About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2024
>>
[2024] ZALCJHB 49
|
|
Mahlo v Commission For Conciliation, Mediations And Arbitration and Others (JR538/23) [2024] ZALCJHB 49 (8 February 2024)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no
JR 538/23
In
the matter between
EVANS
NTSABADI MAHLO
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER
SHUMANI SYDNEY TSHAKAFA
Second Respondent
UNILEC
SA (PTY) LTD
Third Respondent
Date
of hearing: 31 January 2024
Date
of judgment: 8 February 2024
JUDGMENT
EDWARDS
AJ
[1]
This review
application was set down for hearing on the unopposed roll on
31 January 2024.
[2]
After hearing
argument from the applicant’s representative both on service
and the merits, judgment was reserved.
[3]
On
the face of it, the application was not opposed by the respondents,
however, on thorough perusal of the file and the service
affidavit in
respect of the founding papers which was filed by the applicant’s
attorneys of record,
[1]
I am
not satisfied that proper service was affected on the respondents.
[4]
According to
the service affidavit, the founding papers in the review application
were served on the third respondent by email.
[5]
In terms of
the directive issued by the then Judge President of this court on
5 January 2022, the requirements which must be
met when
pleadings are served by email are as follows:
the
person who effected service must file an affidavit of service which
must state that, firstly, the address to which the email
was sent was
the correct email address of the addressee and confirm which
document/s was/were attached to the email. Secondly,
the service
affidavit must state that the party to whom the email was addressed
telephonically confirmed receipt of the email and
attachment/s and
further give the name of the person who confirmed receipt of the
transmission, alternatively, an email from the
party to whom it was
addressed confirming receipt of the email must be attached to the
affidavit.
[6]
In this case,
the service affidavit states that the application was served on the
third respondent by email and that the deponent
believes that the
address to which it was emailed is the correct email address for the
third respondent.
[7]
It
does not give any basis for this belief. In fact, the email
address to which it was sent
[2]
is not the email which is recorded on the notice of motion as the
email address for the third respondent.
[3]
[8]
It also does
not deal with the requirement of telephonic confirmation of receipt.
In fact, a paragraph to that effect is crossed
out on the affidavit
and it is instead written in manuscript that the application “
will
be hand delivered in the following weeks as well
.”
[9]
There is no
indication that this was indeed done.
[10]
Insofar
as service on the first and second respondents is concerned, all that
the service affidavit states is that “
and
email to
Johannesburg@ccma.org.za
”
.
[11]
Even
if one accepts that what is meant by this is that the review
application was served by the applicant on the first and second
respondents by email to this address, when one considers the annexure
to the service affidavit which purports to be proof of this,
[4]
it is clear that the email was in fact sent to
“
johannesburg@ccma.orh.za
”
.
[12]
Again, there
is no indication in the service affidavit that receipt of the review
application was confirmed telephonically with
the first or second
respondent.
[13]
The service
affidavit quite clearly does not meet the requirements of the
5 January 2022 directive.
[14]
This is
sufficient reason for this court not to further consider the matter,
however, it is also noted that service of the further
pleadings in
this application is similarly defective.
[15]
Although
it appears that the applicant’s notice in terms of Rules 7A(6)
and (8) were served on the third respondent by hand,
[5]
the address recorded for the third respondent in the notice of motion
is not the address recorded on the stamp evidencing service
of the
notices. There is no explanation provided for this.
[16]
Furthermore,
the service affidavit filed by the applicant’s attorneys of
record in respect of these notices
[6]
is deficient in that reference is made to the service of these
notices by email, but again there is no indication of who these
email
addresses belong to or that receipt was confirmed telephonically with
a representative of the third respondent.
[17]
In
the premises, I am not satisfied that there has been proper service
of the review application on any of the respondents or indeed
of the
Rule 7A(6) and (8) notices on the third respondent
.
[7]
In such circumstances, it would be inappropriate for this court to
make a determination on the merits.
I
make the following order:
1
The matter is struck from the roll due to non-compliance with the
Judge President’s directive dated 5 January 2022
regarding the
service of pleadings by email.
M
Edwards
Acting
Judge of the Labour Court
[1]
Pleadings
bundle, pp 45 to 47.
[2]
enquiries@unilecsa.co.za
.
[3]
Pleadings
bundle, p 4.
[4]
Pleadings
bundle, p 47.
[5]
Pleadings
bundle, p 50 and 119 respectively.
[6]
Pleadings
bundle, pp 123 to 135.
[7]
An
email from a representative of the first and second respondents
confirming receipt of the notices and their attachments is
annexed
to the service affidavit at Pleadings bundle, p132.