REPUBLIC OF SOUTH AFRICA - Justice

REPUBLIC OF SOUTH AFRICA

Reportable
Of interest to other judges

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JS171/2010

In the matter between:

High Tech Transformers (Pty) Ltd Applicant
and Respondent
Antonie Christoffel Lombard

Heard: 3 August 2011
Order : 3 August 2011
Reasons: 18 October 2011
Summary: The effect of an attorney of record failing to sign a Notice of Motion

JUDGMENT

AC BASSON J

[1] On 3 August 2011 I dismissed the application for a rescission of an order granted
by my learned Brother Molahleli on 20 May 2010 with costs. Herewith the reasons for
my order.

[2] The applicant in the rescission application is High Tech Transformers (Pty) Ltd.
The respondent, Mr. Antonie Lombard was formerly employed by the applicant as a
construction supervisor. On 20 May 2010 my learned brother Molahlehi found that the
dismissal of the respondent for operational reasons was unfair and ordered that the
applicant pay the respondent compensation equal to 12 months‟ salary.

Rescission application
[3] The applicant filed an application for rescission. The notice of motion is dated 28
May 2010 and the accompanying founding affidavit attached to the notice of motion is
dated 2 June 2010. The application for rescission was, however, only filed with this
Court on 7 June 2010. In paragraph 4 of the founding affidavit, the applicant states that
it first became aware that an order has been granted against the applicant on 21 May
2010. From the applicant‟s own papers, it accordingly appears that the rescission
application, which was brought in terms of Rule 16A of the Rules of the Labour Court, is
late. I will return to the late filing of the rescission application hereinbelow.

[4] The respondent filed an answering affidavit and the applicant filed a replying
affidavit. I will refer to the latter two affidavits in more detail hereinbelow. Suffice to point
out that it appears from the answering affidavit that the notice of motion together with
the founding affidavit was only served on the respondent‟s attorneys on 22 July 2010. It
appears from the papers that respondent only became aware of the rescission
application after the respondent was informed by the Sheriff that the applicant had
applied for rescission of the order. The notice of motion together with the founding

affidavit was faxed to the respondent‟s attorneys and on 30 July 2010 the respondent
filed a notice of opposition and an answering affidavit. On 12 August 2010, the applicant
filed a replying affidavit.

[5] At this juncture it should be pointed out that the applicant‟s attorneys purportedly
indexed and paginated the court file on 22 July 2010. The court file was therefore
indexed and paginated before the answering and replying affidavits were filed. No
attempt was made thereafter to update the index and pagination before this matter was
placed on the roll to be heard on 3 August 2011. In other words, for more than a year
the applicant made no attempt to update the court file. As a result this Court had to
search through the court file and locate the answering and replying affidavit in an
attempt to prepare for the matter. This is unacceptable.1 I will come back to this issue
when I deal with the issue of costs.

Unsigned Notice of Motion

[6] The notice of motion filed on behalf of the applicant in the rescission application
is unsigned despite the fact the provision is made for the signing of the Notice of Motion
above the particulars of the attorneys of record.

[7] Rule 7 of the Rules of the Labour deals with applications in this Court as follows:

„7 Applications
(1) An application must be brought on notice to all persons who have an interest in the
application.

1 In terms of the Labour Court‟s Directive which came into operation on 18 October 2010 the following is
stated in respect of the requirement to index and paginate the court file: “8.2.2 Court papers 8.2.2.1 At
least three court days prior to the hearing: The referring party must prepare a bundle of pleadings and
ensure that it is securely bound and paginated ,the referring party must prepare an index to the paginated
bundle; and a separate bundle of other documents, such as notices and copies, must be prepared and
securely bound.”

(2) The notice of application must substantially comply with Form 4 and must be signed
by the party bringing the application. The application must be delivered and must contain
the following information-
(a) the title of the matter;
(b) the case number assigned to the matter by the registrar;
(c) the relief sought;
(d) an address of the party delivering the document at which that party will accept
notices and service of all documents in the proceedings;
(e) a notice advising the other party that if it intends opposing the matter, that party must
deliver an answering affidavit within 10 days after the application has been served,
failing which the matter may be heard in the party's absence and an order of costs may
be made; and
(f) a schedule listing the documents that are material and relevant to the application.
(3) The application must be supported by affidavit. The affidavit must clearly and
concisely set out-
(a) the names, description and addresses of the parties;
(b) a statement of the material facts, in chronological order, on which the application is
based, which statement must be sufficiently particular to enable any person opposing
the application to reply to the document;
(c) a statement of the legal issues that arise from the material facts, which statement
must be sufficiently particular to enable any party to reply to the document; and
(d) the relief sought…‟2

[8] Apart from the fact that the notice of motion is unsigned, it does not comply with
Rule 7(2)(e) of the Rules which requires that the applicant advise the respondent that
he or she has a right to oppose the matter.

