Kaefer Insulation (Pty) Limited v President of the Industrial Court and Others (JR9/97) [1998] ZALAC 28 (4 February 1998)

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[1998] ZALAC 28
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Kaefer Insulation (Pty) Limited v President of the Industrial Court and Others (JR9/97) [1998] ZALAC 28 (4 February 1998)

IN THE LABOUR APPEAL COURT
(HELD
AT JOHANNESBURG)
CASE NO: JR 9\97
IN
THE MATTER BETWEEN:
KAEFER INSULATION
(PTY) LIMITED APPLICANT
AND
THE PRESIDENT OF THE
INDUSTRIAL COURT FIRST RESPONDENT
MASHIDA DENNIS
LEGODI SECOND RESPONDENT
ABSOLOM
MKONE THIRD RESPONDENT
NATIONAL UNION OF
METAL WORKERS OF
SOUTH
AFRICA FOURTH RESPONDENT
______________________________________________________________________________
JUDGMENT
______________________________________________________________________________
KROON
JA:
[1] This is an application for the review of a
decision of the industrial court that was given by the second
respondent (“LEGODI
AM”) who, as additional member of that
court, presided over proceedings concerning a dispute between the
applicant and the third
respondent. In those proceedings the third
respondent was represented by one NTLEKO, a legal officer in the
employ of the fourth
respondent, a registered trade union, of which
the third respondent is a member. The first respondent is the
president of the industrial
court.
[2] At the outset it
should be stated that the first and fourth respondents, who have no
legal interest in the present proceedings,
ought not to have been
joined as respondents.
[3] The first and
second respondents did not seek to oppose the application. The third
and fourth respondents did initially file
a notice of opposition.
That opposition was, however, subsequently withdrawn.
[4] At the conclusion
of a disciplinary hearing held on 30 August 1995 the third respondent
was found guilty on a charge of theft
and dismissed from his
employment with the applicant. The dismissal became the subject of a
dispute between them and the matter
was referred to the relevant
industrial council having jurisdiction, such referral having taken
place on 10 October 1995. A dispute
meeting was held on 6 November
1995, but no resolution of the matter was achieved. There was no
extension of the thirty day period
fixed in section 27A (2) of the
Labour Relations Act, No. 28 of 1956 (“the Act”) for the
settlement of such a dispute.
[5] On 9 May 1996, or
possibly some days thereafter - the precise position is not clear -
the third respondent, represented by the
fourth respondent,
instituted proceedings against the applicant in the industrial court
in terms of section 46 (9) of the Act. The
relief sought by the
third respondent was his reinstatement in his erstwhile employment
with retrospective effect as from the date
of his dismissal,
alternatively, an award of compensation. The cause of action relied
upon by the third respondent was in essence
that he was in fact not
guilty of the alleged theft and details of his defence to the charge
were set out. Implied in his statement
of case was the contention
that his dismissal had constituted an unfair labour practice.
[6] The applicant opposed the proceedings. Its
defence was of a two-fold nature. In addition to reliance on the
allegation that
the third respondent had been properly convicted on
the charge of theft, in substantiation of which the applicant set out
a number
of averments, the applicant invoked a point
in limine
. It was to the following
effect : in the absence of an extension thereof the thirty day period
referred to in section 27A (2) of
the Act had expired on 9 November
1995; in terms of section 46 (9)(b)(i) of the Act the third
respondent had been obliged to refer
the dispute to the industrial
court for determination not later than ninety days after 9 November
1995, i.e., by no later than 7
February 1996; the third respondent
had failed to comply with this prescription, the proceedings in the
industrial court having been
instituted more than three months after
7 February 1996; the third respondent’s application was accordingly
fatally defective and
the industrial court had no jurisdiction to
entertain same.
[7] I would interpose the comment here that
subject to what follows the point
in
limine
was well taken in law.
However, in terms of section 46 (9)(b)(i) the industrial court is
empowered, on application to it, to condone
the late referral of a
dispute to it on good cause shown.
[8] There was, however,
no response on behalf of the third respondent to the applicant’s
statement of its defence, which was filed
on 31 May 1996, and,
specifically, no application by the third respondent for condonation
of the late referral of the matter to the
industrial court was
forthcoming.
[9] The point
in limine
was set down by the
Registrar of the industrial court for hearing on 23 January 1997 and
proper notice thereof was given to both
parties. On that day the
applicant was represented by an attorney, Ms K. FULTON. There was,
however, no appearance on behalf of
the third respondent. Ms FULTON
successfully moved the presiding officer, LEGODI AM, for an order
upholding the point
in limine
and dismissing the third respondent’s application in terms of
section 46(9).
[10] On 11 March 1997 NTLEKO, on behalf of the
third respondent, filed what purported to be an application for
rescission of the aforesaid
judgment. That document (quoted
verbatim
)
read as follows:
“APPLICATION FOR RECISION OF JUDGMENT :
I.C.K. 11/2/00425
________________________________________________________________
Sirs
Kindly the applicant party hereby applying for
recision of the judgment on the above matter. The judgment given on
the 23/01/97 should
be rescinded for the following reasons.
1. An application for request to change the
date was made on 13/01/97. This was confirmed with the registrar
telephonically on the
14/01/97.
2. The applicant representative i.e The Union
officiall incharge and dealing with the matter was tight up at the
Paul Hoff in Pretoria
in the matter between E. Maphanga and Gulf
Steel (PTY) LTD NH 11/2/23613 a full Trail for two days i.e
23/24/01/97.
