von Marius Scheepers Vor 6 Jahren
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JA58/16
Van Tonder v Compass Group (Proprietary) Limited and Others (JA58/16) [2017] ZALAC 56; (2017) 38 ILJ 2329 (LAC); [2017] 10 BLLR 1024 (LAC) (1 June 2017)
Wheather: The mere fact that a review is pending does not bar the first respondent from launching an application in terms of s 158 (1) (c) to make an arbitration award an order of court. it would be prudent to state that the first respondent did not at any stage prior to the hearing of this matter, launch an application in terms of s 158 (1) (c) of the Labour Relations Act 66 of 1995....[32] In summary, on the basis of Jafta Js approach, the Act does not apply and accordingly the debt owed by respondent to the appellant in the amount of R 228 000.00 has not prescribed.
Myathaza v Johannesburg Metropolitan Bus Service (SOC) Ltd t/a Metrobus
s15 (1) of the Act which provides that the running of prescription shall, subject to the provisions of s 15 (2), be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt. The learned judge of appeal then went on to say at paras 76-77:An application to make an arbitration award an order of court could, however, be construed as a process whereby the creditor claims payment of the debt. It is the substance rather than the form of the application that matters. By bringing such an application the creditor is in effect asking the court to order the debtor to pay the debt (represented by the award).The application to make an award a court order will interrupt prescription by its mere service on the debtor. But, for it to actually and effectively interrupt prescription, the creditor will have to prosecute his claim under that process to final judgment.
[8] Applying these dicta to the present dispute, Steenkamp J found that the filing of an answering affidavit by the winning party in terms of the arbitration award which was not the subject of a review application against the arbitrators decision, did not amount to taking a legal step to recover the debt owing in terms of the award, sufficient to interrupt the running of prescription in terms of s 15 (1) of the Act.
Labe v Legal Aid South Africa and Others (JS895/16) [2017] ZALCJHB 248 (20 June 2017)
Fawu obo Gaoshubelwe and Others v Pieman's Pantry (Pty) Ltd [2016] 12 BLLR 1175 (LAC)
The Labour Appeal Court (per Sutherland JA) having considered previous pronouncements on the issue of prescription by the LAC alluded to the fact that those authorities, including Myathaza[33], did not propose that litigation under the LRA, prior to the rendering of an award, (or a judgment by the Labour Court) was subject to the Prescription Act.
41] The Labour Appeal Court held that the Prescription Act indeed applied to all litigations under the LRA, not least of all, litigations prosecuted in terms of section 191[34]. The Court added that a referral per se played no role in interrupting prescription since it did not commence legal proceedings, and that a referral was no more than a condition to be fulfilled to obtain access to a forum that can adjudicate a dispute[35].[42] The Court further held that for a process to be initiated for the purposes of interruption of prescription, the referring party must after the referral and exhaustion of conciliation in terms of section 191(5)(b) have referred the dispute to the Labour Court for adjudication, which involves, in accordance with Rule 6(1) of the Labour Court Rules, the filing of a statement of case, which, in terms of section 191(11) (a), must be done within 90 days of the certificate of non-resolution[36].
The fact that the certificate of outcome was issued in respect of this dispute does not assist the applicant as on the LAC authority relied upon, prescription started to run from when the alleged harassment or victimisation took place, and could only have been interrupted by initiation of adjudication through the filing of a statement of case. As at the time the statement of case was filed, the claim had accordingly long prescribed.
JR965/13
South African Police v Nkopane and Others (JR965/13) [2017] ZALCJHB 139 (4 April 2017)
(1) Wherea) Any member of an arbitration tribunal has misconducted himself in relation to his duties as arbitrator or umpire; orb) An arbitration tribunal has committed any gross irregularity in the conduct of the arbitration proceedings or has exceeded its powers;c) An award has been improperly obtained,the court may, on the application of any party to the reference after due notice to the other party or parties, make an order setting the award aside.
[18] Thus, the wider test for review of section 145 of the Labour Relations Act[9] (LRA) is not applicable to private arbitrations.
[26] Regarding the issue of whether this Court has the requisite jurisdiction to determine the review application, it is trite that the competency of this Court to adjudicate matters derives from the provisions of section 157(3) of the LRA of the LRA.
Any reference to the court in the Arbitration Act, 1965 (Act No. 42 of 1965), must be interpreted as referring to the Labour Court when an arbitration is conducted under that Act in respect of any dispute that may be referred to arbitration in terms of this Act.
Lufuno Mphaphuli and Associates (Pty) Ltd v Andrews & Another [2009] ZACC 6; 2009 (4) SA 529 (CC); 2009 (6) BCLR 527 (CC).
JA20/2015
Fawu obo Gaoshubelwe and Others v Pieman's Pantry (Pty) Ltd (JA20/2015) [2016] ZALAC 46; [2016] 12 BLLR 1175 (LAC); (2017) 38 ILJ 132 (LAC) (8 September 2016)
[45]Accordingly, in my view, the Prescription Act does indeed apply to all litigations under the LRA, not least of all, litigations prosecuted in terms of section 191. includes a petition, a notice of motion, a rule nisi, a third party notice referred to in any rule of court, and any document whereby legal proceedings are commenced.
[51]The terms debt and cause of action are not synonyms. Harms JA inDrennan Maud & Ptrs v Pennington Town Board[35]held that a debt as contemplated section 15(1) of the Prescription Act. does not refer to the cause of action, but more generally to the claim.
why the certificate of non-resolution cannot interrupt prescription either. A referral does not do so because a referral does not commence legal proceedings. The function of a referral is to oblige the CCMA to intervene in a dispute.
[60]Accordingly, to sum up, a referralper seplays no role in interrupting prescription. The need for a statement of case to access the Labour Court is plain. In arbitrations, the need for a formal request can be obviated if an arbitration is actually commenced, and a fictional request is deemed to occur by the absence of an objection.
The final question that arises is what the approach of a court should be to the question of fairness. First, we must recognise that fairness in arbitration proceedings should not be equated with the process established in the Uniform Rules of Court for the conduct of proceedings before our courts. Secondly, there is no reason why an investigative procedure should not be pursued as long as it is pursued fairly. The international conventions make clear that the manner of proceeding in arbitration is to be determined by agreement between the parties and, in default of that, by the arbitrator. Thirdly, the process to be followed should be discerned in the first place from the terms of the arbitration agreement itself. Courts should be respectful of the intentions of the parties in relation to procedure. In so doing, they should bear in mind the purposes of private arbitration which include the fast and cost-effective resolution of disputes. If courts are too quick to find fault with the manner in which an arbitration has been conducted, and too willing to conclude that the faulty procedure is unfair or constitutes a gross irregularity within the meaning of section 33(1), the goals of private arbitration may well be defeated.[20]
Telcordia Technologies Inc v Telkom SA Ltd [2006] ZASCA 112; 2007 (3) SA 266 (SCA; 2007 (5) BCLR 503 (SCA).
Clear Channel Independent (Pty) Ltd v Savage NO and Another [2008] ZALC 166; [2009] 5 BLLR 439 (CC); (2009) 30 ILJ 1593 (LC) at para 36.
[19] In Telcordia Technologies Inc, the SCA further held that courts should not be too eager to interfere with private arbitration awards, and held that:By agreeing to arbitration parties to a dispute necessarily agree that the fairness of the hearing will be determined by the provisions of the Act and nothing else. Typically, they agree to waive the right of appeal, which in context means that they waive the right to have the merits of their dispute re-litigated or reconsidered. They may, obviously, agree otherwise by appointing an arbitral appeal panel, something that did not happen in this case.[11]And,Last, by agreeing to arbitration the parties limit interference by courts to the ground of procedural irregularities set out in s 33(1) of the Act. By necessary implication they waive the right to rely on any further ground of review, 'common law or otherwise. If they wish to extend the grounds, they may do so by agreement but then they I have to agree on an appeal panel because they cannot by agreement impose jurisdiction on the court.[12]
The fact that the arbitrator may have either misinterpreted the agreement, failed to apply South African law correctly, or had regard to inadmissible evidence does not mean that he misconceived the nature of the inquiry or his duties in connection therewith. It only means that he erred in the performance of his duties. An arbitrator has the right to be wrong on the merits of the case, and it is a perversion of language and logic to label mistakes of this kind as a misconception of the nature of the inquiry they may be misconceptions about meaning, law or the admissibility of evidence but that is a far cry from saying that they constitute a misconception of the nature of the inquiry. To adapt the quoted words of Hoexter JA: It cannot be said that the wrong interpretation of the Integrated Agreement prevented the arbitrator from fulfilling his agreed function or from considering the matter left to him for decision. On the contrary, in interpreting the Integrated Agreement the arbitrator was actually fulfilling the function assigned to him by the parties, and it follows that the wrong interpretation of the Integrated Agreement could not afford any ground for review by a court[18]And,Likewise, it is a fallacy to label a wrong interpretation of a contract, a wrong perception or application of South African law, or an incorrect reliance on inadmissible evidence by the arbitrator as a transgression of the limits of his power. The power given to the arbitrator was to interpret the agreement, rightly or wrongly; to determine the applicable law, rightly or wrongly; and to determine what evidence was admissible, rightly or wrongly. Errors of the kind mentioned have nothing to do with him exceeding his powers; they are errors committed within the scope of his mandate. To illustrate, an arbitrator in a normal local arbitration has to apply South African law but if he errs in his understanding or application of local law the parties have to live with it. If such an error amounted to a transgression of his powers it would mean that all errors of law are reviewable, which is absurd.[19]
NUM obo 35 Employees v Arbitrator John Grogan NO & Another [2010] 8 BLLR 799 (LAC); (2010) 31 ILJ 1618 (LAC) at para 33. See also Volkswagen SA (Pty) Ltd v Koorts NO & Others (2011) 6 BLLR 561 (LAC).[9] 66 of 1995.
I am inclined to agree with Counsel for the first respondent that, on the facts of this case, it would not matter whether one used the standard of review applicable to CCMA awards as stipulated in sec 145 of the LRA or one used the standard of review contained in sec 33 of the Arbitration Act as the result would be the same. However, in so far as it may be necessary to decide the issue, I am of the view that the respondents Counsel is correct that, since this is a review of a private arbitration award, it can only be reviewed on the grounds set out in sec 33 of the Arbitration Act and not in terms of the grounds set out in sec 145 of the LRA as extended by the judgments of this Court in Carephone and Shoprite Checkers and by the judgment of the Constitutional Court in Sidumo. In my view, while parties to a dispute are able to give an arbitrator powers which he otherwise does not have in resolving their dispute, they cannot do the same with regard to a court such as the Labour Court which has statutory power to review arbitration award issued by such arbitrator. Parties to a dispute such as the parties in this case cannot confer on the Labour Court powers to review a private arbitrators award on grounds which it otherwise has no power to rely upon to review such an award. It would be different if there was a provision of the LRA which conferred upon the Labour Court the power to review such an award on any grounds upon which the parties to a dispute may agree. That is not the case here. Accordingly, I hold that the grounds of review applicable in this case are only those grounds set out in sec 33 of the Arbitration Act on which the appellant has relied in its papers. In this regard the appellant relied upon gross irregularity.
Amalgamated Clothing and Textile Workers Union of South Africa v Veldspun (Pty) Ltd 1994 (1) SA 162 (A).
Before considering these grounds, it is as well to emphasise that the basis upon which a Court will set aside an arbitrators award is a very narrow one....It is only in those cases which fall within the provisions of s 33(1) of the Arbitration Act that a Court is empowered to intervene. If an arbitrator exceeds his powers by making a determination outside the terms of the submission, that would be a case falling under s 33(1)(b). As to misconduct, it is clear that the word does not extend to bona fide mistakes the arbitrator may make whether as to fact or law. It is only where a mistake is so gross or manifest that it would be evidence of misconduct or partiality that a Court might be moved to vacate an award: Dickenson and Brown v Fisher's Executors 1915 AD 166 at 174-81. It was held in Donner v Ehrlich 1928 WLD 159 at 161 that even a gross mistake, unless it establishes mala fides or partiality, would be insufficient to warrant interference.[17]
Steenkamp and Others v Edcon Limited [2016] ZACC 1; (2016) 37 ILJ 564 (CC); 2016 (3) BCLR 311 (CC); [2016] 4 BLLR 335 (CC); 2016 (3) SA 251 (CC),
Zondo J having considered a competent remedy within the context of an invalid dismissal and the effect thereof held as follows:The common law which gives us the concept of the invalidity of a dismissal is rigid. It says that if a dismissal is unlawful and invalid, the employee is treated as never having been dismissed irrespective of whether the only problem with the dismissal was some minor procedural non-compliance. The consequences thereof are that the employer must pay the employee full back-pay even if, substantively, the employer had a good and fair reason to dismiss the employee.[23]And,An invalid dismissal is a nullity. In the eyes of the law an employee whose dismissal is invalid has never been dismissed. If, in the eyes of the law, that employee has never been dismissed, that means the employee remains in his or her position in the employ of the employer. In this Courts unanimous judgment in Equity Aviation, Nkabinde J articulated the meaning of the word reinstate in the context of an employee who has been dismissed. She said, quite correctly, it means to restore the employee to the position in which he or she was before he or she was dismissed. With that meaning in mind, the question that arises in the context of an employee whose dismissal has been found to be invalid and of no force and effect is: how do you restore an employee to the position from which he or she has never been moved? That a dismissal is invalid and of no force and effect means that it is not recognised as having happened. It is different from a dismissal that is found to be unfair because that dismissal is recognised in law as having occurred.[24]
Khanyile and Others v Air Chefs (Pty) Ltd (JS 805/04) [2015] ZALCJHB 238 (4 August 2015)
[37] It therefore follows from the above legal principles that a party cannot seek to advance a case not foreshadowed in its pleadings or in the pre-trial minutes, nor can a case be made out in written closing arguments. The pre-trial minute as signed by the parties, even in its supplementary form does not go far enough to evidence the existence of an agreement to widen the issues to include a dispute surrounding whether the applicants retrenchment was as a consequence of performance issues, misconduct or financial constraints. In the absence of an application to resile from the signed pre-trial minute, the applicants are therefore bound by those minutes, and no consideration shall be had to any submissions made or evidence tendered that falls outside the ambit of the statement of case or the pre-trial minute.
Peach and Hatton Heritage (Pty) Ltd v Neethling & others [2001] 5 BLLR 528 (LAC)
Generally speaking the function of a pre-trial conference is to limit issues and not widen them. In so far as first respondent contends in paragraph 5 that he persists in his claim that there was no commercial rationale for his retrenchment, such claim did not form part of his statement of case...The assertion by the respondents' legal representative that the respondents persist in their claim that there was no commercial rationale for his retrenchment in the pre-trial minutes, does not result in it being a triable issue. The pre-trial minute does not go far enough to evidence the existence of an agreement to widen the issues. in considering that the reasons for the dismissal were not based on the appellant's operational requirements, the Court a quo widened the dispute between the parties. It was not entitled to do so.
Zondo & others v St Martins School, J3020/12 at para [11]
DA1/2015
Hospersa obo Tshambi v Department of Health, KwaZulu-Natal (DA1/2015) [2016] ZALAC 10; [2016] 7 BLLR 649 (LAC); (2016) 37 (ILJ) 1839 (LAC) (24 March 2016)
Section 24 period not 3 years
In true labour disputes, the provisions of section 191(1) of the LRA are a more obvious general yardstick to test what is a reasonable time for a referral. The absence of a prescribed period does not automatically license a longer period than is the norm for other labour disputes to be referred. In labour disputes, expedition is the watchword, not because that is simply a good idea, but because the prejudice of delay in matters concerning employment often is not capable of remedial action.
ADVANCE WAREHOUSING (PTY) LIMITED vs ANNAH PRUDENCE MASHIGO
Mpanzama v Fidelity Guards Holding (Pty) Ltd [2000] 12 BLLR 1459 (LC) at paras 8 to 11.
Application to make the award of an arbitrator an order of court in terms of s 158(1)(c) of the LRA constituted a process. The running of prescription would be interrupted.
Prescription Act 68 of 1969. Meant that the employer had an obligation not to unfairly dismiss the employees
not properly raised
CELLUCITY (PTY) LTD
Held that a review application and a warrant of execution do not interrupt prescription whereas an application to make an award an order of court does
J1808/16
National Union of Metalworkers of SA and Others v Bumatech Calcium Aluminates (J1808/16) [2016] ZALCJHB 329; (2016) 37 ILJ 2862 (LC) (26 August 2016)
Osman v Hector 1933 CPD 503 at 508.
The plea of lis alibi pendens is dealt with in Halsbury's Laws of England (2nd ed, vol 6, p 357, par 7) where it is said:- "To bring two actions in England in respect of the same matter is regarded as prima facie vexatious and the Court will generally as of course, put the plaintiff to his election." As said by JESSEL, MR in McHenry v Lewis (22 Ch D 397 at p 400):- "In this country, where the two actions are by the same man in Courts governed by the same procedure, and where the judgments are followed by the same remedies, it is prima facie vexatious to bring two actions where one will do." Or as BOWEN, JJ says at p 408: "The remedy and the procedure are the same and a double action on the part of the plaintiff would lead to manifest injustice.'