Respondents answering affidavit
[9] In his answering affidavit, the respondent raises two points in limine. (i) Firstly, it
is contended that the rescission application is fatally defective because the notice of
motion served on the respondent‟s attorney is not signed. It is submitted that this

2 Court‟s emphasis.

constitutes non-compliance with Rule 7(2) of the Rules of the Labour Court and that it
renders the application fatally defective. (ii) Secondly, it is contended that since the
rescission application is brought in terms of Rule 16A of the Labour Court Rules, the
rescission application had to be filed within 15 days within which the applicant became
aware of the Labour Court Order. I will deal with the issue of non-compliance with Rule
7(2) first and thereafter with the issue of condonation in the alternative.

Non compliance with the requirement so sign the notice of motion in the rescission
application
[10] The question before this Court is whether the failure of the attorneys to sign the
notice of motion renders the rescission application fatally defective to the extent that it
falls to be dismissed by this Court. This question must be considered against the
background of the Rules which states in what appears to be in peremptory terms, that
the notice of motion must be signed.

Legal position
[11] The consequences of a failure of an attorney to sign a notice of motion were
pertinently discussed in an unreported judgment of the Cape Division Jantjie v The
Minister of Labour.3 In this matter the applicant (Mr. Jantjie) brought and application for
an order to compel the Minster of Labour to determine the amount of compensation to
which he was entitled in terms of the Compensation for Occupational Injuries and
Diseases Act 130 of 1993. The Department was unresponsive and after various threats
of litigation, Jantjie launched an application for a mandamus. Although the Minister of
Labour gave notice to defend the application, it failed to file any papers and also failed
to appear on the date of the hearing. The Court held that the failure of the respondent to
appear led to the inevitable inference that the respondent had no defense and that the
appearance to defend was entered into solely to cause a delay.

[12] Of relevance to the present application is the fact that the attorney in Jantjie‟s
case similarly did not sign the notice of motion. The Court therefore had to consider the

3 (Case No 2193/2006).

effect thereof on the proceedings that served before it and more specifically whether the
failure to sign the Notice of Motion rendered the application a nullity. The Court further
considered whether this failure could be condoned by the Court.

[13] The Court had some difficulty in deciding this issue particularly in view of the fact
that case law on the point could not be found. The Court therefore turned to the leading
authorities on civil procedure in the High Court. The Court consulted Erasmus Superior
Court Practice but could not find any decisive authority on this point. The Court
thereafter consulted Harms Civil Procedure in the Supreme Court and quoted the
following passage from this authority in respect of the requirement to sign a notice of
motion:

„Although the rules are not explicit, the forms prescribed are such the signature of the
applicant or the attorney should4 appear.‟

The Court also referred to Van Winsen, Cilliers and Loots (Dendy) ed Herbstein and
Van Winsen: The Civil Practice of the Supreme Court of South Africa where the
following is stated:

„Whether the application is brought ex parte or otherwise, the notice must5 be signed by
the attorney issuing it or by the applicant, if he appears in person. The date and place of
signature must also be inserted.‟

[14] The Court in Jantjie pointed out that, although Herbstein and Van Winsen do not
refer to any case law in support of the statement that the notice of motion must be
signed by an attorney, the fact that this is widely considered to be a highly regarded
legal authority, the statement should be viewed with respect. The Court held that it has
a discretion to condone the irregularity in respect of the non signing of the notice of

4 The Court‟s emphasis.
5 Ibid.

motion in light of the fact that it was in the interest of justice and in light of the fact that a
refusal would have been highly prejudicial to Jantjies whereas no prejudice would have
been suffered by the respondents who was, in any event, not in Court.

[15] The Court then turned its attention to the Uniform Rules of Court and more in
particular Rule 6(5)(a) which reads as follows:

„Every application other than one brought ex parte shall be brought on notice of motion
as near as may be in accordance with Form 2(a) of the First Schedule and true copies of
the notice, and all annexures thereto, shall be served upon every party to whom notice
thereof is to be given.‟

[16] Although there is no explicit requirement in the Rules (supra) that the notice of
motion must be signed, Harms in his commentary points out that Form 2(a) (which must
be followed in terms of the Rules), specifically provides that the notice of motion be
signed. Therefore, although Form 2(a) requires a signature, the Rule itself does not
require a signature.

