be provided by 19 July 2021. In total, 15 items were requested.

2.4 In its response on 19 July 2021, the respondent contended that the demand for the copies of certain documents was misplaced; that the request for some documents was not a request for existing documents as contemplated in the Rules; and that some documents as requested would be discovered.

2.5 As at the bringing of the application on 21 July 2021, the Applicants contended although certain documents have since been discovered, other documents including copies of payslips in respect of other individual applicants; the respondent’s order book, as well as the individual applicant’s shift schedule for certain periods were still outstanding.

Urgency:

[3] At the core of the respondent’s opposition to this application is that the urgency claimed is self-created in view of the date on which the pre-trial conference was concluded, and the date on which the letter of demand was sent.

[4] The basis upon which the Applicants claim urgency is that the trial is to proceed on 16 August 2021, and that if the outstanding documents were to be produced a day or two before the trial date, this would cause them incalculable prejudice.

[5] It is trite that the Court enjoys a discretion in according a matter urgency. In the exercise of its discretion, the Court will examine whether the applicant has in the founding papers, set out the circumstances which justifies that the application be heard as one of urgency, and the basis upon which it is said that substantial redress would not be obtained at a hearing in due course. Whether the applicant will be able to obtain substantial redress in due course is dependent on the facts and particular circumstances of each case[1].

[6] Of equal importance is that urgent relief will be denied in circumstances where the applicant has failed to act with the necessary haste in approaching the Court, as the primary objective of approaching a Court on an urgent basis is to prevent harm or prejudice from occurring[2].

[7] Having had regard to the background facts and circumstances of this case, the only conclusion to be reached is that the urgency claimed in this case is clearly self-created, and that the matter ought to be struck off from the roll. My conclusions in this regard are based on the undisputed facts which reveal that;

7.1 Upon the pleadings having closed and pre-trial minute having been completed, the Notice of Set down was despatched to the parties on 14 January 2021. The Applicants do not even make an attempt at explaining what was done between that period of about six months, until the letter of demand was sent to the respondent on 13 July 2021.

7.2 It does not therefore assist the Applicants to simply aver that the urgency is occasioned by the trial date on 16 August 2021, or the fact that the need for the documents became more apparent during preparations for trial. They were aware of the trial date as far back as January 2021, and surely it was at that point that it should have occurred to them that they needed to secure any outstanding documents in preparation for the trial.

7.3 It further did not assist the Applicants’ case that they had merely relied on an impression created by the respondent that it did not object to disclosing and producing the documents required. To have relied on such an impression for over a period of 19 months since the pre-trial minute was concluded without more is clearly unreasonable on their part. Inasmuch as practitioners are entitled to rely on each other’s good faith in regard to expediting proceedings before the Court, at the same time, there is a limit to which such reliance can prevail, especially since it was for the applicants to ensure that they had all the necessary material on time to advance their claim.

7.4 Equally contrived is the argument that the Applicants do not have substantial redress in due course. As matters stand, the Respondent has discovered certain documents flowing from the letter of demand, and it has repeatedly indicated that any other outstanding documents are either in the possession of the Applicants, or that they are not relevant to the proceedings, or at worst, it does not have them in its possession. To the extent that some documents remain outstanding, it is for the trial Judge to be persuaded that these are either in the possession of the respondent or are relevant for the trial proceedings. The urgent roll however, cannot be used to resolve such disputes.

[8] In the end, the Applicants have not set out the circumstances which justifies that this matter be accorded urgency. They have not demonstrated that they had acted with the necessary haste from when the pre-trial minutes were concluded and when they received the Notice of Set-down, nor have they demonstrated that they cannot obtain substantial redress on the trial date. It follows therefore that the requirements of urgency have not been met, and that the matter ought to be struck off the roll.

[9] I have further had regard to the requirements of law and fairness in regards to the issue of costs. It is my view that given that the matter in regards to the discovery can or is still to be ventilated at the trial proceedings, a costs order is not appropriate in the circumstances.

[10] Accordingly, the following order is made;

Order:

1. The Applicants’ application is struck off the roll on account of lack of urgency.

2. There is no order as to costs.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicants: Ms K Vova and Ms B Ramji of Cheadle Thompson & Haysom Inc

For the Respondent: M Coetzee instructed by Ramond Hauptflesisch Attorneys Inc

[1] See East Rock Trading 7 (Pty) Limited and another v Eagle Valley Granite (Pty) Limited and others (2012) JOL 28244 (GSJ) at para 6 and 7; See also Export Development Canada and Another v Westdawn Investments Proprietary and Others (6151/2018) [2018] ZAGPJHC 60; [2018] 2 All SA 783 (GJ) at para 11; and Mogalakwena Local Municipality v The Provincial Executive Council, Limpopo and others (2014) JOL 32103 (GP) at para 63 – 64, where it was held; “It seems to me that when urgency is an issue the primary investigation should be to determine whether the applicant will be afforded substantial redress at a hearing in due course. If the applicant cannot establish prejudice in this sense, the application cannot be urgent. Once such prejudice is established, other factors come into consideration. These factors include (but are not limited to): Whether the respondents can adequately present their cases in the time available between notice of the application to them and the actual hearing, other prejudice to the respondent’s and the administration of justice, the strength of the case made by the applicant and any delay by the applicant in asserting its rights. This last factor is often called, usually by counsel acting for respondents, self-created urgency.”

[1] See East Rock Trading 7 (Pty) Limited and another v Eagle Valley Granite (Pty) Limited and others (2012) JOL 28244 (GSJ) at para 6 and 7; See also Export Development Canada and Another v Westdawn Investments Proprietary and Others (6151/2018) [2018] ZAGPJHC 60; [2018] 2 All SA 783 (GJ) at para 11; and Mogalakwena Local Municipality v The Provincial Executive Council, Limpopo and others (2014) JOL 32103 (GP) at para 63 – 64, where it was held;

“It seems to me that when urgency is an issue the primary investigation should be to determine whether the applicant will be afforded substantial redress at a hearing in due course. If the applicant cannot establish prejudice in this sense, the application cannot be urgent.

Once such prejudice is established, other factors come into consideration. These factors include (but are not limited to): Whether the respondents can adequately present their cases in the time available between notice of the application to them and the actual hearing, other prejudice to the respondent’s and the administration of justice, the strength of the case made by the applicant and any delay by the applicant in asserting its rights. This last factor is often called, usually by counsel acting for respondents, self-created urgency.”

[2] See Golding v HCI Managerial Services (Pty) Ltd and others [2015] 1 BLLR 91 (LC) at para 24; Ntozini and Others v African National Congress and Others (18798/2018) [2018] ZAGPJHC 415 (25 June 2018) at para 11