Kungwini Residential Estate & Adventure Sport Centre Limited v Mhlongo NO and Others (JA10/04) [2005] ZALAC 11; [2006] 5 BLLR 423 (LAC); (2006) 27 ILJ 953 (LAC) (9 December 2005)

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[2005] ZALAC 11
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Kungwini Residential Estate & Adventure Sport Centre Limited v Mhlongo NO and Others (JA10/04) [2005] ZALAC 11; [2006] 5 BLLR 423 (LAC); (2006) 27 ILJ 953 (LAC) (9 December 2005)

IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
(HELD
IN JOHANNESBURG)
CASE
NO. JA10/04
In
the matter between:
KUNGWINI
RESIDENTIAL ESTATE &
ADVENTURE
SPORT CENTRE LIMITED APPELLANT
and
MR
LUCKY MHLONGO N.O. FIRST RESPONDENT
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION SECOND RESPONDENT
CARON
DUTTON THIRD RESPONDENT
J U D G M E N T
Mc CALL AJA
[1] The following
facts are either common cause, not in dispute, or appear from the
documents in the appeal:-
The
third respondent referred a dispute to the second respondent, the
Commission for Conciliation, Mediation and Arbitration (“
the
CCMA”
)
in which she claimed that she was constructively dismissed by the
appellant on 10 March 2002.
The dispute was referred to the CCMA on 25 November
2002 on the prescribed form, and, at the foot of the second page,
there was
written, in manuscript, “
Application
for condonation to be served upon Respondent party and CCMA
shortly!
”.
The referral form was served on the appellant by fax on
27 November 2002.
An
application for condonation of the late filing of the referral (“
the
CONDONATION APPLICATION”
),
dated 28 November 2002, was served on the appellant by fax on 3
December 2002.
On
4 December 2002 the appellant’s attorneys wrote a letter to the
third respondent’s legal representative, Advocate M.A. Hawyes
(“
Hawyes
”),
which is Annexure “
A
”
to the founding affidavit in the review application (“
Annexure
‘A’
”)
and sent a copy by fax to “
CASE
MANAGEMENT CCMA
”.
The letter states:-
“
RE : APPLICATION FOR CONDONATION – CAROL
DUTTON
Further
to the above the following:
As the Commission in terms of Rule 31(3) has
assigned no case number the Respondent is prevented from opposing
your client’s application.
Paragraph 3 of the application for condonation is in
contravention with Rule 31(3)(e) of the Rules for the conduct of
proceedings
before the CCMA.
Take further notice that this office will be closed
between the periods 5 December 2002 to 5 January 2003.
Client’s right remain strictly reserved at all
times.”
(f) On
16 January 2003 Hawyes, who represented the third respondent
throughout these proceedings and appeared on her behalf in this
appeal, replied to Annexure “
A
”
as follows:-
“
CAROL DUTTON / KUNGWINI RESIDENTIAL ESTATE AND
ADVENTURE SPORTS CENTRE
Your letter dated the 04 December 2003 refers.
Case
Number GA39954-02 has now been allocated to this matter by the CCMA.
You
have fourteen (14) calendar days in which to lodge a notice of
opposition and supporting affidavit.
Your reply by return is awaited.”
(“
Annexure
‘B’”
to the founding affidavit)
(“Annexure
‘B’
”)
(g) On 10 January 2003 Commissioner S. ALLI DADABHAI
(“
Commissioner Dadabhai
”)
signed a document headed “
CONDONATION
RULING
” which will hereinafter be referred
to as such, in which, without notice to the appellant and the third
respondent, he granted
condonation for the late filing of the
referral.
The appellant
received notice of the CONDONATION RULING on 22 January 2003.
On 23 January 2003 the appellant filed an application
with the CCMA for the rescission of the CONDONATION RULING. (“
the
RESCISSION APPLICATION”
.)
On 24 January 2003 the appellant also filed a notice of
intention to oppose the CONDONATION APPLICATION and an answering
affidavit
by the sole director of the appellant, one JOHANN WALTERS
(“
WALTERS
”).
The
third respondent filed a notice of her intention to oppose the
RESCISSION APPLICATION and her answering affidavit, on 30 January
2003.
On 4 February 2003
the appellant filed its replying affidavit.