[17] In the case of a summons, the position appears to be different and therefore
more akin to the Rules of the Labour Court in respect of signatures. Rule 17(3) of the
Uniform Rules of Court explicitly requires that the summons must be signed:

„Every summons shall be signed by the attorney acting for the plaintiff and shall bear the
attorney‟s address, within eight kilometers of the office of the registrar, or, if no attorney
is acting, it shall be signed by the plaintiff, who shall in addition append an address
within eight kilometers of the registrar at which he will accept service of all subsequent
documents in the suit. . .‟ 6

6 Court‟s emphasis.

[18] It, however, appears that the Courts are willing to accept that it has a discretion

to condone a non compliance with the Rules despite the fact that the Rules are often

couched in peremptory terms. It further appears from these decisions that the facts of a

particular case will be taken into account in deciding whether to condone a non

compliance with the Rules. See, inter alia, in this regard: Northern Assurance Co Ltd v

Somdaka;7 Minister of Prisons and Another v Jongilanga;8 and Minister van Wet en

Orde v Molaolwa.9 In Magnetic Advertising Co (Pty) Ltd v Manie van Rooyen (Edms)

7 1960 (1) SA 588 (A). In this case the attorney for the plaintiff had failed to file a power of attorney with
the Registrar before suing out the summons. The Appellate Division (as it then was) accepted that this
“irregularity” can be condoned having regard to the facts. The AD overturned the decision of the Court a
quo which held that the Court did not have discretion to condone this irregularity. The Court on appeal
held as follows: “In my view it is clear beyond doubt that the last sentence of Order VI Rule 54 confers a
discretion on the Court in the matter of an irregular or improper proceeding in an action. In this respect I
agree with the decisions of Distins Seed Cleaning and Packing Co. (Pty.) Ltd v Stuart Wholesalers, 1954
(1) SA 283 (N) at pp. 285, 286, and Foster A v. Carlis and Houthakker, 1924 T.P.D. 247 at p. 252, dealing
with the corresponding Transvaal Rule 37. Once it is seen that the Court has a discretion, it seems to me
to follow inescapably that it was not intended that a breach of the Rules relating to actions should
necessarily be visited with nullity. Upon this simple ground, the judical reasoning to the contrary in Allan
Pohl, B Otto and Theron (Pty.) Ltd v Schoeman and Another, 1954 (3) SA 589 (T), and Employer's
Liability Assurance Corporation Ltd v Potgieter, 1959 (1) SA 850 (W), and Poligan v Rickagio, 1928 NPD
463 at p. 464, cannot be supported. To sum up so far, I hold that Order VI Rule 1 (read with Order XI
Rule C 2) is not imperative. (It is not necessary to decide what the position is in regard to Natal Rules not
dealing with actions. Rule 54 only refers to actions)...I proceed now to consider, on the facts, the propriety
of the condonation of the breach of the Rules in this case”. The Court held on the facts that the irregularity
should be condone in light of the fact that the ultimate fault (by not filing the power of attorney) lay not
with the plaintiff or her attorney but with the dilatoriness of the postal service. The Court further held that it
would be a hardship on the plaintiff to shut her out from ventilating her claim in Court, subject of course to
any defense open to the defendant.

8 1985 (3) SA 117 (A). In this case the Appellate Division pertinently considered the question whether a
procedural irregularity results in a nullity or whether it may be condoned. The Court held that the
irregularity can be condoned decided to do so. In arriving at a decision the Court took the following in
consideration: “Rule 17 (3) does not set a requirement concerning any of the essential elements of an
action; it relates to an ancillary feature of the summons. It was, in my view, merely intended to serve the
purpose of facilitating exchanges between the litigants. Although the Rule is couched in mandatory terms,
the Court has a discretion to condone a breach of its requirements. In the present case all the other basic
elements of a proper action were present. I think that the Court a quo had the power to make the order
which it did.As to the manner in which VAN RENSBURG J exercised his discretion, I share his view that
the mistake of the plaintiff's attorney was understandable, and that the defendants' attorney was only
slightly inconvenienced. There is in my opinion no ground for interfering with the conclusion reached.”

9 1986 (3) SA 900 (NC) at 904. The applicant in this matter applied for the setting aside of the
respondent's summons as an irregular proceeding, contending that the summons did not comply with
Rule 17 (3) of the Uniform Rules of Court as it had been signed by an attorney who was not admitted as
an attorney of the Northern Cape Division, having been admitted as such in the Transvaal Provincial
Division. The Court held that the summons was an irregular proceeding but that in all the circumstances it
had to be condoned. In respondent in this particular matter duly brought an application to condone his
non-compliance with the Rules of the Court relating to the signing of pleadings and for an order
authorising the signing of the summons and/or particulars of claim by an attorney duly admitted in the
Court.

