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[2007] ZALAC 31
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Zulu v Commission for Conciliation Mediation and Arbitration and Others (JA37/04) [2007] ZALAC 31 (11 December 2007)
18
IN THE LABOUR APPEAL COURT OF
SOUTH AFRICA
HELD IN JOHANNESBURG
Case no: JA37/04
IN THE MATTER BETWEEN:
ZULU, LAWRENCE BEKUMIZI
Appellant
AND
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION
First respondent
MUDAU, A.R.N.O
Second respondent
ABSA PROPERTIES
Third respondent
Judgment
TLALETSI AJA
Introduction
[1] This appeal is against the
judgment and order of the Labour Court in a review application that
had been brought by the appellant
to that court to have a certain
decision made by the second respondent, varying the award issued by
him, reviewed and set aside.
The Labour Court, per
Waglay J,
as he was then, dismissed the appellant’s application for
review and ordered that the appellant should pay the costs of the
application. The appellant unsuccessfully applied for leave to appeal
in the Labour Court. He petitioned the Judge President of
this Court
for leave to appeal and this Court subsequently granted the appellant
leave to appeal to this Court against the order
of the Labour Court.
Factual Background
[2] The respondent is a division of
ABSA Bank Limited, (“the employer”) a company duly
registered in terms of the Company
laws of the Republic of South
Africa. The appellant was employed by the employer since 1994 as an
“air-conditioning assistant”.
He was dismissed on
allegations of misconduct. The date of dismissal has not been
provided. Being aggrieved by his dismissal, he
referred an unfair
dismissal dispute to the first respondent, the Commission for
Conciliation, Mediation and Arbitration (“the
CCMA”)
alleging that his dismissal was unfair. Naturally, the employer
contended that the dismissal was fair. The dispute
was arbitrated by
the second respondent on 10 February 2000. On 30 March 2000 the
second respondent issued an award in which he
found that the
dismissal was indeed unfair and ruled that the appellant be
reinstated with immediate effect. The arbitrator directed
further
that the appellant be paid an equivalent of twelve (12) months’
salary, being an amount of R32 340-00 within fourteen
days as
compensation.
[3] The employer thereafter applied
to the CCMA for the variation of the award. The second respondent,
who was a commissioner of
the CCMA issued an award on 12 April 2000.
In the award he recorded that:
“
1.
After listening to the employer’s submission on the matter. I
wish to vary my award dated 30 March 2000 as follows:
1.1 The
respondent is ordered to pay compensation as follows:
Compensation equivalent to 12 months at the rate of R2929-89 which
equals R35158-68.
1.2
The amount of R35158-68 must be paid within 14 days of this award.”
For the sake of convenience, I
shall henceforth refer to this award as “the second award”
and the award issued on 30
March 2000 as “the original award.”
[4] In compliance with the award,
the employer issued two cheques payable to the appellant dated 17
th
and 18
th
April 2000 for R20392-04 and R12, 225-56
respectively. It is common cause that these cheques were accepted and
deposited by the
appellant into his bank account and were honoured.
[5] On 15 May 2000 the appellant’s
legal representatives launched an application in terms of section 158
(1) (c) of the
Labour Relations Act
66
of
1995
(“the Act”) for an order making the original
award dated 30 March 2000 made an order of Court. On 18 May 2000 the
appellant
served a document entitled “
Affidavit In
Support Of Proof Of Service Of Arbitration Award”
on
the employer. In the document the appellant stated that the award was
served by hand on or about 30 March 2000 and that the
third
respondent had failed to comply with the part of the original award
relating to his re-instatement. He was requesting that
the
‘agreement’ be made an order of court. It is not clear
which ‘agreement’ is being referred to. One
can only
assume that he was referring to the original award as it was the only
document which was served and no agreement had ever
been entered into
according to the record.
[6] On 23 May 2000 the employer’s
attorneys addressed a letter to the appellant’s attorneys
advising that the award
the respondent was seeking to enforce was
varied on 12 April 2000 and that a new award had been issued.