Before the
RESCISSION APPLICATION had been set down for hearing the CCMA set
the dispute regarding the third respondent’s alleged
constructive
dismissal down for hearing on 24 February 2003.
Notwithstanding
the fact that the RESCISSION APPLICATION was not before him on 24
February 2003, the first respondent, apparently
at the request of
the third respondent’s legal representative, proceeded to hear
argument on the RESCISSION APPLICATION. He
thereafter, in a written
ruling (“
the
RESCISSION RULING”
)
which is dated 25 March 2003 on the first page and 3 March 2003
before the signature on the third page, ruled that the condonation
ruling dated 10 January 2003 stands, refused the application for
rescission of that ruling, and directed the CCMA to “
reschedule
the matter for conciliation
”.
The
RESCISSION RULING was taken on review by the appellant. (“
the
REVIEW APPLICATION”.)
In paragraphs 1 and
2 of the order prayed in the REVIEW APPLICATION the appellant sought
the following relief:-
“
1. That the Rescission Ruling dated 3 March 2003
and issued by Commissioner, Lucky Mhlongo of the CCMA, Gauteng under
Case Number
GA39954-02 be reviewed and/or set aside, in accordance
with the provisions of section 158(1)(g) of the Act.
That the Honourable Court determines this dispute
in an appropriate manner alternatively make an appropriate order
about the
procedures to be followed to determine the dispute.”
However, in the last paragraph (22) of the founding
affidavit in the REVIEW APPLICATION Walters says:-
“
Based on the aforesaid it is respectfully
submitted that the Condonation Ruling as well as the Rescission
Ruling be found to be fatally
defective and for this reason the
Applicant will respectfully pray the above Honourable Court to have
the Condonation Ruling as well
as the Rescission Ruling reviewed and
set aside.”
The REVIEW
APPLICATION was opposed by the third respondent. It was heard by
Francis J who delivered a written judgement on 2 December
2003 in
which he dismissed the REVIEW APPLICATION with costs and ordered the
CCMA to enrol the dispute for conciliation.
An application to
Francis J for leave to appeal was dismissed with costs.
Thereafter this
Court granted leave to appeal.
[2] This
matter has been beset with confusion and misconceptions and before
considering the judgement in the Court
a
quo,
it is necessary to identify the areas in which things went wrong.
[3] In
both his answering affidavit in opposition to the CONDONATION
APPLICATION and in his founding affidavit in support of the REVIEW
APPLICATION, Walters referred to a number of respects in which he
contended that the CONDONATION APPLICATION did not comply with
the
Rules for Conduct of Proceedings before the CCMA (”the Rules”).
One of them is the point also raised in paragraph 1 of annexure
“
A
”,
namely that in terms of Rule 31(3)(b) the party bringing an
application must state “
the
case number assigned to the matter by the Commission”
.
The appellant also contends that the CONDONATION APPLICATION did not
comply with Rules 31(3)(e) and (g) and Rules 31(4)(a) (c)
and (d). A
further contention was that there was non-compliance with Rules 9(2)
and 10(2)(c) in that the CONDONATION APPLICATION
did not accompany
the referral document when the latter was delivered to the Commission
and the appellant. It is not necessary to
determine all of these
issues at this stage but they are matters which may have to be
considered if and when the third respondent’s
CONDONATION
APPLICATION is reconsidered.
[4] It
is the appellant’s contention that irrespective of whether the
objections referred to in paragraph (3) hereof are good in
law, the
fact of the matter was that the third respondent had agreed that the
appellant would be allowed an opportunity to oppose
the third
respondent’s application and to file an opposing affidavit within
14 calendar days of 15 January 2003. In this regard
the appellant
relied on Annexures “
A”
and “
B
”.
[5] In
her answering affidavit opposing the REVIEW APPLICATION, the third
respondent endeavoured to avoid the contention that the
exchange of
the letters Annexures “
A
”
and “
B
”
constituted an agreement by pointing out that at the time Annexure
“
B
”
was written, her representative had not received notification of the
CONDONATION RULING. She says that the case number was afforded
to
the appellant “
as
a matter of courtesy
”
and that “
The
letter has no power to bind a Commissioner in terms of the Rules
”.
Also “
My
representative’s letter was not designed to afford the Applicant
rights that he was not entitled to in terms of the Rules or
otherwise
”.