Dreyer v Tuckers Land and Development Corporation (Pty) Ltd 1981 (1) SA 1219 (T) at 1231
it was held that the principle oflis pendensapplies where there exists litigation which is pending between the same parties, these other proceedings must be based on the same cause of action, and these other pending proceedings must be in respect of the same subject-matter. The Court also held that is was not required, forlis pendensto apply, that the form of relief claimed in both proceedings needs be identical.
SCA in Nestl (SA) (Pty) Ltd v Mars Inc 2001 (4) SA 542 (SCA) at para 16.
Dial Tech CC v Hudson and Another (2007) 28 ILJ 1237 (LC)
who had already obtained compensation for a constructive dismissal based on allegations of sexual harassment, was entitled later to claim compensation for sexual harassment as well.
JS746/06
Ditsamai v Gauteng Shared Services Centre
LRA and EEA
facts gave rise to different causes of action
JR483/14
Shongwe and Others v City of Johannesburg Metropolitan Municipality (JR483/14) [2016] ZALCJHB 67 (25 February 2016)
principle is to avoid conflicting decisions on the same issues and same parties, and to bring about finality
Nehawu obo Kgekwane v Department of Development Planning and Local Government (2015) 36 ILJ 1247 (LAC) at para [26].
Prinsloo NO and Others V Goldex 15 (Pty) Ltd and Another2014 (5) SA 297(SCA) at para [23]
Pregnancy. Where employee had however been offered reinstatement before conciliation and had refused it, awarded only six months salary as compensation.
Variation of orders. Not granted in respect of an order not previously prayed for in application for review through applicants mistake or negligence.
Reinstatement to be distinguished from re-employment. Reinstatement requiring employee to be placed back into previous position.
Prescription
Review does not interrupt running of prescription
declaraty relief not while other relief available
Meaning of
At most, a compliance order could be regarded as a demand for payment.
that this provision was broad enough to include an award such as the one in issue.
irreparable harm, balance of convenience, access to alternative remedies
balance of convenience favors employer
vexatious litigant
JR1282/10
Maseko v CCMA and Others (JR1282/10) [2016] ZALCJHB 322; (2017) 38 ILJ 203 (LC) (23 August 2016)
The Vexatious Proceedings Act[Act 3 of 1956.] provides in s 2(1)(b):
If, on an application made by any person against whom legal proceedings have been instituted by any other person or has reason to believe that the institution of legal proceedings against him is contemplated by any other person, the court is satisfied that the said person has persistently and without any reasonable ground instituted legal proceedings in any court or in any inferior court, whether against the same person or against different persons, the court may, after hearing that person or giving him an opportunity of being heard, order that no legal proceedings shall be instituted by him against any person in any court or any inferior court without the leave of the court, or any judge thereof, or that inferior court, as the case may be, and such leave shall not be granted unless the court or judge or the inferior court, as the case may be, is satisfied that the proceedings are not an abuse of the process of the court and that there isprima facieground for the proceedings.
Beinash v Ernst & Young 1999 (2) SA 116 (CC) para 15 [per Mokgoro J].
This purpose is 'to put a stop to persistent and ungrounded institution of legal proceedings'. The Act does so by allowing a court to screen (as opposed to absolutely bar) a 'person (who) has persistently and without any reasonable ground instituted legal proceedings in any Court or inferior court'. This screening mechanism is necessary to protect at least two important interests. These are the interests of the victims of the vexatious litigant who have repeatedly been subjected to the costs, harassment and embarrassment of unmeritorious litigation; and the public interest that the functioning of the courts and the administration of justice proceed unimpeded by the clog of groundless proceedings.The effect of s 2(1)(b) of the Act is to impose a procedural barrier to litigation on persons who are found to be vexatious litigants. This serves to restrict the access of such persons to courts. That is its very purpose. In so doing, it is inconsistent with s 34 of the Constitution, which protects the right of access for everyone and does not contain any internal limitation of the right. The barrier which may be imposed under s 2(1)(b) therefore does limit the right of access to court protected in s 34 of the Constitution. But, in my view, such a limitation is reasonable and justifiable.
Hurter v Hough 1989 (3) SA 545 (C) 552 c.
Sover ek kon vasstel is daar geen beslissing oor hierdie onderwerp wat handel met sui generis verrigtinge soos die onderhawige nie. Die dicta in die sake is, soos verwag kan word, beperk tot die gevalle waarmee gehandel word. Daar is egter geen aanduiding dat die Hof, by die uitoefening van sy inherente bevoegdheid om sy eie prosedure te rel (cf Universal City Studios Inc and Others v Network Video (Pty) Ltd [1986] ZASCA 3; 1986 (2) SA 734 (A) D op 754G), nie by magte is om ook kwelsugtige sui generis verrigtinge, of selfs sui generis verrigtinge wat nie as sodanig bestempel kan word, op 'n wyse te beheer wat die belange van die regspleging dien nie. Na my mening is hierdie Hof wel in beginsel bevoeg om 'n opskortingsbevel onder hierdie omstandighede te maak. Regter Schreiner beklemtoon in Potchefstroom Town Council v Botes 1939 TPD 4 dat 'the foundation of all such orders is the inherent right of the Court to prevent its procedure being abused' (op 5). Daar is heelwat gesag vir die stelling dat 'n litigant wat in staat is, maar hardnekkig weier om sy teenstander se kosterekening in vroere verrigtinge te betaal, hom kwelsugtig gedra. White v Northern Insurance Co 1918 WLD 25 op 27.
JR722/15
Independent Municipal and Allied Trade Union obo Bonn and Others v Nama Khoi Municipality and Others (JR722/15) [2018] ZALCJHB 133 (27 March 2018)
National Union of Metalworkers of South Africa obo Sinuko v Powertech Transformers (DPM) and others [2014] 2 BLLR 133 (LAC) at 139-140,
Wardlaw v Supreme Moulding (Pty) Ltd[2007] 6 BLLR 487 (LAC).
[20] What is clear from Wardlaw is that a two stage process in the adjudication before the Labour Court was not necessarily being advocated. The Labour Court assumes jurisdiction on the basis of what the employee alleges the reason for the dismissal to be - but if it later becomes "apparent" to the court that the reason for the dismissal is a different one and one in respect of which it does not have jurisdiction, the Labour Court should not adjudicate the merits of the dispute, but allow the matter to be referred to the right forum with jurisdiction in order for that forum to determine the merits of the dispute. In Wardlaw, this Court did not exclude the possibility that the true nature of the dispute may only become apparent once all the evidence has been led and the court has considered it. Generally, this is the time when the court will become aware of the true nature of the dispute. However, in Wardlaw, this Court also did not exclude the possibility that the true nature of the dispute may also become apparent earlier, i.e.before all the evidence is led. An example that readily comes to mind is if the issue of jurisdiction and the true nature of the dispute is separated from the merits of the dispute and raised at the outset of the proceedings, requiring the court to determine those issues on the evidential material available, or presented during that phase of the proceedings.[21] There is no valid reason why the procedure that applies in the Labour Court does not also apply in arbitrations conducted in terms of or under the Act.
JR2255/11
Eicker v PSCBC and Others (JR2255/11) [2018] ZALCJHB 115 (13 March 2018)
Zungu v Premier of the Province of KwaZulu-Natal and Others [2018] ZACC 1 par 24-26.
The rule of practice that costs follow the result does not apply in Labour Court matters. In Dorkin, Zondo JP explained the reason for the departure as follows:The rule of practice that costs follow the result does not govern the making of orders of costs in this Court. The relevant statutory provision is to the effect that orders of costs in this Court are to be made in accordance with the requirements of the law and fairness. And the norm ought to be that costs orders are not made unless the requirements are met. In making decisions on costs orders this Court should seek to strike a fair balance between on the one hand, not unduly discouraging workers, employers, unions and employers organisations from approaching the Labour Court and this Court to have their disputes dealt with, and, on the other, allowing those parties to bring to the Labour Court and this Court frivolous cases that should not be brought to Court.In this matter, there is nothing on the record indicating why the Labour Court and Labour Appeal Court awarded costs against the applicant. Neither court gave reasons for doing so. It seems that both courts simply followed the rule that costs follow the result. This is not correct.
See State Information Technology Agency (Pty) Ltd v Swanevelder & Others [2009] 30 ILJ 2786 (LC).
[13]The test for joinder in our law is that a party sought to be joined in the proceedings must have a direct and substantial interest in the matter in the sense of an interest in the right which is the subject matter of the litigation and not merely a financial interest
JR484/15
Ellies Electronics (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others, Ellies (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR484/15) [2018] ZALCJHB 96 (9 March 2018)
withdrawal of a matter is akin to an order of absolution from the instance and, as such, does not bar a party from reinstituting
See Ncaphai v CCMA & Others [2011] 32 ILJ 402 (LC) at paragraph 27; SAMWU v CCMA & Another [2014] 35 ILJ 2011 (LC) and section 6(a) of Criminal Procedure Act, 51 of 1977.
[12] The withdrawal of a matter is akin to an order of absolution from the instance and, as such, does not bar a party from reinstituting the proceedings with the consequence that the exceptio rei judicatae is not available as a defence in the same way in which withdrawn criminal charges can, in terms of our criminal justice system, be reinstituted against the accused person without a plea of autrefois acquit or autrefois convict being available to the latter.
Wardlaw v Supreme Mouldings (Pty) Ltd (2007) 28 ILJ 1042 (LAC) at 1050-1051, paras [17] [21] on the substantive approach in terms of which the real nature of the dispute determined whether a dismissal dispute should be referred to arbitration or adjudication.
A necessary corollary of this approach is that an employee cannot obtain relief for one dismissal by having it adjudicated on the one hand as an automatically unfair dismissal and on the other as an ordinary dismissal for misconduct, incapacity or operational reason. Even if this court is dealing with a claim of automatically unfair dismissal and an alternative claim of unfair retrenchment, both of which it has jurisdiction over, it will award relief based on which of the two alternative reasons the court determines the real reason for dismissal.
[20] In my judgment the option available to the applicant in the circumstances is reinstitution of review proceedings in the same way as the applicants in the Ncaphayi and SAMWU matters (supra) sought and were, in fact, allowed to refer withdrawn disputes to the CCMA afresh as opposed to reinstating them.
Chauke v Machine Tool Market (Pty) Ltd (2013) 34 ILJ 1150 (LC) at 1154
[25] ...The respondents readily conceded that they do not expect the applicants pleadings to be of the same standard as a legal practitioners, but asked for a balance to be struck between the unions towards the applicant as a lay person and fairness to the respondents.[1] This is obviously the correct approach though it must also be recognised that the extent to which a lay persons deviation from the normal standard of pleading will be tolerated will also vary according to the education and literacy of the individual. There is a vast difference in the abilities of lay persons who appear in this court and that consideration also plays a role in striking the balance referred to.
JS454/16
Mhlanga v Synergy Global Consulting (Pty) Ltd and Another (JS454/16) [2017] ZALCJHB 113 (31 March 2017)
Gauteng Shared Services Centre v Ditsamai (2012) 33 ILJ 348 (LAC)
[37]This approach does not of course prevent an employee who has raised an ordinary dismissal dispute on the one hand and an unfair discrimination claim on the other, which does not relate to the dismissal as such, from pursuing both claims in the respective arbitration forum and the Labour Court.
JS502/16
Association of Mine Workers Construction Union and Others v Ngululu Bulk Carriers (Pty) Ltd (JS502/16) [2017] ZALCJHB 122 (30 March 2017)
It is trite that the requirements for the granting of a plea oflis pendensare pending litigation between the same parties or their privies based on the same course of action and in respect of the same subject matter.
Caesarstone Sdot-Yam Ltd v The World of Marble and Granite 2000 CC and Others 2013 (6) SA 499 (SCA).
[2] As its name indicates, a plea of lis alibi pendens is based on the proposition that the dispute (lis) between the parties is being litigated elsewhere and therefore it is inappropriate for it to be litigated in the court in which the plea is raised. The policy underpinning it is that there should be a limit to the extent to which the same issue is litigated between the same parties and that it is desirable that there be finality in litigation. The courts are also concerned to avoid a situation where different courts pronounce on the same issue with the risk that they may reach differing conclusions. It is a plea that has been recognised by our courts for over 100 years.[3] The plea bears an affinity to the plea of res judicata, which is directed at achieving the same policy goals. Their close relationship is evident from the following passage from Voet 44.2.7:'Exception of lis pendens also requires same persons, thing and cause. The exception that a suit is already pending is quite akin to the exception of res judicata, in as much as, when a suit is pending before another judge, this exception is granted just so often as, and in all those cases in which after a suit has been ended there is room for the exception of res judicata in terms of what has already been said. Thus the suit must already have started to be mooted before another judge between the same persons, about the same matter and on the same cause, since the place where a judicial proceeding has once been taken up is also the place where it ought to be given its ending.'
Mutebwa v Mutebwa 2001 (2) SA 193 (CC) paras [15] and [16]
clarified the position as follows in relation to Rule 42(1)(a) of the Uniform Rules, which is worded in similar terms as section 165(a) of the LRA:[15] I shall now consider whether a proper case for rescission has been made under Rule 42 of the Rules of the High Court. Rule 42(1)(a) empowers the Court to rescind an order erroneously sought or erroneously granted in the absence of the party seeking rescission provided that such party is affected by such order or judgment. The prerequisite factors for granting rescission under this Rule are the following. Firstly, the judgment must have been erroneously sought or erroneously granted; secondly, such judgment must have been granted in the absence of the applicant; and, lastly, the applicant's rights or interest must be affected by the judgment.[16] Once those three requirements are established, the applicant would ordinarily be entitled to succeed, cadit quaestio. He is not required to show good cause in addition thereto. See Hardroad (Pty) Ltd v Oribi Motors (Pty) Ltd 1977 (2) SA 576 (W) at 578G; De Sousa v Kerr 1978 (3) SA 635 (W).
Shongwe and Others v The City of Johannesburg Metropolitan Municipality Unreported judgment JR 483/14 (25 February 2016).
[26] In Dumisani and Another v Mintroad Saw Mills (Pty) Ltd, the Labour Appeal Court held that it was against public policy that litigants should be able to consistently demand the same relief and on the same grounds from the same adversary. Furthermore, the primary purpose of the LRA is the effective and speedy resolution of disputes, and in line with that purpose, this court and other tribunals are duty bound to a measure of both finality and certainty in dealing with disputes between parties.[27] In the light of the above, it is therefore untenable for the applicants to approach this Court with essentially the same claim under a different guise and effectively seek the same relief that was determined by the CCMA.
J190/15, JR2361/16
Passenger Rail Agency of South Africa v Moreki and Others (J190/15, JR2361/16) [2017] ZALCJHB 114 (28 March 2017)
Whether oter party who filed Notice of intention to oppose, should receive notice of set down?
[17] Moreover, Rule 7(6A) which refers to a section 158(1)(c) application states that when such application isunopposed, it must be enrolled by the Registrar on notice to the applicant. I have serious misgivings in the argument that unopposed application includes an application where a notice of opposition has been filed without an answering affidavit. Rule 7(6) does not specify whether such an application should be set down on an opposed or unopposed roll, while the Practice Manual fills that lacuna by providing that it be set down on an opposed roll and parties thereto be notified thereof. It is therefore my conclusion that the respondent had to ensure that the applicant is served with a notice of set down or somehow notified of the date of hearing of the rescission as contemplated by the Practice Manual.
JR1061/2007
Samancor Limited v NUM obo Maloma and Another (JR1061/2007) [2017] ZALCJHB 98 (24 March 2017)
SASBO The Finance Union v UFIWO and Others(2003) 24 ILJ 231 (LC)
Court confirmed that Rule 25 of the Labour Court Rules affords a party who is aggrieved by a taxing masters decision a single remedy, namely that of common law review. It is trite that at common law, decisions are subject to be reviewed and set aside if the requisite standards of procedural fairness are not met. In this case, the bills were taxed on an unopposed basis in breach of a binding undertaking given to the applicant. This meant that the applicant was unfairly deprived of an opportunity to be heard in relation to the bills. The taxing of the bills was therefore procedurally unfair and they fall to be reviewed and set aside for this reason.
JS2000/2011
General Industrial Workers Union of South Africa and Others v Johannesburg Foundry VV and Another (JS2000/2011) [2017] ZALCJHB 57 (17 February 2017)
Du Preez v LS Pressings CC & Another (2013) 34 ILJ 634 (LC) at paras 12 and 17.
joinder in terms of rule 22 is in respect of proceedings before Court and that the purpose of a joinder is to allow participation in live proceedings.
Section 359(2)(a) and (b) of the Companies Act, Act 61 of 1973. See sections 358 and 359.
2(a) Every person who, having instituted legal proceedings against a company which were suspended by a winding-up, intends to continue the same, and every person who intends to institute legal proceedings for the purpose of enforcing any claim against the company which arose before the commencement of the winding-up, shall within four weeks after the appointment of the liquidator give the liquidator not less than three weeks' notice in writing before continuing or commencing the proceedings.
J1499/17
Smith and Another v Office of the Chief Justice and Others (J1499/17) [2018] ZALCJHB 45 (2 February 2018)
Steenkamp and Others v Edcon Limited [2016] 4 BLLR 335 (CC), (2016) 37 ILJ 564 (CC).
