Lumka & Associates v Maqubela (JA31/03) [2004] ZALAC 10; (2004) 25 ILJ 2326 (LAC) (9 July 2004)

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[2004] ZALAC 10
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Lumka & Associates v Maqubela (JA31/03) [2004] ZALAC 10; (2004) 25 ILJ 2326 (LAC) (9 July 2004)

19
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
CASE
NO: JA 31/03
In the matter between
LUMKA
& ASSOCIATES Appellant
and
BONTLE MAQUBELA Respondent
JUDGMENT
JAFTA
AJA
Introduction
[1] During September 2002 the appellant launched an
application in the Labour Court for the rescission of that Court’s
order dated
19 January 2002 in terms of which an award issued by the
Commission for Conciliation, Mediation and Arbitration
(“the
CCMA”)
had been made an order of that Court
in terms of s 158 (1) (c) of the Labour Relations Act 66 of 1995
(“the Act”)
in an
unfair dismissal dispute between the appellant and the respondent. In
the application the appellant further sought condonation
for
instituting the rescission application out of the prescribed time.
The respondent opposed the relief sought and filed opposing
papers
detailing the grounds upon which her opposition was based. Having
heard both sides the Labour Court declined to grant condonation
and
dismissed the application. It is that decision of the Court a quo
from which the appellant now appeals to this Court. Leave to
appeal
was granted by the Court a quo
The facts
[2] On 4 September 2000 the appellant appointed the
respondent as a personal assistant to its Chief Executive Officer
(“the CEO”)
. In
its papers the appellant avers, which is not disputed, that the
relationship between the parties was strained shortly after the
appointment. In an attempt to restore good relations the respondent,
through her attorneys, addressed a letter to the appellant setting
out issues of concern to her. The appellant pointed out to her that
such a matter should be dealt with in terms of the appellant’s
internal procedures. A meeting between the respondent and the
appellant’s CEO was held to consider the respondent’s complaint.
It appears from the papers that the respondent was satisfied with the
outcome of the meeting.
[3] Meanwhile the appellant found the respondent’s
work performance to be unsatisfactory and in order to remedy this it
sent her
to a training course. According to the appellant the
respondent was further given assistance and guidance in her work but
her performance
did not improve. The appellant states that the
respondent’s poor performance caused it embarrassment and resulted
in the company
losing potential revenue as clients terminated
contracts with it. It cited the fact that the respondent failed to
properly co-ordinate
the business meetings of its CEO in that on
occasions she would schedule a number of meetings for the same time
in one day which
resulted in some meetings not being honoured.
[4] As a consequence of its dissatisfaction with the
respondent’s performance, the appellant decided to bring
disciplinary charges
against the respondent. On 9 January 2001 the
respondent was given a notice of a disciplinary hearing scheduled for
12 January. The
respondent was charged with gross negligence and or
gross incompetence or poor work performance. Before the hearing the
respondent
asked for further particulars to the charges preferred
against her. The hearing did not take place on 12 January but on 18
January.
The respondent objected to the presiding officer on the
basis that he was not impartial and requested him to recuse himself.
She
also objected to the charges on the ground that they were vague.
[5] The presiding officer refused to recuse himself. He
also dismissed the respondent’s complaint that the charges were
vague. He
ruled that the respondent had been furnished with further
particulars to the charges well before the hearing. The presiding
officer
held that the respondent had sufficient time to prepare for
the hearing. After the ruling by the presiding officer, the
respondent
withdrew from the hearing without stating her case. The
hearing continued in her absence and the appellant’s CEO testified
in support
of the charges. At the end of the hearing the presiding
officer found the respondent guilty of gross negligence and gross
incompetence.
Following this verdict the respondent was dismissed
from the appellant’s employ.
[6] The respondent did not accept her dismissal and she
subsequently referred the resultant unfair dismissal dispute to the
CCMA for
arbitration. She contended that the dismissal was both
substantively and procedurally unfair. The arbitration hearing was
set down
for 25 June 2001 and both parties were properly notified of
the date of hearing.