[6] In
his Heads of Argument on appeal, Hawyes, referring to Annexure “
B
”
says “
this
was never intended as an agreement to the late filing of the Notice
of Opposition and opposing affidavit. Further elaboration
will
follow”
.
That elaboration appears to be the following paragraphs in Hawyes’
Heads of Argument:-
“
20.5 It
is
not
common cause that the Third Respondent agreed on 16 January 2003 to
the Appellant filing its notice of opposition and supporting
affidavits. At the time the letter was sent out the Third Respondent
had not yet received notification of Commissioner Dadabhai’s
condonation ruling and was unsure of the status of the case with the
CCMA. Almost six (6) weeks had passed since the lodgment of
the
dispute with the CCMA and Third Respondent was anxious to know what
was going on. Third Respondents legal representative phoned
the CCMA
and was advised of the allocation of a case number but was not
advised on the outcome of any condonation ruling.
Having
noted the clear discrepancy in the CCMA Rules the Third Respondents
legal representative was uncertain of his next move and
decided to
send a letter to the Appellants representative advising him of the
case number and calling for a response within 14 days.
The letter
may have been construed as an agreement to permit the Appellant to
file an opposing affidavit had the Third Respondents
legal
representative been aware of Commissioner Dadabhai’s condonation
ruling at the time the letter dated 16 January 2003 was
sent out. As
it turns out Commissioner Dadabhai only dispatched his condonation
ruling to the parties on or about 22 January 2003.
An important
further point to remember is that the condonation ruling had
already been made (10 January 2003) prior to the dispatch
of the
“consent:” letter (16 January 2003). CCMA Rules and/or
practice do not permit the parties to set aside a condonation
ruling or any ruling for that matter made by the Commission by
agreement. The aforementioned letter was thus inconsequential
in
granting the Appellant additional rights that they were not
afforded by the CCMA Rules or general accepted practice.”
[7] In
my opinion, Annexure “
B
”,
could only be interpreted to mean that Hawyes, having furnished the
appellant’s attorney with the case number, intended to
afford the
appellant 14 calendar days from the date of his letter in which to
lodge notice of opposition and a supporting affidavit.
[8] The
fact that Hawyes was, at the time of writing Annexure “
B
”
unaware of the CONDONATION RULING is not relevant to the
determination of his intention in writing of Annexure “
B
”.
Of course, the fact that Annexure “B” was written could not, in
itself, alter or undo the CONDONATION RULING. However,
the existence
of Annexures “
A”
and “
B
”
calls into question the third respondent’s decision to oppose the
rescission application and was an important factor which should
have
been taken into account in deciding the rescission application. I
say this because Annexure “
A
”
clearly constitutes an intimation that the appellant intended to
oppose the application for condonation and Annexure “
B
”
shows, at the very least, that Hawyes understood that the appellant
intended to oppose that application.
[9] Bearing
in mind that Hawyes was the author of Annexure “
B
”
and almost certainly the drafter of the third respondent’s
affidavits opposing the RESCISSION APPLICATION and the REVIEW
APPLICATION,
I question the propriety of the conduct of Hawyes in
appearing on behalf of the third respondent in this appeal. His
position was
not unlike that of an attorney who acts as the attorney
of record in a matter in which he is an important witness. Indeed,
some
of Hawyes’ submissions in his Heads of Argument were
tantamount to the giving of evidence regarding his purpose and
intention in
writing Annexure “
B
”.
The undesirability of an attorney acting as an attorney of record in
a matter in which he is to be an important witness and
in which his
credibility may be in issue was dealt with by Wessels J in the case
of
Elgin
Engineering Co. (Pty) Ltd v Hillview Motor Transport
1961
(4) SA 450
(D) at 454D-H
.
The result of Hawyes appearing as counsel for the third respondent
in this appeal was that he had to suffer the embarrassment of
answering the Court’s questions regarding the meaning and
interpretation of the letter of which he was the author and of his
attempts
to justify his client’s conduct in opposing the RESCISSION
APPLICATION.