Although the employer referred
to the letter as annexure ‘E’
in the affidavit in support of the application for rescission of
judgment, a copy of
such a letter is not part of the appeal record.
On 24 May 2000 the employer’s attorneys served and filed a
notice of intention
to oppose the application to have the award made
an order of court.
[7] On 02 June 2000 during a
telephonic discussion, the employer’s attorneys were advised by
the appellant’s attorney
that he was going to withdraw the
application to have the award made an order of court and that he
would serve such notice of withdrawal
soon. On 05 June 2000 the
employer’s attorneys forwarded a letter to the appellant’s
attorney confirming the telephone
discussion of 02
June
2000 and further advised that they had not yet received the notice of
withdrawal. They further mentioned that, should they
not receive the
notice of withdrawal by close of business on 06 June 2000, the
employer would file its answering affidavit. The
notice of the
withdrawal of the application was subsequently served on 06 June
2000. On 7 June the employer’s attorneys addressed
a letter to
the applicant’s attorney confirming receipt of the notice of
withdrawal.
[8] Despite the notice of
withdrawal, the appellant served, by telefax, a notice of setdown of
the application to have the award
made an order of court on 5 July
2000 on the employer. In accordance with the notice, the setdown was
for 4 July 2000, on the unopposed
motion court roll. In addition, the
notice of setdown was accompanied by an order by
Revelas J
,
making the original arbitration award an order of court. The order
was dated 04 July 2000 which was the day preceding the one
on which
it was faxed.
[9] On 20 July 2000 the employer
served and filed an application for rescission of the order by
Revelas J
. In the application, the employer contended that it
had no knowledge of the application to have the award made an order
of court
and also that the original award had been rescinded already.
The appellant opposed the application for rescission and contended,
inter alia
, that he did not instruct his erstwhile attorneys
of record to withdraw his application and that he was not aware of
the variation
of the original award. He also mentioned that he was
not served with the application to vary the award. On 17 November
2000
Revelas J
issued an order rescinding the order she had
made on 04 July 2000 and ordered the appellant to pay the employer’s
costs of
the application for recission.
[10] On or about 06 December 2000
the appellant filed an application in terms whereof he was seeking an
order reviewing and setting
aside or correcting the second award.
This application also encompassed an application for condonation for
its late filing. In
the review application the appellant contended
that neither he nor his attorneys of record had been notified of the
application
for variation and that the commissioner had committed a
gross irregularity by proceeding with the variation proceedings in
his
absence and without ascertaining whether the employer had served
the notice of that application on the appellant, either on himself
or
on his legal representatives.
[11] On or about 09 January 2001 the
employer served and filed an affidavit in opposition to the
application for review. In the
opposing affidavit the deponent,
Boikanyo George Prince
, who was employed by the employer as an
Industrial Relations Consultant, contended,
inter alia
, that
one
Johan Van der Merwe
as well as
Tshepo Nathan
, both
from ABSA, did advise the appellant of the application to amend the
original award, and that the appellant also attended
the proceedings
before the commissioner on 12 April 2000 at the CCMA offices in
Johannesburg. He also stated that the appellant,
he continued,
reported at the office of
Johan Van der Merwe
on that day and
that the two, as well as the deponent travelled in the same vehicle
to the CCMA offices. He mentioned further that
the appellant
personally appeared before the commissioner to oppose the variation
application and that at some stage he walked
out of the proceedings.
The commissioner, he continued, followed him and apparently persuaded
him to rejoin the proceedings and
the proceedings were thereafter
concluded in his presence.
[12] In the replying affidavit the
appellant denied that the persons mentioned (
Van der Merwe and
Nathan
) notified him or discussed any application for variation
with him. He stated that the third respondent had offered no
explanation
why the application had not been served on him or his
legal representatives. He further denied that he had travelled with
the people
mentioned and he challenged the employer to file an
“attendance register” as well as a copy of the record of
the alleged
proceedings before the second respondent as proof.
