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[2009] ZALCJHB 46
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BTI World Travel v Alexandrakis (JR543/06) [2009] ZALCJHB 46 (22 July 2009)
IN
THE LABOUR COURT OF SOUT
H AFRICA
HELD
IN JOHANNESBURG
CASE
NO: JR 543/06
In
the matter between:
BTI
WORLD TRAVEL
APPLICANT
and
ATHINA
ALEXANDRAKIS
RESPONDENT
JUDGMENT
NYATHELA AJ
Introduction
[1]
This is an application for rescission of judgement
in terms of Rule 16A of the Rules of the Labour Court.
[2]
The judgment which applicant seeks to rescind was
handed down by Ngcamu AJ. At paragraph 2 of the judgement the learned
Judge held
as follows:
“
The notice of Motion was
served on the respondents. None of the respondents have opposed the
application”.
[3]
At paragraph 11 of the judgement, the learned judge made the
following order:
“
The award is
reviewed and set aside.
The dispute is
remitted to the first respondent to be arbitrated by a commissioner
other than the second respondent.
There is no order for
costs”.
[4]
The application for rescission is opposed
by the respondent.
The parties
[5]
The applicant, BTI World Travel is a company duly incorporated
in accordance with the company laws of the Republic of South Africa.
[6]
The respondent is Athina Alexandrakis, a former employee of
the applicant.
The
facts
[7]
On 10 March 2006, respondent lodged an application for review
with the Labour Court reviewing an award made by the CCMA
commissioner
under case number GAJB 11084/05. The commissioner had
found that: “
The dismissal of the applicant was
substantively and procedurally fair. Her case is dismissed.
”
[8]
Applicant filed a notice to oppose the review application on
11 April 2006.
[9]
On 05 June 2006, respondent served applicant with a record of
the CCMA arbitration proceedings. However, the said record was
incomplete.
[10]
On 20 June 2006, respondent served applicant with her
supplementary affidavit.
[11]
The Labour Court set the review application
on an unopposed roll for hearing 27 February 2007. Ngcamu AJ heard
the application and
granted judgement in favour of the respondent as
stated in paragraph 3 above.
[12]
Following the above judgement, the CCMA served a notice of set
down of the arbitration hearing on the applicant on 21 June 2007.
The
arbitration was scheduled to take place on 15 August 2007.
[13]
Upon enquiry, the CCMA furnished the applicant with a copy of
the Labour Court judgement referred to in paragraph 3 above.
According
to the judgement, a review was heard on an unopposed basis
on 27 February 2007 and judgement was granted in favour of respondent
in the absence of the applicant.
[14]
On 12 July 2007, applicant lodged an application for
rescission of the judgement referred to in paragraph 3 above. It is
this application
for rescission which is the subject of the current
proceedings.
Grounds for review
In the founding affidavit
the applicant contends that:
[15]
Applicant not in wilful default
15.1
Prior to 21 June 2007, the applicant was not aware that:
(a) the review
application was set down and heard on 27 February 2007,
(b) the Labour Court, per
Ncgamu AJ, had delivered a judgement dealing with the merits of the
review
15.2 The applicant
only became aware of the Labour Court judgement on 21 June 2007 when
it was served with a copy thereof
by the CCMA. The applicant never
received a notice of set down of the review application.
15.3 In terms of
existing practice of the Labour Court, the registrar must notify the
parties of the date, time and place
for the hearing of the review
application even where a respondent has not delivered an answering
affidavit in support of its opposition
of the review application. In
this case, applicant has not been notified of the date, time and
place for hearing of the review
application despite that applicant
had served and filed a notice to oppose the review
application.
[16]
Bona fide defence
16.1 The applicant
contends that it has a bona fide defence and the application is not
made merely for the purpose of harassing
the third respondent in
that:
(a) the respondent
had failed to file a complete record of the arbitration proceedings.
The record of the arbitration proceedings
had not been reconstructed
despite the fact that it was possible to reconstruct same. Applicant
was never invited to assist in
the reconstruction of the record.
(b) there is no evidence
that the commissioner refused to furnish the handwritten notes.
16.2 In Paragraph 2 of
the judgement, Ncgamu AJ stated that: “
The notice of Motion
was served on the respondents and that none of the respondents have
opposed the application”.
When he made the order, Ncgamu AJ
was not aware of the fact that applicant had opposed the review
application.
Analysis
[17]
The applicant contends that a default
judgement was erroneously sought in its absence as contemplated in
Rule 16A(1)(i) of the Rules
of the Labour Court.
[18]
The applicant further argued that since it
had filed a notice to oppose the review application, the registrar
was still obliged
to serve it with a notice of set down despite that
it had not filed an answering affidavit.
