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[2010] ZALCJHB 60
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General Workers Union of SA and Others v Remade Plastics (Pty) Ltd (JR410/05) [2010] ZALCJHB 60 (11 February 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESGURG
NOT REPORTABLE
CASE NO: JR 410 / 05
In
the matter between
GENERAL
WORKERS UNION OF
SA 1
st
Applicant
N
NDLOVU
&10
OTHERS 2
nd
to Further Applicants
And
RAMADE
PLASTICS (PTY) Ltd
Respondent
Judgment
Molahlehi
J
Introduction
[1]
This is an application in terms of which the applicant seeks an order
to rescind the order made by Francis J on 7
th
August 2006.
In that order the Learned Judge dismissed the applicants’ claim
relating to the alleged unfair dismissal for
operational reasons
because there was no appearance on behalf of the applicants’ on
that day.
[2]
The respondent has opposed the application and has asked for its
dismissal with cost
de boni de propriis
.
Background
facts
[3]
The brief background facts which are common cause are as follows:
3.1 On
the 19
th
February 2005 the individual employees of the
respondent were given notices informing them that the respondent
intended entering
retrenchment consultations.
3.2
Consultation meetings took place on the 10
th
, 14
th
and 23
rd
February 2005. The retrenchment arose from the
restructuring of the shift patterns of the respondent.
3.3
The applicants’ were made aware of the respondents’
financial constrains at the meeting
of 10
th
February 2005.
3.4
The operational requirements and restructuring required inter alia
that the shift pattern that existed
before the consultation be
changed.
3.5
The first applicant and second to the eleventh applicants’ put
forward their own proposals concerning
the change in the shift
pattern which the applicants’ believed, if implemented, would
have negated the need to retrench any
employees.
3.6
Five of the second to further applicants’ were retrenched on
the 24
th
February 2005, namely Julia Luruli, Prudence
Manyama, Sheron Mudau and Frank Chauke.
3.7
The remaining second to further applicants’ were retrenched on
the 28
th
February 2005.
3.8
Other employees were re-instated on the 28
th
July 2005.”
[4]
The applicant’s contend that the termination of their
employment was both substantively and procedurally unfair. The first
applicant specifically contends that it never at any stage whatsoever
agreed to the retrenchment process as alleged by the respondent.
The
first applicant further contends that the respondent terminated the
contracts of employment of its members without consultation
in
relation to issues like the selection criteria, severance pay and
other related matters that could have been considered in order
to
ameliorate the hardships of retrenchment.
Principles
governing rescission
[5]
In terms of section 165 of the LRA, this court may acting on
its own accord or on application by any of the parties vary
or
rescind an order or judgment erroneously sought or erroneously
granted in the absence of the party affected by such an order
or
judgment. An application to rescind may be brought either in terms of
rule 16A (1) (a), or rule 16A (1) (b) or the common law.
[6]
The requirements for filling an application under any of these rules
are different. In terms of rule 16A (1) (b) read with rule
16A (2)
(b), an application to rescind or vary an order or a judgment must be
brought within 15 (fifteen) days. The 15 (fifteen)
days requirement
does not apply to both rule 16 (1) (a) and the common law. See
Edgars
Consolidated Stores Ltd v Dinat & others (2006) 27 ILJ 23356
(LC).
The other difference between the two rules is that whilst
rule 16A (1) (b) requires an applicant to provide a reasonable
explanation
for his or her default, this requirement does not apply
to an application in terms of Rule 16A (1) (a).
[7]
In
Chetty v Law Society, Transvaal
1985 (2) SA 756
(A),
the court at: 765A-C held that
“
The term
sufficient cause (or “good cause”) defies precise or
comprehensive definition, for many and various factors
require to be
considered. (See Cairns Executors v Gaarn
1912 AD 181
at 186 per
Innes JA). But it is clear that in principle and in the long standing
practice of our Courts two essential elements
of “sufficient
cause” for rescission of a judgment by default is:
(i)
‘
that they party seeking relief must present a
reasonable and acceptable explanation for his default; and
(ii)
that on the merits such party has bona fide defense
which, prima facie, carries some prospects of success.”
The
Learned Judge went further to say:
“
It is not
sufficient if only one of these requirements is met; for obvious
reason a party showing no prospects on the merits will
fail in an
application for rescission of a default judgment against him or her
no matter how reasonable and convincing the explanation
of his or her
explanation of the default. And orderly judicial process would be
negated if, on the other hand, a party who could
offer no explanation
of his or her default other than his disdain of the Rules was never
permitted to have judgment against him
or her rescinded on the ground
that he or she had reasonable prospects of success on the merits.”
Applicant
reasons for rescission.
[8]
It is common cause that the notice of set down was faxed to the
applicant’s attorney of record on the 24
th
May 2006.