Finally,
on this aspect he mentioned
that there was nowhere in the record where the commissioner stated
that the appellant had attended the
hearing or that he had persuaded
him to rejoin the proceedings.
[13] On 15 January 2001 the CCMA
filed a record of the proceedings in compliance with Rule 7A (2) (b)
and 7(9) of the rules of conduct
of the proceedings in the Labour
Court. The notice advised,
inter alia
, that the CCMA stood by
the reasons for the decision as furnished in the second award. The
record that was being filed consisted
of one cassette tape, a
referral for Conciliation document, a referral for Arbitration form
and the original Arbitration award
dated 30 March 2000.
[14] On 2 December 2002 the
appellant’s attorney served and filed an application in which
he sought to “set aside”
the notice filed by the CCMA in
terms of Rule 7A(2)b and 7(9). In the supporting affidavit the
appellant alleged that the rescission
ruling in case GA63569 referred
to in the notice did not relate to the matter between the parties but
to different parties. On
4 March 2003
Pillay J
issued an order
in terms whereof paragraph 4 of the notice filed by the CCMA relating
to the rescission ruling in GA63569 was struck
off with no order as
to costs. This order had the effect of deleting the statement that
the commissioner stood by the reasons for
his decision as furnished
in the “Rescission Ruling GA 63569” dated 12 April 2000.
[15] On 9 June 2003 the appellant
filed a notice in terms of Rule 7A8(b) of the rules of the Labour
Court indicating that he stood
by his Notice of Motion and that, if
the respondents intended opposing the application, they should do so
within ten (10) days
of receipt of the application failing which the
matter would proceed as unopposed. The application for review was set
down on the
unopposed roll for the 13
th
August 2003. On
that day Trengove AJ issued an order in terms of which the
commissioner’s second award was reviewed and set
aside and the
original arbitration award issued on 30 March would still stand. This
meant that the position as it obtained after
the original award was
reinstated.
[16] On 21 August 2003 the employer
brought an application for the recission of the order issued by
Trengove AJ
. In the founding affidavit the employer contended
that the appellant and his attorneys were at all times aware that the
application
for review was opposed and that the opposing papers had
already been filed on 21 January 2004.
Van Niekerk AJ
granted
an order for the rescission of the order granted by default by
Trengove AJ
on 13 August 2003 and made no order as to costs.
This now meant that the review application brought by the appellant
was now pending
once again and that the original award remained
rescinded by the second award.
[17] The review application was set
down for hearing in the opposed roll for the 7
th
May 2004.
The appellant appeared in person to present his application and the
employer was represented by counsel. The application
was heard by
Waglay J
. The application was dismissed with costs. It is
against this decision that the appellant appeals to this Court.
[18] In the review application the
appellant contended that the variation award was reviewable in that
he was neither notified nor
did he have knowledge of the employer’s
intention to vary the award. He also contended that he had not been
made aware that
the commissioner was to hear the application. The
Labour Court held that against appellant’s allegations there
were affidavits
filed by the employer to the effect that not only was
the appellant notified of the hearing of the variation of the initial
arbitration
award but that the appellant was also present and indeed
opposed the variation application and that at some stage walked out
of
the hearing. Adopting the approach laid down in
Plascon- Evans
Paints Ltd v Van Riebeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
at
634E-635C with regard to motion proceedings, the Labour Court held
that, having considered the affidavits and the balance of
probabilities, the appellant was in fact present when the variation
matter was heard and that the appellant was given an opportunity
to
file a transcript of the hearing. It would, however, appear that the
proceedings were not recorded. The Labour Court also remarked
that
the appellant insisted on proceeding with the hearing of the review
application despite the Labour Court’s warning that,
as the
papers stood, his prospects of success were not favourable. The
Labour Court found, based on the papers as they were, in
favour of
the employer and ordered that costs should follow the result.
