About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2010
>>
[2010] ZALCJHB 355
|
|
Dercksen t/a Interment Carries v Selomane (J1443/09) [2010] ZALCJHB 355 (26 March 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE NO: J 1443/09
REPORTABLE
In
the matter between:
HANNES
DERCKSEN t/a INTERMENT CARRIERS
Applicant
and
LESIBANA
ANNANIAS
SELOMANE
Respondent
JUDGMENT
Bhoola
J:
Introduction
[1]
The applicant seeks to rescind the order (“the order”)
granted by default by this Court under case number
JS 915/08 on
29 April 2009, as well as leave to oppose the respondent’s
claim and file its statement of defence
[2]
The order issued was as follows:
a)
The Applicant’s retrenchment
by the Respondent is found to be both substantively and procedurally
unfair.
b)
The Respondent is to pay the
Applicant compensation of R53 640-00 which is the equivalent of 12
months remuneration payable within
10 days of service of the order.
c)
The Respondent is to pay the
Applicant’s costs.
[3]
The respondent was employed by the applicant from about 1995 as a
Code 10 driver prior to being retrenched on 21 January 2008.
[4]
The respondent’s duties were to deliver frozen chickens and
groceries on behalf of the applicant to its clients, including
Fresh
Mark (Pty) Ltd. On 30 October 2007, Fresh Mark (Pty) Ltd advised the
applicant that its services would no longer be required.
On or
about November 2007, the applicant notified the respondent that it
contemplated making his position redundant as Fresh Mark
(Pty) Ltd
had terminated its contract with the applicant. The applicant
proposed that the respondent should go on leave in order
to give him
time to consider possible alternatives in order to avoid his
retrenchment. The respondent accepted this proposal. When
the
respondent returned in January 2008 the applicant enquired whether he
had any alternatives to propose. He had none. The applicant
alleges
that he had explained to the respondent that since he was employed as
a code 10 driver for a specific truck that solely
delivered fresh
produce for Fresh Mark (Pty) Ltd, he could not allocate him to an
alternative position in the business since all
other employees were
code 14 drivers and the respondent did not possess a code 14 licence.
The respondent was advised that the
applicant had no alternative but
to make his position redundant and sell the vehicle that was used to
deliver goods on behalf of
Fresh Mark (Pty) Ltd. It was agreed
between the parties that the respondent would receive two weeks’
severance pay per year
of service.
[5]
The respondent alleges that he is in possession of a code 14 drivers’
licence and disputes that he only delivered products
to Fresh Mark
(Pty) Ltd. A copy of his code 14 licence (obtained in 1993) was
annexed to his answering affidavit. He admits that
he went on leave
as proposed by the applicant, but denies that the purpose of the
leave was to give him time to consider possible
alternatives to
retrenchment, as the possibility of retrenchment had for the first
time been communicated to him only upon his
return from leave. On his
return on 21
January
2008, the applicant instructed him to wait for him and not to perform
his normal duties. He waited to be called to commence
his duties but
instead the applicant emerged from his office with a notice of
retrenchment which he handed to him. He was advised
by the applicant
that he was retrenched and should approach the Department of Labour
and the National Bargaining Council for the
Road Freight Industry to
claim his Unemployment Insurance Fund and Provident Fund benefits.
[6]
The applicant referred a dispute concerning his unfair dismissal to
the National Bargaining Council for the Road Freight Industry
on 3
July 2008. On the same day a copy of the referral form was faxed to
the applicant. Thereafter notice of set down of the conciliation
hearing was sent to the applicant.
[7]
The applicant did not attend the conciliation hearing and a
certificate of non-resolution was accordingly issued. The respondent
referred the dispute to this Court. On 26 January 2009 a copy of his
statement of claim was sent to the applicant by the respondent’s
attorneys of record to the fax number on record. On 28 January 2009 a
copy was sent by registered post to the applicant’s
postal
address.
[8]
On 27 January 2009 the respondent alleges that the applicant
telephoned Mr Daniel Madiba (“Madiba”) of the
respondent’s
attorneys of record and indicated that he did not
intend opposing the claim as he did not have money to waste on
attorneys’
fees. Madiba avers in his confirmatory affidavit
that he sought to impress upon the applicant the consequences of
failing to reply
to the statement of claim. The applicant denies that
this telephonic discussion ever took place.
[9]
The matter was enrolled for default judgment on 29 April 2009,
following which the order was granted.
[10]
The respondent’s attorneys then addressed correspondence to the
applicant (dated 29 April 2009 and faxed on 30 April
2009) enclosing
the court order and requesting payment in compliance.
