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[2009] ZALCJHB 44
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South African Airways (Pty) Ltd v Togetherness Amalgamated Union of South Africa (TAWUSA) obo Lebati and Others (JR623/06) [2009] ZALCJHB 44 (10 March 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NUMBER: JR623/06
In
the matter between:
SOUTH
AFRICAN AIRWAYS (PTY)
LTD
Applicant
and
TOGETHERNESS
AMALGAMATED UNION OF
SOUTH
AFRICA
(TAWUSA)
obo LEBATI
T.J.
First
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
Second
Respondent
COMMISSIONER
SIPHO RADEBE
N.O.
Third
Respondent
JUDGMENT
LE
ROUX, AJ
:
1.
This application has its origins in the
dismissal by South African Airways (the applicant in this
application) of a Mr T J Lebati
on the grounds of misconduct. He had
been employed by the applicant as a check in officer. He challenged
the fairness of his dismissal
in the CCMA. The CCMA upheld the
fairness of his dismissal.
2.
His union, TAWUSA, then launched an
application for the review and setting aside of the CCMA award on his
behalf.
3.
The applicant in this application did not
oppose the review application and it was placed on the unopposed role
on 29 April 2008.
An order was granted by Basson J in the applicant’s
absence to the effect that the arbitration award was set aside.
Basson
J did not remit the matter back to the CCMA but issued an
order to the effect that the dismissal had been unfair. The
reinstatement
of the third respondent was ordered.
4.
The applicant seeks to have this judgment
rescinded in terms of rule 16A(1) (a), alternatively Rule 16A(1)(b)
of this Court. Rule
16A(1)(a) provides that this Court may rescind an
order erroneously sought or erroneously granted in the absence of a
party affected
by it. Rule 16A(1)(b) simply states that a judgment or
order can be rescinded in the absence of any party.
5.
The circumstances in which the applicant
failed to appear at Court on 29 April 2008 are set out in the
founding affidavit and replying
affidavit attested to by Ms Quick, a
legal advisor to the applicant. She states that:
5.1
From the documents on the Court file it
appears that the notice of motion in the review application was
served on the applicant
by facsimile. The number utilised for the
purposes of the transmission of the facsimile was 011 978 6066. This
is the facsimile
number allocated to the General Manager: Operations.
5.2
When the applicant was made aware if this
Court’s judgment, enquiries were made at the General Manager:
Operations’
office. Nobody at this office had any recollection
of receiving the notice of motion and no relevant documents could be
found in
this office.
5.3
The Applicant is a large organisation with
almost 11000 employees. Labour disputes are handled by its Employee
Relations Department.
The dismissal form provided to employees when
their employment is terminated states that any correspondence,
referrals and notices
must be sent to this Department at 0119786889.
5.4
On or about 18 of 19 December 2007, ie
prior to gaining knowledge of the judgment by Basson J, Ms Quick
received a thick lever-arch
file. This file had come to her via a
junior legal secretary who had received it from the Employee
Relations Manager who, in turn,
had found it on a desk in his
department. She scanned the file and found that it was in disarray.
It contained pages from various
documents, draft affidavits, notices
of motion as well as correspondence addressed to and from TAWUSA. She
came to the conclusion
that the file did not belong to the applicant
and that she need not take any immediate action in this regard. A
check was made
to ascertain whether the matter had been recorded on
the Applicant’s “system” but there was no record of
it on
the system. She left the file on her desk for further
consideration. She then went on leave. When she returned from leave
the file
had been removed from her desk and filed in a filing
cabinet.
5.5
When she became aware of the court order on
5 May 2008 she again inspected the file and found that it contained a
range of documents,
including personal correspondence, closing
arguments for the CCMA arbitration and copies of various court
documents. These included
four draft copies of the notice of motion
and the founding affidavit in the review application. She also found
the final notice
of motion and a founding affidavit with a court
stamp in respect of the review application.
5.6
She had been appointed in her position a
few weeks prior to the lever-arch file coming to her attention. Her
legal secretary at
that time has left the employment of the applicant
and Ms Quick does not know where to get hold of her. The employee in
the Employee
Relations Department who dealt with the matter passed
away in April 2008. He cannot therefore be approached to shed light
on how
the lever-arch file came to be placed on her desk.
5.7
From the documentation on the file it
appears that it must have been left at the applicant’s offices,
or have been handed
to someone at the applicant’s offices by no
earlier than 14 November 2008.
5.8
There may be a number of reasons why there
may be a successful facsimile transmission report on TAWUSA’s
side but no facsimile
actually received on the applicant’s
side. The essential point is that the applicant was not aware of the
application.
5.9
The disciplinary charges bought against Mr
Lebati were extremely serious involving airline safety and dishonest
conduct.
5.10
Based on information on the Court file it
is argued that the application for review was brought 1 week too late
and there is no
application for condonation for the late filing of
the application.
5.11
The applicant does not appear to have
received any other document relating to the review application.
5.12
An official of TAWUSA, Mr Marwani,
vigorously opposed the relief sought. The following points of
relevance were raised by him:
5.12.1
the fax number utilised by the first
respondent for the filing of the notice of motion was used to serve
all other documents relevant
to the arbitration without problems;
5.12.2
the applicant has been utilising delaying tactics;
5.12.
