About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2017
>>
[2017] ZALAC 57
|
|
Advance Warehousing (Pty) Ltd v Mashigo (JA9/16) [2017] ZALAC 57 (18 October 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JA9/16
In the matter between:
ADVANCE
WAREHOUSING (PTY)
LIMITED
Appellant
and
ANNAH
PRUDENCE
MASHIGO
Respondent
Heard:
05 September 2017
Delivered:
18 October 2017
Summary: Rescission application -
principle that applicant for rescission must show good cause restated
– applicant must give
a full and reasonable explanation for its
default, disclose a
bona fide
defence with good prospects of
success. Appeal dismissed with costs.
Coram: Coppin, Sutherland JJA and
Savage AJA
JUDGMENT
COPPIN JA
[1]
This is an appeal against an order of the Labour Court (Mothibi AJ),
dismissing, with costs, an application brought by the appellant
to
rescind an order granted by the Labour Court on 8 June 2012, in the
absence of the appellant, and making an arbitration award,
granted in
favour of the respondent, an order of court in terms of section
158(1)(c) of the Labour Relations Act
[1]
(LRA). The court
a
quo
granted the appellant leave to appeal to this Court.
[2]
Besides averring that it had not been aware of the application to
make the award an order of court, which aspect I will deal
with
later, the appellant rather faintly implied that the award had
prescribed at the time of that application. The respondent
contended
that the Prescription Act
[2]
was not applicable and that the award had not prescribed.
[3] The court
a quo
did not
find it necessary to deal in detail with that “defence”
because, according to the court
a quo,
the appellant had
failed to give a reasonable explanation for its default. By the time
the appeal was directed to this Court, the
issue of the prescription
of an award, made in terms the LRA, was contested in other
proceedings before this Court.
[4]
In December 2016 in
Myathaza
v Johannesburg Metropolitan Bus Services (SCO) Limited t/a Metro Bus
and Others,
[3]
four
justices of the Constitutional Court, out of a quorum of eight
justices, held in two judgments,
inter
alia,
that the Prescription Act did not apply to awards made in terms of
the LRA. The four other justices held in a third judgment that
the
Prescription Act was applicable, but prescription would have been
interrupted by applications for the review of those awards
and would
have remained interrupted pending the finalisation of all proceedings
between the parties.
[5]
Although there is no clear
ratio
decidendi
to be discerned from the three judgments in
Myathaza,
prescription was rightly considered by the parties no longer to be an
issue in this matter in the light of either of the main conclusions
arrived at in those judgments and on the approach adopted by the
Constitutional Court
[4]
and this Court
[5]
after those judgments.
[6] In light of those developments,
the appellant’s counsel was constrained to make submissions
solely in respect of the remainder
of the averments made by the
appellant in support of its rescission application.
[7] I now proceed to a synopsis and
discussion of those averments.
Synopsis and Discussion
[8] The respondent was employed by the
appellant as a general assistant at its Daveyton store in about
November 1998 and was dismissed
on 19 February 2007, having been
found guilty of insubordination at an internal disciplinary enquiry.
[9] In response, the respondent had
referred an unfair dismissal dispute to the Commission for
Conciliation, Mediation and Arbitration
(CCMA), and the dispute went
to arbitration on or about 4 May 2007.
[10] On 16 May 2007, the Commissioner
issued an award in terms of which the appellant’s dismissal was
found to be procedurally
fair, but substantively unfair. In terms of
the award, the appellant was to reinstate the respondent
retrospectively from the date
of her dismissal, i.e. 19 February
2007, on the same terms and conditions that applied before dismissal;
the respondent was to
report for work within seven days of receipt of
the award; and the appellant was to pay to the respondent within 14
days of receipt
of the award an amount of R4 393,05, being three
months’ salary, as back pay (‘the award’). No costs
order
was made
[11] On 7 June 2007, the appellant
brought an application in the Labour Court to review and set aside
the award. It was opposed
by the respondent and was eventually
dismissed on 16 December 2011. On 12 March 2012, the respondent
launched the application to
make the award an order of court and on 8
June 2012 the award was made an order in the absence of the
appellant.
[12] The appellant does not dispute
that the respondent gave notice of the application to make the award
an order of court by way
of a facsimile to number (012) 666 7514, but
avers that it did not receive notice of that application. It also
does not dispute
that facsimile number (012) 666 7514 was one of its
numbers but vaguely contends that the number had been changed,
without stating
when the change occurred. The appellant avers that it
only became aware of that application and that the award was made an
order
of court, after it received a letter of demand from the
respondent’s attorneys on 12 May 2013. The appellant further
contends
that the respondent never reported for duty as per the award
and that, due to the time-lapse since the award had been issued, it
had concluded that the respondent had elected not to pursue the
matter any further.
