Turner and Townsend (Pty) Limited v Job (JS138/20) [2021] ZALCJHB 167 (22 June 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: JS138/20

In the matter between:

TURNER & TOWNSEND (PTY)

LIMITED

Applicant

And

KIRSTEN

JOB

Respondent

Heard: 18 March 2021

Delivered: 22 June 2021

In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be on 22 June 2021.

JUDGMENT

VAN AS, AJ

Introduction

[1] The applicant has raised as an exception that the respondent’s statement of response does not disclose a defence to the applicant’s

claims.

[2] The respondent, who appears in person, opposes the exception but has not filed any further papers.

[3] When the matter was first heard on 5 March 2020, the respondent sought a postponement in order to secure legal representation because her former attorney of record had withdrawn from the matter.

[4] I therefore stood the matter down until 18 March 2021.

On 18 March 2021, the respondent advised the Court that she required a further postponement because she had been unable to secure a new legal representative. The applicant opposed this application for a further postponement.

[5] In my view, the Court had afforded the respondent a reasonable opportunity to secure alternative legal representation. The application for a further postponement was therefore refused.

The material facts

[6] The applicant claims payment in the sum of R1 344 793,76, being the balance of monies owed to it by the respondent arising from monies which the respondent misappropriated from the applicant (“the First Claim”). The respondent has signed an acknowledgment of debt for the First Claim.

[7] The applicant further claims payment in the sum of R131 281,70, being damages which the applicant suffered in appointing a firm of forensic auditors to investigate the full extent of the fraud perpetrated by the respondent (“the Second Claim”). The respondent has not signed an acknowledgment of debt for the Second Claim.

[8] The respondent has filed a response to the statement of claim. In the response, the respondent does not deny the First Claim. She does, however, dispute the quantum of the Second Claim.

Evaluation of the merits

[9] Mr Bekker, who appeared for the applicant, submitted that there is simply no defence to the First Claim in the statement of response. I agree.

[10] It is clear from the statement of response that the respondent does not deny misappropriating these monies but instead contends that she should be afforded an opportunity to repay these monies (i.e. the First Claim).

[11] This is unfortunately not a defence to the First Claim.

[12] Mr Bekker fairly conceded that the respondent has not admitted the quantum of the Second Claim and therefore the applicant would be required to prove the Second Claim.

[13] Accordingly, I am of the view that, on every conceivable interpretation of the response to the statement of claim, the respondent has no defence to the First Claim.

Costs

[14] The respondent has been dismissed and will, in all likelihood, not be able to secure alternative employment. The applicant has also recovered some of the misappropriated monies from her provident fund. The applicant has also only been partially successful in this application.

[15] Accordingly, I am of the view that there should be no order as to costs.

Order

[16] Accordingly, I make the following order:

1. The exception is upheld in respect of the First Claim;

2. The Judgment is granted in favour of the applicant in the sum of R1 344 739,76;

3. The exception is dismissed in respect of the Second Claim;

4. There is no order as to costs.

______

M J VAN AS

Judge of the Labour Court of South Africa

Appearances:

On behalf of the Applicant: Mr W Bekker

Instructed by:

Da Silva Attorney

For the respondent:

In person