The attached latter of 13/01/97 has the clarity
and affidavit on the question of in limine.”
The attached letter read as follows:
“13 January 1997
TO: INDUSTRIAL COURT OF SOUTH AFRICA
ATT: THE REGISTRAR
FRM: NUMSA HIGHVELD REGION
SUBJECT:
APPLICATION
FOR THE POST-PONMENT
CASE NO: 11/2/00425
Sir
This case is on the 23/24/01/97 for the point
in limine:
I therefore propose that the matter be set down
for two days, the 1st day deals with the point in limine and a trial
whole day, and
finally the following day.
Thank you
A.K. NTLEKO
REGIONAL LEGAL OFFICER
p.p. KAEFER
INSULATION”
As will appear later, this letter had been sent
to the Registrar by NTLEKO, but a copy thereof was not sent to either
the applicant
or its attorneys, who were on record. The reference to
an “affidavit” in the notice of application for rescission was
never
elucidated.
[11] Three other
documents contained in the record require to be mentioned. The first
is a document titled “APPLICATION FOR POST-PONMENT
Of I.C.K No
11/2/00425". It was addressed to the Registrar and the
applicant, but, as will appear later, it was in fact not
sent to
either. It read as follows:
“This is to confirm that the applicant party
would not be present for the scheduled point in limine on 23/01/97.
On 23/23/01/97 the applicant representative is
tight up with NH 11/2/23613 at Paul Hof Pretoria i.e full Trail. The
affidavit on
point in limine would be filed immediately on receipt of
a new date and should be two days please i.e one for point in limine
and
one for full trail.
Thank you
‘(signature)’
P.P. A.K. NTLEKO
REGIONAL LEGAL
OFFICER DATE : 21/01/97"
[12] The second
document, a copy of which was telefaxed by NTLEKO to the applicant’s
attorneys on 13 May 1997, was in draft affidavit
form. The proposed
deponent thereto was NTLEKO. The document was titled “AFFIDAVIT ON
LATE FILLING”. It canvassed the alleged
reasons why the
application of the third respondent in the industrial court had only
been launched during May 1996 and, in somewhat
terse detail, raised
the contention that the third respondent had favourable prospects of
success in that application. The inference
is that it was the
intention that an affidavit substantially in the terms set out in the
draft would at some stage be utilised in
support of an application
for condonation of the late institution of proceedings in the
industrial court. However, such an affidavit
was never signed nor
attested and, as already mentioned, no application for condonation
was ever brought.
[13] The third document
was titled “APPLICATION FOR CONDONATION FOR LATE FILING”. It,
too, was in draft form and the proposed
deponent was also NTLEKO and,
according to the attestation clause, the affidavit was to be signed
by him during January 1997. Although
the draft dealt with NTLEKO’s
involvement in the matter as from the end of April 1996 insofar as
this had a bearing on the late
institution of proceedings in the
industrial court it did not canvass the reasons why those proceedings
had not been launched prior
to 7 February 1996. No sense can be made
of a paragraph therein purporting to deal with the third respondent’s
prospects of success
on the merits of the application in terms of
section 46(9). Neither the coming into being of this document nor
its inclusion in
the record was explained. One may speculate,
however, that it was the initial draft of an affidavit intended to be
used in support
of an application for condonation of the late
institution of proceedings in the industrial court. It, too, was,
however, never signed
nor attested.
[14] On 10 June 1997 the applicant filed and
served a notice of its intention to oppose the third respondent’s
application for rescission
of the judgment delivered on 23 January
1997. That notice was supported by an affidavit deposed to by one
Klempgen, the financial
director of the applicant. In that affidavit
the following points,
inter alia
,
were taken: good and sufficient cause had to be shown before a court
would rescind an earlier judgment given by it; good and sufficient
cause embraced both an acceptable explanation for the default on the
part of the party seeking rescission and the demonstration by
that
party of a
bona fide
claim;
in casu
the two allegations contained in the application for rescission of
judgment bore only on the first of these two requirements; the
allegations were, however, not only not made under oath, but were
also bald and sketchy and, in addition, failed to explain why the
third respondent had not himself attended the hearing on 23 January
1997; the allegations did not bear on the second requirement
referred
to above and there was no evidence before the court of the existence
of a
bona fide
claim, a requirement that related not only to the third respondent’s
claim that he had been wrongfully dismissed, but also to any
claim to
condonation of the late institution of proceedings in the industrial
court.
[15] The application
for rescission was heard on 11 June 1997, LEGODI AM again being the
presiding officer. At the hearing NTLEKO
handed to Ms FULTON and to
LEGODI AM copies of three documents, viz., the “APPLICATION FOR
POST-PONMENT” dated 21 January 1997,
referred to earlier in this
judgment, and two telefax transmission reports, the one reflecting
that a telefax of two pages had been
transmitted to the Department of
Internal Affairs on 11 March 1997 and the other similarly reflecting
that a telefax of two pages
had been sent to the applicant on the
same date.