[10] I
must assume that Commissioner Dadabhai was unaware of the existence
of Annexure “
A
”
when he delivered his CONDONATION RULING, although it is not disputed
that a copy of Annexure “
A
”
was sent to the CCMA. I doubt whether Commissioner Dadabhai would
have made the CONDONATION RULING, without any notice to the
appellant, had he been aware of the indication that the appellant
intended to oppose the CONDONATION APPLICATION. Annexure “
A”
would
have drawn his attention to the fact that the notice of application
did not comply with Rule 31(3)(e) in that, in paragraph
3, on the
first page of the notice of application, the respondent was afforded
only 5 days from the date of service of the application
in which to
deliver a notice of opposition and an answering affidavit, instead of
the 14 days provided for in Rule 31(3)(e).
[11] Whether
or not Commissioner Dadabhai was aware of the existence of Annexure
“A”, he ought, in any event, to have noticed
that the third
respondent had given the appellant less time to file a notice of
opposition and answering affidavit than she was required
to give in
terms of Rule 31(3)(e). The giving of such short notice is sometimes
referred to as short service. The effect of short
service of a
summons is discussed in
Herbstein
and Van Winsen, The Civil Practice of the Superior Courts in South
Africa
,
4
th
Ed. at page 283
.
[12] The
cases are not altogether consistent but in some it has been held
that, if insufficient time has been given, the service will
be bad
and fresh service will have to be made whilst others have held that
short service is a fatal irregularity. See also
Collier
v Algoa Township Ltd
1947
(2) SA 559
(E
)
at 560;
Shield
Insurance Co. Ltd v van Wyk
1976
(1) SA 770
(NCD);
Staatsdiensliga
van Suid-Afrika en Andere v Minister van Waterwese
1990
(2) SA 440
(N) at 460E-F
;
Turquoise
River Inc. v McMenamin and Others
1992
(3) SA 653
at 656F-657D
.
It is arguable, therefore, that the CONDONATION APPLICATION was
fatally defective, but this is a matter which will have to be decided
should that application be reconsidered.
[13] Another
point is that in terms of Rule 31(9)(a), the Commission must allocate
a date for the hearing of an application, including
an application
for condonation, and in terms of Rule 31(9)(b) the Commission must
notify the parties of the date, time and place
of the hearing of the
application.
Rule 31(10) provides
that:-
“
Despite
this rule, the Commission or a commissioner may determine an
application in any manner it deems fit
.”
However,
I do not think that this provision can possibly be relied upon to
dispense with the giving of notice to the parties, or at
least to the
applicant if the respondent is in default, of the commissioner’s
intention to hear a matter. For a commissioner to
hear and determine
an application for condonation without notice to the parties would be
to ignore the
audi
alterem partem
rule. There is no indication in the papers that any such notice was
given to either the third respondent, who had applied for
condonation,
or the appellant. Although it may be argued that it was
not necessary to give notice to the appellant, since, although it was
a
party as contemplated by Rule 31, it had not given notice of
intention to oppose the application (leaving aside Annexure “
A
”),
the same cannot be said about notice to the third respondent. Had
notice of the intention to hear the condonation application
been
given to the third respondent’s legal representative, Hawyes, he
would surely have had an obligation to call Annexure “A”
to the
attention of the CCMA or at least to advise the appellant’s
attorneys of the set down of the application. Had that occurred
it
is unlikely that the CONDONATION RULING would have been made in the
absence of both parties and the huge wastage of time and effort
which
has occurred in this matter would have been avoided.
[14] As
it happens, the appellant did not, at the time, seek to have the
CONDONATION RULING set aside on review and did not appeal
against it.
Instead it sought to rescind the CONDONATION RULING.
[15] Section
144 of the Labour Relations Act, No. 66 of 1995 (“
the
Act
”)
provides,
inter
alia
,
that 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”. It seems that the
omission of the
words “or ruling” at the end of paragraph (a) is a
causus
omissus
and that this is a case in which this can be remedied by reading the
provision as if those words were there. Cf.
Vauhghan-Heapy
v Natal Performing Arts Council
1991
(1) SA 191
(D) at 195I-196B
.
[16] In
my view a ruling on an application for condonation of the failure to
refer a dispute within the 30 days provided for in section
191(1)(b)(i) of the Act is a ruling contemplated by section 144 of
the Act which may be rescinded. No one has contended to the contrary
in this case.