[11]
Madiba alleges that on 21 May 2009 he telephoned the applicant to
ascertain whether he had received the faxed letter and order.
The
applicant stated that “
he had sent
the documents to the respondent’s union as he had nothing to do
with the respondent anymore”.
Madiba
recorded this in a file note. The applicant denies these allegations.
[12]
On 26 May 2009 Madiba forwarded a copy of the notice of taxation and
bill of costs to the applicant by fax under cover of a
handwritten
fax sheet.
[13]
Madiba alleges further that during May 2009 he received a telephone
call from a Mrs Yvette Benade (“Benade”) who
claimed to
be representing the applicant. She informed Madiba that the applicant
was bankrupt and was not in a position to meet
his financial
obligations.
[14]
Madiba filed a supplementary confirmatory affidavit annexing email
correspondence from Benade which he received on 8 June 2009.
The
email read as follows:
“
Dear
Daniel
As per our
conversation, attached find the letter stating that the client no
longer has a contract with Fresh Mark and had no alternative
to
retrench your client. Your client was consulted and signed his
retrenchment letter excepting (sic) his retrenchment that stated
that
my client can no longer employ him. Your client showed no objection
at that time or asked for any interpreter or help or asked
for a
delay until time he had council (sic). He signed and excepted (sic)
his retrenchment. Your client was given a month (sic)
notice pay as
well as 2 weeks for every year he worked, instead of the one week
payment as per law for every year he worked. Your
client received
those payments and again gave no objection. He did not contact my
client to object against the amount that was
payed (sic) to him,
therefore we can expect that your client felt everything was in
order. He also received his benefits from the
National Bargaining
Council. His computer number is 1674877 at the Council. His employer
file number is 9472. The client followed
the law to the letter and
contributed to the council for many years as it was impotent (sic)
for him to his workers benefits as
stipulated by the National
Bargaining Council.
If
possible can your client specify which of the retrenchment steps was
not taken according to him and what monetary loss he ensured
as a
result of that specific step that was not taken, and he felt legally
entitled to. As we discussed my client is not financially
in the
position to take care of his own family due to our crippling economy.
My client is not in a position to pay my fee or any
other legal cost
as per my knowledge. If you can get a (sic) answer from your client
before 30 June 2009 we will be thankful as
we would like to conclude
this matter, due to both clients not being financially in the
position to drag this matter out.
I
thank you for your pleasant manner during our telephonic
conversations.
Regards
Yvette
Benade”
[15]
Madiba complied with Benade’s request and in a letter dated 10
June 2009 he set out the history of the matter. In this
letter he
confirms,
inter alia,
that the applicant acknowledged receipt of the respondent’s
statement of claim “
by telephoning
the writer indicating his unwillingness, refusal and/or
unpreparedness to file his Opposing documents to the allegations
made
by our client indicating that he was not going to waste his time and
money by engaging the services of an attorney to assist
in preparing
a response to the statement of claim”.
[16]
Thereafter Benade telephoned Madiba to inform him that she was no
longer representing the applicant. This was followed by a
fax from
her dated 16 June 2009 in which she confirmed that she no longer
represented the applicant and had advised her client
to consult an
attorney. The applicant denies that he knows Benade or that she was
acting on his instructions.
[17]
A writ of execution was thereafter served and property attached. The
applicant alleges that the writ was served on an entity
other than
himself, at an address that the applicant does not operate from, and
that the movable property attached belonged to
the entity at the
other address. He however successfully applied to set aside the writ.
The
applicable legal principles
[18]
This court has the power, in terms of section 165(a) of the Labour
Relations Act 66 of 1995 (“the LRA”),
inter
alia
,
to rescind a judgment or
order “
erroneously sought or erroneously granted in the
absence of any party affected by that judgment or order”.
[19]
The applicant relies on Rule 16A (1) (a) (i) of the Rules for the
Conduct of Proceedings in the Labour Court (“the
Rules”) in contending that the order was erroneously granted in
his absence. The applicant submits that it is not required
to
show good cause.
[20] Rule 16A provides
that:
‘
(1)
the Court may, in addition to any other
powers it may have-
(a)
of its own motion or on application
of any party affected, rescind or vary any order or judgment-
(i)
erroneously sought or erroneously granted in the absence of any party
affected by it.
The
parties’ submissions
[21] The applicant
submits that where a party was genuinely unaware of the date of set
down or that proceedings were pending, the
granting of default
judgment would be erroneous and it is not necessary to show good
cause. The applicant relies on the authority
of
Electrocomp (Pty)
Ltd v Novak
(2001) 10 BLLR 1118
(LC) at 1120 E-F where Jammy AJ
stated:
“
where
a party to an application was genuinely unaware of the date of set
down, alternatively that proceedings were pending, the
granting of
judgment by default would be erroneous and it is not necessary for
the party concerned, to have shown or proved proper
cause”.