[16] No further papers were filed on behalf of
the third respondent in support of the application for rescission or
in response to
the applicant’s opposition thereto. However, NTLEKO
was given leave by LEGODI AM to place evidence before him by way of
viva voce
testimony. NTLEKO was thereafter cross-examined by Ms FULTON. His
evidence proceeded thus:
(a) Subsequent to receiving the notice of set
down for the hearing on 23 January 1997 he received a notice of set
down for the hearing
of another matter in another industrial court on
23 and 24 January 1997. That matter was part heard and the resumed
hearing would
take up the whole of the allotted two days, whereas the
hearing of the present matter on 23 January 1997 would only have
lasted a
few hours. He therefore decided that he should accord
precedence to the part heard matter and secure a postponement of the
hearing
of the present matter. To that end he telefaxed the letter
of 13 January 1997, referred to above, to the Registrar. (It may be
recorded here that the letter was in fact received by the Registrar
and bore his stamp of the same date, but he omitted to place
the
letter in the file and it was not before the court at the hearing on
23 January 1997.) He had given instructions for a copy
of the letter
to be telefaxed to the applicant, but although he had been told that
that had been done, he had been unable to find
any proof thereof and
he could accordingly not dispute the applicant’s denial that it had
received the letter.
(b) On subsequently
perusing his copy of the letter he observed that although the letter
bore the heading “SUBJECT : APPLICATION
FOR THE POST-PONMENT”,
the body of the letter did not in terms seek a postponement of the
hearing and he considered that such an
intention might not be
ascribed to it. He accordingly drafted the document dated 21 January
1997, referred to above, and gave instructions
that it be telefaxed
to both the Registrar and the applicant. Again, however, he could
find no proof that his instructions had in
fact been carried out and
he accepted that he was not in a position to dispute a denial that
the instructions had been followed.
At the time, however, he had
been under the impression that both the letter of 13 January 1997 and
the document dated 21 January
1997 had been telefaxed to the
applicant. For that reason he had not deemed it necessary directly
to contact either the applicant
or its attorneys of record in
connection with the postponement he desired.
(c ) It was his stance
that, as had been his experience in the past in other matters, if the
applicant was not amenable to the postponement
it would have made
that attitude known to him. In any event, so he contended, the
reasons contained in the second document for his
unavailability on 23
January 1997 were so cogent that any reasonable person would have
accepted their sufficiency and the situation
was accordingly not one
where he had even been required to request a postponement, and it had
been sufficient for him to intimate
that, for the reasons furnished,
he would not be present at the hearing.
(d) At a stage he
seemed to contest the proposition put to him that a postponement
would only have happened if his opponent had agreed
thereto or if the
court had so ordered, but the basis on which he did so was anything
but clear. He later added that he had also
telephonically advised
the Registrar that he would not be present at the hearing on 23
January 1997.
(e) In the
circumstances he had advised the third respondent that it would not
be necessary for him to attend court on that day.
(f) It had not been
practicable for him to appoint a substitute legal officer to stand in
for him at the hearing because, in the absence
of any affidavit
having been filed - apparently the reference was to an affidavit in
support of an application for condonation of
the late institution of
the proceedings - such substitute officer, a stranger to the matter,
would not have had sufficient information
to deal with the matter.
Secondly, if indeed such substitute officer had been available he
would have had to be seconded from another
regional office of the
fourth respondent, and for head office to have approved thereof, good
reason would have had to exist.
(g) In the light of the
documents which, as he supposed the position to be, had been sent to
the applicant, it had in his opinion
not even been necessary for
anyone to attend court on his behalf merely to confirm his
unavailability.
(h) It was his suggestion that if he was not
present on 23 January 1997 and the reasons for his non-attendance
were in fact not known,
the court should have issued an order -
apparently in the form of a rule
nisi
- calling upon him to furnish reasons for his non-attendance, and if
he failed to do so, only then could a final judgment have been
given
against his client.
(i) In explanation of the two telefax
transmission reports referred to above he stated that during March
1997 he had been advised
by workers at the applicant’s plant that a
manager had told them that the applicant had won the case against the
third respondent
when NTLEKO and the third respondent had not turned
up for the hearing. He, NTLEKO, had, however, told the workers that
he had applied
for a postponement of the matter. He contacted the
manager to complain of his “provocation” of the workers, but the
manager
advised him that, armed with the judgment of 23 January 1997,
he had in fact advised the workers as they had conveyed to NTLEKO.

The manager accepted NTLEKO’s offer to “refax” the document
dated 21 January 1997 to him and NTLEKO thereupon telefaxed a
copy
thereof both to the applicant and to the Registrar of the court.
[17] It requires mention that during the course
of his evidence NTLEKO did not seek to deal with either the merits of
the third respondent’s
claim against the applicant in the main
application or any answer the third respondent might have had to the
point
in limine
invoked by the applicant. In his initial address to the court he did
contend that his client had a strong case on the merits in
that, so
he said, persons who were involved in the case would come to testify
on the third respondent’s behalf, and that good reason
existed for
his being in default on 23 January 1997 and that such default had not
been the result of “deliberate ignorance”.
In his replying
address, and clearly in response to the argument addressed to the
court by Ms FULTON (i.e., that for good and sufficient
cause to be
established for the rescission sought, the third respondent had had
to show,
inter alia
,
that he had a
bona fide
counter to the point
in limine
,
but had failed to do so) NTLEKO argued that the question of the
grounds on which condonation for the late institution of proceedings
would be sought had not had to be canvassed by him and such
canvassing would in fact have been improper; that was not the purpose
of the proceedings then before the court; that issue would only arise
after, and if, the court granted the rescission sought.
[18] LEGODI AM granted the application for
rescission and intimated that the reasons for that decision would be
furnished later.
