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[2008] ZALCJHB 82
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Lezimin 2557 t/a BG Construction v Sheriff of the High Court and Another (J1469/07) [2008] ZALCJHB 82 (16 July 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Case
no: J1469/07
In
the matter between:
LEZIMIN
2557 t/a BG
CONSTRUCTION
Applicant
And
THE
SHERIFF OF THE HIGH COURT
1
ST
Respondent
JOHAN
JACOBS
2
nd
Respondent
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
This is an application to rescind the order
issued by this court on the 5
th
September 2007, in terms of which the arbitration award issued by the
Commission for Conciliation Mediation and Arbitration (the
CCMA) on
the 28
th
May 2007 was made an order in terms of section 158 (1) of the Labour
Relations Act 65 of 1995 (the Act).
[2]
In the award the commissioner of the CCMA,
found that the second respondent, Mr Jacobs, referred herein after as
“
the employee
”
was dismissed and that his dismissal was unfair. The
commissioner then ordered the reinstatement of the employee with
backpay in the amount of R54000.00 including cost of the arbitration
hearing to be paid by the applicant on the attorney and own
client
scale.
Background facts
[3]
The employee was employed as an electrician
by the applicant. He is alleged to have verbally resigned when
confronted with
the issue of being drunk at work and having pawned
the property of the applicant.
[4]
The version of the applicant during the
arbitration hearing was that the employee was not dismissed. In this
regard the first witness
of the applicant Mr Beukman (Beukman)
testified that when he visited the site where the employee was
working on the 17
th
December 2005, he found him drunk. He then instructed someone to take
him home as it was dangerous for him to work in the state
in which he
was.
[5]
Beukman testified further that the employee
arrived drunk again at work the following Monday. He instructed him
to go home and to
come back when he was sober.
[6]
On the 3
rd
January 2006, Beukman and others held a meeting where they discussed
the outstanding work of the employee and the possible disciplinary
action they wished to take against him. The two issues which
were discussed regarding the disciplinary hearing concerned
the
conduct of being drunk at work and selling one of the tools of the
applicant at a pawn shop. Apparently during the cause
of the
day the applicant received a telephone call from the department of
labour stating that the applicant had dismissed the employee.
Thereafter, the employee attended at the work place where he was
issued with a cheque in the amount of R3000.00. It was written
on the cheque that this was in full and final settlement as a result
of a discussion between the parties.
[7]
The version of the employee is that he was
dismissed for no valid reason and in support of his case called his
wife as a witness.
He testified that on the 17
th
December 2005, Beukman enquired from him if he could work on a
particular Saturday. He agreed but indicated that he could
do
so only up to 11H00 as he had already made other commitments in the
afternoon. He reported for work on that particular day and
worked
until 11H15 after which he drove home where he parked the applicant’s
vehicle and proceeded to attended a braai which
was the prior
arrangement he had referred to when he agreed with Beukman that he
would work on that particular Saturday. The employee
testified that
he was surprised to learn on his return from the braai that Beukman
was at his house demanding the car keys.
He then proceeded to
the work site where Beukman told him to hand over his car keys.
He was then dropped at his house.
[8]
The employee further testified that after
some enquiry including the one done by his wife regarding payment of
his salary, he approached
the department of labour for assistance.
It was after a telephone call by an official of the department of
labour that the
applicant paid the outstanding salary in the amount
of R3000.00.
[9]
As indicated earlier the commissioner found
in favour of the employee and directed that he be reinstated with
back pay. After
obtaining the arbitration award and the
applicant having failed to comply with its terms, the employee filed
an application on
the 4
th
July 2007, to have the arbitration award made an order of court in
terms of section158 (1) (c) of the Act.
[10]
On the 16
th
July 2007, the applicant filed notice of opposition under case number
JR1469/07. The heading of the notice of opposition reads
as follows:
“
The
respondent’s Opposing Statement to the Applicant’s
Application to Certify CCMA Award and Writ of Execution”.
The notice itself read as
follows:
“
1.
PLEASE TAKE NOTICE THAT, the Respondent (Applicant in Review
Application) filed a Review Application attached as
Annexure “SS2”
in terms of
S144
of the
Labour Relations Act 66 of 1995
herein
referred to as the Act.
2.