3
Ms Quick, as a legal advisor, should have
realised the importance of the documents in the lever arch file and
should have taken
reasonable steps to clarify what the position was.
5.13
It is denied that the application was filed
too late although this appears to be based on the interpretation of
what constitutes
a week rather than on any factual issue.
6.
Rule 16A(1)(a) was considered in
Construction & Allied Workers Union
v Federale Stene (1991) Pty Ltd (1998) 19 ILJ 642 (LC)
.
In this decision Pretorius AJ relied on the decision in
Topol
& Others v LS Group Management Services (Pty) Ltd
1988 (1) SA
G639
(W)
to come to the conclusion that
a decision can be rescinded in circumstances where the applicant for
rescission had at all times
intended proceeding with the relevant
application and the reason why it had not been represented at the
application was that it
had no knowledge of the set down of that
application. No good cause needs to be shown.
7.
Mr Pretorius, who appeared for the
applicant, argued that the applicant fell within the ambit of rule
16A(1)(a). The applicant had
not received the notice of motion -
there had been no proper service and there was no knowledge of the
application. He referred
to rule 4(1)(a)(vi) of the Rules of this
Court which provides that service can be effected through a facsimile
number that has
been chosen by the party. He argued that the
applicant had chosen such a number in the dismissal letters referred
to above.
8.
In my view the applicant meets the test set
in the
Federale Stene
decision. However, reservations have been expressed as to how this
rule should be applied in practice – see, for example,
Electrocomp (Pty) Ltd v Novak (2001) 22
ILJ 2015 (LC)
and
Kolobe
v Proxenos (Sophia’s Restaurant ) (2000) 21 ILJ 1130 (LC).
I
do not propose to enter into this debate and will therefore also deal
with this application under rule 16A(1)(b).
9.
Rule 16A(1)(b) is similar to rule 31(2)(b)
of the Uniform Rules of the High Court. It is therefore useful to see
how rule 31(2)(b)
has been applied by the High Court. The relevant
principles are discussed in
Farlam,
Fichardt and van Loggerenbrg
Erasmus Superior Court Practice (Juta)
at B1 to B204.
They are:
"
11.1
Applicant must give a reasonable explanation for its default. If it
appears that the default was wilful or that
it was due to gross
negligence the Court should not come to its assistance. Nevertheless,
the absence of gross negligence is not
an absolute prerequisite for
the granting of relief and the courts have a discretion in deciding
whether to grant relief or not.
11.2
The application must be bona fide and not have been made with the
intention of merely delaying the plaintiff’s
claim;
11.3
The applicant must show that it has a bona fide defence to
plaintiff’s claim. It is sufficient if it
makes out a prima
facie defence in the sense of setting out averments which, if
established at the trial, would entitle it to the
relief asked for.
The applicant need not deal fully with the merits of the case and
produce evidence that the probabilities are
actually in its favour;
11.4
The Court has a wide discretion in deciding whether to grant relief
in order to ensure that justice is done.
"
10.
The respondent, by alleging that the
applicant was attempting to delay the process, is in effect arguing
that there is wilfulness
and
mala fides
on the side of the applicant. It is evident from the papers that this
is not the case. Although it is unclear in some cases what
facts as
set out in the applicant’s founding affidavit are admitted and
denied, it seems clear that the applicant is in no
position to deny
the statements made in paragraphs 5.1 to 5.9 above.
11.
Whether gross negligence can be imputed to
the applicant is perhaps more arguable. In this case it is unclear
why the notice of
motion and at least the Rule 7 notifications were
not received by the applicant’s legal department. It is at
least arguable
that Ms Quick’s failure to see that there was a
signed notice of motion in the lever-arch file constitutes
negligence. However,
given the circumstances set out in her affidavit
I do not think the there was gross negligence on her part.
12.
It is further evident from the papers that
the charges on which Mr Lebati was found guilty, and in respect of
which the fairness
of his dismissal was found to be fair, are of an
extremely serious nature.
13.
The applicant has also shown that it has a
prima facie case on which basis the review application could have
been opposed. The test
for review and the award itself, which forms
part of the bundle, were dealt with in argument as well. I should add
that, on the
papers at least, it seems that there was no formal
application for condonation.
14.
In my opinion the applicant has made out a
case that it falls within the ambit of rule 16A(1)(b) and that
rescission should be granted.
At the very least justice will be
served if the review application is granted by this Court.
ORDER
I
therefore make an order to the effect that the decision of the Court
dated 29 April 2009 is rescinded. No order as to costs is
made.
I
am also empowered to issue the above order on terms I deem fit. In
order to expedite the matter I further order that:
1.
If the applicant in this application
proposes to oppose the review application it must deliver an
answering affidavit within 14
days of this judgment being handed
down.
2.
Thereafter, the first respondent in this
application may file a replying affidavit within 10 days.
3.
The first respondent may then approach the
registrar of this Court to request that the matter be placed on the
role as a matter
of urgency.
________________________
LE
ROUX AJ
APPEARANCES
For
the applicant:
D.O Pretorius
Instructed
by:
Hofmeyer Herbstein & Gihwala Inc
For
the respondent:
S.S.Molwane
Instructed
by:
TAWUSA
Date
of judgment:
10 March 2009