The reasons were furnished on 20 June 1997. In
those reasons he recorded - and this is borne out by the transcript
of the proceedings
on 23 January 1997 - that he had not been willing
to entertain Ms FULTON’s application that the point
in limine
be adjudicated on the
basis that the third respondent was in default. He had considered
that such a procedure would be a waste of
time and the judgment
obtained meaningless because the third respondent was likely
thereafter to bring an application for the rescission
of the
judgment. He had strongly suggested to Ms FULTON that the most
reasonable thing to do in the circumstances was to postpone
the
matter with costs for a stated period and to order the third
respondent to file an affidavit to explain why he was not in court
or
represented on 23 January 1997. Ms FULTON had, however, insisted on
being heard and intimated that she would deal with any application
for rescission if and when that became necessary. It was in those
circumstances that the order of 23 January 1997 was issued. The
reasons proceeded further as follows:
(1) The industrial court has a discretion to
rescind its own orders on good cause being shown. The discretion has
to be exercised
judicially. The court will generally not close the
door to a litigant who has shown good reasons for his default.
(2) NTLEKO’s decision to accord precedence to
the part heard matter over the present matter on 23 January 1997 made
sense and was
reasonable.
(3) Because there was no proof that the
document dated 21 January 1997 had been sent to either the Registrar
or the applicant, it
fell to be ignored. However, because the letter
of 13 January 1997 had been received by the Registrar - it bore his
official stamp
- cognizance had to be taken thereof. That letter had
not been in the court file on 23 January 1997. Had he been aware
thereof
he would have refused to proceed by way of default and would
instead have postponed the matter with costs.
(4) NTLEKO had sufficiently explained why he
had not arranged for someone to appear in his stead even if only to
explain why he, NTLEKO,
was not available to proceed with the matter.
(5) In the light of (2), (3) and (4) NTLEKO had
given a satisfactory and convincing explanation, which was sufficient
and good, for
his absence from court on 23 January 1997. He was only
to be faulted for failing to make sure that the documents dated 13
and 21
January 1997 had in fact been telefaxed to the applicant. On
the ground alone that the third respondent had established sufficient
reason for the default in question the application for rescission
should succeed. A failure to demonstrate good prospects of success
on the merits should in those circumstances, i.e., the existence of
sufficient reason for the default, generally not result in the
dismissal of an application for rescission.
(6) In any event, as to facts relevant to
determining whether it would be fair and just to grant the indulgence
of rescission he could
have regard to the third respondent’s
statement of case, and that reflected that a
prima
facie
case had been made out.
(7) He could not agree with the argument that
NTLEKO had been negligent and that such negligence should be imputed
to the third respondent.
All that NTLEKO did was to tell the third
respondent not to attend court on 23 January 1997 because he had
applied for a postponement.
What else could have been expected of
the third respondent in such circumstances? The industrial court has
shown its reluctance
to deprive an innocent party of having its day
in court and in the absence of gross negligence on the part of NTLEKO
the third respondent
could not be punished.
[19] The applicant
thereafter launched the present proceedings for the review of the
decision reached by LEGODI AM. The relief
sought by the applicant
was an order:
“1.1 That the proceedings before the Second
Respondent as the party who presided over the proceedings of the
Industrial Court under
case number ICK 11/2/00425 in the matter
between Absolom Mkone and Kaefer Insulation (Pty) Ltd and the order
which was given by him
on 11 June 1997, rescinding an order which was
given by him on 23 January 1997 by default, be reviewed, corrected
and set aside.
1.2 That the aforesaid order be substituted by
an order that the Third Respondent’s application for rescission of
the order granted
by default on 23 January 1997 be dismissed.
1.3 That those Respondents who oppose the
application be ordered to pay the costs thereof, jointly and
severally, the one paying the
others to be absolved.”
[20] The contention on
behalf of the applicant was in short that the decision of LEGODI AM
was vitiated by gross irregularities,
including irregularities that
followed on a misinterpretation of the applicable legal principles.
[21] While the decision is not appealable -
unlike the earlier decision of 23 January 1997 which had a final
definitive effect on
the case and was therefore appealable the later
decision was merely interlocutory in effect and did not dispose of
any portion of
the main case - it is not to be gainsaid that it is
reviewable in terms of the principles applicable to common-law
review, the industrial
court not being a court of law. Those
principles were set out by CORBETT CJ in
Hira and Another v Booysen and Another
1992 (4) SA 69
(A) at 93-94 as follows:
“To sum up, the present day position in our
law in regard to common-law review is, in my view, as follows:
(1) Generally speaking, the non-performance or
wrong performance of a statutory duty or power by the person or body
entrusted with
the duty or power will entitle persons injured or
aggrieved thereby to approach the Court for relief by way of common
law review.
(See the
Johannesburg
Consolidated Investment
case
supra
at 115.)
(2) Where the duty/power is essentially a
decision-making one and the person or body concerned (I shall call it
‘the tribunal’)
has taken a decision, the grounds upon which the
Court may, in the exercise of its common-law review jurisdiction,
interfere with
the decision are limited. These grounds are set forth
in the
Johannesburg Stock Exchange
case
supra
at
152A-E.
(These grounds, stated with
reference to a decision of the president of the Johannesburg Stock
Exchange, were listed as follows -
see the passage at 84F of the
judgment in
Hira
’s
case:
‘
Broadly,
in order to establish review grounds it must be shown that the
president failed to apply his mind to the relevant issues
in
accordance with the “behests of the statute and the tenets of
natural justice” ... Such failure may be shown by proof,
inter alia
, that the decision was arrived at
arbitrarily or capriciously or
mala fide
or as a result of unwarranted adherence to a fixed principle or in
order to further an ulterior or improper purpose; or that the
president misconceived the nature of the discretion conferred upon
him and took into account irrelevant considerations or ignored
relevant ones; or that the decision of the president was so grossly
unreasonable as to warrant the inference that he failed to apply
his
mind to the matter in the manner aforestated.’)