The LRA created special rights and obligations that did not exist at common law. One right is every employee's right not to be unfairly dismissed which is provided for in s 185. The LRA also created principles applicable to such rights, special processes and fora for the enforcement of those rights. The requirement for the referral of dismissal disputes to conciliation is one of the processes created by the LRA. The CCMA, bargaining councils and the Labour Court are some of the fora. The principles, processes, procedures and fora were specially created for the enforcement of the special rights and obligations created in the LRA. Indeed, the LRA even provides for special remedies for the enforcement of those rights and obligations. The special remedies include interdicts, reinstatement and the award of compensation in appropriate cases. These special rights, obligations, principles, processes, procedures, fora and remedies constitute a special LRA dispensation.
CA16/2016, C285/2014
South African Breweries (Pty) Ltd v Louw (CA16/2016, C285/2014) [2017] ZALAC 63; [2018] 1 BLLR 26 (LAC); (2018) 39 ILJ 189 (LAC) (24 October 2017)
[8] The relationship between the pleadings and the pre-trial conference minute has been the subject of several judicial pronouncements.[1] In short, a minute of this sort is an agreement from which one cannot unilaterally resile. Also, a pleading binds the pleader, subject only to the allowing of an amendment, either by agreement with the adversary, or with the leave of the court. The case pleaded cannot be changed or expanded by the terms of a minute; if it does, it is necessary that that change go hand in hand with a necessary amendment. The chief objective of the pre-trial conference is to agree on limiting the issues that go to trial. Properly applied, a typical minute cum agreement will shrink the scope of the issues to be advanced by the litigants. This means, axiomatically, that a litigant cannot fall back on the broader terms of the pleadings to evade the narrowing effect of the terms of a minute. A minute, quite properly, may contradict the pleadings, by, for example, the giving an admission which replaces an earlier denial. When, such as in the typical retrenchment case, there are a potential plethora of facts, issues and sub-issues, by the time the pre-trial conference is convened, counsel for the respective litigants have to make choices about the ground upon which they want to contest the case. There is no room for any sleight of hand, or clever nuanced or contorted interpretations of the terms of the minute or of the pleadings to sneak back in what has been excluded by the terms of a minute. The trimmed down issues alone may be legitimately advanced. Necessarily, therefore, the strategic choices made in a pre-trial conference need to be carefully thought through, seriously made, and scrupulously adhered to. It is not open to a court to undo the laces of the strait-jacket into which the litigants have confined themselves.
JA81/16
KBC Health and Safety (Pty) Ltd v Solidarity obo Smith (JA81/16) [2017] ZALAC 53 (19 September 2017)
Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA) at para 11.
[11].The authorities emphasize that it is unwise to give a precise meaning to the term 'good cause'. As Smalberger J put it in HDS Construction (Pty) Ltd v Wait [1979 (2) SA 298 (E)]:'When dealing with words such as ''good cause'' and ''sufficient cause'' in other Rules and enactments the Appellate Division has refrained from attempting an exhaustive definition of their meaning in order not to abridge or fetter in any way the wide discretion implied by these words (Cairns' Executors v Gaarn 1912 AD 181 at 186; Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at 352 - 3). The Court's discretion must be exercised after a proper consideration of all the relevant circumstances.'With that as the underlying approach the Courts generally expect an applicant to show good cause (a) by giving a reasonable explanation of his default; (b) by showing that his application is made bona fide; and (c) by showing that he has a bona fide defence to the plaintiff's claim which prima facie has some prospect of success (Grant v Plumbers (Pty) Ltd [ 1949 (2) SA 470 (O)], HDS Construction (Pty) Ltd v Wait supra, Chetty v Law Society, Transvaal [1985 (2) SA 756 (A)]).
MTN South Africa v Van Jaarsveld and Others (2002) 23 ILJ 1597 (LC) at 1602 para 13
where correspondence had been transmitted by facsimile but had not reached the official responsible
[12] It is plain from anyone who attends the hearings of the Labour Court, that the enormous growth in the number of applications for rescission in circumstances where the respondent party claims that albeit on the face of it a telefax transmission was sent, it was not received or did not reach the person responsible for giving it attention, leads to the conclusion that the provisions of the Act in this regard require reconsideration. In my view, it is appropriate that the statute be reappraised in this regard and that the Rules Board for the Labour Courts gives its attention to this matter of procedure. As aptly illustrated on the facts of this case, the arrival of a document in the midst of a deluge of others, handled by staff not inducted to divine, in the absence of some clue, who should be given the document nor how rapidly that should happen, may predictably lead to delay or misplacement or outright loss of the document.
See Vemisani Security Services CC v Mmusi and another: In re Mmusi and Another v Vemisani Security Services CC (2013) 34 ILJ 440 (LC) at 445-446 paras 16-18 and other authorities cited therein.
[17] The authorities are replete that a successful fax transmission slip does not render conclusive proof that indeed a document was received
that there was a wholly blameless absence of a defaulting party at the time of the hearing, the force of that explanation should be balanced against the force of the case which the employer sought to present in support of its decision to dismiss an employee. The weight of a bona fide case will usually make up for the inadequate explanation for the default.
J2720/17
Mikeva Cash and Carry (Pty) Ltd and Another v Marx (J2720/17) [2017] ZALCJHB 463 (12 December 2017)
[25] An issue which arose in this matter was whether this application should have been launched at the Johannesburg seat of the Labour Court, when both the first applicant and the respondent were located in Mossel Bay, which is roughly equidistant from the Port Elizabeth and Cape Town Labour Courts both of which are about one third of the distance from Mossel Bay to Johannesburg. I was given the impression before the matter was heard that there had been agreement the matter could be heard in Johannesburg, but it became clear I had been misinformed.[26] It is true that the Labour Court is a national court with national jurisdiction, but in my view it is an abuse of process to put respondents to the inconvenience of having to defend a matter in the seat of the Labour Court that is furthest away from where the respondent is situated and where the dispute arose. Had I not been under the wrong impression prior to the matter been heard, I would have directed that it should be transferred either to the Labour Court in Port Elizabeth or Cape Town. Since the matter did proceed in Johannesburg, it is at least appropriate that the respondent should not have to pay any travel and accommodation costs incurred as a result of the application being set down in Johannesburg.
Socratous v Grindstone Investments 134 (Pty) Ltd 2011 (6) SA 325 (SCA).
[13] It is necessary to consider the underlying principle of the defence of lis alibi pendens. In Nestle (South Africa) (Pty) Ltd v Mars Inc 2001 (4) SA 542 (SCA) para 16 this court said the following:The defence of lis alibi pendens shares features in common with the defence of res judicata because they have a common underlying principle, which is that there should be finality in litigation. Once a suit has been commenced before a tribunal that is competent to adjudicate upon it, the suit must generally be brought to its conclusion before that tribunal and should not be replicated (lis alibi pendens). By the same token the suit will not be permitted to revive once it has been brought to its proper conclusion (res judicata). The same suit between the same parties, should be brought once and finally.This principle has been stated and repeated by the authorities over a period of more than a century.1.
JS611/2016
Asociation on Mineworkers and Construction Union (AMCU) v Chamber of Mines South Africa and Others [2017] ZALCJHB 462 (5 December 2017)
[11] Exceptions may be raised in two forms, namely, where a party is alleging that the pleading lacks the averment to sustain the cause of action, and/or where a party alleges that the pleading is vague and embarrassing...[16] Summing up, the person who raises an exception has a burden to convince the court that, he is not raising an over-technical point which would prevent the substantial merits of the case from being decided by a court, it is not possible that evidence and/or any step that would be taken such as pre-trial minutes would not correct the alleged defect. It is my view, that such court in deciding on this aspect has to take into account inter alia (i) the manner in which the pleadings have been crafted, (ii)the onus of proof,(iii) burden to adduce evidence, (iv) the manner in which such point has been raised, (v)the relief sought, and (vi)the type of exception (either lacks averments which are necessary to sustain an action or vague and embarrassing) that has been raised by such party and other factors. I deal with this below.
Lyon v South African Railways and Harbours 1930 CPD 276. See also McKenzie Appellant v Farmers Co-Operative Meat Industries Ltd Respondent 1922 AD 16, where it was held that: What is the real meaning of the phrase cause of action arising in the city'? It has been defined in Cook v Gill (L.R., 8 CP 107) to be this: every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.
But a much narrower meaning has also been given to the expression "cause of action."After considerable difference of opinion, it was decided in England that the expression "cause of action" in the Common Law Procedure Act meant "that particular act on the part of the defendant which gives the plaintiff his cause of complain(Own emphasis)
[20] In contrast with what the SCA said in Childrens Resource Centre Trusts matter, that UASAs exception of lack of cause of action is based on what the law should apply and not on the factual matrix thereof. Therefore, the question of whether AMCU has brought its claim in respect of the correct section of the EEA or not cannot succeed , as the test in exception is about facts (that particular act on the part of the [respondent] which gives the [applicant] his cause of complain) and not which law to apply, as in the pleadings. What is required is that a litigant should plead facts, not law and such facts will have to support a principle.
JR2738/13
Transport and Allied Workers' Union of South Africa obo Maphosa v South African Road Passenger Bargaining Council and Others (JR2738/13) [2017] ZALCJHB 440 (21 November 2017)
[7] To the extent that the replying affidavits did contain new matter the Court has a discretion to allow such material to remain in the replying affidavit, giving the Respondent an opportunity to reply thereto should special or exceptional circumstances exist - Shephard v Tuckers Land and Development Corporation F (Pty) Ltd (1) SA 173 (T) at 177G-178A.
Fick v Walter
the circumstances in which the court will allow an applicant to include new material in the replying affidavit:
Nedbank Ltd v Hoare 1988 (4) SA 541 (E ) at 543 E
I do not read this Rule as implying that a deponent to an affidavit can in no way depart from the terms thereof. If this were so, a party could not, in a supplementary affidavit, vary or explain the terms of a founding affidavit. This is a matter of frequent occurrence, more particularly where it is not sought to withdraw or vary factual allegations, but only to amplify or amend legal conclusions or submissions, which are frequently incorporated in an affidavit, in order to clarify a cause of action.
Pat Hinde & Sons Motors (Brakpan) (Pty) Ltd v Carrim and Others 1976 (4) SA 88 (T) at 63 A-64 A
the Court pointed out that, although the principle is that the Court will not allow an Applicant to supplement an application in the replying affidavit in order to cure a defect in the founding affidavit, it has a discretion to either strike out the new matter or allow the respondent to file a second set of answering affidavits to deal with the new matter.
Schreuder v Viljoen 1965 (2) SA 88 (O).
A Court should not permit an Applicant in motion proceedings, where it is not certain on the application as a whole that the Respondent has no defence, to supplement his application in his replying affidavit in order to cure the defect where the application does not disclose a cause of action and the Respondent has taken an objection in limine against it.
J2722/17
Mathole and Others v Governing Body of the CCMA and Others (J2722/17) [2017] ZALCJHB 429; (2018) 39 ILJ 1079 (LC) (20 November 2017)
United Watch and Diamond (Pty) Ltd v Disa Hotels Ltd 1972 (4) SA 409 (C) at 415A
"to establish that one has locus standi in judicio, one must show,... that he has an interest in the subject matter of the judgment or order sufficiently direct or substantial..."
[8] The prevailing theme in both section 161 (2) of LRA and Rule 25 (1) (d) of the CCMA Rules for the purposes of this case is that an individual professing to be a union official/employer representative in proceedings before the Commission or the Court, is specifically prohibited from charging a fee or receiving a financial benefit in consideration for agreeing to represent that party, unless permitted to do so by the Commission or an order by the Court.[9] The Supreme Court of Appeal in Commission for Conciliation, Mediation and Arbitration and Others v Law Society of the Northern Provinces (Incorporated as the Law Society of Transvaal)[8] has pronounced on the constitutional validity of the Rule 25 (1) (c) of the CCMA Rules, and I will not burden this judgment with the conclusions reached therein as they are not pertinent to this case.[10] As to under what circumstances a Court, or the CCMA can permit any person other than a legal practitioner to represent a party in proceedings for a fee is not clear from the Rules. One can only assume that the factors to be considered in that regard for the purposes of CCMA proceedings, would include those in Rule 25 (1) (c). For the purposes of court proceedings, one can only assume that factors to be considered would include whether it is in the public interest to grant permission, or whether it would be in the interests of justice to permit such individuals to represent others at proceedings for a fee.
JS1145/12
Tshivhase-Phendla v University of Venda (JS1145/12) [2017] ZALCJHB 491 (12 October 2017)
[65] In this part of the judgment I am acting as an arbitrator. The parties have consented and I believe that it is expedient to consider the claim. A dismissal is unfair if the employer fails to prove that the reason for dismissal is a fair reason related to amongst others the conduct of the employee.[66] An arbitrator dealing with a dispute of misconduct must establish whether the employee was indeed guilty of the misconduct that led to his or her dismissal. In addition, he or she must establish whether dismissal was an appropriate sanction for the misconduct. The charge that led to the dismissal of the applicant has been set out in the applicants heads of argument. It can be summarized to be improper meeting with the potential service provider, accepting gratification, breach of policies and non-disclosures.
[73] Turning to the question of the appropriateness of the sanction of dismissal, I conclude that the misconduct with which the applicant was found guilty and dismissed, is a serious one. The principle that the punishment must fit the crime finds application here. It is clear that the employment relationship has broken down. Professor Mbati testified that corruption is a big problem within the institution and would not have a person such as the applicant in employment. Further he testified that it would be impossible to continue employment with a person who makes unsupported allegations of sexual harassment.
J1932/17
Nkosi and Others v Nkabinde and Others; In re: Nkabinde and Others v Mhlongo and Others (J1932/17) [2017] ZALCJHB 369 (10 October 2017)
South African Riding for the Disabled Association v Regional Land Claims Commissioner and Others 2017 (8) BCLR 1053 (CC)
It is now settled that an applicant for intervention must meet the direct and substantial interest test in order to succeed. What constitutes a direct and substantial interest is the legal interest in the subject-matter of the case which could be prejudicially affected by the order of the Court. This means that the applicant must show that it has a right adversely affected or likely to be affected by the order sought. But the applicant does not have to satisfy the court at the stage of intervention that it will succeed. It is sufficient for such applicant to make allegations which, if proved, would entitle it to relief.If the applicant shows that it has some right which is affected by the order issued, permission to intervene must be granted. For it is a basic principle of our law that no order should be granted against a party without affording such party a pre decision hearing. This is so fundamental that an order is generally taken to be binding only on parties to the litigation.Once the applicant for intervention shows a direct and substantial interest in the subject-matter of the case, the court ought to grant leave to intervene. In Greyvenouw CC this principle was formulated in these terms:In addition, when, as in this matter, the applicants base their claim to intervene on a direct and substantial interest in the subject-matter of the dispute, the Court has no discretion: it must allow them to intervene because it should not proceed in the absence of parties having such legally recognised interests.[6] [Authorities and citations omitted]
[11] Other considerations in such applications include that;a) A party seeking to intervene must demonstrate that he/she is specifically concerned in the issue; that the matter is of common interest to him/her and the party he/she desires to join; and that the issues are the same;[7]b) A party must establish that he or she has standing, whether as an applicant or plaintiff or as a respondent or defendant, the test being whether the party has a legal interest in the subject matter of the litigation, which may be affected prejudicially by the judgment of the Court in the proceedings concerned.[8]c) Any person may at any stage of the proceedings, seek leave to intervene, provided it can be demonstrated that such a person has a direct and substantial interest in the proceedings.d) The application is not frivolous and was made seriously.
JA/29/16
Kenco Engineering CC v National Union of MetalWorkers of South Africa (NUMSA) obo Members (JA/29/16) [2017] ZALCJHB 274 (1 August 2017)
Kemp t/a Centralmed v Rawlins(2009) 30 ILJ 2677 (LAC)at 2688-2690 paras 21-23.
[29] On the second ground of appeal.A challenge to an order of the Labour Court awarding or refusing an employee compensationin terms of s193(1)(c)of the Act is not limited to the grounds applicable where an order is made pursuant to the exercise of a true discretion or narrow discretion. It is only in regard to the determination of the amount of compensation that the Labour Court or arbitrator exercises a true or narrow discretion. It is in regard tothat decision that the powers of this Court is circumscribed and can only be exercised on the limited grounds.These grounds include the following: That the Labour Court or arbitrator (a)did not exercise a judicial discretion; or (b) exercised its discretion capriciously; or (c)exercised its discretion upon a wrong principle; or (d)has not brought its unbiased judgment to bear on the question; or (e)has not acted for substantial reason; or(f)has misdirected itself on the facts; or (g)reached a decision in which the result could not reasonably have been made by a court properly directing itself to all the relevantfacts and principles. In the absence of one of those grounds this court has no power to interfere with the amount of compensation determined by the Labour Court.