[7] On the scheduled date both parties appeared before a
commissioner of the CCMA, the respondent in person and a Mr Dikwayo,
an employee
of the appellant, representing the appellant. At the
commencement of the arbitration Mr Dikwayo applied for the
postponement of the
hearing on the ground that the person appointed
to represent the appellant, a certain Ms Fredericks, had fallen ill
and the appellant’s
CEO was in Cape Town on business. The
respondent opposed the application for postponement on the basis that
the appellant’s representative
had not produced proof of Ms
Frederick’s illness. Furthermore, she pointed out that the CEO who
had direct knowledge of the matter
should have been available for the
hearing as the appellant was given due notice of the hearing. She
further pointed out that the
appellant had also failed to attend the
conciliation meeting at the CCMA in regard to the dispute.
[8] After hearing both parties the commissioner refused
to postpone the hearing whereupon the appellant’s representative
indicated
that he was withdrawing from the hearing and he left. After
his departure the commissioner proceeded to hear the respondent’s
testimony
and she decided the matter on the basis of such evidence
only. The commissioner came to the conclusion that the respondent was
dismissed
without a fair reason. Regarding procedural fairness the
commissioner found that, in spite the onus of proving the charges
having
been on the appellant, by requiring the respondent to testify
in support of her defence before the appellant led its evidence the
presiding officer committed a procedural irregularity which rendered
the hearing unfair. Consequently the commissioner concluded
that the
dismissal was substantively and procedurally unfair. As a result the
commissioner awarded the respondent compensation in
the sum of
R63000-00 which was an equivalent of seven months’ salary for the
respondent. The award is dated 11 July 2001.
[9] The award was served upon the appellant in November
2001 but in the appellant’s rescission application its CEO said
that it
was brought to her attention on 7 January 2002.The appellant
then launched an application for the rescission of the award in the
CCMA. The application was brought under s144 of the Act. The
respondent opposed the application.
Sec 144 of the Act reads thus:-
“
Any
commissioner who has issued an arbitration award or ruling, or any
other commissioner appointed by the director for that purpose,
may
on that commissioner’s own accord or, on the application of any
affected party, vary or rescind an arbitration award or ruling
–
(a) erroneously sought or erroneously made in the
absence of any party affected by that award.”
[10] Meanwhile
the respondent instituted an application during December 2001 in the
Labour Court seeking that the award be made an
order of that Court.
It appears from the papers in that application that service of the
papers was effected upon the appellant by
means of a telefax. The
appellant’s CEO disputes receipt of the telefaxed papers and
alleges that the appellant became aware that
the award had been made
an order of the Labour Court when the appellant was served with a
writ of execution on 21 August 2002. The
Court record pertaining to
the respondent’s application revealed that the order making the
award an order of Court was granted
on 19 January 2002 which was only
a day after the appellant had launched the application for its
rescission at the CCMA.
[11] Upon
receipt of the writ of execution in August 2002 the appellant
instructed its previous attorneys to investigate the status
of the
application for rescission in the CCMA. It was informed by those
attorneys that the application was still pending as the date
of the
hearing had not been fixed. According to the appellant it was later
advised by the present attorneys that the rescission application
at
the CCMA could not proceed because the award had been made an order
of Court already.
The hearing in the Labour Court
[12] Following the advice from its current attorneys,
the appellant instituted the application for rescission of the Court
a quo’s
order. An application for the rescission of an order of the
Labour Court by that Court can be made in terms of either s 165 of
the
Act or Rule 16A of the Labour Court Rules. Section 165 of the Act
reads thus:-
“ 165. Variation and
rescission orders of Labour Court – The Labour Court, acting on its
own accord or on the application of any
affected party may vary or
rescind a decision, judgment or order-
erroneously sought or erroneously granted in the
absence of any party affected by that judgment or order;
in which there is ambiguity, or an obvious error or
omission, but only to the extent of that ambiguity, error or
omission; or
granted as a result of a mistake common to the
parties to the proceedings.”
Rule 16 A of the Rules of the Labour Court deals with
rescission and variation of orders or judgments of that Court. It
reads thus:-
“(1) The Court may, in
addition to any other powers it may have-
of its own motion or on application of any party
affected, rescind or vary order or judgment-
erroneously sought or erroneously granted in the
absence of any affected by it;
in which there is an ambiguity or a patent error or
omission, but only to the extent of such ambiguity, error or
omission;
granted as a result of a mistake common to the
parties; or
on application of any affected party, rescind any
order or judgment granted in the absence of that party.
