FAMILY – Maintenance – Financial disclosure
Seeking maintenance pendente lite but not disclosing income for close corporation and additional income – Credits to personal account noted – Allegations of crypto-currency purchases and online dating payments – Points to financial irresponsibility and dishonesty which fatally undermines application – Failure to make full and proper disclosure of income – Due to material non-disclosure, applicant is not before court with “clean hands” – Application dismissed – Uniform Rule 43(1).
Facts: The parties were married in 2005, out of community of property with accrual. A child was born in 2010. The marriage still subsists but the respondent vacated the common home with the minor child during 2021 (more than two years prior to the judgment). The minor child’s primary place of residence is with the respondent. The respondent alleges that all of the minor child’s maintenance needs are taken care of by her. There is no allegation made by the applicant that he contributes to the maintenance of the minor child.
Application: In terms of Uniform Rule 43(1). Besides a small amount of R500 for the entertainment of the minor child, the applicant seeks maintenance pendente lite for himself of R26,270. He also seeks a contribution to costs of R50,000.
Discussion: The duty to make disclosure in Uniform Rule 43 proceedings; that it was submitted by counsel for the applicant that he has made full disclosure of his financial circumstances and was unable to maintain his standard of living; that counsel for the respondent, however, during her argument drew to the attention of the court that the applicant had filed a financial disclosure form; that no income is disclosed for his close corporation and no bank statements or financials were put up; the credits to his personal bank account; the additional rental income; the disturbing feature relating to the applicant’s expenditure; and that the allegation is made by the respondent that many of the crypto-currency purchases and online dating payments were made by the applicant after he had asked for, and received, money from the respondent on the pretext that he had no money to meet his expenses.
Findings: The allegation of falsely crying poverty therefore seems well substantiated and points to a level of financial irresponsibility and dishonesty which fatally undermines the entire application, particularly in the light of the applicant’s failure to make full and proper disclosure of his income. The nature of these expenses supports the respondent’s counsel’s submission that the applicant has sufficient income to meet his needs. Due to his material non-disclosure, the applicant is not before the court with “clean hands” and the court is unable to assess his financial needs. By parity of reasoning, the court is unable to assess the merits of the application for a contribution towards costs. In any event, the applicant has failed to itemise his anticipated costs to allow for a proper assessment thereof.
Order: The application is dismissed. The applicant is to pay the costs of the application.
FAMILY – Children – Parental leave
Discrimination between mothers and fathers – Offensive to norms of Constitution in that it impairs father’s dignity – Provisions of sections 25, 25A, 258 and 25C of the BCEA and corresponding provisions of UIF Act declared invalid through inconsistency with sections 9 and 10 of the Constitution – To extent that provisions: unfairly discriminate between mothers and fathers – Unfairly discriminate between one set of parents and another on the basis of whether their children (i) were born of the mother (ii) were conceived by surrogacy (iii) were adopted.
Facts: The applicants are Werner and lka Van Wyk, a married couple and parents of a child, Sonke Gender Justice whose role is public advocacy in support of gender equality, and the Commission for Gender Equality (CGE), a Chapter 9 institution. The respondent is the Minister of Labour who is the custodian of the Basic Conditions of Employment Act 75 of 1997 (BCEA). Mr Van Wyk is a salaried employee. Mrs Van Wyk is in business for her own account. They preferred that Mrs Van Wyk return to trade as soon as possible because the business might fail were she not to be active. In turn, Mr Van Wyk would be the primary caregiver during the early infancy of their child.
Application: This application is about allegations of unconstitutionality of sections 25, 25A, 258 and 25C in the BCEA which deal with maternity and parental leave. There are 6 entities who joined as amici curiae. It is contended that section 25(1) is unconstitutional because no valid grounds exist to distinguish one parent-employee from another. Thus, both parents should be entitled to parental leave in equal measure and the failure provide so is unfair discrimination and violates the dignity of all parents.
Discussion: Whether these provisions in the BCEA are unconstitutional because they unfairly discriminate against persons in violation of section 9 (equality) or section 10 (dignity) of the Constitution; that the contested sections are in chapter 3 of the BCEA which regulates the minimum leave that an employer must grant to employees in respect of several circumstances; that the provisions of the BCEA differentiate three categories of child: a child born of a mother, a child born by surrogacy, and an adopted child; that there is a differentiation made between mothers and fathers and between a birth-mother and other mothers or parents; that the logic intrinsic in the controversial provisions is that one parent is a primary caregiver and the other is an ancillary parent; and that because the scheme of the BCEA is that birth-mother is par excellence the primary caregiver, she therefore gets 4 months’ maternity leave.