J653/15
St Michaels Spar and Others v SACCAWU obo Nyapholi (J653/15) [2017] ZALCJHB 263 (6 July 2017)
22] In the matter of Bakoven Ltd v GJ Homes (Pty) (Ltd),[13] it was held that rescission application Rule 42(1)(a)it seems to me, is a procedural step designed to correct expeditiously an obviously wrong judgment or order. In my view, a period of more than four months cannot be said to be a reasonable time, therefore, a reasonable time, based on the facts and circumstances of this matter,
Gcaba v Minister for Safety and Security and Others2010 (1) SA 238(CC);2010 (1) BCLR 35(CC); (2010) 31 ILJ 296 (CC);[2009] 12 BLLR 1145(CC) at para 1.
One of the purposes of law is to regulate and guide relations in a society. One of the ways it does so is by providing remedies and facilitating access to courts and other fora for the settlement of disputes.As supreme law, the Constitution protects basic rights. These include the rights to fair labour practices and to just administrative action.Legislation based on the Constitution is supposed to concretise and enhance the protection of these rights, amongst others, byproviding for the speedy resolution of disputes in the workplace and by regulating administrative conduct to ensure fairness. (Emphasis added.)
Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (CCT 228/14); [2015] ZACC 557 at para 1.
Time periods in the context of labour disputes are generally essential to bring about timely resolution of the disputes. The dispute resolution dispensation of the old Labour Relations Act was uncertain, costly, inefficient and ineffective. The new Labour Relations Act (LRA) introduced a new approach to the adjudication of labour disputes. This alternative process was intended to bring about the expeditious resolution of labour disputes which, by their nature, require speedy resolution. Any delay in the resolution of labour disputes undermines the primary object of the LRA. It is detrimental not only to the workers who may be without a source of income pending the resolution of the dispute but, ultimately, also to an employer who may have to reinstate workers after many years. (Emphasis added and footnotes omitted.)
JR483/11
Cullinan Diamond Mine (Pty) Ltd v Pienaar NO and Others (JR483/11) [2017] ZALCJHB 256 (4 July 2017)
Lis alibi pendenscan only be raised if there is pending litigation between the same parties or their privies based on the same cause of action before the same court or another court with equal competence.
J779/2017
Rustenburg Local Municipality v South African Local Government Bargaining Council and Others (J779/2017) [2017] ZALCJHB 261; (2017) 38 ILJ 2596 (LC); [2017] 11 BLLR 1161 (LC) (30 June 2017)
Court has discretion where it comes to furnishing security; no employer exempt from providing security in order to suspend award pending a review Court must always exercise a discretion in this regard; Suspension of arbitration award; proper case made out for suspension; no case made out for waiving of security; award suspended provided that security is set
Moqhaka Local Municipality v Motloung and Others (2017) 38 ILJ 649 (LC) at para 25.
On a plain reading of the phrase unless the applicant furnishes security to the satisfaction of the Court in s 145(7), the reference to the Court is obviously a reference to the Labour Court in s 145 (8) which is entrusted with deciding whether or not the amount of security stipulated in s 145 (8)(a) and (b) needs to be provided. Moreover, the form which the security provided under either of those subsections must take is not prescribed by the LRA. Although the furnishing of a bond of security may be the typical and most convenient form of security, other forms of security might also be considered satisfactory, such as depositing funds with the sheriff.
[18] Accordingly, security can be provided in the form of a payment into Court or the Sheriffs trust account. Further, the issuing of a security bond by a legal practitioner or a registered banking institution would also qualify as the requisite providing of security.
JS297/14
Mavundlela v Matlosana City Council (JS297/14) [2017] ZALCJHB 224 (7 June 2017)
Randwater v Stoop & Another [2012] ZALAC 32; (2013) 34 ILJ 576 (LAC); [2013] 2 BLLR 162 (LAC).
1 The word 'concurrent' in s 77(3) places the Labour Court in exactly the same position as the High Court with the same powers and authority in relation to matters concerning a contract of employment.2 The last part of s 77(3) provides the Labour Court with jurisdiction irrespective of whether any basic condition of employment constitutes a term of the employment contract. This demonstrates that the Labour Court has jurisdiction over any claim as long as it involves a contract of employment3 The words 'concerning a contract of employment' mean about or in connection with an employment contract. The pleaded claim clearly falls within this categorization.4 The words 'any matter' in s 77(3) are broad and the literal interpretation does not limit the claims, in relation to a contract of employment, to a specific category. Damages, both liquid and illiquid, are included.[3]
J2455/16
Hlehlethe v CEPWAWU (J2455/16) [2017] ZALCJHB 215 (5 June 2017)
Jansen van Rensburg NO and Others v Steenkamp and Another Janse van Rensburg and Others v Myburgh and Others 2009 (1) All SA 539 (SCA) at paragraph 27
The scope of the once and for all rule was said in the National Sorghum case Supra at 241 D to E to require that all claims generated by the same cause of action be instituted in one action.
Fidelity Guards Holdings Pty Ltd v Professional Transport Workers Union and Others (1999) 20 ILJ 82 (LAC) at paragraph 7
The cause of action is the same whenever the same matter is in issue: Wolfaardt v Colonial Government 16 SC 250 at 253. The same issue must have been adjudicated upon. An issue is a matter of fact or question of law in dispute between two or more parties which a court is called upon by the parties to determine and pronounce upon in its judgment, and is relevant to the relief sought: Horowitz v Brock & others 1988 (2) SA 160 (A) at 179F-H. . The reason for the rule is to prevent difficulties arising from discordant or mutually contradictory decisions due to the same action being aired more than once in different judicial proceedings: Voet 44.2.1. The object of the rule is that of public policy which requires that there should be an end to litigation and that a litigant should not be harassed twice upon the same cause
JR297/12
Tlali v Commission for Conciliation, Mediation and Arbitration and Others (JR297/12) [2017] ZALCJHB 192 (24 May 2017)
Superb Meat Supplies CC v Maritz (2004) 25 ILJ 96 (LAC) at para 15 and Lumka and Associates v Maqubela (2004) 25 ILJ 2326 (LAC) at para 26.
About SAFLIIDatabasesSearchTerms of UseRSS FeedsSouth Africa: Johannesburg Labour Court, Johannesburg Support SAFLIIYou are here: SAFLII >> Databases >> South Africa: Johannesburg Labour Court, Johannesburg >> 2017 >> [2017] ZALCJHB 192| Noteup | LawCiteTlali v Commission for Conciliation, Mediation and Arbitration and Others (JR297/12) [2017] ZALCJHB 192 (24 May 2017)Download original filesPDF formatRTF formatBookmark/share this pageBookmark and Share SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII PolicyIN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURGCase No: JR 297/12In the matter between:KHAFETSA J TLALI ApplicantandCOMMISSION FOR CONCILIATION, MEDIATIONAND ARBITRATION First RespondentCOMMISSIONER THEMBA R HLATSWAYO Second RespondentABSA BANK LIMITED Third Respondent Heard: 12 July 2016Delivered: 24 MAY 2017JUDGMENTLANDMAN AJIntroduction[1] The applicant, formerly a market risk manager in the employ of the third respondent (ABSA), seeks inter alia rescission of an order of court issued by Malan AJ on 17 July 2013, under case number JR 297/12, together with ancillary relief, including that the dispute be re-enrolled for hearing and/or adjudication before another Judge; declaring the applicants suspension unfair and unlawful; declaring the applicants dismissal not only automatically unfair but also procedurally and substantively unfair; reinstating the applicant in ABSAs employ. ABSA opposes the application.[2] The parties representatives agree that the only issue for adjudication in this application is whether Malan AJs order, granted in the applicants absence, ought to be rescinded.The background[3] On 27 November 2008, ABSA appointed the applicant to the position of market risk manager, supervising four subordinates (the team). He reported to Ms Christine Clark (Ms Clark), ABSAs Head of Market Risk.[4] The applicant claims that he found ABSAs market risk system to be a complete mess, faulty and broke down frequently. The team was lowly ranked largely because of the nature of the work they did, and, applicant claims, because the members of his team were Africans. Realising that the team was generating inaccurate reports owing to the faulty system, the applicant approached Ms Clark for an explanation. She explained that it was the result of years of neglect, including lack of maintenance and technical support.[5] The applicant considered that Ms Clark subjected him and his team to racial bullying; hostility; exclusion and exploitation; the issuing of unreasonable and unlawful instructions and that she falsified market risk reports sent to the South African Reserve Bank, Barclays and other entities. Matters between the applicant and Ms Clark deteriorated from then on.[6] In early February 2009, Ms Clark and ABSAs human resources department insisted that the applicant summarily dismissed one of his subordinates for unfair reasons. When he refused, ABSA, without notice to the applicant, issued the team member with a final warning. The applicant considered Ms Clarks actions consistent with her view that the team consisted of lazy, useless people.[7] Ms Clark and HR attempted to coerce the applicant into signing documents pertaining to key performance objectives (KPOs) and a performance accelerator programme (PAP). Feeling that Ms Clark was leading him into a trap, the applicant refused to sign the documents.[8] On 16 February 2009, the applicant requested leave to lodge a formal grievance in response to Ms Clark conduct, and to make a protected disclosure against Ms Clark. He asked for HRs assistance, as he was unfamiliar with ABSAs procedures. Much to the applicants surprise, his grievance was logged and Ms Clark and HR undertook to provide him with feedback. Yet, only a day later, Ms Clark summonsed the applicant to her office where she issued him with a letter of suspension. Security personnel escorted him out of ABSAs premises. The applicant felt shocked and traumatised as he expected Ms Clark and HR to revert on his grievance and protected disclosure.[9] The applicant contends that the reason provided for his suspension, namely to allow HR to investigate allegations of irregularities, are false. The true reason for his suspension was that he had lodged an oral grievance against Ms Clark, and a protected disclosure against Ms Clark, arising from her subjecting the applicants team to racial bullying, hostility, exclusion, oppression, and exploitation; her falsification of market reports and her unreasonable and unlawful instruction that the applicants team do the same (the complaint). This was unfair, says the applicant, as ABSA ought to have investigated Ms Clark while protecting him. Nonetheless, the applicant did not challenge his suspension in the CCMA.[10] On 24 February 2009, ABSA delivered a charge sheet to the applicant. The charges, which the applicant characterises as malicious, trumped up and false, were that the applicant disregarded a reasonable and lawful instruction from a competent authority; insubordination; bringing the companys name into disrepute and gross negligence of duties as conditions of employment. The applicant viewed the charges as an attempt to suppress the complaint.[11] On 29 March 2009, ABSA summonsed the applicant to a meeting. He avers that ABSA instructed him to agree to a separation package or face a disciplinary hearing where ABSA would dismiss him. The applicant presented ABSA with a counterproposal. ABSA rejected his counterproposal and convened a disciplinary hearing on 6 May 2009.[12] On 18 June 2009, the applicant lodged a formal grievance and made a protected disclosure pertaining to Ms Clark to Mr John Vitalo, the CEO of ABSA Capital. The applicant felt he had no choice as he had waited more than 130 days since lodging the complaint. During the intervening period, Ms Clarks behaviour had worsened in that she had inter alia suspended and charged him. When Mr Vitalo ignored the applicants grievance and disclosure, the applicant perceived that to be a form of victimisation in retaliation for the steps he took against Ms Clark.[13] In July 2009, ABSA again proposed that the applicant accept a separation package or face dismissal. ABSA rejected the applicants counterproposal, in which the applicant requested that ABSA provide him with a reference. ABSA countered that it would rather provide a reference on a confidential basis when requested by prospective employers.[14] On 12 November 2009, the applicant noted that ABSA failed to deposit his monthly salary into his bank account. In response to a letter demanding payment, ABSA informed the applicant that he was dismissed with effect from 31 August 2009.[15] The applicant contends that the motive behind informing him that he was dismissed on 31 August 2009 was to prejudice him and in retaliation for raising the complaint.[16] On 23 November 2009, the applicant lodged a formal grievance regarding Ms Clarks conduct with ABSA Group CEO, Ms Ramos. Ms Ramos failed to respond.[17] On 1 December 2009, the applicant lodged a grievance and protected disclosure against Ms Clark with the ABSA Group Interim Chairperson, Mr Dave Brink. Once again, the applicant received no response save for an acknowledgement that Mr Brink was in receipt of his grievance.[18] The applicant contends that both Ms Ramos and Mr Brink approached his grievance in an unnecessarily formalistic manner.[19] Finally, on 8 December 2009, the applicant referred an unfair dismissal dispute to the CCMA, having exhausted all internal remedies.[20] The applicant accuses ABSA of acting with malice, to cause confusion, complicate the dispute and hide the true date of dismissal by informing him that he was dismissed with effect from 31 August 2009.[21] On the applicants version, the true reason for his dismissal was not his guilt on the charges of misconduct but that he raised the complaint.[22] Returning to the applicants referral of the unfair dismissal dispute, the applicant simultaneously filed an application to condone the lateness of the referral. An official of the CCMA had advised him that he should do so as the referral was some 92 days late, based on the assumption that the date of dismissal was 31 August 2009. The applicant later recognised that it was an error to state in his Form 7.11 that his date of dismissal was 31 August 2009. Indeed, the applicant contends that he was not obliged or required to apply for condonation.[23] ABSA opposed the condonation application and filed an affidavit in support of its opposition.[24] The CCMA set down the condonation application for hearing on 12 November 2009. The applicant failed to attend as neither he nor his attorney (whose fax number and address he used as an address for service) received the notice of set down. ABSA, on the other hand, having received the notice of set down, dispatched two employees to attend the hearing. In the absence of the applicant, ABSAs representatives submitted to the Commissioner that the application lacked prospects of success and requested the Commissioner to dismiss the application for condonation.[25] On 18 January 2009, the Commissioner issued a ruling dismissing the condonation application. The Commissioner ruled that the applicant had no prospects of success and that the applicant received poor advice.[26] The applicant now contends that had the Commissioner been aware that the date of dismissal per ABSAs communication was false; that the applicant was notified of his dismissal on 19 November 2009; and that the dismissal was for the true reasons recorded above, the Commissioner would not have issued the ruling. In fact, the Commissioner would not have issued a ruling at all save to strike the condonation ruling off the roll as being unnecessary.[27] ABSA contends that the true date of dismissal was 31 August 2009; that the applicant was aware that was the date of his dismissal; ABSA notified the applicant accordingly at that time of his dismissal and that his dismissal was due to acts of misconduct recorded in the charge sheet. In brief, ABSA contends that the applicant was obliged to seek condonation for the lateness of the referral and that the Commissioner corrected refused to grant condonation as the applicant had no prospects of success.[28] The applicant contends that he became aware of the Commissioners ruling on 18 February 2010 upon enquiring from the CCMA about progress in setting down the condonation application. Although ABSA expressed doubts about the veracity of the applicants version, ABSA was not in a positon to dispute that the applicants contention that he became aware of the ruling on 18 February 2010.[29] The applicant served an application to rescind the ruling on ABSA on 1 March 2010 and filed same with the CCMA on 4 March 2010. The applicant contends that he filed the rescission application timeously. ABSA opposed the rescission application on the grounds set out in its answering affidavit.[30] The rescission application was finally set down and argued on 25 January 2011. The applicant explained the delay saying that he took various steps, including complaining to the Commissioner of the CCMA as well as the Public Protector, when the CCMA failed to set the application down for hearing. Apparently, the CCMA, at some stage, was adamant that the applicant had not filed a rescission application.[31] On 25 January 2011, the parties appeared before the Commissioner. The applicant believed that he was there to advance reasons why the ruling should be rescinded. Instead, the Commissioner informed the parties that both he and the CCMA was functus officio as in January 2010 he had dismissed the applicants application for condonation on the merits. As I understand it, the Commissioners reasoning was that the CCMA lacks jurisdiction to review or rescind rulings decided on the merits, for example, as in this instance, having found that the application lacks prospects of success. The Commissioner advised the applicant that the only option was to review the ruling in the Labour Court.[32] The applicant accepted the Commissioners advice and lodged a review application in terms of section 145 of the Labour Relations Act[1] on 16 March 2012. The applicant sough to review and set aside the condonation ruling dated 18 January 2010 and the rescission directive/ruling dated 25 January 2011.[33] The applicant filed the review application approximately 13 months after the rescission ruling/directive and, self-evidently, even longer after the condonation ruling. The applicant once again applied for condonation.[34] I must point out that ABSA contends that the review application was filed some two years late. ABSA computes the delay from the time that the Commissioner issued his condonation ruling to the time that the condonation application was filed in this Court.[35] Conceding that the delay was a lengthy one, the applicant stated that he had good explanation for the delay, namely that he did not have funds to instruct an attorney to assist him to draft the review application. The applicant recorded the steps he took to secure the services of a legal representative. The applicant also addressed the prospects of success.[36] ABSA opposed the review application as well as the condonation application.[37] On 17 July 2013, when the application was called before Malan AJ, the learned Judge dismissed the condonation application in the applicants absence.[38] On 24 July 2013, when making enquiries at the Registrars Office, the applicant became aware of Malan AJs order.[39] The applicant immediately uplifted the order together with the notice of set down and a fax transmission slip. The applicant noticed that the notice of set down was faxed to two numbers, none of which was the applicants number, being [...] and [...], (one of which is that of ABSAs attorneys of record).[40] The applicant noted that the notice of set down records his fax number as UNIT [...] IRELAND GARDENS, and ABSAs legal representative as [...]. The applicant pointed out, correctly, that UNIT [...] IRELAND GARDENS is not and cannot be a fax number, and that he did not consent to address to be used as his fax number. The second fax number, to which the notice of set down was sent, namely [...], is unknown to the applicant.