(3) Where the complaint is that the tribunal
has committed a material error of law, then the reviewability of the
decision will depend,
basically, upon whether or not the Legislature
intended the tribunal to have exclusive authority to decide the
question of law concerned.
This is a matter of construction of the
statute conferring the power of decision.
(4) Where the tribunal exercises powers or
functions of a purely judicial nature, as for example where it is
merely required to decide
whether or not a person’s conduct falls
within a defined and objectively ascertainable statutory criterion,
then the Court will
be slow to conclude that the tribunal is intended
to have exclusive jurisdiction to decide all questions, including the
meaning to
be attached to the statutory criterion, and that a
misinterpretation of the statutory criterion will not render the
decision assailable
by way of common-law review. In a particular
case it may appear that the tribunal was intended to have such
exclusive jurisdiction,
but then the legislative intent must be
clear.
(5) Whether or not an erroneous interpretation
of a statutory criterion, such as is referred to in the previous
paragraph (ie where
the question of interpretation is not left to the
exclusive jurisdiction of the tribunal concerned), renders the
decision invalid
depends upon its materiality. If, for instance, the
facts found by the tribunal are such as to justify its decision even
on a correct
interpretation of the statutory criterion, then normally
(ie in the absence of some other review ground) there would be no
ground
for interference.
Aliter
,
if applying the correct criterion, there are no facts upon which the
decision can reasonably be justified. In this latter type
of case it
may be justifiably be said that, by reason of its error of law, the
tribunal ‘asked itself the wrong question’, or
‘applied the
wrong test’, or ‘based its decision on some matter not prescribed
for its decision’, or ‘failed to apply its
mind to the relevant
issues in accordance with the behests of the statute’; and that as
a result its decision should be set aside
on review.
(6) In cases where the tribunal is of a
discretionary (rather than purely judicial) nature, as for example
where it is required to
take into account considerations of policy or
desirability in the general interest or where opinion or estimation
plays an important
role, the general approach to ascertaining the
legislative intent may be somewhat different, but it is not necessary
in this case
to expand on this or to express a decisive view.”
[22] Notwithstanding that members of the
industrial court are appointed by reason,
inter
alia
, of their knowledge of the law
that court, as already stated, is not a court of law, and it is clear
that the question of the interpretation
of the applicable legal
principles is not left to the exclusive jurisdiction of the
industrial court. See
Photocircuit
SA (Pty) Ltd v De
Klerk
NO and De Swart NO and Others
1991
(2) SA 11
(A). In that case the industrial court had based its
decision to order the reinstatement of dismissed workers upon
findings that
the employer’s conduct in refusing to comply with a
request from the employees and their trade union that the employer
deduct union
subscriptions from the employees’ wages and pay same
directly to the union, had amounted to an unfair labour practice;
that a strike
embarked upon by the employees in protest against that
conduct had been a legal one; and that the dismissals of the
employees for
participation in the strike had consequently been
unfair and unreasonable. The decisions of the industrial court were
held to be
justiciable by means of review as they had been reached by
a failure to appreciate the cogency of a clause in an industrial
council
agreement declared by the Minister in terms of see 48(1)(b)
of the Act to be binding on,
inter
alia
, the employer, the effect of
which was to prohibit the employer from making the deductions in
question and the fact that, in terms
of sec. 53(1) of the Act,
non-compliance with the prohibition would constitute an offence. Had
the industrial court given due consideration
to these aspects it
would have come to the opposite conclusion and would have been driven
to hold that there had been no unfair labour
practice, no legal
strike and no unfair or unreasonable dismissals. Simply stated, the
industrial court had arrived at two grossly
unreasonable decisions.
See, too,
Nasionale Sorghum
Bierbrouery (Edms) Bpk (Rantoria Divisie) v
John NO & Andere
(1990) 11 ILJ 971 (T), also a review of the decision of the presiding
officer in industrial court proceedings, referred to in the
judgment
as the first respondent. At 973D-G ELOFF DJP (as he then was) is
reported as follows (I have taken the liberty of translating
the
Afrikaans into English):
“
It
requires no argument that this court does not without anything more
have appellate jurisdiction in respect of the decision of the
first
respondent. It has only the right to review in accordance with the
common-law. It has also been decided time and again that
the court
will only exercise that power under certain specific circumstances,
inter alia
, where the first
respondent’s decision is so grossly irregular that it warrants the
inference of
mala fides
or improper influence or that the
first respondent failed at all to apply his mind to the matter. In
the statutory context of labour
law such a decision can also be
assailed if the first respondent followed clearly incorrect
principles applicable in that field (sic)
or left material factors
out of consideration. In so saying I do not intend to convey that
there is yet a type of appeal, but I
consider that where it is clear
that the first respondent threw material principles overboard it can
be said that he did not sufficiently
apply his mind to the matter to
the extent demanded of him by the law. If that is clear then his
decision is reviewable.”
[23] With respect, I am
unable to subscribe to much of the reasoning of LEGODI AM. My
comments thereon are set out in the paragraphs
that follow:
[24] It is correct that like our ordinary
courts the industrial court has a discretion to rescind its own
orders on good cause shown
and that that discretion must be exercised
in a judicial manner in accordance with the principles laid down over
the years by our
courts.
M M Steel
Construction CC v Steel Engineering & Allied Workers Union of SA
& Others
(1994) 15 ILJ 1310
(LAC) at 1311G;
Thompson’s Security
Services (Pty) Ltd v Laubscher
(1995) 16 ILJ 393 (LAC).