(2) And party desiring any relief under-
(c)
subrule 1 (
a)
must apply for it on notice to all parties whose interest may
be affected by the relief sought.
(d)
subrule 1 (
b
)
may within 15 days after acquiring knowledge of an order or
judgment in the absence of that party apply on notice
to all interested parties to set aside the order or judgment
and the court may, upon good cause shown, set
aside
the order or judgment on such terms as it deems fit.”
[13] The wording of Rule 16A (1) (a) is identical to
the language used in s 165 and both apply to rescission of orders on
the basis
of specific grounds listed therein. However Rule 16A (1)
(b) also permits a party affected by an order granted in its absence
to
apply for rescission of such order upon proof of good cause.
Different tests apply to applications brought under Rule 16A (1) (a)
or s165 and those which are instituted under Rule 16A (1) (b). The
appellant did not specify in its rescission application whether
the
rescission application was being made under sec 165 or Rule
16A(1)(a) or Rule 16A(1)(b).
[14] In the rescission application before the Court a
quo the appellant contended that the order making the award an order
of that
Court was
“erroneously granted as it
should not have been granted while an application for rescission of
judgment was pending”.
This contention was
based on the fact that the respondent had been served with the
application for the rescission of the CCMA award
a day before the
Labour Court made the award an order of Court. In those circumstances
the appellant contended that the respondent
was obliged to draw the
Court’s attention to the rescission application then pending in the
CCMA, prior to the granting of the
order making the award an order of
Court. Although the appellant’s notice of motion before the Court
a quo did not specify under
which section of the Act or Rule of Court
the application for rescission was brought, this contention by the
appellant seems to indicate
that the appellant sought rescission in
terms of either sec 165(1)(a) or Rule 16A(1)(a) because “
erroneously
granted”
in its
absence appears under Rule 16A (1) (a) and s165(a).
[15] The appellant’s papers also purported to make out
a case for rescission under Rule 16A (1) (b) which requires good
cause to
be established before a rescission can be granted. This
subrule requires that an application for rescission should be made
within
15 days of acquiring knowledge of the order sought to be
rescinded. That the appellant also sought to rely on Rule 16A(1)(b)
is discernible
from the fact that the appellant also sought
condonation for the late launching of the application for rescission
and contended
that the appellant has a bona fide defence in addition
to a satisfactory explanation given for the delay. In fact the
appellant alleged
in its founding affidavit that, had it not been for
the incorrect legal advice it had received, it would have instituted
the present
application within 15 days of it becoming aware that the
award had been made an order of Court. It concludes by stating that
“good grounds exist for condoning
[appellant’s] failure to launch this application timeously insofar
as the application falls
within the provisions of Rule 16A (2) (b)”
.
[16]
The Court a quo dealt with the matter on the basis that the
appellant sought rescission in terms of subrule (1)(b) of Rule 16A
and it appears that the complaint relating to the order of 19 January
having been erroneously granted was not pursued in the Court
a quo
nor does the notice of appeal refer thereto. In the light of this it
seems that the application must be taken to have been
made in terms
of Rule 16A (2)(b) which refers to subrule (1)(b). Accordingly, the
appellant was obliged to first apply for the condonation
of its
delivery of the rescission application after a period of 15 days had
lapsed from the date that the appellant had come to know
about the
order.
[17] Although
the condonation application was included in the rescission
application before the Court a quo, it constituted a distinct
request
for leave to apply for rescission. For the appellant to succeed in
obtaining the necessary leave, it had to prove that the
requirements
for condonation were met. The Court a quo then identified the
requirements for condonation as a reasonable explanation
for the
appellant’s default on 19 January 2002, proof of a bona fide
defence and some prospects of success in the application before
the
CCMA for rescission of the award.
[18]
Having considered the language of s144 of the Act under which the
CCMA application had been made, the Court a quo found that
such
language was identical to the language employed in Rule 42 (1) of the
Uniform Rules of the High Courts. The Court a quo then
proceeded to
seek guidance for the interpretation of s 144 from decisions dealing
with Rule 42 (1) of the Uniform Rules. The Court
impressively
collected such decisions in its judgment in the process of
determining the meaning attached to Rule 42 (1) (a).