The Appeal
[19] It is perhaps opportune to
mention some procedural issues that have been raised by the employer
which relate to the way the
appellant has conducted this appeal The
effect of these procedural difficulties, if valid, would be that no
appeal has not been
noted, alternatively, if noted, it has lapsed.
19.1 Appellant was granted leave to
appeal on 04 February 2005 after petitioning the Judge President of
this Court. In terms of
rule 5(1) of the rules of this Court the
appellant’s Notice of Appeal had to be delivered within 15 days
from 04 February
2005. On 23 March 2006 the appellant served a Notice
of Motion in which he stated that he was “applying for the
appeal”
to set aside the commissioner’s variation award
dated 12 April 2004 with costs. He also stated in the document that
the “application
for appeal” was against the whole of the
judgement granted by
Waglay J
. The notice was accompanied by
an affidavit deposed to by the appellant. In the supporting affidavit
the appellant set out the
grounds why he wanted the judgment to be
set aside. By way of background he set out why the commissioner was
wrong to vary the
award in his absence and without his knowledge
which he stated was “contrary to the Act”. He also stated
that
Waglay J
made a ruling on false statements and without
proof from the commissioner and the employer that he had attended the
hearing of
the application for the variation of the original award.
Put otherwise, the appellant was challenging the factual finding of
the
Labour Court that he had attended the variation application
hearing.
19.2 It was contended on behalf of
the employer that the appellant’s Notice of Motion filed on 23
March 2006 does not constitute
a notice of appeal, and that to the
extent that it may be said that the document constitutes a notice of
appeal, then it was delivered
more than a year late and was noted by
an accompanied application for the condonation of the late delivery
of such “notice
of appeal”. The employer contended,
therefore, that if the documents that the appellant file did not
constitute an appeal,
then there is no appeal before this Court, but
that, even if those documents can be said to constitute a notice, the
notice of
appeal would have been filed way out of time and in the
absence of a condonation application, the appeal falls to be
dismissed.
19.3 The second point raised on
behalf of employer is that the appellant has failed to comply with
rule 5(8) read with rule 4(9)
of the rules of this Court in that he
failed to file the record of the appeal within 60 days from the date
of the granting of leave
to appeal and only did so on 23 March 2006
which is way out of time. It was contended that the as there was no
application either
for the extension of time in terms of rule 5(17)
or for condonation of the delay in terms of rule 12 (1), the
appellant is in terms
of rule 5(17) deemed to have withdrawn the
appeal.
19.4 The third point raised on
behalf of the employer is that the appellant has failed to comply
with rule 5(10) of the rules in
that the record is not numbered on
every tenth line and was also incomplete. By contrast, goes the
argument, the documents that
ought to be excluded in terms of rule
5(12) have been included. An example of such documents included was a
set of heads of argument
in the first rescission application. A point
was also taken, without further elaboration, that the appellant had
not provided the
security requested by the respondent. Such a request
is not part of the record and it had not been disclosed when and how
it was
made. This last point does not deserve any consideration by
the Court.
[20] On 15 November 2006 the
appellant flied an affidavit with annexures which bear the heading
“
The Appellant’s Answering Affidavit to the Third
Respondent’s Heads of Argument
.” In the affidavit
the appellant stated that he was never served with the employer’s
heads of argument and that he
only noticed at the Labour Court that
the heads were filed on 20 September 2006. He mentioned that he had
not been in wilful default
in ‘respect’ of the
proceedings instituted against the employer and that he applied for
(condonation) to the Judge
President for the matter to proceed to the
Labour Appeal Court. He stated that the Registrar of the Labour Court
refused him the
opportunity to file his appeal because he had no
legal representative.
[21] The annexures to his affidavit
consisted of the letter to the Judge President in which he requested
that the matter should
be proceeded with despite the fact that he did
not have an advocate as he was unemployed. The date appearing next to
his signature
is 27 January 2006, which is eleven months after the
date of the order granting appellant leave to appeal.