[25] As to what constitutes sufficient cause it
will suffice to refer to the judgment in
Chetty
v Law Society, Transvaal
1985 (2) SA
756
(A). At 764I - 765E, 767I - 768D and 768I, respectively, the
following passages appear:
“
The
appellant’s claim for rescission of the judgment confirming the
rule
nisi
cannot be brought
under Rule 31 (2)(b) or Rule 42(1), but must be considered in terms
of the common law, which empowers the Court
to rescind a judgment
obtained on default of appearance, provided sufficient cause therefor
has been shown. (See
De Wet and Others v Western Bank Ltd
1979 (2) SA 1031
(A) at 1042 and
Childerly Estate Stores v
Standard Bank of SA Ltd
1924 OPD 163.)
The term ‘sufficient
cause’ (or ‘good cause’) defies precise or comprehensive
definition, for many and various factors
require to be considered.
(See
Cairn’s Executors v Gaarn
1912 AD 181
at 186 per INNES
JA.) But it is clear that in principle and in the long-standing
practice of our Courts two essential elements
of ‘sufficient cause’
for rescission of a judgment by default are:
(i) that the party seeking relief must present
a reasonable and acceptable explanation for his default; and
(ii) that on the merits such party has a
bona fide
defence which,
prima facie
, carries some prospect
of success. (
De Wet
’s
case
supra
at 1042;
PE Bosman Transport Works
Committee and Others v Piet Bosman Transport (Pty) Ltd
1980
(4) SA 794
(A);
Smith NO v Brummer NO
and Another; Smith NO v Brummer
1954
(3) SA 352
(O) at 357-8.)
It is not sufficient if only one of these two
requirements is met; for obvious reasons a party showing no prospect
on the merits will
fail in an application for rescission of a default
judgment against him, no matter how reasonable and convincing the
explanation
of his default. And ordered judicial process would be
negated if, on the other hand, a party who could offer no explanation
of his
default other than his disdain of the Rules was nevertheless
permitted to have a judgment against him rescinded on the ground that
he had reasonable prospects of success on the merits.
-------------------
Mr
Wentzel
’s
main argument in regard to the application for rescission was that on
the merits the appellant would, if now given the opportunity
to
oppose the application for removal of his name from the roll, have
good prospects of success. Indeed, his argument on the
reasonableness
of the explanation given by the appellant for his
failure timeously to file opposing affidavits occupies only a very
small part of
his lengthy and detailed heads of argument. As I have
pointed out, however, the circumstance that there may be reasonable
or even
good prospects of success on the merits would satisfy only
one of the essential requirements for rescission of a default
judgment.
It may be that in certain circumstances, when the question
of the sufficiency or otherwise of a defendant’s explanation for
his
being in default is finely balanced, the circumstance that his
proposed defence carries reasonable or good prospects of success on
the merits might tip the scale in his favour in the application for
rescission. (Cf
Melane v Santam
Insurance Co Ltd
1962 (4) SA 531
(A)
at 532.) But this is not to say that the stronger the prospects of
success the more indulgently will the Court regard the explanation
of
the default. An unsatisfactory and unacceptable explanation remains
so, whatever the prospects of success on the merits. In
the light of
the finding that the appellant’s explanation is unsatisfactory and
unacceptable it is therefore, strictly speaking,
unnecessary to make
findings or to consider the arguments relating to the appellant’s
prospects of success. Nevertheless, in
the interests of fairness to
the appellant, it is desirable to refer to certain aspects thereof.
---------------
But, on the other hand, it is also reasonably
possible that the Court might have considered that a less severe
disciplinary measure
than removal from the roll be taken. To that
extent the appellant might have satisfied the second of the two
essential requisites
for rescission. But this does not assist him in
the final result because of his failure to satisfy the other
essential requisite.”
In the light of this judgment, which was in
fact referred to by NUGENT J in the
MM
Construction
case
supra
I am, with respect,unable to
align myself with the comments of the learned Judge at 1311I - 1312A
to the effect that there may be
cases where the absence of one of the
essential elements referred to in
Chetty
’s
case will not necessarily be fatal to an application for rescission.
On the other hand, the further comment of NUGENT J that
where the
two elements are present they are to be weighed together with other
relevant factors in determining whether it would be
fair and just to
grant the application (which the learned Judge categorised as an
“indulgence”, a description about which I have
reservations) is
in keeping with what was said in
Chetty
’s
case.
[26] In
Chetty
’s
case reference was made to the requirement that on the merits there
should be a
bona fide
defence. In that case the applicant for rescission had been the
respondent in an application against whom a default judgment had
been
given. In the present case the third respondent had been the
applicant whose claim was dismissed on the basis of his default.
The
merits therefore relate to a
bona
fide
claim. Precisely what was
embraced in that claim is an aspect to which I will revert presently.
[27] Similarly, the comments in the
M M Construction
case
supra
at 1312H and in the
Thompson’s
Security
case
supra
at 395A-B that what was required in respect of the “merits”
element was averments by the applicant which, if proved, could
reasonably
result in the court’s making a different determination
from that already made, were dictated by the circumstance that a
determination
had been made and it was that determination that was
sought to be rescinded.
In casu
no determination was made, but the application was dismissed on the
basis of the point
in limine
invoked by the applicant in the present proceedings. The “merits”
element therefore required averments by on or behalf of the
third
respondent demonstrating that,
prima
facie
, he had some prospect of
successfully securing a determination in his favour. Again,
precisely what those averments were required
to canvass is an aspect
to which I will revert later.