[41] The applicant accordingly established that his physical address was recorded (albeit incorrectly in part) on the notice of set down but that the fax numbers show that the notice of set down was purportedly sent to him as applicant at one of the two fax numbers. As stated before none of them is his fax number.[42] I should point out that ABSA accepts that the fax numbers on the notice of set down, and in the fax transmission report, are not the applicants fax numbers. Thus, based on the only proof of service that was before Malan AJ at the time of his order, the notice of set down was neither sent to nor received by the applicant albeit that the inscriptions made on notice of set down might have been, at best, ambiguous.[43] ABSA contended that the notice of set down was sent to the applicants physical address UNIT [...] IRELAND GARDENS. ABSAs attorneys pointed out that they served documents on the applicant at that address. I shall revert to this issue later.[44] The applicant concedes that he gave the Registrar his physical residential address as his address for service, namely UNIT [...] IRELAND GARDENS.[45] The applicant contends that he has good prospects of success in his unfair dismissal dispute as well as in his review application before this Court.[46] As to his claim for unfair dismissal, the applicant contends that his referral to the CCMA was timeous for the reasons stated above.[47] The applicant says that he was subjected to occupational detriment in order to prevent him from lodging the complaint, for refusing to accept ABSAs two offers of financial settlement, and for putting forward two counter proposals. In substantiation, the applicant points to ABSAs decision on 17 February 2009 to finally suspend him without good grounds and without affording him an opportunity to be heard; ABSAs decision to bring what the applicant describes as malicious, trumped up and false charges against him; ABSAs decision to revive those charges after the applicant declined its settlement proposal; ABSAs decision on 27 March 2009 to reject the applicants first counter proposal and his request for a formal reference; ABSAs actions in subjecting him to a sham disciplinary hearing on 6 May 2009; ABSAs rejection of the applicants second counter proposal on July 2009; ABSAs decision to again refuse to give the applicant a formal reference in July 2009; ABSAs failure to pay the applicants salary in October 2009; ABSAs decision on 19 November 2009 to dismiss the applicant for unfair reasons; ABSAs failure to pay the applicants salary for the days in November 2009 preceding his dismissal on 19 November 2009.[48] The applicant addresses the charges in the charge sheet. The applicant contended that he has good prospects of success in showing that the charges were unsubstantiated. As to the charge of refusing to obey reasonable and lawful instructions, the applicant denies that he was issued with instructions to attend meetings and that he failed to attend a meeting on 30 January 2009 without tendering an apology. The applicant denies that he was requested to agree to the contract performance objectives at meetings held on 9, 12 and 16 February 2009; the applicant denies that the team missing deadlines, that there were errors in the teams reports, or that the applicants attitude hampered efforts in the department. The applicant denies that he refused to sign off the performance objectives.[49] The applicant addressed his prospects of success in the review application. The applicant explained that the review application was not filed late. According to his explanation, he uplifted the Commissioners ruling only on 18 February 2010. Before then he was not aware of the ruling and thus the six-week period without which to lodge a review application commenced on 18 February 2010. Accordingly, it is argued, the applicant filed review application timeously.[50] The applicant also addressed the grounds for review of the Commissioners condonation ruling. The applicant contends that the Commissioner was at the time unaware of a fact that, if known to him, would have precluded him from making the condonation ruling. This fact, the applicant contends, is that he incorrectly recorded his date of dismissal on Form 7.11 as 30 August 2009 whereas the true date of his dismissal was 19 November 2009.[51] The applicant also addressed the grounds of review of the Commissioners rescission directive/ruling. The applicant contends that the Commissioner committed a serious error in law by finding that he and the CCMA was functus officio. The applicant contends that on a proper reading of section 144 of the LRA, the Commissioner was empowered to revisit and rescind his condonation ruling.[52] The applicant contends that his dismissal was not only automatically unfair but also procedurally and substantively unfair. The applicant advances the reasons described above.[53] Finally, the applicant contends that Malan AJs order was issued erroneously in his absence, and that the applicant is entitled to rescission of that order as he has shown good cause.[54] ABSA responded to the applicants allegations in an answering affidavit deposed to by one Verna Douman.[55] Absa contends that the rescission application was brought some 2 years late (taking the ruling dismissing the applicants condonation application as the starting point). ABSA points to applicants habit of late filing as indicative of the applicants lack of respect for court rules and time periods. In essence, ABSA argues that the applicant abused the processes of the Court.[56] As to the applicants explanation for his failure to attend on the date that Malan AJ issued his order, ABSA contends that the notice of set down shows, at least prima facie, that the Registrar sent the notice of set down to the applicants residential address, namely UNIT [...] IRELAND GARDENS. Absa points out that that is a physical address and not a fax number. The Registrar obviously recorded the address to which the Registrar sent the notice of set down on the notice of set down albeit in the space where a fax number should be recorded. Moreover, that is the same address where ABSAs attorneys had successfully served its heads of argument on the applicant. ABSA contends that the applicant has not proven that his failure to attend Court was not due to his negligence. Accordingly, ABSA argues that he has failed to show that his non-attendance was not wilful.[57] ABSA argues that the applicants prospects of success in both the condonation and the review applications are weak. The applicant changed tack on the condonation ruling. Whereas he originally objected to the Commissioner not granting condonation, the applicant now argues that condonation was unnecessary as he referred the dispute timeously. Absa contends that the Commissioners refusal of the condonation application was reasonable and not reviewable. The condonation hearing was set down for hearing on 18 January 2012. Absas representatives attended. The applicant was absent. In the applicants absence, ABSA argued that the referral was 99 days late; the applicant did not provide a reasonable explanation for the lateness of the referral; the applicant had no prospects of success in his unfair dismissal referral and ABSA will be prejudiced should condonation be granted as it had complied with its legal obligations before dismissing the applicant. After hearing argument, the Commissioner dismissed the condonation application.Evaluation[58] This application is brought in terms of section 165(a) of the provisions of the LRA read with rule 16A of the Rules of the Labour Court.The law[59] Section 165 of the LRA which empowers the Labour Court to vary or rescind orders, provides that:The Labour Court, acting of its own accord or on the application of any affected party may vary or rescind a decision, judgment, or order(a) erroneously sought or erroneously granted in the absence of any party affected by that judgment or order; ...(b) in which there is ambiguity, or an obvious error or omission, but only to the extent of the omission or(c) granted as a result of a mistake common to the parties to the proceedings.Rule 16A(1)(a)[2] of the Rules of the Labour Court mirrors section 165(a) of the LRA. Our courts have held that if an order was erroneously made in the absence of any affected party, the court should on the application of that party rescind the order without further enquiry.
Lodhi 2 Properties Investments CC and Another v Bondev Developments 2007 (6) SA 87 (SCA) at para 24.
Where notice of proceedings to a party is required and judgment is granted against such party in his absence without notice of the proceedings having given to him such judgment is granted erroneously. That is so not only if the absence of proper notice appears from the record of the proceedings as it exists when judgment is granted but also if, contrary to what appears from such record, proper notice of the proceedings has in fact not been given. That would be the case if the sheriffs return of service wrongly indicates that the relevant document has been served as required by the Rules whereas there has for some or other reason not been service of the document. In such a case, the party in whose favour the judgment is given is not entitled to judgment because of an error in the proceedings. If, in these circumstances, judgment is granted in the absence of the party concerned the judgment is granted erroneously.
tarfish Greathearts Foundation v Lekalakala [2015] ZALCJHB 381; (2016) 37 ILJ 501 (LC) at para 25.
Similarly, it would be impossible, given that it is the registrar who serves the notice of set down by fax, for a party who has attracted the onus to prove on a balance of probability that another party, who denies same, has in fact received a particular fax. The party seeking to prove such receipt would have to obtain any evidence that it could from the registrar which would inevitably prove a hindrance both to the registrar and to that party.
JS230/15
Du Plessis v Amic Trading (Pty) Ltd t/a Toy's R Us (JS230/15) [2017] ZALCJHB 196 (23 May 2017)
test for absolution from the instance relating to a dismissal
Commercial Stevedoring Agricultural and Allied Workers Union (CSAAWU) obo Dube and others v Robertson Abattoir [2016] 12 BLLR 1163 (LAC) at para 16-17.
[16] It is important to bear in mind that this appeal is based on a grant of an order of absolution from the instance. Accordingly, the test which must be determined is whether firstly there was a dismissal and secondly whether the appellant has provided evidence which raises a credible possibility that the dismissal in question fell within the scope of section 187(1)(c) of the LRA. This approach has been confirmed by this Court in Kroukamp v SA Airlink (Pty) Ltd [2005] 12 BLLR 1172 (LAC) at par. 28In my view s187 imposes an evidential burden upon the employees to produce evidence which is sufficient to raise a credible possibility that an automatically unfair dismissal has taken place. It then behoves the employer to prove to the contrary, that is to produce evidence to show that the reason for the dismissal did not fall within the circumstance envisaged in s187 for constituting an automatically unfair dismissal.
The test for absolution to be applied by a trial court at the end of a plaintiffs case was formulated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409GH in these terms:. . . [W]hen absolution from the instance is sought at the close of plaintiffs case, the test to be applied is not whether the evidence led by plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff. (Gascoyne v Paul and Hunter 1917 TPD at 173; Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958 (4) SA 307(T).This implies that a plaintiff has to make out a prima facie case in the sense that there is evidence relating to all the elements of the claim to survive absolution because without such evidence no Court could find for the plaintiff (Marine & Trade Insurance Co Ltd v Van de Schyff 1972 (1) SA 26 (A) at 37G38A; Schmidt Bewysreg 4th ed at 91-2). The test has from time to time formulated in different terms, especially it has been said that the Court must consider whether there is evidence upon which a reasonable man might find for the plaintiff (Cascoyne (loc cit)) a test which had its origin in jury trials when the reasonable man was a reasonable member of the jury (Ruto Flour Mills). Such a formulation tends to cloud the issue. The Court ought not to be concerned with what someone else might think; it should rather be concerned with its own judgment and not that of another reasonable person or Court. Having said this, absolution at the end of a plaintiffs case, in the ordinary course of events, will nevertheless be granted sparingly but when the occasion arises, a Court should order it in the interest of justice.[5]
JS45/13
Noriega v Sony South Africa (Pty) Ltd (JS45/13) [2017] ZALCJHB 151 (8 May 2017)
[15]The jurisprudence of this Court is clear that where a notice of set down does, genuinely, not come to a party's attention, any judgment by default would be granted erroneously.
Gay Transport (Pty) Ltd v SA Transport & Allied Workers Union & others (2011) 32 ILJ 1917 (LC) and Roux v City of Cape Town [2004] 8 BLLR 836 (LC)
JS287/2012
Dorey v TSB Sugar RSA Ltd (JS287/2012) [2017] ZALCJHB 168 (3 May 2017)
[32] Mr Mooki for the respondent argued that the case as pleaded by the applicant behooved her to show that there are improprieties. The applicant cannot rely on tends to show. Mr Van Der Westhuizen for the applicant argued that tends to show was pleaded.[9] It is trite that only facts need to be pleaded and not conclusions of law.[10] Accordingly, to my mind tends to show is a legal conclusion to be arrived at by the Court upon reflection on certain facts. In terms of section 1 of the Protected Disclosures Act (PDA) 26 of 2000 a disclosure is defined with those two positions-show or tends to show. Accordingly, I come to the conclusion that the facts pleaded allow me to come to a legal conclusion required in this case.
Jowell v Bramwell Jones 1998 (1) SA 836 (W) and First Rand Bank Limited v Jooste [2015] ZAGPJHC 11 (3 February 2015).
(JS01/12
National Union of Mineworkers and Others v Aluminium and Shades (Pty) Ltd t/a Procon Interios (JS01/12) [2017] ZALCJHB 18 (18 January 2017)
Dr Harms (Civil Procedure: Superior Courts) LAWSA, 3rdEd, vol 4, LexisNexis, 2012 at para 94.
A cornerstone of our legal system is that a person is entitled to notice of the institution of proceedings against him or her. Legal proceedings cannot, in general, commence unless the party against whom relief is claimed (and any other party with an interest in the matter) is notified of the initiating process by means of service.When proceedings have begun without any notice, the subsequent proceedings are null and void and may be disregarded or set aside at the option of the other party.However, if the initiating document such as the summons was served incorrectly, the subsequent proceedings are not void, but may be voided: the summons may be set aside as an irregular step although the court may condone the irregularity. (Footnotes omitted and emphasis added)
JR2640/2013
SAMWU obo Nobhuzana v South African Local Government and Others (JR2640/2013) [2016] ZALCJHB 517 (15 December 2016)
[7] Whilst taking cognizance of what the court stated inRaloin regard to striking the matter from the roll, clause 2.2 of the Practice Manual also provides that It must be emphasised that no judge is bound by practice directives; this manual is not intended to limit judicial discretion.
[18]Accordingly, and in my view, provision must be made for a replication to the answering statement in the context of Labour Court dispute resolution proceedings, if circumstances require it. This replication is not intended to answer to the facts as pleaded in the answering statement, in a manner such as a replying affidavit in motion proceedings would do. It is only intended to provide a legal defence, so to speak, to a case as raised or pleaded by the respondent party in the answering statement. This would most often arise in the case of estoppel[14], but as referred to above, there can be other instances as well.
JR492/201
Moabelo v Gold Fields Group Services (Pty) Ltd (JR492/2015) [2016] ZALCJHB 444 (18 November 2016)
[10]However, Rule 11(3) provides that ifa situation arises in any proceedings before the Labour Court, which is not provided for in the Labour Court Rules,the court may adopt any procedure that it deems appropriate in the circumstances.The provisions of Rule 11(3) have in the past been utilized by the Labour Court to in essence incorporate and adopt selected provisions of the Uniform Rules into the Labour Court dispute resolution proceedings.
L'Oreal SA (Pty) Ltd v Kilpatrick and Another (2015) 36 ILJ 2617 (LC) at para 23.
From the outset, I must state that the High Court Rules do not apply to or regulate proceedings in the Labour Court. The Labour Court has its own rules. But, from time to time, it has been found that there is a lacuna in the Labour Court Rules relating to certain proceedings. What the Labour Court has equally done in such cases is use its powers in terms of rule 11(3) of its own rules and import or adopt specific High Court Rules into its own proceedings.
JR827/15
Nwaogu v Motor Bargaining Council Dispute Resolution Centre and Others (JR827/15) [2016] ZALCJHB 368 (27 September 2016)
[13] In this instance, though the parties are the same and some of the evidence led in the arbitration and the Labour Court would undoubtedly have overlapped, the cause of action before the arbitrator was an alleged unfair dismissal for misconduct and the cause of action before the Labour Court was a somewhat incoherent claim of discrimination based on perceptions of unfair treatment by the employer up to and including the time of his dismissal but which did not include the dismissal itself in the unfair treatment. Secondly, though both claims were claims for relief in the form of compensation, the basis on which any compensation might be paid relate to the different causes of action and separate statutory provisions providing such relief.
Caesarstone Sdot-Yam Ltd v World of Marble and Granite 2000 CC and Others 2013 (6) SA 499 (SCA), at 505.
[12]Voetsaid that there are three requirements for a successful reliance on a plea of lis pendens. They are that the litigation is between the sameparties; that the cause of action is the same; and that the same relief is sought in both. InHassan and Another v Berrange NOZulman JA expressed these requirements in the following terms:'Fundamental to the plea of lis alibi pendens is the requirement that the same plaintiff has instituted action against the same defendant for the same thing arising out of the same cause.'
JR2319/2015
SAPS vs MARINDA ERASMUS and another
Imprefed (Pty) Ltd v National Transport Commission [1993] 2 All SA 179 (A) at 188.
At the outset it need hardly be stressed that:The whole purpose of pleadings is to bring clearly to the notice of the Court and the parties to an action the issues upon which reliance is to be placed.(Durbach v Fairway Hotel Ltd 1949 (3) SA 1081 (SR) 1082.)This fundamental principle is similarly stressed in Odgers Principles of Pleading and Practice in Civil Actions in the High Court of Justice (22nd ed) 113:The object of pleading is to ascertain definitely what is the question at issue between the parties; and this object can only be attained when each party states his case with precision.The Court further held:[29]. Particularly in this context, it goes without saying that a pleading ought not to be positively misleading by referring explicitly to certain clauses of the contract as identifying the cause of action when another is intended or will at some later stage-in this case at the last possible moment-be relied upon. As it was put by Milne J in Kali v Incorporated General Insurances Ltd 1976 (2) SA 179 (D) at 182A:. . .a pleader cannot be allowed to direct the attention of the other party to one issue and then, at the trial, attempt to canvass another.
Knox DArcy AG and another v Land and Agricultural Development Bank of South Africa [2013] 3 All SA 404 (SCA) at para 35. See also Naidoo v Minister of Police and Others [2015] 4 All SA 609 (SCA) at para 30; Minister of Safety and Security v Slabbert [2010] 2 All SA 474 (SCA) at para 11.
It is trite that litigants must plead material facts relied upon as a basis for the relief sought and define the issues in their pleadings to enable the parties to the action to know what case they have to meet. And a party may not plead one issue and then at the trial, attempt to canvass another which was not put in issue and fully investigated.