Findings: To accord a paltry 10 days’ leave to a father speaks to a mind-set that regards the father’s involvement in early parenting as marginal. This is per se offensive to the norms of the Constitution in that it impairs a father’s dignity. The Van Wyk’s family model is not catered for by the BCEA. No sound reason exists for it not to do so. The Van Wyk family dynamic is wholly consistent with norms that the Constitution exalts. The sections in the BCEA offend sections 9 and 10 of the Constitution. Parliament must get to work to eliminate the inequalities. The two-year age-cap for adopted children is not out of kilter with the scope of the intended benefit and does not trigger a cogent complaint of unfair discrimination. The appropriate immediate means by which to remove inequality, in the interim period, is the proposal that all parents of whatever stripe, enjoy 4 consecutive months’ parental leave, collectively. In other words, each pair of parents of a qualifying child shall share the 4 months leave as they elect.
Order: It is declared that the provisions of sections 25, 25A, 258 and 25C of the BCEA and the corresponding provisions of the Unemployment Insurance Fund Act no 63 of 2001, sections 24, 26A, 27, 29A, are invalid by reason of inconsistency with sections 9 and 10 of the Constitution, to the extent that the provisions: unfairly discriminate between mothers and fathers; unfairly discriminate between one set of parents and another on the basis of whether their children (i) were born of the mother (ii) were conceived by surrogacy (iii) were adopted.
LABOUR – Dismissal – Covid-19 vaccination
Non-compliance with vaccination policy – Unfair dismissal claim – Condonation for late delivery of statement of claim sought – Explanation for delay not satisfactory in entirety – Proffered no reason for refusal to comply with policy – No explanation for failure to apply for exemption from vaccination – Policy was not arbitrary – Provided steps through exemption which employee refused to comply with – Lack of jurisdiction to adjudicate claim – No prospects of success – Condonation refused – Labour Relations Act 66 of 1995, s 187(1)(f).
Facts: The respondent is a well-known university in Bloemfontein. It employed the applicant in an administrative position. The applicant’s case is that the respondent dismissed him because he did not comply with the policy that required the employees to be vaccinated against Covid-19. The applicant contends that his dismissal was automatically unfair in that his vaccination status is an arbitrary ground. The applicant’s statement of claim is 15 days late.
Application: For condonation for the late delivery of the statement of claim. The applicant’s claim is for automatic unfair dismissal.
Discussion: The applicant’s explanation for his failure to have referred the matter to court within the period of 90 days amounts to the fact that when the dispute was referred to the CCMA, the commissioner found that the CCMA lacked jurisdiction to arbitrate the dispute, as the applicant’s case was that his dismissal was automatically unfair. A further reason proffered is that he did not secure the funds to instruct his attorneys. A lack of funds is generally not good enough to make out a case for an acceptable explanation for a party’s delay in the context of a condonation. The applicant’s explanation is not satisfactory in its entirety. The applicant was dismissed because he failed to comply with the respondent’s policy in force at the time that he should be vaccinated to gain entry to his workplace. The policy did not absolutely require that the respondent’s employees should be vaccinated. The policy allowed the respondent’s employees to apply for an exemption on religious, medical or other grounds. Employees could also enter their workplace if they produced a negative test for Covid-19 not older than seven days. The applicant never explained why he did not apply for exemption or why he objected to taking a Covid-19 test.
Findings: In response to the instruction from the respondent that he should attend work in person, the applicant presented himself at his workplace on multiple occasions, but each time he was refused because he was not vaccinated, not exempted, or not in possession of a negative test. The applicant did heed the instruction to attend but refused to comply with the adopted policy set as a condition to gain entry to the workplace. The reason for the applicant’s dismissal is his refusal to comply with the policy. The policy was informed by scientific consensus. To base a policy on scientific consensus can categorically not be arbitrary. Having found that the respondent did not unfairly discriminate against the applicant on an arbitrary ground, the court is bound to follow the judgement of DBT Technologies (Pty) Ltd v Gamevska  ZALAC 26 and conclude that the court does not have jurisdiction to adjudicate the applicant’s claim. The applicant does not rely on section 158(2) of the Labour Relations Act 66 of 1995. The importance of the matter is a factor in favour of granting condonation, but since the respondent’s policy is not found to be arbitrary, it does not make up for the applicant’s poor prospects of success.
Order: The application for condonation for the late delivery of the statement of claim is dismissed.
VAN DER MERWE AJ
ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Spartan Case Law
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