[22] The applicant denies
that he received the statement of claim, either by fax or registered
post or at all. In addition, he submits
that fax or registered mail
does not constitute sufficient proof that there was proper
notification and /or receipt:
Halcyon
Hotels (Pty) ltd t/a Baraza v CCMA & Others [
2001]
8 BLLR (LC)
Roux
v City of Cape Town
[2004] 8 BLLR 836
(LC)
MTN
SA v Van Jaarsveld & Others
[2002]
10 BLLR 990
(LC)
NUMSA
& Another v Virginia Toyota
[2003]
4 BLLR 392
(LC).
[23]
The applicant alleges that the explanation for the non-receipt was
that he was on leave from 24 December 2008 to 9 February
2009 and his
fax machine cannot receive faxes automatically without a voice prompt
to connect it. The applicant denies receipt
of the referral of the
dispute to the Bargaining Council or other communication to the
effect that a dispute was pending. He was
furthermore was not
notified that the matter had been enrolled for default judgment. He
submits that he was not in wilful default,
and had he received notice
of the proceedings he would have defended same. He first became aware
of legal proceedings against the
applicant when he saw the writ of
execution on 15 July 2009, which was handed to him by an unknown
person, and successfully obtained
a stay of the writ pending the
outcome of this application. The respondent specifically disputes the
contention that applicant’s
fax line does not accept automatic
transmissions, and states that at all material times that
respondent’s attorneys transmitted
documents to applicant, same
were transmitted automatically without any voice prompt as alleged by
applicant, and the transmission
reports confirmed this.
[24]
The applicant denies that he had any contact with the respondent’s
attorney of record. It was submitted on his behalf
that the
respondent bears the onus of proving that the telephone conversation
in fact occurred, failing which the applicant’s
version must
prevail. The applicant also denies that he knows Benade and that she
was acting on his instructions.
[25] The applicant
submitted that the requirements of fairness and expedition should be
balanced and where there is an apparent
conflict, fairness should be
given precedence in order to avoid injustice:
Foschini
Group (Pty) Ltd v CCMA & Others
[2002]
23 ILJ 1048 (LC)
Halcyon
Hotels (Pty) ltd t/a Baraza v CCMA & others
[2001]
8 BLLR (LC)
[26]
In opposing the application, the respondent submitted that it cannot
be contended by the applicant on the facts that that the
order was
granted in its absence in error. The respondent submits that the
Bargaining Council referral must have come to the applicant’s
knowledge and/or his attention and he chose to ignore it. As a result
of his failure to attend a conciliation meeting, the presiding
commissioner issued confirming that the dispute was unresolved, and
this led to the referral to this Court. The applicant must
have known
that proceedings were pending, and it would appear that he chose to
ignore them, and in so doing acted in wilful disregard
of the Rules
of this Court. The respondent submits that proper service was
effected as required by the Rules and the applicant
was at all
material times aware of the order or ought to have been aware of its
existence. Notwithstanding this the applicant has
failed, refused
and/or neglected to comply with the order. It is only once his
property was attached that he realised that his
conduct could result
in detrimental consequences.
[27] Whilst the
respondent did not raise the late filing of the application as a
point
in limine
, it contends that it cannot be construed on
this basis to have waived its right to oppose the application on this
ground. The application
was brought some three months after the
matter first came to the attention of the applicant (on his version),
and no application
for condonation has been filed. In this regard it
is clear from
Saloojee and Another NNO v Minister of Community
Development
1965 (2) AD 135
at 138–H, that “
..an
appellant should, whenever he realises that he has not complied with
a Rule of this Court, apply for condonation without delay
”.
Furthermore (at 138 D-E):
“
In
their petition..., the applicants mention some of the facts to which
I have referred, but they hardly make any attempt to explain
the
inordinate delay in approaching this Court. They state that the
respondent has no objection to the grant of the relief prayed,
and
apparently regarded the application as a mere formality. It is
necessary once again to emphasise... , that condonation of the
non-observance of the Rules of this Court is by no means a mere
formality. It is for the applicant to satisfy this Court that there
is sufficient cause for excusing him from compliance, and the fact
that the respondent has no objection, although not irrelevant,
is by
no means an overriding consideration.”