You are hereby requested to stay the
Section 143 Application until finalisation of the Review Application
and I referrer to
Tony Gois t/a
Shakespeare’s Pub v Johannes Jacobus Van Zyl & Other CW
3/2/203”.
[11]
It would appear the application to oppose
being defective the registrar placed the matter on an unopposed
motion roll. On the 27
th
October 2007 and further to the court order making the arbitration
award an order of court, the registrar of this court issued
a writ of
execution which resulted in the attachment of the applicant’s
property on the 21
st
November 2007.
[12]
Thereafter on the 22
nd
November 2007, the applicant filed the present application to have
the order issued by this court making the arbitration award
an order
of court rescinded.
The rescission
application
[13]
The applicant brought its application to
rescind the court order in terms of section 165 (c) of the Act read
with rule 16A of the
rules of the Labour Court. In its founding
affidavit in support of the rescission application the applicant
contended that
it had prior to the arbitration award been made an
order of court, filed an application to have the award reviewed and
set aside.
The review application included a prayer to have the
enforcement of the award stayed pending the outcome of the review
application.
[14]
The review application was according
to the applicant erroneously sent to the applicants’ postal
address being PO BOX 6681,
Bailie Park, Portchefstroom 2526 and not
to the respondent’s postal address or that of his attorneys of
record, Mr Jacques
Jansen of Jansen’s Attorney.
[15]
The applicant contended that it did not
wilfully default in not attending at court when the application in
terms of section 158
(1) (c) of the Act was heard. The reason
for the matter having been set down on the unopposed motion roll was
according to
the applicant because of the incorrect case number it
placed on its notice of opposition.
[16]
Whilst the case number for the section 158
(1) (c) application was J1469/07, the applicant wrote on its notice
of opposition the
case number as being J
R
1469/7.
It seems to me this could not have been the cause for placing the
matter on the unopposed roll, because all the documents
were in the
same file.
[17]
The applicant’s legal representative
argued that the order was issued erroneously due to the error
committed by SAUEO, the
employer’s organisation which assisted
the applicant in filing the application. SAUEO committed an error by
serving the review
application at the wrong address. The other
cause of the matter being placed on the unopposed motion roll was
according to
the applicant because of the incorrect case number.
[18]
In relation to the incorrect reference in
the notice of opposition the applicant argued that although its
notice of opposition stated
that it was done in terms of section 144
instead of section 158 (1) (c) of the Act, the notice did contain a
prayer that the award
should be stayed pending the outcome of the
review application. It is further submitted in this regard that the
notice made it
clear that there is a review pending and that the
enforcement of the award should be stayed pending the review
application.
[19]
In addition to arguing that it had always
had an intention of opposing the section 158 (1) (c) application, the
applicant submitted
that the court would not have granted the order
had it been aware of the fact that the applicant had filed opposition
to the section
158 (1) (c) application.
The legal
principles
[20]
The Labour Court has in terms of rule of 16
A (1) (a), the power to rescind any order or judgment:
“
(i)
erroneously sought or erroneously granted in the absence of any party
affected by it;
(ii) in
which there is an ambiguity or patent error or omission, but only to
the extent of such ambiguity, error or
omission;
(iii)
granted as the result of a mistake common to the parties, or
[21]
In terms of rule 16A (2) (b) an application
to rescind judgment or an order of the court must be made within 15
(fifteen) days after
the order or judgment came to the attention of
the applicant. It follows that any application made after the 15
(fifteen) days
period would have to be accompanied by or a separate
condonation application being made for the late filing of such
application.
[22]
As stated by
Landmann,
Van Niekerk and Wesley in the Labour Court Practise (Juta &
Company 1998) D-58,
rule 16 provides
for a rescission of an order or judgment made in the absence of the
party applying for rescission in two circumstances.
The first
instance may be where judgment or an order was erroneously sought or
granted and secondly may be in the instance where
the applicant can
show good cause as to why he or she was in default of compliance with
the rules.