[19] After
transposing the meaning of Rule 42 (1) (a) to s 144 (a), the Court a
quo came to the conclusion that the CCMA does not
have the authority
to rescind the award in the present matter. As a result the Court
held that the appellant had failed to show that
it had a bona fide
defence. The Court found it unnecessary to determine whether or not
the explanation given for the delay was satisfactory.
As the
requirements for condonation overlap with the requirements for
rescission in regard to as the issue of a bona fide defence,
the
Labour Court further dealt with the application for rescission on the
same basis and came to the conclusion that it could not
succeed.
The appeal
[20] In challenging the judgment of the Court a quo the
appellant confined itself to attacking the finding of the Court a quo
that,
when s 144(a) is properly construed, the appellant had failed
to prove that it had a bona fide defence in the sense that it could
succeed in its rescission application in the CCMA. In its grounds of
appeal the appellant contended, among other things that, the
Court a
quo misdirected itself in the interpretation of s 144 (a) by failing
to hold that the section can reasonably be construed
to include a
meaning that recognises the CCMA’s authority to rescind its awards
in circumstances similar to the rescission of orders
by the High
Court under the common law. In essence Mr Vivian, who appeared for
the appellant , argued that it is wrong to give s
144 (a) the narrow
interpretation attached to Rule 42 (1) (a) simply because that rule
was construed against the background of other
bases upon which a
Court order can be rescinded such as the common law and Rule 31 of
the Uniform Rules. Therefore there was no
need for the Courts, Mr
Vivian argued, to give Rule 42 (1) (a) an expanded meaning when they
interpreted it. He contended that a
narrow interpretation of s144
would, in some cases, lead to an injustice as the affected party
might find itself without a remedy.
Mr Vivian vigorously contended
for a meaning that incorporates the rescission of the CCMA awards
upon proof of sufficient or good
cause in the same manner as the High
Courts rescind their orders under the common law. If so interpreted,
he argued, the appellant
would have shown strong prospects of success
in the application for rescission at the CCMA and thereby satisfied
the requirement
for both condonation and rescission at the Labour
Court.
Requirements of condonation and
rescission
[21] In
the Labour Court applications for condonation in relation to breaches
of that Court’s Rules are governed by Rule 12 of the
Labour Court
Rules which provides that the Court may extend or abridge any period
prescribed by the rules on application and on good
cause shown. The
rescission of the Labour Court’s orders is regulated by s 165 of
the Act and Rule 16A. The latter Rule also requires
proof of good
cause for rescission of an order granted in the absence of the
applicant.
[22] The phrase “good cause” is not defined in the
Labour Court Rules. However, it is well- known that the phrase
consists of
two requirements, namely, a reasonable explanation for
the delay in the case of condonation or a reasonable explanation for
the default
in the case of rescission and, on the merits, a bona fide
defence which, prima facie, carries some prospect of success. The
existence
of both requirements must be met before the application can
succeed. In
Chetty v Law Society, Transvaal
1985 (2) SA 756
(A) Miller JA
stressed that
under common law compliance with both requirements is necessary. He
said at 765 D-E:
“
It is not sufficient if only one of these
requirements is met, for obvious reasons a party showing no prospect
of success on the merits
will fail in an application for rescission
of the default judgment against him, no matter how reasonable and
convincing the explanation
of his default. An 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.”
[23] The approach in
Chetty
was
followed by the Labour Court and endorsed by this Court in
Feuilhenrade & others v Mthimkhulu;
Enforce Security Group (Pty) Ltd & Others v Mthimkhulu
[2003] 3
BLLR 213
(LAC) at para [11]
. It was in that
context that the Court a quo came to the conclusion that, since the
appellant had failed to prove the existence of
a bona fide defence,
it was not necessary for it consider whether a reasonable explanation
had been furnished.
Has the appellant established a
bona fide defence?