Analysis
of pleadings and submissions
[28]
It is trite that a party seeking rescission of a default judgment has
to show good or sufficient cause. This has been held
to constitute
both a reasonable explanation for the default as well as a
bona
fide
defence on the merits which
carries some prospect of success :
Chetty
v Law Society, Transvaal
1985 (2) SA
756
(A) at 756 (B-D). The Labour Appeal Court has found this to
apply equally to rescission of an arbitration award in terms of
144
of the LRA in the interests of fairness and justice:
Shoprite
Checkers (Pty) Ltd v CCMA and Others
(2007)
28 ILJ 2246 (LAC).
[29]
The Labour Appeal Court has held that good cause is a requirement in
the context of Rule 16A. In Superb Meat Supplies CC v
Maritz (2004)
25 ILJ 96 (LAC) Nicholson JA : “
..In
terms of section 165 of the Labour Relations Act 66 of 1995 (the
Act), the Labour Court has the power to rescind a judgment
erroneously granted
(my emphasis) in the absence of any party affected by the order...The
rule further requires an application on notice to all interested
parties to set aside the order or judgment, which the court
may
grant on good cause being shown”.
[30] It is clear at the
order was granted in the absence of the applicant, and that he was
affected by it. The only question then
is whether it was granted
erroneously or whether good cause has been shown. The applicant
relies on Rule 16A(1)(a)(i) and contends
that it is not required to
prove good cause, but simply that the order was granted in the
applicant’s absence. Insofar as
the applicant seeks to rely on
the authority of
Electrocomp
(supra) for this approach, in my
view this is misdirected. The matter is distinguishable on the facts.
Jammy AJ pointed out that
the facts in
Electrocomp
were
“
extraordinary
”. He referred to a line of
authorities which laid down the principle that the applicant refers
to, but confirms that this
principle has been qualified by the
consistent refusal of the courts to grant rescission orders,
inter
alia,
where there was no irregularity in the proceedings.
According to him (at para [13]) an order or judgment would be granted
erroneously
where:
“
11.1
there was an irregularity in the proceedings;
11.2
it was not legally competent for the court to have made such an
order; or
11.3
if there existed at the time of the order or judgment a fact of which
the judge was unaware and which would
have precluded the granting of
the judgment or order or would have induced the judge, if he or she
had been aware of it, not to
grant the judgment or order. Erasmus
Superior Court Practice (Juta): BI-308A ; CAWU v Federale Stene
(1991)(Pty) Limited
[1998] 4 BLLR 374
(LC)”.
[31]
It is clear that
in casu
there was no
justus error
precluding the granting of the order, nor was there any irregularity
in the proceedings. The fact that the applicant may not have
been
informed of the default judgment hearing is entirely due to his
attitude in the matter, as conveyed to the respondent’s
attorney.
[32]
In my view, having considered the pleadings and submissions of the
parties, it is clear that the applicant has failed to prove
that the
order was erroneously granted in its absence. The applicant denies
that he received a statement of case, referral form,
notice of
taxation or writ of execution – this is implausible given that
he proffers no explanation for the failure to collect
the statement
of claim sent by registered mail, nor does he contend that the fax
number used was incorrect. Although this may indeed
constitute
insufficient proof of service, the Rules authorise service by fax and
registered mail. The applicant denies every material
fact in issue.
Notwithstanding his denial that the writ was served on him at his
address or that the movable property attached
by the Sheriff was at
his place of business, he nevertheless brought an application to have
the writ set aside. It is apparent
that the applicant’s
allegations are a complete fabrication. If indeed the applicant is to
be believed that he did not instruct
Benade and has no knowledge of
who she is or how she came to be involved, it must then be sheer
coincidence that her rendition
of the events that led to the
respondent’s retrenchment appears to mirror his version. The
applicant’s contention moreover
that an attorney has
deliberately sought to mislead this Court by lying under oath is to
say the least, disingenuous and reflects
a manifest disregard for the
Rules of this Court. In my view the applicant is in wilful default,
is not
bona fide
,
and is the author of his own misfortune. This cannot justify visiting
an injustice on the respondent so as to require him to defend
the
matter from its inception. In the circumstances it would appear to me
that the respondent is justified in seeking costs on
an attorney and
own client scale.
[33]
In the premises, the following order is made:
The
application for rescission of the order of this Court dated 29 April
2009 is dismissed.
The
applicant is to pay the respondent’s costs on a scale as
between attorney and own client.
___________________
Bhoola
J
Judge
of the Labour Court of South Africa
Date
of hearing: 23 February 2010
Date
of Judgment: 26 March 2010
Appearances:
For
the applicant: Mr De Villiers, from DE VILLIERS-MOHR ATTORNEYS
For
the respondent: Adv Mathabathe instructed by F R PANDELANI INC