Harris v MD Solar (Pty) Ltd t/a Suntank and Others (JS 710/2007) [2016] ZALCJHB 348 (8 September 2016)
JS 710/2007
Du Preez v LS Pressings CC and another (2013) 34 ILJ 634 (LC)
this Court has confirmed that joinder in terms of Rule 22 is in respect of proceedings before Court and that the purpose of a joinder is to allow participation in live proceedings. [48] In casu there are no live proceedings between the Applicant and the Third, Fourth or Fifth Respondents to which they could be joined. There are no live proceedings in which any of the Respondents can participate and be afforded the opportunity to be heard. [49] The Applicant has a Court order that was issued after trial proceedings were concluded. There is a final judgment and that per se precludes a joinder.
JS1002/09
MEWUSA obo Mahatola and Others v F and J Electrical (JS1002/09) [2016] ZALCJHB 167 (26 April 2016)
Colett v Commission for Conciliation, Mediation & Arbitration & others (2014) 35 ILJ 1948 (LAC)
[38] There are overwhelming precedents in this court, the Supreme Court of Appeal and the Constitutional Court for the proposition I that where there is a flagrant or gross failure to comply with the rules of court condonation may be refused without considering the prospects of success. InNUM v Council for Mineral Technologyit was pointed out that in considering whether good cause has been shown the well-known approach.
JS363/12
Nord v Civicus World Alliance for Citizen Participation Inc (JS363/12) [2016] ZALCJHB 162 (21 April 2016)
Johnson and Johnson (Pty) Ltd v Chemical Workers Industrial Union (1999) 20 ILJ 89 (LAC) at 41.
JA44/2015
Motsomotso v Mogale City Local Municipality (JA44/2015) [2016] ZALAC 48; [2016] 11 BLLR 1146 (LAC); (2016) 37 ILJ 2803 (LAC) (21 July 2016)
The Bargaining council does not having jurisdiction to conciliate such dispute. Labour Court correct in holding that it lacks jurisdiction to adjudicate an unfair discrimination dispute which had not been referred for conciliation to the CCMA.
JA123/2014
Metsimaholo Local Municipality v South African Municipal Workers Union and Others (JA123/2014) [2016] ZALAC 19 (11 May 2016)
(no) rulenisiwhen it was clear that final relief ought to have been given. A rulenisishould only be granted as interim relief pending the institution of judicial proceedings or because the other side has not been given proper opportunity to challenge the allegations in the application for a rulenisi.
J1951/15
SACCAWU v Sun International (J1951/15) [2015] ZALCJHB 341 (6 October 2015)
Application to interdict the use of replacement labour after the end of a protected strike and during the continuation of a protected lock-out; interpretation of section 74(1)(b) of the LRA; the judgment in Ntimane & others v Agrinet t/a Vetsak (Pty) Ltd (1999) 20 ILJ 896 (LC) not followed
C285/14
Louw v South African Breweries (Pty) Ltd (C285/14) [2016] ZALCJHB 156 (19 April 2016)
Zondo and Others v St Martins School (2015) 36 ILJ 1386 (LC) at paras 10-11.
[10] The purpose of a pre-trial minute is to narrow down issues in dispute and to limit the scope of litigation. The consequences of signed pre-trial minutes are that the positions taken by the parties in their respective pleadings may be reconciled or compromised. The contention of the applicants that the signed pre-trial minutes contradict what is stated in the pleadings has no merit in as far as the validity and enforceability of the pre-trial minutes. In my view, it is the natural consequence of the pre-trial minutes that certain aspects of the pre-trial minutes may contradict certain aspects of the pleadings. For instance the employer could in its statement of case dispute the employment contract but then concede the existence of the employment contract in the pre-trial minutes.[11] It is well established in our law that a pre-trial minute is no different to any other agreement concluded consequent to deliberations between the parties or those that they may have expressly or impliedly authorised to represent them. It follows therefore that a pre-trial minute constitutes a binding agreement between the parties. It is for that reason that the courts ordinarily hold the parties to the contents of their pre-trial minute. A party can only resile from a pre-trial minute on condition special circumstances exist to do so. [91] To my mind the cases are consistent that whether or not a party will be allowed to raise or rely upon or introduce a cause of action or issue after a pre-trial agreement or pre-trial minute has been concluded in a case depends on whether it can be said that the party seeking to rely upon or to introduce or raise such cause of action or issue has abandoned that cause of action or has agreed either expressly or by implication (I would say necessary implication) not to pursue or rely upon such cause of action or point or has informed the Court or the other party that such point or such cause of action or issue will not be relied upon. If he has, he cannot be allowed. If he has not, he can be allowed. This is quite apart from those circumstances where a party would be able to resile from such an agreement on the same basis as he would be able in law to resile from any other contract.
NUMSA and Others v Driveline Technologies (Pty) Ltd (2000) 21 ILJ 143 (LAC) at para 17. See also Putco (Pty) Limited v Transport and Allied Workers Union of South Africa and Another (2015) 36 ILJ 2048 (LAC).
[17] The flaw in Mr Pretoriuss argument is that the pre-trial minute in the present case was, on a proper interpretation thereof, not a settlement of any issue between the parties. All it did was to more closely define the issues as they were then perceived to be. There is not the faintest suggestion that the appellants intended to abandon any claim for relief not already incorporated in their statement of case. The contention that by framing the issues as they did the parties intended to exclude every other issue from consideration is not supported by the wording of the pre-trial minute.
CA12/2015
Commercial Stevedoring Agricultural and Allied Workers Union v Robertson Abattoir (CA12/2015) [2016] ZALAC 44; [2016] 12 BLLR 1163 (LAC); (2017) 38 ILJ 121 (LAC) (22 August 2016)
Gordon Lloyd Page and Associates v Rivera and Another 2001 (1) SA 88 (SCA).
Claude Neon Lights (SA) Ltd v Daniel1976 (4) SA 403(A) at 409 G-H
(W)hen absolution from the instance is sought at the close of plaintiffs case, the test to be applied is not whether the evidence led by plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff. (Gascoyne v Paul and Hunter 1917 TPD at 173; Rutor Flour Mills (Pty) Ltd v Adelson (2)This implies that a plaintiff has to make out a prima facie case in the sense that there is evidence relating to all the elements of the claim to survive absolution because without such evidence no Court could find for the plaintiff (Marine & Trade Insurance Co Ltd v Van de Schyff(A) at 37 G 38 A; Schmidt Bewysreg 4th ed at 91-2). The test has from time to time formulated in different terms, especially it has been said that the Court must consider whether there is evidence upon which a reasonable man might find for the plaintiff (Cascoyne (loc cit)) a test which had its origin in jury trials when the reasonable man was a reasonable member of the jury (Ruto Flour Mills). Such a formulation tends to cloud the issue. The Court ought not to be concerned with what someone else might think; it should rather be concerned with its own judgment and not that of another reasonable person or Court. Having said this, absolution at the end of a plaintiffs case, in the ordinary course of events, will nevertheless be granted sparingly but when the occasion arises, a Court should order it in the interest of justice.
JS737/12
Serongwa v University of Johannesburg (JS737/12) [2016] ZALCJHB 82 (4 March 2016)
De Klerk v Absa Bank Ltd and Others
[10] The correct approach to an absolution application is conveniently set out by Harms JA inGordon Lloyd Page & Associates v Rivera and Another2001 (1) SA 88 (SCA) at 92E - 93A :'[2] The test for absolution to be applied by a trial court at the end of a plaintiff's case was formulated in Claude Neon Lights (SA) Ltd v Danie1976 (4) SA 40(A) at 409G - H in these terms:''. . . (W)hen absolution from the instance is sought at the close of plaintiff's case, the test to be applied is not whether the evidence led by plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff. (Gascoyne v Paul and Hunter1917 TPD 170 at 173; Ruto Flour Mills (Pty) Ltd v Adelson(2)1958 (4) SA 307 (T).) This implies that a plaintiff has to make out a prima facie case - in the sense that there is evidence relating to all the elements of the claim - to survive absolution because without such evidence no court could find for the plaintiff (Marine & Trade Insurance Co Ltd v Van der Schyff 1972 (1) SA 26 (A) at 37G - 38A; Schmidt Bewysreg 4th ed at 91 - 2). As far as inferences from the evidence are concerned, the inference relied upon by the plaintiff must be a reasonable one, not the only reasonable one (Schmidt at 93). The test has from time to time been formulated in different terms, especially it has been said that the court must consider whether there is ''evidence upon which a reasonable man might find for the plaintiff'' (Gascoyne (loc cit)) - a test which had its origin in jury trials when the ''reasonable man'' was a reasonable member of the jury (Ruto Flour Mills). Such a formulation tends to cloud the issue. The court ought not to be concerned with what someone else might think; it should rather be concerned with its own judgment and not that of another ''reasonable'' person or court. Having said this, absolution at the end of a plaintiff's case, in the ordinary course of events, will nevertheless be granted sparingly but when the occasion arises, a court should order it in the interests of justice.''l
JR698/2013; J271/2015
Edcon (Pty) Limited v Commission for Conciliation, Mediation and Arbitration and Others; In re: Thulare and Others v Edcon (Pty) Limited (JR698/2013; J271/2015) [2015] ZALCJHB 392; (2016) 37 ILJ 434 (LC) (13 November 2015)
Enforceability of provisions of Practice Manual restated. Effect of deemed archiving of review application what must be proven in order to reverse this. Good cause to be shown same principles as utilised in rescission applications
26] In Superb Meat Supplies CC v Maritz[2] the Labour Appeal Court adopted the same test used in the determination of applications for the rescission of default judgments when determining whether good cause has been shown. I am of the view that these wide-ranging principles are most certainly of application to a revival application such as the present. These principles are:26.1 the applicant must give a reasonable explanation of its default;26.2 the application must be made bona fide;26.3 the applicant must show that it has a bona fide defence to the respondents claim (and must set out sufficient facts which, if established at trial, would constitute a good defence).
JR2078/13
Pick 'n Pay Retailers (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR2078/13) [2015] ZALCJHB 373 (26 October 2015)
[5] There was an in limine challenge to the authority of the deponent to the founding affidavit to institute review proceedings on behalf of the applicant, but this objection falls away in light of the authority of the SCA judgment in [zRPz]Unlawful Occupiers, School Site v City of Johannesburg 2005 (4) SA 199 (SCA) at 206-207, paras [14]-[15]
J1876/15
Showgroupworld (Pty) Ltd v Johannes and Another (J1876/15) [2015] ZALCJHB 353 (12 October 2015)
Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA)
55] That conflicting affidavits are not a suitable means for determining disputes of fact has been doctrine in this court for more than 80 years. Yet motion proceedings are quicker and cheaper than trial proceedings and, in the interests of justice, courts have been at pains not to permit unvirtuous respondents to shelter behind patently implausible affidavit versions or bald denials. More than 60 years ago, this Court determined that a Judge should not allow a respondent to raise 'fictitious' disputes of fact to delay the hearing of the matter or to deny the applicant its order. There had to be 'a bona fide dispute of fact on a material matter'. This means that an uncreditworthy denial, or a palpably implausible version, can be rejected out of hand, without recourse to oral evidence. In Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd, this Court extended the ambit of uncreditworthy denials. They now encompassed not merely those that fail to raise a real, genuine or bona fide dispute of fact but also allegations or denials that are so far-fetched or clearly untenable that the Court is justified in rejecting them merely on the papers.
JR685/11
Compass Group SA (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR685/11) [2015] ZALCJHB 365; 2015 (6) SA 256 (LC) (27 August 2015)
Pankana CC t/a R and W Transport Components v Dreyer NO and Others (2012) 33 ILJ 692 (LC)
this court held that a party is not precluded from raising a jurisdictional point at the review stage. This must be so, since the issue of jurisdiction is closely related to that of the rule of law, and especially that element of it that demands that statutory institutions exercise only those powers that are conferred on them by enabling legislation.
Dispute erroneously referred to CCMA. Most of delay taken up by incorrect referral to CCMA. Unfair to punish employees for lack of diligence of union officials. Applicants having some prospects of success.
Statement of defence filed 2 weeks out of time. It was also taken into account that the applicant had always intended to defend the matter which was evident from the fact that it had attended to it at the CCMA when the dispute was initially lodged and where it had raised its preliminary issues. Furthermore, considering the issue of prejudice, it was the applicant that stood to suffer more prejudice.
General rule that court would not ordinarily receive more than three sets but court retained discretion to file further pleadings.
Section 144 of LRA. Good cause as a ground for the rescission of a default arbitration award. Commissioners should avoid a rigid approach in the adjudication of dispute.
For late filing of statement of case. 2 years late. Union rep, good prospects in unprotected strike. The totality of the evidence did not in any manner suggest that the applicants had lost interest in pursuing their claim.
Procedure for setting down matters on the roll in Practice Directions to be followed.
Labour Court Rules, the court adopted the procedure in Rule 47 of the Uniform Rules of the High Court. He had no current residence in South Africa of any permanent or settled nature and had both a South African and a British passport.
Such person a peregrinus and security for costs. Considerations of fairness and equity favoured the respondent. Pay R75 000.
Interim order: Rule against non-appealability of interim order not an inflexible rule.
A full and detailed account of the causes of the delay and the effect thereof had to be furnished by an applicant. The more serious the consequences of non-compliance, the more difficult it would be for the party seeking condonation to have his or her application granted. The court held furthermore that there needed to be a differentiation in approach between condonation applications under labour law on the one hand and under civil law on the other in that it should generally be more difficult to obtain the indulgence of condonation. Requires strict judical scrutiny.
Heads of arguments not evidence
Procedure, Exception, standard of pleading required of a lay litigant, a balance needed to be struck between access to justice in favor of the lay litigant and fairness to the other party. the claim had to set out the essential nature of the applicants claim and the essential basis for the claim in broad terms.
non-compliance with s 74(2), s 77(3) of the BCEA, the contractual claim had not been properly pleaded.
Other caselaw cited: Betlane v Shelly Court CC 2011 (1) SA 388 at para [29]
fresh submissions from the bar. Party had to state all its grounds for review in its founding papers.
Bound by it
Dispute of facts
Default judgment
Entitlement to notice; Labour Court is not entitled to debar a person defending a claim without notice or opportunity to show good cause
Rule 6 (7)
JA21/07
Eberspcher v National Union of Metal Workers of South Africa o.b.o & Others
Exceptions
Party not precluded from raising an exception to the other partys claim or defense after conclusion of a pre-trial minute
Statement of claim did not contain clear and concise statement of material facts or concise statement of legal issues arising from material facts; the possibility of the parties being able to address the defects in the statement of case at the pre-trial conference
Statement of Case
No case number , no condonation
77(1) of BCEA, not s 77(3)
the employee had not pleaded a claim based on contract of employment (under s 77(3) of the BCEA),
Condonation; 10-day period for filing notice of opposition to be calculated from date on which employers attorneys informed of case number
Private Arbitration
The grounds of misconduct is a very narrow one. In the result, the court found, its powers of review are limited to the grounds specified in s 33 of the Arbitration Act, i.e. misconduct by the arbitrator in relation to his duties as arbitrator; the commission of a gross irregularity in the conduct of the arbitration; the arbitrator exceeding his powers; or the award having been improperly obtained. Only the first two grounds were relevant in the current matter.
[To be corrected later by Constitutional Court: Sidumo case] It was held that a CCMA Commissioner had no discretion in relation to sanction, but bore only the duty of determining whether the employers sanction was fair (as explained in Nampak Corrugated Wadeville v Khoza ((1999) 20 ILJ 578 (LAC)) and further expounded upon in County Fair Foods (Pty) Ltd v CCMA ((1999) 20 ILJ 1701 (LAC)).
plea was one of res judicata based on an earlier application launched by Mr Bouwer in which he had sought an order declaring his position redundant because of the abolition of his post; a similar contention had been dismissed in African Farms & Townships Ltd v Cape Town Municipality (1963 (2) SA 555 (A)). Held therefore, that the special plea of res judicata succeeded.
JA27/14
Clencor (Pty) Ltd v Mngezana N.O. and Others (JA27/14) [2018] ZALAC 2 (25 January 2018)
susceptible to appeal
The decision must be final in effect and not susceptible of alteration by the court of first instance; second, it must be definitive of the rights of the parties; and it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings
Cilliers NO and Others v Ellis and Another (200/2016) [2017] ZASCA 13 (17 March 2017).
J2834/16, J2845/16
AMCU and Others v Piet Wes Civils CC and Another (J2834/16, J2845/16) [2017] ZALCJHB 7; (2017) 38 ILJ 1128 (LC); [2017] 5 BLLR 501 (LC) (13 January 2017)
[19]On the facts of the case before me, I hold a similar view. The contract was not intended to be for a fixed duration, or to terminate on the occurrence of a specified event or the completion of a specified task or project as contemplated by s 198B(1). And to place the construction of a specified event on the cancellation of the Exxaro contract would, in my view, go beyond the intention of the legislature. The very purpose of the enactment of s 198B was to provide security of employment, except in circumstances where a fixed term contract is clearly justified, such as seasonal work or employment to carry out a specific task or to do so within a specified period. To make the workers employment contingent upon the whims of a third party that can simply terminate the contract between it and the employer on notice, does not fit that purpose. The employers have not, in my view, discharged the onus of showing that there was a justifiable reason to employ the workers on a fixed term contract for more than three months, as contemplated by s 198B(3)(b). The employment contracts were either of an unlimited duration or must be deemed to be of an indefinite duration as contemplated by s 198B(5).