[24] The
answer to the above question depends on whether s 144 (a) can
reasonably be said to carry the expanded meaning contended
for by the
appellant and if so whether on the application of the expanded
meaning to the facts of the present matter, it can be found
that the
appellant has reasonable prospects of succeeding in the application
for rescission at the CCMA. Section 144(a) provides:
“
Any
commissioner who has issued an arbitration award or ruling, or any
other commissioner appointed by the director for that purpose,
may
on that commissioner’s own accord or, on the application of any
affected party, vary or rescind an arbitration award or ruling
–
(a) erroneously sought or erroneously made in the
absence of any party affected by that award.”
[25] The section authorises commissioners to rescind
awards either on their own accord or upon application by an affected
party provided
such award was erroneously sought or made in the
absence of a party affected by the award. So, the essential
requirements for exercising
the power of rescission conferred upon
commissioners by s 144 (a) are: (a) an error committed either in
seeking or making the award;
(b) in the absence of a party affected
thereby.
[26] In
the view I take of the matter I consider it unnecessary to express a
definitive opinion on whether it is reasonably capable
for s144 (a)
to carry the expanded meaning contended for by the appellant.
However, I must mention that conflating the two procedures
which are
applied separately at both the Labour Court and High Courts may
create practical difficulties when implemented. For example,
where
the rescission is sought on the basis that an order was erroneously
granted, the applicant is not required, over and the above
that, to
show good cause. Proof of the fact that the order was erroneously
granted suffices for having rescission provided that such
an order
was granted in the absence of the applicant. It is not clear to me
whether in the context of the meaning contended for proof
of good
cause is intended to be additional to proof of erroneously sought or
erroneously made. If the collective compliance with
the requirements
of erroneously made and good cause would be required, it is difficult
to imagine an instance where a commissioner
would act on his own
accord to rescind an award as he cannot himself establish essential
elements of good cause.
[27]
It seems, however, to be clear to me that irrespective of the meaning
attached to s144 (a), the basic requirements of the section
such as
erroneously sought or made must be retained when applying it. This
presented an insurmountable hurdle to the appellant’s
counsel
during the hearing of the appeal. Counsel was unable to point out,
despite an invitation to do so from the Court, an error
that was
committed in the procedure followed in making the award after the
appellant’s representative had left the arbitration.
Indeed once
the application for postponement was refused, the commissioner was
obliged to continue with the arbitration hearing.
[28] If
there was an error committed it could only have been at the stage
when the application for a postponement was heard and a
ruling
thereon was made. However, I doubt that an error committed at that
stage can be regarded as the one envisaged in s144 (a)
because both
parties were represented before the commissioner and only a
postponement request was dealt with at that moment. Nonetheless,
I
refrain from expressing a definitive view on the point.
[29] It
must be emphasized that in the present matter the commissioner’s
refusal to postpone the arbitration hearing was not challenged.
With
that ruling not challenged, it is clear that procedurally the
commissioner acted correctly when he granted the order. In essence,
the source of the appellant’s complaint is the commissioner’s
decision refusing a postponement since all that occurred thereafter
was procedurally correct. Therefore, that ruling should have been the
appellant’s focal point in his attempt to have the award
set aside.
[30] As
a result, I come to the conclusion that even if the interpretation
contended for is adopted, the appellant would still have
no prospects
of success in its application for rescission at the CCMA because it
cannot establish that the award was erroneously
made so as to
activate the provisions of s144 (a). Any rescission of an award by a
commissioner where there is no proof of it having
been erroneously
sought or made would effectively amount to an amendment of s 144(a)
and that is not permissible. In the circumstances
I find that the
conclusion of the Court a quo to the effect that the appellant failed
to prove that it has a bona fide defence was
correct.
Condonation in this Court
[31] At the commencement of the hearing of this appeal
it transpired that no application for condonation of the late filing
of the
record was made. This was the position despite a promise made
by the appellant’s counsel in the heads of argument filed on 31
October
2003. After an unsuccessful attempt to make an application
for condonation orally from the Bar, the appellant’s counsel asked
that
the matter be stood down for a while. On resumption of the
hearing a copy of an affidavit for condonation was presented to the
Court.
However, such affidavit omitted to explain why condonation was
not sought timeously. After considering the affidavit the Court
directed
that the hearing proceed subject to the directive that the
appellant’s attorneys file a further affidavit explaining the
reason
for the delay in lodging the condonation application and a
proper application for condonation.