The applicants do not deny having received the notice of set down.
The explanation for the non appearance on the date
of the hearing is
set out in the founding affidavit to the rescission application,
deposed to by the applicant’s attorney
of record, Mr. David
Cartwright. He explains as follows:
4.
This matter set down on the 7
th
August 2006. I did not attend on that day and the matter was
dismissed with costs.
5.
Since receiving this information from the Respondents
attorneys I have initiated an investigation to establish why I did
not receive
the notice of set down.
6.
I uplifted the Court file and the notice of set down in the
file indicates that the set down notice was faxed to my office fax on
the 24
th
May 2006.
7.
At the time I was in and out of the office as my wife gave
birth to my son on the 17
th
May 2005 and I
was spending a significant portion of my time assisting her with the
domestic chores associated with caring for
a new born child. I was
also generally spent more time at home in order to baby- sit our
first born who is two years old and exceedingly
energetic.
8.
The situation in relation to the above only returned to an
approximate of normalcy at the end of the month once my wife had
sufficient
recovered from the birth and was able to manage the two
children on her own.
9.
I have until the end of April operated as a one man firm and
have not had the resources to employ a full time secretary. In April
I employed a young woman straight from school who although not
trained as a secretary and with no experience as such had the
potential
to learn and in time to become competent at the kind of
secretarial and administrative by someone in this position.
10.
At the time the set down notice was sent she was still very
new to the position and unaware of the importance of such a document.
11.
She had also received brief training on how the office and the
filling system was managed and organized.
12.
After conducting an intensive search for the set down notice I
located it in general correspondence file.
13.
My assistant admitted that although she had no specific
recollection of the filling notice in that file, it was likely that
she
had done so as she recalled that at one stage, before she was
properly inducted into how the filling system worked, she had
developed
a practice of placing Court documents in the general
correspondence file.”
Evaluation
[9]
In my view the explanation proffered by the applicants’ is
wholly unsatisfactory, unreasonable and cannot remotely serve
as good
cause. In this respect I agree with the counsel for the respondent
that it was negligent for the applicants’ attorney
to entrust
important matters of the client with an inexperienced person with no
proper supervision. The case of the applicant is
made worse by the
fact that prior to the date of the hearing; the respondent addressed
several letters to the applicants’
attorneys about discovery of
the documents for the purposes of trial. This should have made him
aware that the date of the trial
was nearing and ought reasonably to
have checked with his secretary about the trial date.
[10]
The applicant has also in my view failed to make a case showing the
existence of prospects of success as and when the
matter was to
finally be considered on its merits. In seeking to show prospects of
success the applicant based its argument on
a dispute about the facts
concerning reinstatement or re-employment.
[11]
I again agree with the respondent that there is no dispute of facts
in this matter. The dispute which is purported to
exist comes as a
result of the applicants’ own accuracy in not disclosing at the
pre-trial that they were reinstated and
later changing to say they
were re-employed.
[12]
As concerning the issue of costs the respondent argued that the costs
de bonis propriis
should be awarded. The counsel for the
applicant argued that the cost
de bonis propriis
would not be
appropriate because what had happened was an administrative problem
which is systematic and procedural. It was further
argued on behalf
of the applicant that what happened was a human mistake between the
attorney and his secretary, which mistake
the attorney has admitted.
[13]
According to Van Winsen, Cilliers and Loots, The Civil Practice of
the Supreme Court of South Africa (4
th
ed ) page 728, an
award of costs
de bonis propriis
is made only when a person
acts or litigates in a representative capacity. In general costs
de
bonis propriis
will be awarded where it is shown that there is
lack of
bona fide
, negligent or unreasonable action, or
improper conduct on the part of the person who litigates on behalf of
another.
[14]
It has already been shown earlier that the applicants’ attorney
acted negligently in the manner in which he handled this
matter.
There is therefore no reason why the respondents’ application
in this regard should not succeed.
[15]
In my view, based on the above analysis, the applicants’
application to have the order dismissing their claim rescinded
stand
to fail. It is also my view that the circumstances of this case
requires that the conclusion reached should serve as a message
to
other attorneys that their negligent conduct and disregard of the
court Rules will not be tolerated.
[16]
In the premises the following order is made:
1.
The application to rescind the
order made by the court on 7
th
August 2006 is dismissed.
2.
The applicant’s attorney
is to pay the costs of the responded
de bonis propriis
.
Molahlehi
J
Date
of Hearing:
7
th
August 2006
Date
of Judgment:
11
th
February 2010
Appearances
For
the Applicant:
Adv R.G Maxwell
Instructed
by:
David Cartwright
Attorneys
For
the Respondent: Adv S
Bekker
Instructed
by:
Geyser Attorneys