[22] The second annexure is an
affidavit in the letterhead of the Johannesburg Justice Centre in
which the appellant stated that
his application for legal aid had
been turned down and that his written representations setting the
grounds of his appeal should
be “handed” to the Legal Aid
Officer. This letter, which is dated 22 November 2005, was also a
complaint against the
Johannesburg Justice Centre for turning down
his application for legal aid and was making a request to the Legal
Aid Board to make
a representative available for his case pending in
this court. The last annexure which is dated 22 November 2005 is a
letter to
the Judge President once again requesting that his matter
be proceeded with despite him having no legal representative as he
would
not obtain assistance from the institutions already referred to
above. He further sets out the historical background of his case
and
why he believed that his appeal should be successful.
[23] The procedure for prosecuting
appeals to this court is prescribed by Rule 5 of the ‘Rules
Regulating the Conduct of the
Proceedings of the Labour Appeal
Court.” It is necessary to quote the relevant provisions of the
rules relating to the objections
raised on behalf of the employer.
Rule 5(1) provides that:
“
Every appellant who has a
right of appeal must deliver a notice of appeal within 15 days, or
any longer period that may be allowed
by the Court, on good cause
shown, after leave to appeal.”
Rule 5 (7) and (8) relating to the
record reads:
“
(7) After an appeal has
been noted, the appellant must serve a copy of the record of the
proceedings in the Labour Court on each
respondent and file four
copies of the record with the registrar.
(8) The record must be delivered
within 60 days of the date of the order granting leave to appeal,
unless the appeal is noted after
a successful petition for leave to
appeal, in which case the record must be delivered within the period
fixed by the Court under
rule 4(9)”.
(9) One of the copies of the
record filed with the registrar must be certified as correct by the
registrar of the Labour Court.
(10) Every copy of the record
must-
(a) be clearly typed or printed
in double spacing on A4 standard;
(b) be paginated;
(c) be numbered on every tenth
line;
(d) be securely bound in
suitable covers disclosing names of the parties and the names of the
representatives of the parties;
(e) be divided into separate,
conveniently-sized volumes of approximately 100 pages each; provided
that a volume may consist of
a lesser number of pages if it is
convenient that such volume consist in a self-contained separate
portion of the record;
(f) include the judgment given
by the Labour Court;
(g) contain a correct and
complete index of the evidence and of all the documents and exhibits
in the case, the date and nature
of the exhibits being briefly stated
in the index;
(h) contain only those documents
that were referred to in any proceedings in the Labour Court;”
[24] I now proceed to consider the
points raised by the respondent referred to above. It is not in
dispute that the appellant obtained
leave from this court to appeal
against the judgment and order from the Labour Court on 4 February
2005. He was, therefore, in
terms of Rule 5(1) obliged to serve and
file a notice of appeal within 15 days from the date on which he was
granted leave to appeal.
It is common cause that the appellant did
not comply with Rule 5(1) as required. In his favour, I am prepared
to treat the notice
of motion incorporating an “application for
appeal” together with its supporting affidavit as serving the
purpose
of a notice of appeal, bearing in mind that he was not
legally represented and that he seems to have drawn the papers
himself.
Although the document does not conform to a notice of
appeal, it has some parts that have the necessary information to
serve as
a notice of appeal. However, these documents were only
served on the respondent on 23 March 2006, almost a year after leave
to
appeal had been granted.
[25] By 23
rd
March 2006
the respondent would have been justified to have concluded that the
appeal had been abandoned. There is no indication
to suggest that
during this period the appellant communicated with the respondent to
indicate that he was still interested in proceeding
with the appeal.
Having failed to file the notice of appeal within 15 days of the
order granting leave, the appellant ought to
have filed an
application for condonation of the late filing of his “notice
of appeal” together with his papers filed
on 23 March 2006. For
the application to succeed the appellant had to show good cause for
him to be allowed a longer period than
15 days as required Rule 5(1).
