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[2003] ZALCJHB 6
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Satellite Data Network v Mollentze (JR1197/02) [2003] ZALCJHB 6 (1 March 2003)
Sneller
Verbatim/ASS
IN THE LABOUR COURT OF
SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: JR1197/02
DATE:
2003-03-01
In the matter between
SATELLITE DATA
NETWORK Applicant
and
C
MOLLENTZE Respondent
J U
D G M E N T
LANDMAN
J:
This application
has been brought by Satellite Data Network (Pty) Limited against
three respondents, including a former employee,
Ms Mollentze, to
review and set aside a recission ruling handed down by the 2nd
respondent, the Commissioner, on 2 June 2002.
Two issues were raised
regarding this matter. The first one related to whether or not
Satellite Data was in wilful default.
It was conceded, for
purposes of this application, that Satellite Data was not in wilful
default. This then gives rise then to
consideration of the second
issue.
It is alleged that the
recission ruling is reviewable because the Commissioner failed to
apply the correct legal tests in determining
whether or not Satellite
Data had reasonable prospects of success on the merits of the matter.
The Commissioner in his
ruling devoted most of his time to a consideration of whether or not
Satellite Data was in wilful default
and then, in a paragraph, he
deals with the question of whether Satellite Data showed that it had
a
bona fide
defence. He says the following:
"The submissions of
both the applicant and the respondent in so far as prospects of
success is concerned, without getting into
detail, there is a lot of
dispute of facts which makes it difficult to say in whose favour the
prospects are. However, since
the onus are on the applicants in
this regard it is my view that the benefit of doubt should favour the
respondent (employee).
In
M M Steel Construction CC v Steel
Engineering and Allied Worker's Union of SA and others
(1994) 15
ILJ 1310 (LAC) the court held that the door will not be closed for a
litigant who can show that he has a defence of some
merit which he
genuinely wishes to pursue. I am not satisfied that the
applicant has shown this defence."
Thereafter the
Commissioner ruled that Satellite Data has failed to show good cause
and he dismissed the application.
This is followed by the
following paragraph:
"Notice be further
taken that the quantum of the compensation on the award rendered on
26
th
March 2002 is hereby amended and/or corrected
to R220 400,00 (Two hundred and twenty thousand four hundred
rand) in
stead of R24 600,00 (Twenty four thousand six hundred
rand)."
In my opinion the ruling
constitutes a gross irregularity and is reviewable. First, if
the Commissioner was unable to determine
what the facts were then he
was obliged to apply the well-known test in
Plascon Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(AD). Had he applied this test, he would have come to the conclusion
that he must decide whether there is a
bona fide
defence on the facts as set out by the respondent together with
the facts that the respondent could not deny. Had he
done so he
would have concluded that there was a
bona fide
defence.
Alternatively he could have referred the matter to oral evidence.
Thirdly, he could have concluded that the disputes
of fact
indicate that there is a
bona fide
defence.
In so far as the
Commissioner decided that the quantum awarded was incorrect and
mero
motu
decided to amend the original award this too is
indicative that there was a
bona fide
defence at least as
regards the quantum of compensation. Furthermore on the basis of the
concession that there was no wilful default,
this is clearly a case
where Satellite Data should be afforded the opportunity of
stating its case fully as it could
have done, had it had proper
notice to attend the arbitration proceedings.
In the circumstances,
therefore, I am of the view that the ruling should be reviewed and
set aside. I make the following order:
1.
The recission ruling handed down by the 2nd respondent on
17 July 2002 is reviewed
and set aside.
2.
The CCMA is directed to convene an arbitration hearing to consider
the merits of the matter.
3.
The 3rd respondent is ordered to pay the costs of this
application.
SIGNED
AND DATED AT BRAAMFONTEIN ON 14 APRIL 2003
_____________________
A
A LANDMAN
JUDGE
OF THE LABOUR COURT OF SOUTH AFRICA
Date of hearing:
20 February 2003
Date of judgment: 20
February 2003
For applicant:
Celeste Allan Attorneys
For respondent:
R C Christie Inc