[17] The
words “
erroneously
sought or erroneously granted in the absence of a party affected
thereby
”
have been considered in a number of cases in the High Court. In the
case of
Colyn
v Tiger Food Industries Ltd
t/a
Meadow Feed Mills (Cape)
2003
(6) SA 1
(SCA) at 9I-10B
the Supreme Court of Appeal referred to, but did not, resolve the
conflicting approaches of the courts to the question as to whether
or
not the “
error
”
must be patent from the record or whether reference may be had to
external evidence of the “
error
”.
[18] In
my view, however, it does not matter, in the present case, which
approach is adopted. It was apparent from the record that
Rule
31(3)(e) had not been complied with and it must have appeared from
the record that notice of set down of the CONDONATION APPLICATION
had
not been given to either of the parties. In the circumstances
Commissioner Dadabhai ought not to have considered and determined
the
CONDONATION APPLICATION, at least not without addressing the question
of the short service and the absence of notice to the parties.
Cf.
Nyingwa
v Moolman NO
1993
(2) SA 508
(Tk) at 510D-G.
[19] I
have already referred to Rule 31(9) which requires the Commission to
allocate a date for the hearing of an application and
to notify the
parties of that date. It was common cause that that was not done in
the case of the RESCISSION APPLICATION in this
matter. Instead the
Commissioner, in the face of an objection by the applicant, and
apparently at the instance of Hawyes, took it
upon himself to use the
occasion for which the conciliation proceedings had been set down
(incorrectly, in the light of the RESCISSION
APPLICATION), in order
to hear and determine the RESCISSION APPLICATION. In my view, the
fact that the Commissioner proceeded to
hear the rescission
application, in the face of the objection by the appellant and
without allowing his legal representative time
to prepare, this was
an irregularity which, in itself, warranted the review and setting
aside of the RESCISSION RULING. Even if
I am wrong, however, and
Rule 31(10) empowered the commissioner to hear and determine the
application which had not been set down,
I am of the view that the
Commissioner, in deciding the RESCISSION APPLICATION against the
appellant, misdirected himself in certain
material respects and that
his reasons did not justify his decision.
[20] This
matter has been bedevilled by the issue as to whether or not a person
bringing an application is obliged to state on it
the case number
assigned by the Commission at the time when the application is served
on the respondent and whether, in this regard,
there is a conflict
between Rule 31(3)(b) and Rule 10(2)(b). The use of the word “must”
in Rule 31(3)(b) in regard to what the
party bringing the application
is required to state makes those requirements peremptory. Rule
10(2)(b), which is also peremptory,
requires the referring party to
attach to the referral document written proof that the referring
document was served on the parties
to the dispute. The first
respondent in his RESCISSION RULING said that “it is impractical to
have a case number assigned without
having served the other party to
the dispute” and expressed the view that Rule 10 may be in conflict
with Rule 31(3)(b).
[21] In my view
there is no conflict between the two provisions. There is no reason
why an applicant should not obtain a case number
from the commission
and insert it in the notice of application before serving the
application on the other party or parties. Moreover,
for practical
reasons, this is what should be done. The alternative would mean
that the respondent will either have to endeavour
to obtain the case
number from the office of the Commission, after the application has
been delivered to the Commission, or that
the respondent will deliver
a notice of opposition without a case number on it. The first
possibility could present difficulties,
bearing in mind that
documents may, in terms of Rule 7 be filed with the Commission by
sending a copy by registered post or by faxing
it. Without a case
number as a reference the office of the Commission may have
difficulty in tracing a case in order to furnish
the respondent with
the case number. The second possibility could result in the opposing
documents, without a case number, being
mislaid. I do not understand
the first respondent’s reasons for criticising what the appellant’s
representative did and why
he considers that what he did was unfair.
Be that as it may, he found that the appellant’s representative
used the absence of
a case number “as an excuse not to oppose the
application in order to proceed with holidays which was done after
receipt of the
application (sic)”. He said that:-
“In
light of Rule 10, I find that the applicant had no
bona
fide
defence to oppose the application for condonation.”
These
findings by the first respondent were, in my view, a gross
misdirection. Firstly, the respondent was perfectly entitled to
refer to Rule 31(3) and to rely upon the absence of a case number as
a reason for not filing a notice of opposition. Secondly, to
say
that the appellant’s representative used this as an excuse to
enable him to go on holiday appears to be mere conjecture not
supported by any evidence. Thirdly, the finding ignores the fact
that Annexure “
A
”
also drew attention to the non-compliance with Rule 31(3)(e).