Bpk,10 the notice of motion was signed by an attorney but by one who was not admitted
to practice in the Orange Free State Provincial Division. The Court, although accepting
that it has a discretion to condone this irregularity, nonetheless refused to make an
order condoning the irregularity. In refusing the order the Court took into account the
fact that no circumstances had been raised by counsel on behalf of the applicant to
justify such an order:

„In this Court a notice of application or motion must be signed by the attorney issuing
same or by the applicant if he appears in person. It cannot be signed by a person
holding the applicant's power of attorney unless such person is a duly qualified attorney.
(Cf. Rule of Court (0) 9 (b); Donovan v Bevan, 1909 T.S. 723; Estate Amod Jeewa v
Kharwa, B 1911 NPD 371 at p. 382.) Moreover the attorney who purports to sign on
behalf of applicant must be duly admitted to practice in this Division; otherwise the
provisions sec. 25 of Act 23 of 1934 would be rendered nugatory. (Cf. Schneider v
Roberts, 1917 E.D.L. 416.) The notice of set down in the present case is clearly irregular
since it is not signed by applicant or by a duly admitted attorney of this Court. Mr.
Berman, who appeared for applicant, asked the Court to condone the irregularity.
Assuming without deciding that I have the power to condone an irregularity of this nature
in terms of Rule of Court 37 (see D'Anos v Heylon Court (Pty.) Ltd., 1950 (2) SA 40 (C);
Goosen v van Dyk, 1939 W.L.D. 32), I am not prepared to do so in the present case: no
circumstances have been brought to my notice why I should do so.‟11

Conclusion
[19] It appears from the clear wording used in Rule 7(2) that it is peremptory and
therefore a requirement to sign a notice of motion. It is, however, accepted that, despite
the fact that it appears to be peremptory to sign the notice of motion, the Court should
not be unduly formalistic and inflexible and that circumstances may exist which requires

101957 (2) SA 174 (O).
11 At 175A - D.

a Court to condone an irregularity or a non-compliance with the Rules of the Labour
Court. However, it is equally accepted that Courts must be able to insist that litigants,
and in particular their legal representatives, be observant of the Rules that govern
proceedings in this Court. See in this regard Trans-African Insurance Co Ltd v
Maluleka,12 where the Court held as follows:

„No doubt parties and their legal advisers should not be encouraged to become slack in
the observance of the Rules, which are an important element in the machinery for the
administration of justice. But on the other hand technical objections to less than perfect
procedural steps should not be permitted, in the absence of prejudice, to interfere with
the expeditious and, if possible, inexpensive decision of cases on their real merits.‟

[20] If it is then accepted that the Court has a discretion to condone the non-
compliance with the Rule 7(2), the next question to consider is whether the non-
compliance in this particular case should be condoned.

[21] This discretion to condone must be exercised judicially upon a proper
consideration of the circumstances of the case and with due consideration as to what
will be fair to both sides.13 In exercising this discretion, the Court must also bear in mind
that the Labour Relations Act 66 of 1995 provides for the speedy resolution of disputes
in the workplace.14 Other factors that are relevant in considering whether to condone the

12 1956 (2) SA 273 (A) at 278F – G.
13 See Northern Assurance above n 7 at 596: “In other words it had a discretion, to be exercised judicially
upon consideration of the circumstances, to do what was fair to both sides. Dreyer v Naidoo, 1958 (2) SA
628 (N) at p. 629.” Although this decision was decided in a different context (in the context of a
summons), I am of the view that the same principle applies in the present instance.
14 See in this regard: JDG Trading (Pty) Ltd t/a Bradlows Furnishers v Laka NO and Others [2001] 3 BLLR
294 (LAC) at paragraph [13]. See also Gcaba v Minister for Safety and Security and Others 2010 (1)
BCLR 35 (CC) where the following is stated: „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, by
providing for the speedy resolution of disputes in the workplace and by regulating administrative conduct
to ensure fairness.‟

irregularity is whether the irregularity can be attributed to the fault of the party who failed
to comply with the Rules,15 and whether the non-compliance caused any prejudice to
the other party. The Court must also, in my view, consider whether an acceptable
explanation was given for the non-compliance, whether steps have been taken to
correct the irregularity and, most importantly, whether it will be in the interest of justice
to condone the irregularity.