[32] The
required affidavit was filed on 12 May 2004 by the appellant’s
attorney. The explanation furnished for the delay is that
it was due
to an oversight on the part of the attorney. He states that on 28
October 2003 he sent instructions to the appellant’s
counsel for
the preparation of the condonation application. He states further
that, due to time constraints, counsel was unable to
prepare such
application until heads of argument were filed. After the filing of
heads of argument neither counsel nor the attorney
attended to the
drafting of the application. He says they simply forgot about it and
focused on the merits of the appeal.
[33] According to the appellant’s attorney the record
of the appeal should have been lodged on 4 July 2003 but it was
lodged on
14 July. The explanation given therefor was that the
transcribing company delayed in preparing the record until the 14
th
of July.
[34] Rule
5 (8) of the Labour Appeal Court Rules requires that an appeal record
be lodged within 60 days from the date of the order
granting leave to
appeal and subrule (17) regulates the procedure to be followed by an
appellant who has been unable to lodge a
record timeously. That
subrule provides that such an appellant should first ask the
respondent to consent to an extension of time.
If consent is refused
an application on notice of motion supported by an affidavit should
be made to the Judge President, in chambers,
for an extension. Such
application must also be served on the other parties to the appeal.
[35] In
the present case the Rule was not complied with in two respects.
Firstly the record was filed out of time, without first seeking
and
obtaining leave to do so. Secondly, the procedure prescribed in the
Rule for applying for condonation was not followed. The appellant’s
attorney does not furnish any explanation for not requesting the
respondent’s consent when it became clear to him that the record
could not be lodged within the prescribed time. It is possible that
consent could have been given as the respondents did not oppose
the
present application for condonation. Had he asked for consent and
consent was granted, the need for a formal application would
have
fallen away. Instead he decided to wait for the record and lodged it
at the time when he had no right to do so as then the appellant
was
deemed, in terms of subrule (17), to have withdrawn the appeal.
Assuming that the appellant’s attorney acquainted himself with
the
requirements of the Rules of the Court, as is the duty of every
attorney instructed to prosecute an appeal, it should have been
clear
to him that at the stage he lodged the record the appeal was deemed
to have been withdrawn.
[36] The
manner in which the appellant’s attorney dealt with the matter is
totally unacceptable. It was not open to him to ignore
the deeming
provision of the subrule and act as if nothing had happened. It is
also unacceptable that the appellant’s attorney
took steps towards
making an application for condonation only on 28 October, more than
three months after he had become aware that
Rule 5 had not been
complied with. The conduct of the appellant’s attorney is further
compounded by the fact that the application
for condonation was not
filed even after October 2003 until the hearing of the matter on 11
May 2004. Even then an improper application
was made without any
explanation for the delay in seeking condonation. The attorney had to
be compelled to furnish the requisite
explanation.
[37] In
cases where the rules of Court have not been complied with and
condonation is necessary, a proper application for condonation
should
be made immediately the guilty party becomes aware of non-
compliance.
[38] In the present matter while the explanation given
for not filing the record timeously is satisfactory, the explanation
given
for the delay in seeking condonation is not only unacceptable
but it fails also to cover the entire period during which the delay
occurred. It is unfortunate that now and again applications for
condonation are made to this Court which indicate a tendency by
certain
practitioners not to comply with its Rules. Such a tendency
should be disapproved in unambiguous terms. The administration of
justice
should be maintained at a proper and acceptable level. In
displaying the Court’s displeasure with the conduct of the
appellant’s
attorney I am inclined to disallow the fee for the
application for condonation including supplementary heads of argument
filed on
14 May 2004.
[39] Accordingly
the following order is made:
Condonation for the late lodging of the record is
granted.
The appeal is dismissed with costs.
The appellant’s attorney shall not charge any fee for
the condonation application and supplementary heads of argument.
…………………
JAFTA AJA
I
agree.
…………………
ZONDO
JP
I
agree.
………………..
DAVIS
AJA
Appearance
For the appellant : Advocate S. C. Vivian
Instructed
by : Giuseppe Fizzotti
For
the respondent : Advocate F. A. Boda
Instructed
by : Zehir Omar Attorneys
Date
of Hearing : 11 May 2004
Date
of Judgment : 9 July 2004