Fourthly, even assuming that the appellant’s representative was
not
justified in not filing a notice of opposition and opposing affidavit
within 14 days, as required by Rule 31(5)(a), the first
respondent
gives no reason as to why, in the circumstances of the case, that
neglect on the part of the appellant’s representative
should be
visited upon the appellant by depriving it of the opportunity to
oppose the CONDONATION APPLICATION.
[22] I
am not sure what the first respondent meant by “
no
bona
fide
defence to oppose the application for condonation”
.
If by that he meant that the appellant had no
bona
fide
reason for not filing notice of opposition timeously, that finding is
not supported by the evidence. As I have said, Annexure “A”
does
convey an intention to oppose the application. If the first
respondent meant that the appellant had no
bona
fide
grounds for opposing the CONDONATION APPLICATION, that was certainly
a misdirection as that was not in issue between the parties
in the
RESCISSION APPLICATION.
[23] The
first respondent further found that it was not for the appellant to
determine whether or not the CONDONATION APPLICATION
was defective
and that he should have filed a notice of opposition in terms of Rule
31(5)(a) contending that the referral be dismissed
“
on
technical basis (sic)
”.
Whilst there may appear to be some merit in this argument, it
ignores the fact that it was the appellant’s legal representative,
not Walters, who wrote Annexure “
A
”.
Although Walters did say in his affidavit in support of the
RESCISSION
APPLICATION
,
that he instructed his attorney to draft a letter and direct it to
the representative of the third respondent as well as to the
Case
Management Officer of the CCMA, he was referring to drafting a letter
dealing with the fact that the CONDONATION APPLICATION
was in
contravention of Rule 31(3)(e) relating to the short time given for
the appellant to oppose the application. That contravention
of the
rules appears
ex
facie
the third respondent’s notice of application for condonation and
there was, therefore, no question of the appellant or, for that
matter, its legal representative, determining whether or not the
application was defective – it was defective, if not fatally
defective.
[24] The
first respondent also found that “
the
reasons for not opposing the respondent’s application for
condonation was due to the fact that the applicant’s
representative’s
office was closed
”.
There is nothing to support that finding. There is no evidence that
Walters actually saw Annexure “
A”
before it was sent off or that he knew that his attorney’s office
was to close the following day until 5 January 2003. As I have
already said, Annexure “
A
”
indicates that the appellant did, indeed, intend to oppose the
CONDONATION APPLICATION and that is how Hawyes understood it.
In the
circumstances there is no justification for finding that the
appellant’s reason for not opposing the CONDONATION APPLICATION
was
because its attorney’s office was closed.
[25] Finally,
there is no basis upon which it can be said, as found by the first
respondent, that the failure to file a notice of
opposition and
answering affidavits constituted a waiver of the appellant’s
rights. As appears from
Road
Accident Fund v Mothupi
2000
(4) SA 38
(SCA):-
“
Waiver
is first and foremost a matter of intention.”
(49E-F)
and
“the
knowledge and appreciation of the party alleged to have waived is
furthermore an
axiomatic
aspect
of waiver”
(50B-C)
Furthermore,
the
onus
of proving waiver is on the party alleging it (50G). I do not know
if the third respondent has ever alleged that the appellant waived
the right to oppose the CONDONATION APPLICATION. There is no such
allegation in her answering affidavit in the RESCISSION APPLICATION.

Furthermore there is no evidence to support the proposition that the
appellant intended to waive its right to oppose the condonation
application or that it knew and appreciated that that was, or may be,
a consequence of the writing of Annexure “
A”
without filing a notice of opposition and opposing affidavit.
[26] It
follows, in my view, that there are serious errors in the first
respondent’s reasoning in refusing the RESCISSION APPLICATION.
