The Labour Court in Johannesburg will today hear an application for security for costs amounting to R200 000 made by Bonitas Marketing against an application for a review lodged by a former managing director of the company, Ray Mkhize.
Mkhize wants the court to review a private arbitration by senior advocate Mark Antrobus, which determined that he had been fairly dismissed on charges of misconduct.
Bonitas Marketing is opposing Mkhize’s application on the basis that it is frivolous and vexatious, and has no merit. A vexatious litigant is in law one who repeatedly goes to court on the same issue.
Bonitas Marketing will also make another application for condonation for failing to file its answering affidavit to Mkhize’s application.
Mkhize, who has remained unemployed since his dismissal, has offered to pledge an unencumbered empty stand in Durban, worth above R100 000, but Bonitas’s lawyers have refused to accept it as security.
Labour law experts have said the demand by Bonitas was unusual and normally applied to foreigners who could flee the country if the judgment was against them.
Mkhize said he opposed the security for costs because it was “going to prevent me from accessing justice in a free and democratic country”.
“Despite knowing that I was unemployed, the applicant [Bonitas] nevertheless, in an oppressive manner, suggested an impossible situation for me. Effectively, the applicant was denying me access to justice. Surely, if I cannot raise the money demanded, I cannot pursue the review application.”
He argued that the application sought to change the labour law jurisprudence in South Africa and intended to legitimise the widely held view that access to justice in the country was for the rich.
Mkhize reported alleged financial irregularities in Bonitas Medical Fund by acting principal officer and trustee Gerhard van Emmenis, who is now the chief of operations, to the Council for Medical Schemes (CMS), which started an investigation.
The CMS successfully applied to court to put Bonitas under curatorship because it was involved in an incomplete property development in KwaZulu-Natal and other investments that put about R80 million of members’ money at risk.
The court declared the six trustees of Bonitas were not fit and proper persons to hold their positions and ordered that they be replaced.
Rather than charging him for complaining to the CMS, Bonitas charged Mkhize with two counts of misconduct for paying R6m in VAT to the SA Revenue Service without board approval. Mkhize claimed this saved the scheme a further R6m in administrative penalties.
At the arbitration, he argued that the VAT misconduct was committed by Van Emmenis between July 2008 and June 2009 when he was the acting managing director for Bonitas Marketing before Mkhize joined the company.