[23]
An order or judgment is said to be
erroneously granted where it is shown that there was an
irregularity in the proceedings
that gave rise to such an order or
judgment. The irregularity in general would arise when the court
granted an order or made a
judgment when it was legally incompetent
to do so. In this instance a court may have granted the order
or made the judgment
unaware of certain facts which had it been aware
of, would not have granted the order or judgment. For instance this
may be where
the court in granting the order or judgment was unaware
that the applicant had properly filed notice of opposition but the
matter
was enrolled without notice to the applicant resulting in the
matter being heard as unopposed and being disposed of in the absence
of the applicant. In this instance the strict reading of rule
16A (1) (a) seem to suggest that the applicant need not show
good
cause.
[24]
The other instance is where the applicant
seeks to rescind the order or judgment on the grounds that it was
granted in his or her
absence but that there is a reasonable
explanation for his/ her absence. In this instance the
applicant is required to show
good cause for the default and that the
rescission is not merely a delaying tactic to frustrate the claim of
the other party.
In addition, the applicant has to show
that he or she has a
prima facie
case to present. However, the applicant need not deal fully
with the merits of the case with the view to proving that the
balance
of probabilities favours his or her case. See in this regard
Sizabantu Electrical Construction v Gama
& Other (1999) 20 ILJ 673 (LC) and Voster v EET SA (Pty) Ltd
(2006) 26 ILJ 2439 (LC).
[25]
In the present case the applicant in
seeking to rely on the provisions of section 16A (1) (a) (i), argued
that whilst the respondent
was aware of the application to oppose the
section 158 (1) (c) of the Act the court was not. The court
would not according
to the applicant have granted the order had it
been aware of the intention to oppose the application. In his
founding affidavit
the applicant states that had it been aware of the
said date of set down of the respondent’s application to have
the award
made an order of court being the 5
th
September 2007, it certainly would have attended the proceedings and
would have brought to the attention of the court that it had
in fact
applied to have the award reviewed and set aside.
[26]
As stated earlier the applicant filed
notice of opposition under case number JR1469/07 instead of
J1469/07. It is also important
to note that the applicant in
the said notice of opposition cites at the top of the notice, case
number NW1513/05 being the case
number under which the award which
was ultimately made an order of court was decided. I have already
stated that I do not belief
that this could have been the reason for
setting the matter down on the unopposed roll. If this was the
reason, then probably,
this would have constituted good cause on the
part of the applicant.
[27]
In terms of the rules of this court the
registrar must enrol a matter on an unopposed roll if no response had
been delivered by
the respondent to the applicant’s
application. This power in my view does not extend to an
instance where the respondent
has filed a defective notice of
opposition. It is not clear in this case as to what were the
reasons for the registrar not
to serve the notice of set down on the
applicant. It may well be because the notice of opposition was on its
face value defective.
[28]
Although the notice of opposition is
defective in that it refers to section 143 of the Act which deals
with the certification of
the CCMA awards as if they were orders of
the Labour Court, it is clear that the applicant wished to have the
arbitration award
stayed pending the outcome of the review. It
cannot be disputed that in form the notice of opposition was
defective. I however
have doubts if the court would have held the
same view in relation to the substance of the notice of opposition
had the matter
been placed on the opposed motion and the issue being
formerly argued. In my view the power to determine whether the notice
of
opposition is of such a defective nature that justifies barring
the applicant from appearing before the court and presenting its
case, is a matter to be determine by the court and not the registrar.
[29]
It is therefore my view in the
circumstances of this case that the section 158 (1) (c) application
was granted irregular in that
the matter was heard in the absence of
the applicant and this was not as a result of its wilful default, but
due to the fact that
the registrar never served it with the notice of
set down despite the applicant having filed a notice of opposition
together with
its supporting affidavit. Therefore, the order
granted by this court in terms of section 158 (1) (c) of the Act
stand on
this ground alone to be rescinded.
[30]
In my view it would not be fair to order
cost in this mater including those of the urgent application to have
a writ of execution
stayed.
[31]
In the premises I make the following order:
1.
The order granted by the Honourable
Judge Mayet AJ under case number J1469/07 on the 5
th
September 2007 is rescinded.
2.
There is no order as to costs
_________________
Molahlehi
J
Date
of Hearing: 01 February 2008
Date
of Judgement: 16 July 2008
APPEARANCES
For
the Applicant: Adv WP Scholtz
Instructed
by: JANSEN’S ATTORNEYS
For
the Respondent: Adv W Bekkee
Instructed
by: DUVENAGE ATTORNEYS