Case  CCT 107/23
[2023] ZACC 44

Judgement Date:12 December 2023

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Tuesday, 12 December 2023 at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal a judgment and order of the Labour Court of South Africa, Johannesburg (Labour Court) dated 24 October 2022.

The applicant, Ms Seipati Joyce Ditsoane, commenced employment with the respondent, ACWA Power Africa Holdings (Pty) Ltd, during November 2015. In October 2016, the applicant was retrenched. Pursuant to her dismissal, the applicant referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). In December 2016, the CCMA issued a certificate of non-resolution, prompting the applicant to refer her dispute to the Labour Court.

At the time that the applicant filed her statement of claim with the Labour Court in May 2017, she was represented by Mulima Denga Attorneys (MDA). The respondent, represented by Cliffe Dekker Hofmeyr (CDH), delivered a notice complaining that the applicant’s case was excipiable and that the referral was out of time. The applicant consequently served an application to condone the late referral, which the respondent opposed. In addition, the respondent delivered a notice of exception. The condonation application and the exception was set down for hearing on 3 and 17 November 2017, respectively.

In October 2017, prior to the condonation and exception hearings, the applicant sought a second opinion on her case from another firm of attorneys, Ndumiso Voyi Incorporated (NVI). On the same day, the applicant informed MDA that she would be changing attorneys and that they should file a notice of withdrawal. MDA then wrote an email to CDH indicating that the applicant advised them “that we should withdraw the matter”. The next day, MDA delivered a notice in terms of rule 13(1) of the Labour Court’s rules purporting to withdraw the matter. Unaware of MDA’s purported notice of withdrawal, the applicant’s new attorneys, NVI, wrote to CDH attaching a notice of substitution of attorneys and proposing that the condonation application be removed from the roll in order to afford the applicant an opportunity to amend her statement of claim and to supplement her condonation application. CDH replied that the applicant would need to bring a substantive application to demonstrate why the case should be revived, since it had been withdrawn by MDA. In November 2017, NVI contacted MDA to query the notice of withdrawal. MDA acknowledged that it had misunderstood the applicant’s instructions, which were to withdraw as her attorneys of record, and not to withdraw the matter in its entirety. MDA later delivered a confirmatory affidavit to this effect.

On 3 November 2017, the Labour Court postponed the condonation application and ordered the applicant to file an affidavit, within 10 days, to explain why her case ought to be revived. On 19 January 2018, CDH sent a copy of the order to NVI, apologising for only bringing the order to their attention sometime after the order was handed down and agreeing that the 10-day filing period for the revival application would run from 19 January 2018. On 24 January 2018, the applicant served an interlocutory application to set aside the notice of withdrawal, which the respondent opposed. On 24 October 2022, the Labour Court dismissed the interlocutory application, holding that the delay was attributable to the applicant and that the applicant’s prospects of success did not outweigh the prejudice caused to the respondent in having to defend the case years after the dismissal. The Labour Court and the Labour Appeal Court refused the applicant’s subsequent applications for leave to appeal.

In the Constitutional Court, the applicant submits that the notice of withdrawal was filed without her actual authority, that withdrawing the matter was not part of MDA’s mandate and that she was therefore not bound by it. Further, that MDA did not have implied, apparent or ostensible authority to withdraw her case. The respondent submits that, in the event that the Constitutional Court accepts the applicant’s allegation of an absence of actual authority, the Court should find that the applicant’s conduct ratified the withdrawal. In the alternative, the respondent submits that the applicant should be estopped from denying MDA’s authority to withdraw the case, that there is obvious prejudice to the respondent and that it would not be equitable for the Court to reject its reliance on estoppel.

In the unanimous judgment penned by Rogers J (Maya DCJ, Kollapen J, Mathopo J, Mhlantla J, Schippers AJ, Theron J and Tshiqi J concurring), the Constitutional Court held that its jurisdiction is engaged in terms of sections 23(1) and 34 of the Constitution as this matter relates to the applicant’s ability to pursue her unfair dismissal claim. Further, the Court granted leave to appeal because the applicant enjoys good prospects of success. In this regard, the applicant’s version contends that there were no consultations which took place prior to her retrenchment and the respondent’s decision to retrench her was substantively unfair. The Court held that the respondent had not sought to argue that the applicant has poor prospects of success or to establish trial prejudice.

On the merits of the case, the Court held that it was uncontested that the applicant had asked MDA to withdraw as her attorneys and MDA had misunderstood these instructions by going outside of its mandate and withdrawing the case as a whole. The filing of the notice of withdrawal therefore occurred without the applicant’s actual authority. On the respondent’s contention that the applicant’s conduct ratified MDA’s withdrawal of the case, the Court held that the applicant clearly wanted MDA to withdraw as her attorneys and she could not have understood from MDA’s email to CDH that it intended withdrawing the whole case.

On implied authority, the Court reasoned that it is a form of actual authority and does not convert an unauthorised act into an authorised one. Regarding the respondent’s reliance on estoppel, the Court held that there is no merit in the respondent’s invocation of apparent or ostensible authority. Apparent or ostensible authority cannot be based on the unauthorised conduct of the agent. Further, that it is difficult to see how the respondent was prejudiced from reliance on MDA’s supposed authority. In this regard, the respondent knew that the applicant was contesting the withdrawal. Consequently, the Court held that MDA had neither actual, nor apparent or ostensible authority to withdraw the applicant’s case and therefore the applicant was not bound by the notice of withdrawal. The Labour Court had misdirected itself in treating the applicant’s interlocutory application as a revival application and should have found that, since the case was never withdrawn, that there was no need to revive it. Further, the Labour Court erred in attributing the whole of the delay to the applicant.

For these reasons, the Constitutional Court upheld the appeal and set aside the Labour Court’s order. The Court ordered each party to pay its own costs.

The Full judgment  here