[13] Other than for vague averments
alluding to the time that had passed between the making of the award
and the application making
it an order of court, the appellant’s
affidavit, in support of its rescission application, is threadbare
and lacking in essential
detail.
[14]
It is now trite that an applicant for rescission must show good
cause.
[6]
This entails not only giving a full and reasonable explanation for
its default, but disclosing a
bona
fide
defence with good prospects of success in respect of the relief
sought by the claimant, i.e., the order sought to be rescinded.
[15] Notwithstanding the threadbare
application for rescission, counsel for the appellant sought to
persuade us that the appellant
has made out a compelling case for
that relief. Counsel, essentially, capitalised on the appellant’s
averment that the respondent
had not reported for duty “
as
ordered”
in the award and, in an effort to bolster the
appellant’s case, (imprudently) referred to a settlement
proposal the appellant
had conveyed to the respondent’s
attorneys after receiving their letter of demand.
[16] The court
a quo
did not
misdirect itself in finding that the explanation tendered by the
appellant was inadequate. It obviously lacks essential
details. And
the failure to give a proper explanation for the default was enough
to justify dismissal of the rescission application.
[17] The other defences raised amount
to no more than “a grasping at straws”. Prescription,
which cannot redound in
its favour for the reasons mentioned at the
outset of this judgment, was not mentioned expressly in the
appellant’s papers
in the court
a quo
, but was derived
in argument from vague allusions in those papers to the lateness of
the application to make the award an order
of court, albeit without
disclosing voluntarily that it had brought a review application
shortly after the award was issued, and
that the review was dismissed
on 6 September 2011.
[18] As for its defence that the
respondent did not report for duty as per the award - the award
itself does not make the respondent’s
reinstatement conditional
upon her reporting for duty within seven days of receipt of the
award. In any event, the respondent placed
in issue the appellant’s
averments on that matter. She points out,
inter alia
, that the
appellant had launched an application to review and set aside the
award shortly after it was issued and that, as a result,
she was not
able to report for duty. The respondent also goes on to explain
extensively why she was only able to bring her application
to make
the award an order of court, at the time when she did.
[19] By failing to disclose in its
founding papers for the rescission that it brought a review and that
the review was dismissed
on 6 September 2011, the appellant gives a
false impression there that the respondent did not report for duty
due to laxity or
disinterest, or that she adopted a lackadaisical
attitude, until the launch of her application to make the award an
order of court.
But the contrary is apparent from a proper reading of
the papers. The respondent evidently diligently pursued the matter,
making
use of the necessary resources available to her as a
layperson, to enforce the award. Before us she was assisted by an
attorney
appointed by the Legal Aid Board. The appellant, on the
other hand, appears to have done much to frustrate the respondent and
to
have resorted to technicality to avoid complying with the award
which was made an order of court. The court
a quo
cannot be
criticised for its handling of the matter. The appellant failed to
show good cause for its default.
[20] In the result, the appeal is
dismissed with costs.
_____________________________
P Coppin –
Judge of Appeal
Sutherland JA and Savage AJA concur in
the judgment of Coppin JA.
APPEARANCES:
FOR THE APPELLANT: Mr K J Maleka
Instructed by Carrim Attorneys Inc
FOR THE RESPONDENT: Mr M P Voyi
Instructed by Ndumiso Voyi Inc
[1]
Labour
Relations Act 66 of 1995
.
[2]
Prescription
Act 68 of 1969
.
[3]
Myathaza
v Johannesburg Metropolitan Bus Services (SCO) Limited t/a Metro Bus
and Others
(2017)
38 ILJ 527 (CC)
.
[4]
Mogaila
v Coca Cola Fortune (Pty) Ltd
[2017]
5 BLLR 439 (CC).
[5]
Van
Tonder v Compass Group (Pty) Ltd and Others
[JA
58/ 16] Unreported decision of the LAC (1 June 2017).
[6]
See
inter
alia
Superb
Meat Supplies CC v Maritz
(2004) 25 ILJ 96 (LAC);
Edcon
(Pty) Ltd v Commission for Conciliation, Mediation Arbitration and
Others; In re: Thulare and Others v Edcon (Pty) Ltd
(2016)
37 ILJ 434 (LAC).