[22] The requirement to sign the notice of motion is peremptory in terms of the Labour
Court Rules and therefore, in the absence of compelling reasons, the Court ought not to
condone the irregularity. I have taken into account that the applicant in its replying
affidavit makes no attempt whatsoever to explain the irregularity. In fact, it appears that
the applicant is attempting to deny that the notice of motion is unsigned:

„This [assuming that it refers to the Notice of Motion] was a copy from the file and it
happened to be unsigned. All of the other documents are signed. There is therefore no
basis to allege that the notices are not signed.‟

This is patently incorrect. Firstly, I have perused the file and it appears that the original
notice of motion that was filed with the Labour Court is likewise unsigned. Secondly, the
applicant has indexed and paginated the court file (as already indicated). The copy of
the notice of motion that forms part of the indexed bundle is unsigned.

[23] Apart from the fact that no attempt has been made to explain the irregularity in
the replying affidavit, the applicant made no attempt for more than a year to correct the
irregularity or to file an application for condonation for the irregularity despite the fact
that the respondent has explicitly raised the issue of non-compliance in its answering
affidavit as a point in limine. In my view the applicant had ample opportunity to remedy
the irregularity but had failed to do so. Moreover, the respondent is entitled to a speedy
resolution of the dispute. This defective application has resulted in an unnessesary
delay in bringing the matter to a finality. Where a party does not comply with the Rules

15 See Northern Assurance above n 7.

and makes no attempt to explain the irregularity or to correct the irregularity, it is in my
view, simply not in the interest of justice to condone the non-compliance. In the event
the application is dismissed with costs.

Late filing of the rescission application
[24] Although it is strictly not necessary to decide this point in light of my finding that
the non signing of the notice of notion is fatally defective in the present circumstances, I
will deal with the issue of the late filing of the rescission application in the event that I
am found to be wrong in exercising my discretion not to condone the irregularity of not
having signed the Notice of Motion.

[25] The papers confirm that the application for rescission has been filed out of time
and that the applicant ought to have filed the rescission application (in terms of Rule
16A of the Rules of the Labour Court) on or before 31 May 2010. In the replying affidavit
the applicant haphazardly tries to deal with the issue of the late filing as follows:

„If, however, the Registrar did not take notice of the opposing affidavit because it was not
filed timeously for the reasons stated above, then I respectfully submit that this is a case
in which condonation should be granted.‟

This statement is, to say the lease, nonsensical. The applicant does not address the
allegation of the late filing of the rescission application at all. It is not sufficient to merely
“submit” that condonation should be granted. Condonation is not merely for the asking
as was duly pointed out by the Court in NUMSA and Another v Hillside Alluminium
[2005] 6 BLLR 601 (LC).

„[12] Additionally, there should be an acceptable explanation tendered in respect of each
period of delay. Condonation is not there simply for the asking. Applications for
condonation are not a mere formality. The onus rests on the applicant to satisfy the court
of the existence of good cause and this requires a full, acceptable and ultimately
reasonable explanation. One of the primary purposes of the Labour Relations Act is to
ensure that disputes are resolved expeditiously, especially dismissal disputes. The

intention is that disputes alleging unfair dismissal should be referred to conciliation within
30 days of the dismissal (section 191(1)(b)(i) (Act 66 of 1995)); that the conciliation
process be completed within 30 days (section 191(5) (Act 66 of 1995)) and that disputes
for adjudication by the Labour Court should then be referred within 90 days of the end of
the conciliation process. For a variety of reasons, these time periods are often not
complied with in practice. Nevertheless, to do justice to the aims of the legislation,
parties seeking condonation for non-compliance are obliged to set out full explanations
for each and every delay throughout the process. 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. The latter principle
was stated by Myburgh, JP in NUM v Council for Mineral Technology [1999] 3 BLLR 209
(LAC) at 211G–H:

“There is a further principle which is applied and that is that 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.”‟

Although this decision was made in the context of a referral to this Court in terms of
section 191 of the LRA, the principle equally applies to an application in terms of Rule
16A of the Rules of the Labour Court.

[26] In the absence of an application for condonation, the application to rescind is
dismissed.

Costs
[27] The Court can find no reason why costs should not follow the result. The Court
has also taken into account the fact that the applicant has failed to properly index and
paginate the Court file.

____________________________
AC BASSON, J

APPEARANCES
APPLICANT: Mr H Pretorius from GEO Isseron & TL Friedman Inc
.
RESPONDENT: Mr C De Vries from Norton Rose