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[2009] ZALCJHB 15
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FEDCRAW and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR1158/07) [2009] ZALCJHB 15 (19 June 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO. JR1158/07
In
the matter between:
FEDCRAW
1
ST
Applicant
JOSHUA
KETLELE
2
ND
Applicant
and
COMMISSION
FOR CONCILITION,
MEDIATION
AND
ARBITRATION 1
ST
Respondent
COMMISSIONER
ENRICO
HONNORAT 2
ND
Respondent
WENPRO
MARKETING
AGENTS 3
RD
Respondent
EX
TEMPORE JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside the ruling made by the
second respondent (“the commissioner”), when
on 28 March
2007 he rescinded an arbitration award made in the absence of the
third respondent on 31 May 2004. In the rescission
ruling, which the
commissioner recorded was unopposed, the commissioner found that the
third respondent had proved the absence
of wilful default on the
basis that the notice to attend the arbitration hearing sent by tele
fax, had failed to come to the attention
of anyone in the third
respondent’s employ. The commissioner further found that the
third respondent had established
prima
facie
prospects of success in the form
of documentary proof of a dismissal for misconduct.
[2]
This matter has an unfortunate history. On 31 May 2004, as I have
already indicated, the commissioner made his arbitration award.
The
award records that the commissioner satisfied himself that the notice
of set down in the matter had been sent successfully
to the third
respondent’s tele fax number and that in these circumstances he
was entitled to proceed to make a default award,
which he duly did.
The award came to the third respondent’s attention, so alleges
the first applicant, on 10 June 2004 when
the first applicant sent a
copy of the award to the third respondent with a covering letter
demanding compliance with the terms
of the award. On 28 June
2004 the third respondent served an application to rescind the award
on the applicant. Attached
to the application was an affidavit
deposed to by the third respondent’s then attorney of record.
On 8 July 2004 the applicant
filed a notice of intention to oppose
the application for rescission together with an answering affidavit.
Nothing further appears
to have transpired in that application until
September 2005, more than a year later when the applicant filed an
application in
terms of section 143 of the Act to have the
arbitration award certified. The award was certified on 20 September
2006. On 4 October
2006, a writ of execution was issued by the
registrar of this court. On 30 October 2006, the third respondent
filed a fresh application
to rescind the arbitration award made on 31
May 2004. In this application, the third respondent claimed that the
arbitration award
had come to its attention only on 26 October 2006.
On 3 November 2006, the applicant filed a notice of intention to
oppose the
application for rescission together with what it termed a
replying affidavit. On 10 November 2006, the third respondent filed
what
was termed a responding affidavit raising a point
in
limine
in response to the answering
affidavit.
[3]
Despite the voluminous papers filed in this matter by both parties,
it is relatively easily dealt with. Contrary to what the
commissioner
recorded, the application for rescission was clearly opposed, given
the fact that the notice of intention to oppose
the application, an
answering affidavit and a replying affidavit had been filed. For the
commissioner to have treated the matter
as unopposed is inexplicable.
The applicant in these proceedings has alleged that the commissioner
“Was telling an untruth”
when he stated that the
application for rescission was not opposed and that he committed a
gross irregularity in treating it as
such. It may well be that the
papers filed in this matter never found their way into the file
before the commissioner made the
rescission ruling. That is
impossible for this court to determine. What this court has before
it, however, is an averment to the
effect that the commissioner
committed a reviewable irregularity in treating the matter as
unopposed. The commissioner has elected
not to oppose these
proceedings. Had the matter appeared to him to have been unopposed
and had he dealt with it on that basis,
he should have filed an
affidavit to that effect. In the absence of such evidence, the court
has no option but to accept the veracity
of the averment made by the
applicants in these proceedings and to accept that the commissioner
misconducted himself when he treated
the matter as unopposed. For
these reasons, in my view, the commissioner’s ruling stands to
be reviewed and set aside.
I
accordingly make the following order:
1.
The ruling made by the second respondent on
28 March 2007 is reviewed and set aside.
2.
The matter is referred back to the CCMA to
be considered afresh as an opposed application by another
commissioner.
3.
There is no order as to costs.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date
of Hearing: 18 June 2009
Date
of judgment: 19 June 2009
Appearances:
For
the applicant: Ms J Duba (union Official)
For
the Respondent: Mr N Hannay (GDP Official)