[19]
In this matter, the question which I have
to decide is whether the fact that the applicant was not served with
a notice of set down
in the circumstances renders the default
judgement granted to be a judgement granted in error? In the event
the judgement was granted
in error, I will have to determine whether
the applicant has shown good cause which justify the rescission of
the default judgement,
as was held in
Shoprite
Checkers (Pty) Ltd v CCMA & others (2007) 28 ILJ 2246 (LAC),
Edgars Consolidated Stores Ltd v Dinat & others (2006)
27 ILJ
2356 (LC) and Chetty v Law Society of the Transvaal
1985 (2) SA 756
(AD)
.
[20]
The crux of the applicant’s argument
that the default judgement was granted in error is that the court was
obliged to notify
the applicant about the date and time of hearing
since it had filed a notice to oppose the review application.
[21]
There is no dispute that the applicant
after filing the notice to oppose the review did not file an
answering affidavit. Applicant’s
reason for not filing an
answering affidavit is that respondent served him with an incomplete
record of the arbitration proceedings.
[22]
Rule 7A(8) of the Rules of the Labour Court
which deals with the service of a record of proceedings in review
application provides
as follows: “
The
applicant must within 10 days after the registrar has made the record
available either –
(a)
by delivery of a notice an
accompanying affidavit, amend, add to or vary the terms of the notice
of motion and supplement the supporting
affidavit; or
(b)
deliver a notice that the applicant
stands by its notice of motion.
[23]
Rule 7A(9) provides that: “
Any
person wishing to oppose the granting of the order prayed in the
notice of motion must, within 10 days after receipt of the
notice of
amendment or notice that the applicant stands by its notice of
motion, deliver an affidavit in answer to the allegations
made by the
applicant”.
[24]
In this matter, it is common cause
that respondent served applicant with a record of the proceedings
contemplated in Rule 7A(8)
above and proceeded to serve and file a
supplementary affidavit as well.
[25]
It is further not in dispute that despite
receiving the record of proceedings and the supplementary affidavit,
applicant did not
file the answering affidavit as required by Rule
7A(9).
[26]
Applicant’s reason for not filing an
answering affidavit is that the record filed by the respondent was
incomplete and thus
applicant was not obliged to file an answering
affidavit in view of the incompleteness of the record.
[27]
There is no dispute that the record was
incomplete in some respects. However, despite being served with the
supplementary affidavit
which was based on the incomplete record,
applicant did not object to the incompleteness of the record or file
an answering affidavit.
Applicant elected to simply ignore the
process as it believed that the record was incomplete.
[28]
Rule 16(1) of the Rules of the Labour
Court provides: “
If no response
has been delivered within the prescribed time period or any extended
period granted by the court within which to
deliver a response, the
registrar must, on notice to the applicant(s), enrol the matter for
judgement by default.
[29]
In my view, applicant had a duty to raise
an objection to the incomplete record or the supplementary affidavit
instead of acting
like the documents have never been served and
filed. Its failure to act in the circumstances, constituted a waiver
of its right
to be served with a notice of set down.
[30]
In my view, an applicant who only files a
notice to oppose a review application and fails to file any further
affidavit or lodge
an interlocutory application to deal with any
matter he considers to be relevant to the application cannot be said
to have filed
a response to the application as contemplated in Rule
7A(9) of the Rules of the Labour Court.
[31]
It follows therefore that applicant’s
failure to file an answering affidavit in the circumstances of this
case constituted
a failure to respond to the review application. Thus
Rule 16(1) required the registrar to notify only the respondent
(applicant
in the review case) about the set down.
[32]
Although applicant contended that there is
a practice in the Labour Court that a party who filed a notice to
oppose an application
and did not proceed to file an answering
affidavit is entitled to be notified when the matter is set down, he
has not provided
any authority or evidence of such practice.
[33]
In the light of the unambiguous provisions
of Rule 16(1) which regulates the set down in such circumstances, I
do not accept applicant’s
contention about the alleged
existence of a practice in this regard.
[34]
Based on the above reasoning, I have come
to the conclusion that applicant was not entitled to be notified
about the date of set
down of the review application in the
circumstances. I further conclude that the default judgement was
therefore not granted in
error.
[35]
In view of the above finding, it is
academic to deal with whether applicant has shown good cause for the
rescission application.
Order
[36]
I make the following order:
(a) The application
for rescission is dismissed.
(b) The judgement by
Ngcamu AJ stands.
(c) There is no
order as to costs.
_______________
Nyathela
AJ
Date
of Hearing :
29 April 2009
Date
of Judgment :
22 July 2009
Appearances
For
the Applicant :
Adv. S.S Mphahlani
For
the Respondent: Athina
Alexandrakis appeared in person