Instead of filing an application for condonation, the appellant has
decided to respond to the respondent’s
heads of argument in
which the objections referred to above have been raised and attached
copies of his correspondence with the
Johannesburg Justice Centre.
This action falls short of an application for condonation before this
court. The requirements necessary
for this court to come to the
assistance of the appellant have not been satisfied. The appellant’s
failure to file his notice
of appeal on time and his failure to file
an application for the condonation of his such failure has the
consequence that his appeal
should be dismissed.
[26] The next objection relates to
the appellant’s failure to file a record within 60 days from
the date of the order granting
leave to appeal as well as failure to
comply with rule 5(9). The record was only filed on 23 March 2006
which makes it to be out
of time by at least 10 months.
[27] If the appellant had realised
that he would not be able to file the record in time, he was required
to follow the procedure
provided in rule 5(7). He could approach the
respondent for an extension of time and, if the respondent refused
him an extension
he was expected to approach the Judge President in
chambers on notice of motion supported by an affidavit served on the
other side,
for an extension of time. He failed to do any of this.
His failure to do this meant that he was deemed to have withdrawn his
appeal.
This is in terms of the rules of this Court. In this instance
nothing indicate that the appellant was not aware that he had to file
the record within 60 days of the order granting leave to appeal. He
was notified specifically in the order granting leave to file
the
record within 60 days. The other option available to the appellant
after he had failed to file the record within 60 days was
to apply to
this court for the condonation of his failure to comply with the
rules of this Court. See also
Peach & Hatton Heritage (Pty)
Ltd v Neethling & Others
[2001] 5 BLLR 528
(LAC) at
529I-530I;
Goldfields Trust (Pty) Ltd & Another v Stander &
Others
[2002] 9 BLLR 797
(LAC) at 798D-799H. Once again the
appellant has not filed an affidavit to explain his failure to comply
with the order of the
court as well as Rule 4(9) of the rules of this
Court. No attempt was made to approach the respondent for an
extension of time
to file the record. In the absence of a successful
application for the condonation of the late filing of the record, the
appellant
is deemed to have withdrawn the appeal.
[28] The other objections relate to
the state of the record. As the objection goes, the record is not
numbered on every tenth line
and unnecessary documents have been
included. Of importance is also the fact that the record is
incomplete. Annexures to the founding
affidavit to the application
for review are not part of the record. It is not known whether these
annexures would in any way help
to advance either party’s case
on appeal.
[29] The most important record for
the present appeal is the record relating to the proceedings of 12
April 2000 in which the award
issued on 30 March 2000 was varied.
This record was not available at the review application before the
Labour Court. In fairness
to the appellant, he did file a notice
requesting the CCMA to file that record. In compliance with the
appellant’s request,
the CCMA did file a record consisting of
documents in the CCMA file. However, the relevant record was not
filed. As pointed out
earlier, the CCMA also referred to a matter
which was not related to the parties before it. The appellant
successfully applied
in the Labour Court for an order to strike that
paragraph out.
[30] In the light of the appellant’s
failure to comply with the rules of this Court, in particular his
delay of over a year
to file his “Notice of appeal” and
his delay of about ten months in filing the record of appeal and his
failure to
bring a condonation application, he is deemed in terms of
the rules of this Court to have withdrawn his appeal. In the result
there
would be no basis to reverse the effect of this court’s
rules. The matter must be struck off the roll. I propose not to make
an order for costs.
[31] In the result I make the
following order:
The appeal is struck off the roll.
There is to be no order as to
costs.
________
Tlaletsi AJA
I agree.
________
Zondo JP
I agree.
___________
Hendricks AJA
Appearances
For the Appellant: In person
For the Respondent: Mr Le Grange
Instructed by: Hofmeyr Herbstein
Gihwala INC
Date of Judgment: 11 December 2007