SATAWU obo Dube & ors v Fidelity Supercare Cleaning Service Group Ltd [2015] 8 BLLR 837 (LC); (2015) 36 ILJ 1923 (LC) para [51].
Given the expressions about the decisions by this court inMampeule[12], Nape[13]andMahlamu[14], supra,the view expressed inTwoline Tradingabove cannot be correct. A contractual provision that provides for the automatic termination of the employment contract at the behest of a third party or external circumstances beyond the rights conferred to the employee in our labour laws undermines an employees rights to fair labour practices [and] is disallowed by labour market policies. It is contrary to public policy, unconstitutional and unenforceable (Grogan The Brokers Dilemma 2010Employment Law6). This view is clear from all the decisions referred to above, and it is apparent from these that labour-brokers may no longer hide behind the shield of commercial contracts to circumvent legislative protections against unfair dismissal. The freedom to contract cannot extend itself beyond the rights conferred in the constitution, as for instance, against slavery.
Sindane v Prestige Cleaning Services [2009] 12 BLLR 1249 (LC).
Mahlamu v CCMA [2011] 4 BLLR 381 (LC).
JR 2774/2012
NATIONAL PROSECUTING AUTHORITY
The applicable legal principles regulating the rescission of an order granted in the absence of a party are based on a threshold of good cause shown. Specifically, this requires the applicant to furnish a reasonable explanation for its absence on 12 May 2015 when the order sought to be rescinded was granted, the application must be bona fide and the applicant must show on a prima facie basis that it has a bona fide case to present in respect of that application.
Graaff-Reinet Municipality v Van Rynevelds Pass Irrigation Board,[15] the Appellate Division defined the term jurisdiction in relation to courts as the power or competence of a court to hear and determine an issue between the parties.[16] The definition was accepted and applied by the Constitutional Court in Gcaba v Minister of Safety and Security
the Court could acquire jurisdiction over foreigners (perigrini) without an attachment to found such jurisdiction if either party submitted to the jurisdiction of the Court; held that all litigants were resident in SA and therefore incolae not perigrini.
there were conflicting LAC judgments on this issue but that since there was no limitation or capping on reinstatement in the Act, the Court was competent to award reinstatement beyond a 12-month period.
gross irregularity related to the procedure adopted and not to an incorrect judgment
(see Ellis v Morgan, Ellis v Desai (1909 TS 576); Goldfield Investments Ltd & Another v City Council of Jhb & Another (1938 TPD 551) and County Fair Foods (Pty) Ltd v CCMA & Others ((1999) 4 LLD 459 (LAC)
"Misconduct"
the meaning of misconduct (of an arbitrator) had been examined in both Hyperchemicals International v Maybaker Agrichem (1992 (1) SA 19 ILJ 799 (LC)) and Abdull & Another v Cloete NO & Others ((1998) 19 IJ 799 (LC)
an applicant who withdrew was in the same position as an unsuccessful litigant: Germishuys v Douglas Besproeingsraad (1973 (3) SA 299 (NC))
that this was not a general principle covered by the provisions of s 162 of the LRA
Opposed
the party opposing such application must show that the review has reasonable prospects of success: Ntshangane v Specialty Metals CC ([1998] 3 BLLR 305(LC))
objection failed because the Labour Court exercises an equity jurisdiction and may take different considerations into account from the High Court
Rule 22 of the Labour Court allows for joinder after conciliation proceedings and nowhere specifies that a party may be joined only after participating in conciliation. Held that the Court has discretion to join parties even if they did not participate in conciliation
Amendment of admission
Where [an] amendment involves the withdrawal of an admission, the party seeking the indulgence must provided the Court with a full explanation to convince the Court of the bona fides of the party seeking the amendment. A satisfactory explanation of the circumstances in which the admission was made and the reason for seeking to withdraw it (sic). If the result of allowing the admission to be withdrawn is to cause prejudice or injustice to the other party to the extent that a special order as to costs will not compensate him, then the application to amend will be refused
Attorney negligence
(a) should not show disinterest in the conduct of his own case; (b) must maintain close contact with his attorneys; (c) must have no reason to distrust his attorneys competence to look after his affairs. These factors weigh more heavily on an applicant or plaintiff in a matter
Exception: When an exception is raised against a statement of claim, this Court must consider, having regard to what I have said above, whether the matter presents a question to be decided which, at this stage, will dispose of the case in whole or in part. If not, then this Court must consider whether there is any embarrassment that is real and that cannot be met by making amendments or providing of particulars at the pre-trial conference stage
an exception that a pleading is vague and embarrassing, that the applicant on exception must show that it would be seriously prejudiced should the pleading be allowed to remain (at [22] and [26], referring to International Tobacco Co v Wolheim & Others 1953 (2) SA 603 (A)
employee to raise an issue not recorded as in dispute in the pre-arbitration minute
purpose of a pre-arbitration meeting is to enable the parties to try and redefine issues as emerge from the pleadings and that generally parties are bound to argue only those issues identified as being in dispute in the pre-arbitration minute. Held: In this case, the [council] agreement specifically enjoins parties to attempt; they limited the issues to those recorded in the minute must be deemed to have been their election to limit the issues to those recorded.
LC is a superior court with power to regulate its own procedures. Held that the procedure adopted in casu served the same purpose as Rule 11 is meant to achieve and avoided unnecessary delay.
the LRA does not permit parties to join in the dispute resolution process midway, and that parties may not join the action after conciliation.
(s 194 LRA); Not the same as back pay
194
CCMA awarding compensation for unfair dismissal as employee not seeking reinstatement; Court on review awarding reinstatement; Labour Court not able to present; substitute commissioners award unless exceptional circumstances
Remuneration
section 194 of the LRA was to the total salary an employee had been receiving at the time of his dismissal
Compensation CCMA; must give reasons
monetary compensation for a procedurally unfair dismissal has in the past been said to be a form of solatium
The court should nevertheless be careful to ensure that the purpose of the compensation is to make good the employees loss and not to punish the employer.
the extent to which the employer has deviated from the norm required of him; requires that an award of compensation must be just and equitable; there is no express provision in (2) that allows compensation not to be awarded in respect of any unreasonable delay on the part of the employee (although this may be taken into account under the notion of just and equitable)
Court no Jurisdiction, go to CCMA
First follow procedures laid down in the LRA.
CCMA jurisdiction to conciliate and not Bargaining Council
Jurisdictional point could be raised at any stage of proceedings, including at the hearing of the matter.
Employee employed by a South African registered company to work in the DRC. Misconduct allegedly committed in the DRC. Contract entered into in South Africa and dismissal taking place in South Africa .CCMA having jurisdiction.
that a parallel system of review for action which fell outside of the strict definition of administrative action in terms of the poorly drafted PAJA had developed. No dispute to the Bargaining Council. open to review in terms of s 158(1)(a) of the LRA on the grounds of legality.
Judicial Service Commission and Another v Cape Bar Council and Another 2013 (1) SA 170 (SCA) at para [44]
Contract concluded in the UK and employee required to work only in UK. Head office situated in South Africa. Employee was South African. He was obliged to work overseas for an agreed fixed term with no right to return to South Africa. No jurisdiction.
MIBCO vs MEIBC. Depending on the dominant activity (that is the manufacturing of either light or heavy trailers), the whole enterprise would fall under one or the other bargaining council and the parties had been invited to submit further evidence in that regard.
Correctness test applicable in jurisdictional dispute whereas reasonableness standard applicable to factual findings. Senior manager told that she should resign and left her office without resigning held not to have been dismissed on the facts.
Dispute concerning an occupational detriment other than dismissal. Effect of amendments to LRA brought about by protected disclosures legislation. Legislature envisaging that these disputes to be heard by Labour Court. The court noted that the LRA, in dealing with the right of an employee to refer a dispute, used the word may because it would be ludicrous if the statute obliged employees to refer all labour disputes to tribunals or to the court and used the peremptory shall. It noted further that s 186(2)(d) had been added to the LRA in the 2002 amendments in the wake of the promulgation of the Protected Disclosures Act 26 of 2000 and it was clear that the latter Act contemplated a distinction between the unfair labour practices which were contained in Schedule 7 and those provided for in s 186(2)(a), (b) and (c): the distinction being that an unfair labour practice in terms of para (d) could be referred to the Labour Court while the original unfair labour practice dispute could be referred to arbitration.
The CCMA had jurisdiction to hear a dispute referred to it by employees of a South African TES even if the employees were placed with clients outside of South Africa. The logical place where a TES conducted its labour broking service was where it recruited and procured labour and not the place where its clients had their operations.
Nature of dispute before court to be decided by court and not bound by a partys description of it
Collective agreement provided for private arbitration and court had no jurisdiction.
E/r entitled sit back await next move
Switching of machines during strike
the Labour Court had jurisdiction to decide delictual claims arising out of labour disputes as envisaged in s 67 of the LRA
relying on the doctrine of vicarious liability, had to prove that a wrongful act had been committed by someone for whom the union was responsible, causing a foreseeable loss; the employer had to prove that the union was a socius criminis as it could not be held liable if the act of authorising its agent was not criminal; none of the evidence had proved whether employees allegedly involved were identified union members
D622/02
Mondi Limited Mondi Craft Division v CEPPWAWU & Individual employees
an international contract and private international law would have to be used to determine the jurisdiction and the applicable law (noting that these concepts, while nevertheless connected, are conceptually distinct). Noted that parties are free to agree in the contract on the legal system which ought to apply to the contract, but in the absence of such agreement the Court must make that decision. Held that in doing so the LC should apply an objective test.
. Held, in particular, that the workplace of the employee, while an important factor, was not decisive in determining the appropriate jurisdiction
Labour Court: The best evidence in such matters is a copy of the resolution authorising the agent to act, this may not be necessary depending on the nature of the challenge to authority. Noted further that even the deponents averment that he was duly authorised to make the affidavit might be sufficient to establish authority
Bombardier Transportation (Pty) Ltd v Mtiya and Others JR 644/09 (11 March 2010)
fell within the power of the CCMA to determine in the course of the arbitration proceedings and are not necessarily to be determined prior to conciliation taking place
EOH Abantu (Pty) Ltd v CCMA and Another (2008) 29 ILJ 2588 (LC)
commissioner was bound to decide any jurisdictional point raised in conciliation proceedings before issuing a certificate of outcome, and that his failure to do so constituted a reviewable irregularity
JR 2672/08
Siemens Ltd v CCMA and Others
employee could not lawfully tender her services and was therefore not entitled to any remuneration and that the claim was actually one under the Basic Conditions of Employment Act 75 of 1997 beside the point
nature of its business, it fell within the jurisdiction of MIBCO
the CCMA did not exercise its assumption of jurisdiction in terms of s 147(3) of the Labour Relations Act
Distinguishing the matter from that in Fidelity Guards Holdings (Pty) Ltd v Epstein NO and Others (2000) ILJ 2382 (LAC), the court held, following Bombardier Transportation (Pty) Ltd v Mtiya and Others (2010) 31 ILJ 2065 (LC),
the court did not have jurisdiction at that stage
Locality of employer or enterprise
Settlement agreement order court
JA4/2017
Minister of Public Service and Administration and Another v Public Servants Association obo Makwela and Others (JA4/2017) [2017] ZALCJHB 409 (1 November 2017)
issue for determination is whether the failure to join the Minister constitutes a non-joinder held the Minister not an interested party to the dispute the Minister having no authority over the provincial executive authorities - the role of the Minister is to advise and assist when asked to do so and not to make decisions - the Minister acts merely as the midwife to the OSD and is not affected by a decision that derives from an award resolving a dispute about the implementation of a binding collective agreement - the dispute is one between employer and employee and Minister not employer of the employee - the absence of any legal connection between the Minister and the employee seems to have been overlooked in the argument composed on her behalf. Appeal dismissed with costs.
De Lucia v Bester and Another (JS947/13) [2017] ZALCJHB 278 (1 August 2017)
National Union of Metalworkers of South Africa v Intervalve (Pty) Ltd and Others (2015) 36 ILJ 363 (CC) at para 186.
The test for joinder at common law is governed by the following principles:(a) There must be a legal interest in the proceedings and not merely a financial interest.(b) A party has a right to ask that someone be joined as a party if such a person has a joint proprietary interest with one or either of the existing parties to the proceedings or has a direct and substantial interest in the Courts order and to avoid a multiplicity of actions and . . . a waste of costs. (Authorities omitted)
Klaase and Another v van der Merwe N.O. and Others 2016 (9) BCLR 1187 (CC) at para 45
The test for joinder is that a party must have a direct and substantial legal interest that may be affected prejudicially by the judgment of the court in the proceedings concerned. In ITAC, this Court confirmed the test and said that a party seeking joinder must have a direct and substantial interest in the subject matter. The Court held that the overriding consideration is whether it is in the interests of justice for a party to intervene in litigation. (citations omitted)
[18] Whitcher AJ (as she then was) also had an opportunity in Strydom v T-Systems SA (Pty) Ltd[(2012) 33 ILJ 2978 (LC)] to determine an application for a joinder within the context of a section 197 of the LRA claim. Having had regard to the principles enunciated in Gordon v Department of Health: KZN[(2008) 29 ILJ 2535 (SCA) at para 9, where the SCA held that;], the learned Judge held that the position in our civil law was that the mere fact that a third party was jointly and severally liable for a debt did not qualify as a direct and substantial interest in the right that is the subject matter of the dispute, and further that joint liability for a debt did not trigger the joinder of such a party by necessity, and that mere financial interest or prejudice has been held to be secondary and indirect
(2008) 29 ILJ 2535 (SCA) at para 9, where the SCA held that;In the Amalgamated Engineering Union case, it was found that the question of joinder should not depend on the nature of the subject matter but on the manner in which, and the extent to which, the courts order may affect the interests of third parties. The court formulated the approach as, first, to consider whether the third party would have locus standi to claim the relief concerning the same subject matter, and then to examine whether a situation could arise in which, because the third party had not been joined, any order the court might make would not be res judicata against him, entitling him to approach the courts again concerning the same subject matter and possibly obtain an order irreconcilable with an order made in the first instance. This has been found to mean that if the order or judgment sought cannot be sustained and carried into effect without necessarily prejudicing the interests of a party or parties not joined in the proceedings, then that party or parties that have a legal interest in the matter must be joined.
Seepe v Thermadyne Plant Rental and Another (J1013/2011) [2016] ZALCJHB 186 (5 April 2016)
National Union of Mineworkers of South Africa v Intervalve (Pty) Ltd and Others [2015] 2 BCLR 182 (CC).
Constitutional Court confirmed the decision of the Labour Appeal Court, where it was held that it is not competent to seek a joinder of a party where unfair dismissal allegation was not referred against such a Respondent to the CCMA.
Du Preez v LS Pressing and Another (J861/11) 2012 ZALCJHB 74 (26 July 2012) at para 18.
joining parties to proceedings where a final decision has already been rendered would have the effect of a judgment being taken and enforced against the parties without their cases ever being heard.
Minister of Safety v De Vos (2008) 29 ILJ 688 (LC),
arbitrator or a commissioner had a duty to raise the issue of non-joinder mero motu where a party who had an interest in the matter, or who was likely to be affected by the outcome of the arbitration proceedings, had not been cited
Gordon v Department of Health (337/2007) [2008] ZASCA 99.
t]he test is whether a party that is alleged to be a necessary party, has a legal interest in the subject matter, which may be affected prejudicially by the judgment of the court in the proceedings concerned.
"Matters of mutual interest" (a matter of mutual interest had to create new or destroy existing rights in the employment relationship and had to be one be one that was in the interest of both employer and employee and had to concern the common good of the enterprise: 1) Interest dispute, 2) Rights dispute. All interest disputes constituted disputes about matters of mutual interest but not all disputes about matters of mutual interest were interest disputes.
J1990/15
Passenger Rail Agency of South Africa v Moreki and Another (J1990/15) [2016] ZALCJHB 288 (2 August 2016)
Gois t/a Shakespeares Pub v van Zyl & Others (2003) 24 ILJ 2302 (LC) at paragraphs 32 - 36
this court will favourably consider granting the stay of execution when real and substantial justice requires such a stay or, put differently, where injustice would otherwise result.Waglay J (as he then was) had added that in exercising its discretion to grant a stay of execution, a court is not required to take the merits of the underlying attack on thecausaof the writ into account. It is sufficient that there must be a possibility that thecausaunderlying the writ may ultimately be removed. An applicant is accordingly not required to satisfy the court of the existence of prospects of success in the principal dispute and furthermore, an application for a rescission, review or variation of an award qualifies as an attack on thecausaunderlying the award.