[28] It is also correct
that in the exercise of its discretion the court, on the issue of
whether an acceptable explanation has been
tendered for the default
in question, will be slow to penalise a litigant, who was personally
innocent, for the neglect of his attorney
or other representative.
The authorities are, however, clear that the line will be drawn
somewhere and that the stage may be reached
where, notwithstanding
the personal innocence of the litigant, he will be visited with the
consequence of gross neglect on the part
of his representative and,
in appropriate cases, be non-suited.
[29]
In casu
it may be accepted that the third respondent personally was innocent.
[30] However, in my judgment, the conduct of
NTLEKO, insofar as it bears on the sufficiency of the explanation for
the default of
appearance, falls to be criticised severely and I
agree with the submission of counsel that the conclusion of LEGODI
AM that NTLEKO
had given a satisfactory explanation for his default
was one so at variance with the facts that the only inference to be
drawn is
that he failed properly to apply his mind to the matter. I
accept, without deciding, that the interposition of the set down for
hearing of the part heard matter, which would have occupied two days
in court, constituted sufficient reason for NTLEKO to decide
that
that matter should be accorded precedence over the present matter,
which would have required only a few hours of court time,
and that on
that basis he should seek a postponement of the present matter. But
his
modus operandi
in that regard was quite unacceptable. Not only should he, as LEGODI
AM held, have satisfied himself that the two documents in
question
had indeed been telefaxed to the applicant - and, in fact, the
telefaxes should have been sent to the applicant’s attorneys
who
were on record as such - but he should also have ascertained what the
applicant’s attitude was in regard thereto. However
satisfied he
himself may have been as to the cogency of the reason why he sought
the postponement, and even if he had been justified
in proceeding on
the assumption that the telefaxes had indeed been sent, he was not
entitled to assume that the grant of a postponement
would be a mere
formality. The fact that in the past there had been a negative
response from the opposing party where he had adopted
the same
modus
operandi
and the matter had to be
pursued further, did not entitle him to assume that in the absence of
such a response the postponement would
automatically follow. What he
did not say was that it was his experience that in the absence of
such a response a postponement in
fact ensued. Even if he had had
such an experience it would not follow that he had sufficient grounds
to accept that the same result
would ensue
in
casu
.
It would seem that his attitude was no more and no less than that in
the light of the reason why he had to be engaged elsewhere
on the
date in question both the court and the applicant had willy-nilly
perforce to accept his non-attendance and postpone the matter.
For
obvious reasons such an approach is untenable. Accepting that he
himself could not appear on the date in question he could
at least
have arranged for someone else to appear in his stead in order to
press for a postponement on the grounds set out in the
document dated
21 January 1997 to which (notwithstanding that he might have been
entitled to assume that same had been received by
the applicant) he
had neither received nor sought a positive response. On what grounds
he thought, as he claimed, that in the absence
of his attendance at
the hearing the matter would be postponed and he would merely be
called upon to tender, by a later date, an
explanation for his
non-attendance, is not clear. One suspects that he had had sight of
a transcript of the proceedings on 23 January
1997 during which
LEGODI AM had evinced - wrongly, as will be shown below - a strong
preference to adopt such a course, and that
he had simply adopted the
expedient of incorporating that attitude into his argument.
[31] However,
notwithstanding the severe strictures to be passed on NTLEKO’s
conduct and accordingly on the sufficiency and reasonableness
of the
explanation tendered for the default, and my finding that LEGODI AM
had not properly applied his mind to the matter, I am,
in the result,
on a consideration afresh of the issue, not persuaded that this is a
case where the third respondent, innocent as
he personally was,
should be visited with vicarious responsibility for his
representative’s conduct to the extent that he should
have been
non-suited. On that limited basis I am prepared to accept that a
sufficient explanation for the third respondent having
been in
default on 23 January 1997 was placed before the industrial court.
[32] I have grave
difficulty in understanding the reluctance of LEGODI AM on 23
January 1997 to entertain the matter on the basis
that the third
respondent was in default of appearance. On the papers before him
there had been due notice to the third respondent
of the date of the
hearing; the third respondent was in default of appearance; there was
no explanation before him of that default.
In those circumstances
the insistence of the applicant’s attorney that the matter proceed
is readily understandable and the circumstance
that LEGODI AM,
apparently by reason of past experience, apprehended that an
application for rescission of the judgment would follow
later was
neither here nor there. The position would have been no different
even had the letter of 13 January 1997 been placed before
him during
the course of the hearing on 23 January 1997. Although that letter
was headed “APPLICATION FOR THE POST-PONMENT”
the body of the
letter, insofar as it had to be considered as setting out grounds for
a postponement, was incomprehensible and in
fact set out no such
grounds. The applicant’s representative would have been quite
entitled to adopt the stance that the letter
should be ignored and
the matter proceed on a default basis. One cannot have the situation
where a matter is not proceeded with
simply because one of the
parties causes to be placed before the court a document which amounts
to no more than an unsubstantiated
request for a postponement.
LEGODI AM’s comments smack of an attitude, quite contrary to
principle, that a postponement is there
simply for the asking.