On
the assumption that the first respondent was entitled to hear and
determine the RESCISSION APPLICATION, he should have granted
it on
the grounds that the CONDONATION RULING was made by Commissioner
Dadabhai in the absence of the appellant and was made erroneously,
because:-
it
was made in the absence of notice to the parties, or, at the very
least, to the third respondent;
(b) apparently
unbeknown to the commissioner, the appellant had indicated in
Annexure “
A
”
that it intended to oppose the application but did not find it
necessary to give notice of its intention to do so because of the
short service and the absence of a case number; and
the Commissioner
failed to appreciate that the application was defective, at least
because of the failure to comply with the mandatory
requirement of
Rule 31(3)(e) and possibly in other respects.
[27] The
grounds of appeal raised in the appellant’s notice of appeal
include the ground that the learned Judge in the Court
a
quo
erred
in finding that the appellant did not object to the conversion of the
conciliation hearing into an application for the rescission
of the
condonation
ruling
.
This ground of appeal is valid. In his affidavit in support of the
RESCISSION APPLICATION, Walters makes it clear, in paragraph
13, that
the objection was raised at the hearing on 24 February 2002 that the
first respondent was not permitted to address the RESCISSION
APPLICATION,
which was not before him. In reply to this paragraph the third
respondent says that “
the
third respondent
at
the request of my legal representative
,
proceeded to convert the proceedings into rescission proceedings
”
(my emphasis). The appellant did object to the hearing of the
RESCISSION APPLICATION and the misdirection of fact by the Court
a
quo
in this regard is, in my view, sufficient reason for upholding the
appeal.
[28] In
his judgement in the Court
a
quo
the learned Judge found that no irregularity was committed by the
first respondent. He adopted the first respondent’s reasoning
that
the appellant could not, on its own, decide that there was
non-compliance with Rule 31 and decide not to oppose the application
when nothing prevented the appellant from opposing the late referral.
He said:-
“
It
(the app
ellant),
was the author of its own misfortune.”
The
learned Judge overlooked, as did the first respondent, that the
contravention of Rule 31(3)(e) appears
ex
facie
the third respondent’s notice of application for condonation so
that there was no question of the appellant, on its own, deciding
that there was non-compliance with Rule 31. The learned Judge also
appears to have overlooked the fact that Walters does not say
that he
approved the draft of his attorney’s letter, Annexure “
A
”,
or that he instructed his attorney not to file a notice of
opposition. The learned Judge also does not deal with the first
respondent’s
finding that the failure to file notice of opposition
and answering affidavits constituted a waiver of the appellant’s
rights.
For these reasons, also, the appeal must succeed.
[29] The
learned Judge also found that the appellant’s application to review
the CONDONATION RULING should fail. In this regard
he was presumably
referring to the last paragraph of the founding affidavit deposed to
by Walters, in the REVIEW APPLICATION, to
which I have referred.
Counsel for the appellant accepts, in his Heads of Argument, that the
REVIEW APPLICATION was an application
to review the first
respondent’s RESCISSION RULING dated 3 March 2003 and that the
proper order would be one setting aside that
ruling and referring the
matter back to the second respondent, the CCMA, for the hearing of
the RESCISSION APPLICATION. In my view
that is the correct approach
in the light of the relief sought in the order prayed in the REVIEW
APPLICATION.
[30] As to costs the
requirements of law and fairness dictate that the cost should follow
the result.
[31]
In
the result I make the following order:-
The appeal is
upheld, with costs.
The judgement
of the Labour Court delivered on 2 December 2003 is set aside.
The
RESCISSION RULING of the first respondent dated 3 (or 25
th
)
March 2003 is reviewed and set aside.
4. The
appellant’s application for rescission of the CONDONATION RULING by
Commissioner Dadabhai on 10 January 2003 is referred
back to the
second respondent, the CCMA, to be heard before a Commissioner other
than the first respondent or Commissioner Dadabhai,
on due notice to
the parties.
5. The third
respondent is ordered to pay the costs of:-
(a)
the hearing on 24 February 2003 which gave rise to the first
respondent’s
rescission
ruling;
(
b) the
application by the appellant for the review and setting aside of the
said RESCISSION RULING.
____________________
MC CALL AJA
I
agree.
_____________________
ZONDO
JP
I
agree.
____________________
NICHOLSON JA
Appearances
For the appellant
: L.P. Holgryn
Instructed by
De Villiers-Möhr Attorneys
For the third
respondent : M.A. Hawyes
Instructed by
Barry Kotze Incorporated
Date of Argument
: 17 August 2005
Date of Judgement
: 9 December 2005