Booysen v Minister of Safety & Security & others(2011) 32ILJ112 (LAC)
Jibav Minister: Department of Justice & Constitutional Development & others(2010) 31 ILJ 112 (LC)at para [17]
Although the court has jurisdiction to entertain an application to intervene in uncompleted disciplinary proceedings, it ought not to do so unless the circumstances are truly exceptional. Urgent applications to reviewand set aside preliminary rulings made during the course of a disciplinary enquiry or tochallenge the validity of the institution of the proceedings ought to be discouraged. These are matters best dealt with in arbitration proceedings consequent on any allegation of unfair dismissal, and if necessary, by this court in review proceedings under s 145.
Trustees for the time being of the Bioinformatics Network Trust v Jacobson & others[2009] 8 BLLR 833(LC)
JS 929/14
Nwaogu v Bridgestone SA and Another (JS 929/14) [2016] ZALCJHB 104 (18 March 2016)
The applicant is entitled to claim specific performance and he is not obliged to cancel the contract and claim damages at a later stage. I am also persuaded that the balance of convenience favours the applicant. The applicant will suffer irreparable harm should the relief not be granted whereas the respondent will suffer little inconvenience by simply proceeding with a process it has already started.
I have also had the occasion to write a judgment about the requirements of interim interdicts inAfrisake NPC v City of Tshwane Metropolitan Municipality and Othersunder case number 74192/2013 dated 14 March 2014 (not reported). I also emphasized that the proper question would be whether an Applicant in interdictory proceedings required an ordernowso as to protect a right which he would otherwise not be able to protect at all. One does not require an interdictpendente liteto protect the right which one can in any event protecting future by, amongst others, litigation in due course. It is an absolute minimum requirement that in repairable harm must be shown to exist before the Court can grant such an interdict, and in the present context the Constitutional desirability of such an interdict weighs heavily on my mind.
Inappropriate and meaningless that notice of order read in a language that employees did not speak or understand. Insufficient that notice only brought to attention of employees who might have been present at a particular time.
a prima facie right had to be shown; there had to be a well-grounded apprehension of irreparable harm if the interim relief was not granted and the ultimate relief was eventually granted; the balance of convenience favored the granting of interim relief; and there was no other satisfactory remedy available.
to permit applications for review on a piecemeal basis would frustrate the expeditious resolution of labour disputes
terminating services for operational reasons
The applicant must therefore show, amongst others, that it has a clear right worthy of protection; that it either has suffered injury or that an injury is reasonably apprehended; and that it does not have a suitable alternative remedy available.
JR923/2013
Steenwerke v Bobbejan N.O. and Others (JR923/2013) [2016] ZALCJHB 60 (22 February 2016)
the undisputed evidence that the employee could not work in a dusty environment as his lung condition would further deteriorate and even a dust mask would not protect him, should have been considered in deciding whether reinstatement would be appropriate. The undisputed evidence was that the Applicant has no alternative position that would be dust free as there is dust everywhere due to the nature of the Applicants operations.
(i) infringement of the employees right in terms of the Labour Relations Act 66 of 1995 (LRA) not to be unfairly dismissed; (ii) infringement of the employees common law right of insisting upon performance of contract; and (iii) in the public sector, an infringement of the employees constitutional right to fair administrative action.
since the advent of the LRA, which applies to public sector employees, dismissals in the public domain were not dealt with as administrative acts. However, it was also noted that not all issues arising from an employment relationship were governed by the LRA, as shown in Fedlife Assurance Ltd v Wolfaardt (2002 (1) SA 49 (SCA)). Held that despite the High Court having jurisdiction to hear such a matter, relief under PAJA was not intended for a complaint arising from a procedurally unfair dismissal for poor work performance and thus the employee was not entitled to pursue the matter in the High Court. Held that a claimant could not escape the provisions of the LRA by alleging that the case involved a constitutional issue as every labour dispute could be said to do so. Therefore it was held that the employees reliance on PAJA was misplaced and that she had chosen the wrong forum to enforce it.
It was argued that the claim was to enforce the rights of its members to fair administrative action as protected by s 33 of the Constitution which was clearly cognisable in the ordinary courts. Held that the claim as formulated in the application was not one within the exclusive jurisdiction of the Labour Courts and that the objection to jurisdiction of the High Court fell to be dismissed.
CA3/2011
PROF A R COETZEE & 49 OTHERS.
Labour Court not empowered to sit as arbitrator in terms of section 158(2)(b) of the Labour Relations Act- where matter had to be referred to conciliation (arbitration)
Other case law cited
South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A).
unlawful suspension
right to be back at work overrule fact getting paid.
Prejudice
J771/10
Mathe Zandile v The Minister of Water and Environmental Affairs
The grounds on which a court might choose to stay execution included that the underlying cause of action on which the judgment was based was under attack, and that execution was sought for improper reasons. The applicant had to show a well-grounded apprehension of execution taking place and that injustice would be done to the applicant by way of irreparable harm if execution were not suspended. Other considerations to take into account were whether the attack on the underlying cause of action was brought in time and whether its prospects of success were strong; the interest of all parties in securing finality; the cost to all parties of a delay in finality; the cost to all parties of instituting or opposing further proceedings to attack the underlying cause or to stay execution pending such attack; and the risk of injustice being done to the less powerful party to the dispute.
shown a well-grounded apprehension of execution taking place and of injustice being done to the applicant by way of irreparable harm if execution was not suspended. Other important considerations were whether the attack on the underlying cause of action was brought in time and whether its prospects of success were strong; the interest all parties had in securing finality, and related to this was the question of the cost to all parties of a delay in finality and the cost to all parties of instituting or opposing further proceedings brought to attack the underlying cause of action or to stay execution pending such an attack. In considering whether justice required a stay of execution, the court would be mindful of the risk that an injustice might be done to the less powerful party.
JA104/2015
Pharmaco Distribution (Pty) Ltd v W (JA104/2015) [2017] ZALAC 48; (2017) 38 ILJ 2496 (LAC) (4 July 2017)
claims damages for non-patrimonial damages for impairment of her dignity as a result of being unfairly discriminated against held there is in principle no difference between her claim for compensation under s194(3) of the LRA and her damages claim under s50(2)(b) of the EEA for non-patrimonial loss. To award both non-patrimonial damages and compensation to the employee for the same wrongful conduct of the appellant would not be just and equitable as it would amount to penalising the employer twice.
ARB v Electrical Wholesalers (Pty) Ltd v Hibbert (2015) 36 ILJ 2989 (LAC) (ARB) at para 29.
The Court found that there is no bar for an employee, in a single action, to claim: (a) compensation for an automatically unfair dismissal as a result of unfair discrimination under the LRA, and (b) compensation for unfair discrimination under the EEA.
SA Airways (Pty) Ltd v Janse van Vuuren and Another (2014) 35 ILJ 2774 (LAC) at paras 78-80.
In the EEA damages refer to an actual or potential monetary loss (i.e. patrimonial loss) and compensation refers to the award of an amount as a solatium (i.e. non-patrimonial loss). It is conceivable that cases of unfair discrimination may involve actual (or patrimonial) loss for the claimant as well as injured feelings (or non-patrimonial loss).The purpose of an award for damages for patrimonial loss by means of a monetary award, is to place the claimant in the financial position he or she would have been in had he, or she, not been unfairly discriminated against. This is the common purpose of an award of damages for patrimonial loss in terms of the South African law in both the fields of delict and contract. In the case of compensation for non-patrimonial loss, the purpose is not to place the person in a position he or she would have otherwise have been in, but for the unfair discrimination, since that is impossible, but to assuage by means of monetary compensation, as far as money can do so, the insult, humiliation and indignity or hurt that was suffered by the claimant as a result of the unfair discrimination.
KwaZulu-Natal Tourism Authority and Others v Wasa (JA113/14) [2016] ZALAC 35; [2016] 11 BLLR 1135 (LAC); (2016) 37 ILJ 2581 (LAC) (28 June 2016)
unlike compensatory relief granted for unfair dismissal in terms of the LRA, no such relief available in a claim for breach of contract made under the BCEA. Claim under BCEA is a claim for damages the extent of the damages suffered by the party seeking damages must be proved employee that failed to prove damages as a result of the breach of contract entitled to no relief
Factors regarded by courts as relevant in the assessment of damages included the nature and seriousness of the iniuria; the circumstances in which the infringement took place; the behavior of the defendant (was the motive honorable or malicious?); the extent of the plaintiffs humiliation or distress; the abuse of a relationship between the parties; and the attitude of the defendant after the iniuria had taken place. This list was not an exhaustive list. The actual amount to be awarded was a discretionary act of the court
future damages, however, was difficult in the absence of an actuarial report, any information about his career path and his qualifications.
Electronic Communications Transactions Act 25 of 2002
a claim for compensation could not be equated to a damages claim: this was made clear by s 195 of the LRA
Finding was accepted by Appellant
Massmart Holdings Limited v Theron (JS1043/16) [2018] ZALCJHB 4 (11 January 2018)
HolmdeneBrickworks (Pty) Ltd v Roberts Construction Co Ltd [1977] 4 All SA 94 (A) at page 108; 1977 (3) SA 670 (A) at page 687 C-F.
The fundamental rule in regard to the award of damages for breach of contract is that the sufferer should be placed in the position he would have occupied had the contract been properly performed, so far as this can be done by the payment of money and without undue hardship to the defaulting party To ensure that undue hardship is not imposed on the defaulting party the sufferer is obliged to take reasonable steps to mitigate his loss or damage (ibid.) and, in addition, the defaulting party's liability is limited in terms of broad principles of causation and remoteness, to (a) those damages that flow naturally and generally from the kind of breach of contract in question and which the law presumes the parties contemplated as a probable result of the breach, and (b) those damages that, although caused by the breach of contract, are ordinarily regarded in law as being too remote to be recoverable unless, in the special circumstances attending the conclusion of the contract, the parties actually or presumptively contemplated that they would probably result from its breachThe two limbs, (a) and (b), of the above stated limitation upon the defaulting party's liability for damages correspond closely to the well-known two rules in the English case of Hadley v. Baxendale, 156 E.R. 145, which read as follows (at p. 151): "Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it." Emphasis added.
37]I am persuaded that the respondent, a former employee of the applicant, was directly involved in headhunting Mr Pillay to join the bank in breach of the contractual undertaking and consequently rendered himself liable for damages suffered by the applicant in replacing Mr Pillay. The total amount claimed is fair and reasonable.
JA15/2014
Vermaak v MEC for Local Government and Traditional Affairs, North West Province and Others (JA15/2014) [2017] ZALAC 2 (10 January 2017)
[11] The rule of practice that costs follow the result does not govern the making of costs orders in the Labour Court and such orders are made in accordance with the requirements of law and fairness.[17] For the above reasons, I conclude that the Labour Court did not exercise its discretion properly. This Court is therefore at large to interfere with the award of costs and make an order that we consider appropriate in the circumstances. Taking into account considerations of law and fairness, I am of the view that the order of the Labour Court should be substituted with one of no order as to costs.
Moloi v Euijen
it was observed that the framework of s 162 supports the proposition that when making orders of costs the requirements of law and fairness are paramount
Callguard Security Services (Pty) Ltd v Transport and General Workers Union and Others (1997) 18 ILJ 380 (LC). andXaba v Portnet Ltd (2000) 21 IJL 1739 (LAC).
The requirements of law and fairness are on equal footing, and none is secondary to the other.
Member of the Executive Council for Finance, Kwazulu-Natal and Another (2008) 29 ILJ 1707 (LAC) at para 17.
[T]he norm ought to be that costs orders are not made unless those requirements (of law and fairness) are met. In making decisions on costs orders this court should strive to strike a fair balance between, on the one hand, not unduly discouraging workers, employers, unions and employer organisations from approaching the Labour Court and this court to have their disputes dealt with, on the other, allowing those parties to bring to the Labour Court and this court frivolous cases that should not be brought to court. This is a balance that is not always easy to strike, but if the court is to err, it should err on the side of not discouraging parties to approach these courts with their disputes[8]
Lewis v Media 24 Ltd (2010) 31 2418 (LC) para 129.
it was observed that the Labour Court has generally been reluctant to order costs against an individual employee.
JR2454/10, JI304/13
Lusitania Food Products (Pty) Ltd v Commission for Conciliation, Meditation and Arbitration and Others (JR2454/10, JI304/13) [2017] ZALCJHB 148 (8 May 2017)
30]The circumstances in which a costs orderde bonis propriismay justifiably be imposed are however significantly more exacting. Negligence in a serious degree must be established on the part of the party against whom such a costs order is sought.
Moloi and another v Euijen and another(1999) 20 ILJ 2829 (LAC)
Costsde bonis propriisare awarded against legal practitioners in cases which involve serious delinquencies such as dishonesty, wilfulness or negligence in a serious degree.
SA Liquor Traders Association v Chairperson, Gauteng Liquor Board and Others 2009 (1) SA 565 (CC)
An order of costs de bonis propriis is made against attorneys where a court is satisfied that there has been negligence in a serious degree which warrants an order of costs being made as a mark of the courts displeasure.
Waar v Louw 1977 (3) SA 297 (O)
The tendency of time past was to make attorneys pay for their mistakes by means of an order of costsde bonis propriis. And the reason for such an order against an attorney is quite clear. The office of an attorney is a high and responsible office. The attorneys profession is a learned profession requiring great skill from its members. Mistakes which an attorney makes in litigation and which result in unnecessary costs should, therefore, not lightly be overlooked. And a litigant should not always be obliged himself to the costs which have been caused by the negligence of his attorney. But too strict action should not be taken against an erring attorney. The administration of justice is sometimes an irritating discipline, and even the most skilful practitioners can make mistakes which cause unnecessary costs. The attorneys profession should not be moved by too lenient an attitude to loosen its reins, but should also not be demoralised by too much cracking of the whip. As usual, in the affairs of man, the middle course s best. The circumstances under which a court can make an order of costsde bonis propriisagainst an attorney should be reasonably serious, as, eg, dishonesty, wilfulness or negligence of a serious degree.
the ongoing relationship between the parties; the fact that the union was not at all unreasonable in opposing the relief sought; the unions belief that since a certificate of outcome had been issued after conciliation, which was never set aside, the strike action would be protected; the issue for decision, i.e. the legality or otherwise of the strike, was of great importance to the union and its members; the fact that the union did not oppose the granting of the final order; and the fact that the union had called off the strike immediately after the temporary order was issued.
peregrinus
Respondent a peregrinus seeking review of arbitration award ; Court empowered to order that security for costs to be provided
HC rule 47
C664/06
September & Another v Muddford International Services Ltd
manifestly unjust
Acted Mala Fide
JA37/2012
MEC for Education (North West Provincial Government) v Makubalo (JA37/2012) [2017] ZALAC 13 (3 February 2017)
NEHAWU and Others v Charlotte Theron Childrens Home [2004] 10 (BLLR) 979 (LAC).
Court held that in an exceptional case, even where a delay is substantial, the explanation for it less than adequate and the prospects of success indeterminable, it is sometimes nevertheless in the interest of justice to grant condonation.
JR2744/12
Mngomezulu and Another v Mulima N.O. and Others (JR2744/12) [2017] ZALCJHB 402 (7 November 2017)
High Tech Transformers (Pty) Ltd v Lombard the Honourable (2012) 33 ILJ 919 (LC) at page 919.
An unsatisfactory and unacceptable explanation for any of the periods of delay will normally exclude the grant of condonation, no matter what the prospects of success on the merits
NUM v Council for Mineral Technology (1999) 3 BLLR 209 (LAC) at 211 G-H at para 25.
There is a further principle which is applied and that is without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, no matter how good the explanation for delay, an application for condonation should be refused.
Moila v Shai and others (2007) 28 ILJ 1028 (LAC) at para. 36.
Indeed, it is clear from PE Bosman Transport Wks Com v Piet Bosman Transport 1980(4) SA 794 (4) at 799 D that in a case such as this one, it is not necessary to consider the prospects of success and that condonation could be refused no matter how strong the prospects of success are in a case such as the present one.
Van Wyk v Unitas Hospital and another [2007] ZACC 24; 2008 (4) BCLR 442 (CC) at para. 31.
A litigant is entitled to have closure on litigation. The principle of finality in litigation is intended to allow parties to get on with their lives. After an inordinate delay a litigant is entitled to assume that the losing party has accepted the finality of the order and does not intend to pursue the matter any further. To grant condonation after such an inordinate delay and in the absence of a reasonable explanation would undermine the principle of finality and cannot be in the interest of justice.
Negligence of a legal representative was not considered an acceptable excuse for a delay it was clear in the present matter that the appellant and his legal team did not believe that the statement of claim was filed out of time and that the appellant had to apply for condonation. This was so because the appellant initially referred the matter for arbitration to the CCMA.
not disclose a cause of action and the exception was upheld.
Condonation granted in application from the bar Key consideration in condonation application the prejudice to the other party
strong prospects of success
the commissioner should not have heard the matter as he did not have jurisdiction
Dismissed
Prstrong/weak prospects of success
as soon as aware of lateness
Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA 13 (A).
Apollo Tyres South Africa (Pty) Ltd v CCMA and others [2013] 5 BLLR 434 (LAC)
The applicant resigned from the respondent and claimed payment of the further instalments under the agreement. Undertaking by the respondent to make good the loss that the applicant would suffer as a result of resigning. Employment contract gave rise to an enforceable obligation on the part of the respondent to pay the applicant the amount claimed.