[33] The mere fact, as accepted in [31] above,
that a sufficient explanation for the third respondent’s default on
23 January 1997
was placed before the court
a
quo
, was not, contrary to what was
held by LEGODI AM, by itself sufficient for the grant of the
application before him. In terms of
Chetty
’s
case
supra
it was further incumbent on the third respondent to demonstrate the
second essential element, the existence of a
bona
fide
claim having some prospect of
success. As will be shown below, LEGODI AM’s erroneous
interpretation of the legal principles
involved resulted in his
leaving certain material factors out of consideration, failing to ask
himself all the right questions and
failing to apply his mind to the
relevant issues in accordance with the behest of the applicable legal
principles, the consequence
of which was a gross irregularity in the
proceedings.
[34]
In casu
the
bona fide
claim which the third respondent was required to demonstrate embraced
not only averments relating to his claim that he had been wrongfully
dismissed, but also averments to counter the point
in limine
invoked by the applicant.
The reason therefor is that in order to succeed in his claim against
the applicant the third respondent
would have had to be successful on
both
the aspects referred to.
[35] In regard to the first aspect, i.e., the
merits of the claim that the third respondent was wrongfully
dismissed, I agree with
the submissions made by the applicant’s
attorney in the court
a quo
,
viz., that any allegations contained in the draft affidavits referred
to earlier were, firstly, to be ignored because, not having
been made
under oath and being hearsay to boot, they did not constitute
admissible evidence in the court
a
quo
and, secondly - the details need
not be set out - in any event too vague and sketchy for any reliance
to be placed thereon. What
LEGODI AM did rely on was the contents
of the statement of case filed on behalf of the third respondent in
the main application.
Here again, however, the difficulty is that
the allegations therein were not confirmed under oath in the
proceedings in the court
a quo
.
In these circumstances I incline to the view that no regard could or
should be had thereto, that in relying thereon LEGODI AM
committed
a gross irregularity in having regard to considerations that ought
not have been taken into account. However, for present
purposes I am
prepared to proceed on the basis, without so deciding, that LEGODI
AM validly had regard to the allegations in question.
On that basis,
and notwithstanding that counsel’s submission that the allegations
in the statement of case are so vague that no
proper assessment of
the merits of the third respondent’s dismissal can be made on a
reading thereof, was certainly not without
merit, I am persuaded that
the statement of case sufficiently sets out averments - again, the
details need not be set out - to satisfy
the requirement of alleging
a
bona fide
claim in respect of the alleged wrongful dismissal.
[36] The position is, however, different in
regard to the aspect of a demonstration of a
bona
fide
claim (or “defence”) in the form of a counter to the applicant’s
invocation of the point
in limine
.
In the court
a quo
the applicant’s representative contended that the third respondent
had failed to meet this requirement. She did so on a two-legged
basis. Firstly, she submitted that the contents of the two draft
affidavits referred to earlier in this judgment did not constitute
evidence before the court
a quo
and there was no other evidence bearing on the aspect in question.
In the alternative she submitted that even if it were permissible
to
have regard to the contents of the draft affidavits, those contents
were too sketchy to constitute a sufficient demonstration
of a
bona
fide
claim in respect of the aspect
in question. I incline to the view that the alternative argument was
in fact valid. It is, however,
unnecessary to set out the details on
which this view is based. The reason therefor is that I consider
that there is no answer to
the submission that the draft affidavits
were not evidence before the court
a
quo
and no other evidence was placed
before the court
a quo
on the aspect in question. Whatever might have been the intention
with the draft affidavits, neither of them was signed or attested
and
the contents thereof were not incorporated into, or adopted by, the
evidence given by NTLEKO in the court
a
quo
. Nor did he tender any other
evidence on the aspect in question. On the contrary, as indicated
earlier, he adopted the stance that
the third respondent’s counter
to the point
in limine
was not something which required to be canvassed during the
proceedings in the court
a quo
,
and that the question of an application for condonation of the late
institution of the proceedings in terms of section 46(9) would
only
arise if, and when, the application for rescission were granted. It
would seem that this stance found favour with LEGODI
AM in that
nowhere in his reasons for judgment did he avert to the issue whether
the third respondent had successfully met the requirement
of
establishing a
bona fide
counter to the applicant’s invocation of the point
in
limine
. In so doing LEGODI AM
materially misdirected himself on the legal principles involved. As
pointed out earlier, it was incumbent
on the third respondent,
inter
alia
, to demonstrate, as an
essential prerequisite, that he had a
bona
fide
claim in the form of a counter
to the point
in limine
.
That the third respondent, through his representative, NTLEKO, did
not even attempt to do; instead, the stance was adopted that
it was
unnecessary to do so. That stance, adopted by LEGODI AM, was not
only wrong in law, but also indeed fatal to the application
for
rescission of the judgment of 23 January 1997. It resulted in LEGODI
AM’s failing to direct his mind to, and consider, a
very material
aspect, viz., whether an integral part of the second essential
element required to be shown had been demonstrated.
That was a gross
irregularity which vitiated his decision.
[37] It need hardly be stated that this is not
a case where the matter should be remitted to the court
a quo
. The absence of any evidence
of a
bona fide
claim in the form of a counter to the point
in
limine
must inevitably result in the
conclusion that the application for rescission should have been
dismissed.
[38] In the result
there will be an order in terms of paragraphs 1.1 and 1.2 of the
notice of motion filed in the present proceedings.
_______________
KROON JA
I agree
________________
MYBURGH JP
I agree
_______________
FRONEMAN DJP
DATE OF HEARING: 2
February 1998
DATE JUDGMENT
DELIVERED: 4 February 1998
FOR APPLICANT: A.E.
FRANKLIN instructed by Bowman Gilfillan Hayman Godfrey Inc
FOR RESPONDENTS: No
appearance