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[2008] ZALCJHB 75
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Teba Bank v Matobane and Others (JR1480/01, J5358/01) [2008] ZALCJHB 75 (18 April 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
IN JOHANNESBURG)
CASE
NUMBER:
JR1480/01 (Review Application)
J5358/01
(Rescission Application)
In
the matter between:
TEBA
BANK
APPLICANT
AND
COMMISSIONER
A MATOBANE
FIRST RESPONDENT
THE
COMMISSIONER FOR CONCILIATION,
MEDIATION
AND ARBITRATION
SECOND RESPONDENT
R
MMOPE
THIRD RESPONDENT
JUDGMENT
AC
BASSON, J
NATURE
OF THE PROCEEDINGS
[1]
There are two applications
before this Court. The first is an application for a rescission
brought in terms of section 165(a) of
the Labour Relations Act 66 of
1995 (hereinafter referred to as “the LRA”) under case
number J5358/01 in respect of
an order obtained on 19 November 2003
in terms of section 158(1)(c) of the LRA. The second is an
application for an order that
the review application in terms of
section 145 of the LRA under case number J1480/01 be heard and
determined by this Court. The
Applicant also seeks condonation for
the late filing of the rescission application.
BACGROUND
FACTS
[2]
On
7
September 2001
, the First
Respondent (hereinafter referred to as “the Commissioner”)
issued an award in terms of which it was found
that the dismissal of
the Third Respondent (hereinafter referred to as Mmope”) was
procedurally unfair but substantively
fair. The Commissioner then
ordered the Applicant - Teba Bank (hereinafter referred to as “the
Bank”) - to pay compensation
to Mmope in the amount of R 42
816.50 which is equivalent to 10 months’ and 1 week’s
salary. Mmope was dismissed during
September 2000.
[3]
The application for review of
the award was filed on 2 November 2001.
[4]
On
19
November 2003
the
arbitration award was made an order of Court in terms of section
158(1)(c) of the LRA. On
5
December 2003
the Labour
Court granted Teba Bank a stay of the writ of execution and ordered
that any steps in the execution of the award be
stayed pending the
determination of the review of the arbitration award. The said writ
of execution was issued at the instance
of Mmope pursuant to the
arbitration award that was made an order of Court on 19 November
2003.
[5]
On
9
June 2005
, the learned AJ
Leeuw made an order dismissing the review application on the basis
that there was no award to be reviewed in view
of the fact that the
said award was already made an order of Court in terms of section
158(1)(c) of the LRA. The learned Judge
ordered each party to pay its
own costs. In her judgment AJ Leeuw referred to section 173(1)(a) of
the LRA which states that the
Labour Appeal Court has exclusive
jurisdiction to hear and determine all appeals against the final
judgments and final orders of
the Labour Court. The learned Judge
only gave her written reasons for her order dismissing the review
application after Teba Bank
had requested reasons. In the notice
which requested the reasons it is stated that the Applicant (Teba
Bank) intended to apply
for leave to appeal to the Labour Appeal
Court against the whole of the judgment granted by AJ Leeuw on 9 June
2005.
[6]
On
20
January 2006
Teba Bank
filed an Application for Leave to Appeal. On 23 March 2006 Teba Bank
sought and obtained a legal opinion in respect of
its prospects of
success. As a result of this opinion, Teba Bank withdrew the
Application for Leave to Appeal.
[7]
Subsequent to these events and
notwithstanding the fact that there is an order of this Court
dismissing the review application under
case number JR1480/01 and
notwithstanding the fact that Teba Bank withdrew the Application for
Leave to Appeal against this judgment,
Teba Bank brought an
application to rescind the order granted in terms of section
158(1)(c) of the LRA.
The
Rescission Application
[8]
On behalf of Teba Bank it was
argued that the order in terms of section 158(1)(c) of the LRA was
erroneously granted in its absence
and submitted that it should be
rescinded because it was not in willful default. It was further
submitted that this Court would
not, under normal circumstances have
made an award an order of Court in terms of section 158(1)(c) of the
LRA if it was aware of
the fact that there was a review pending. It
was thus submitted that the
status
quo
should be restored so
that the review (although
de
factu already dismissed)
can be properly ventilated.
[9]
On behalf of the Mmope it was
very crisply argued that the decision of AJ Leeuw dated 9 June 2005
dismissing the review application
stands and that this Court
therefore has no jurisdiction to hear the review. The Court’s
attention was drawn to the fact
that AJ Leeuw specifically ordered
that the “
application
is dismissed
”. As
such, it was submitted, the review was disposed of with the effect
that this Court cannot firstly rescind the section
158(1)(c) order
and, secondly, cannot review an award that has already been dismissed
by this Court on 9 June 2005. It was further
submitted that this
whole process is one whereby Teba Bank is delaying and frustrating
compliance with an arbitration award that
was rendered in the favour
of Mmope as far back as 2001.
[10]
On behalf of Teba Bank it was
conceded that AJ Leeuw had dismissed the review application but
submitted that regard must be had
to the reason for her order.
[11]
What the Applicant in these
proceedings is effectively requesting this Court to do is to rescind
an order in terms of section 158(1)(c)
of the LRA in terms of which
an award of an arbitrator was made an order of Court on the basis
that that order was granted erroneously
in the absence of the
Applicant in the review proceedings. The effect of such a rescission
would then presumably be, if I understand
the submissions on behalf
of Teba Bank correctly, that the review application will then be
proper before this Court and that this
Court will then be able to
hear the review application.
[12]
There is one fundamental flaw
with this argument and that is that this Court cannot set aside a
final order by this Court in the
circumstances contemplated by the
Applicant. Whether or not the learned AJ Leeuw was correct in her
judgment which resulted in
the dismissal of the review application
under case number JR1480/01 is irrelevant. If the Applicant was
dissatisfied with that
order, it should have review that order. The
Applicant has elected not to do so. As a result the order stands.
Even if this Court
was inclined (which it is not) to grant the
rescission of the section 158(1)(c) order, this will not result in
the setting aside
of another Court order that disposed of the main
dispute (the review application).
[13]
In so far as it was necessary
to consider the rescission application, it is dismissed for the
following reasons: Firstly, the rescission
application was brought
approximately two and a half years after the award was made an order
of court: The order was granted on
19 November 2003. The application
for rescission was only filed on 10 April 2006. No explanation for
the delay is tendered in the
founding affidavit nor is condonation
applied for. On this basis alone the rescission application is
dismissed.
[14]
I am of the view that the
Applicant should pay the costs. Both applications before me are
ill-founded and should never have been
before this Court. This matter
has furthermore been dragging on for years and Mmope has been
unfairly deprived of the results of
an arbitration award.
[15]
In the event the following
order is made:
1.
The rescission application
under case number J5358/01 is dismissed.
2.
The application to consider the
review application under case number JR1400/01 is dismissed.
3.
The Applicant to pay the Third
Respondent’s costs.
_________________________________
AC
BASSON, J
DATE
OF PROCEEDINGS
: 5
June 2007
DATE
OF JUDGEMENT:
18
April 2008
FOR
THE APPLICANT:
Thompson
Attorneys
FOR
THE RESPONDENT:
Rammutla-at-law
inc