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[2010] ZALCJHB 47
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BP South Africa (Pty) Ltd v Pule and Others (JR810/01) [2010] ZALCJHB 47 (8 December 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
NOT
REPORTABLE
CASE
NO: JR810/01
In
the matter between:
BP
SOUTH AFRICA (PTY) LTD
APPLICANT
and
PULE,
TEBALO ANDREW
1
ST
RESPONDENT
COMMISSIONER
A MATHEBULA
N.O 2
ND
R ESPONDENT
COMMISSION
FOR CONCILIATION,
MEDIATIONAND
ARBITRATION 3
RD
RESPONDENT
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
This is an application to rescind the order
dismissing the applicant’s application to review and set aside
the arbitration
award which had been granted in favour of the first
respondent (the employee).
[2]
It is common cause that a day after the
applicant filed his review application the employee also filed his
review application. In
the light of this the parties attorneys
engaged in discussion about the possible consolidation of the two
review applications.
[3]
The problem that arose there after and
which seems to have frustrated the plan to consolidate the two
matters is the transcript
of the record of the arbitration
proceedings. The transcripts were incomplete and inaudible in several
areas. The applicant then
approached the employee’s attorneys
and required from them if there had hand written notes of the
commissioner’s for
the purposes of the reconstructing the
record. Nothing seems to have come out of this enquiry but what is
apparent is that both
review applications reached a stalemate.
[4]
The papers before this court reveals that
for a considerable period of time nothing was done to progress of
both the review applications.
There is some suggestions from the
applicant that the employee abandoned his review application.
[5]
The other development in this matter which
is important and has some significance in understanding the
circumstances and the contexts
within which the rescission is
considered is that the employee terminated the mandate of his
attorneys who were responsible for
processing his review application
including opposing the applicant’s review.
[6]
After withdrawing his instruction from his
attorneys the applicant filed with this court what he referred to as
“
application to strike out”
it is apparent that the court treated this as an application to
dismiss the applicants review for reasons of delay in prosecuting
the
same. The picture which emerges from the employee’s application
to dismiss which had a significant influence on the courts
decision
to grant the order as prayed for emerges from paragraphs 4.9, to
4.21. where the applicant says the following:
“
4.9
On the 18
th
day of June 2001 my representative received by fax mail transmission,
the companies review application. But it has to be noted
that it was
delivered without a case number.
4.10 On the 25
th
day of June 2001, I received several confirmatory affidavit in this
matter without that company applies (sic) for condonation.
4.11 By the beginning
of September 2001, I received a Rule 7 A (3) notice from the CCMA
that was dated 27
th
day of August 2001, indicating that
the records were dispatched to the Labour Court….
4.12 The Companies
attorney collected the records from the Labour Court. They sent a
note to my est while attorneys of record in
case no: JR810-01 Messers
Hlatswayo du Plessiss van de Merwe, that they have collected the
records for the transcription.
4.13 On the 29
th
day January 2002, I received another letter from the companies
attorneys of record which was dated the 24
th
day January
2002 and indicated that they had send the tape cassettes to be
transcribed....
4.14 The above letter
was a response to a query made by my legal representative as to the
progress in this matter. The court’s
file indicates that the
last movement to occur in this file is around 2002.
4.15 Since that I have
appointed lawyers to review case no JR 810-01 who were not attorneys
of record of this case, Deneys Rietz
the company lawyers adopted a
strange attitude towards me. Despite mu protests they refused to talk
to me.
4.16 As result of such
an attitude I could not do anything on my own and I thus left
everything into the hands of my lawyers.
4.17 On the 3
rd
day of December 200, I went to Hlatswayo du Plessiss van de Merwe
attorneys to get clarity on the delay. I was amazed when they
informed me that they have misplaced my file and that they were
withdrawing as my lawyers.
4.18 I accepted the
withdrawal and requested them to deliver such a notice. Though they
promised to do so I was surprised to have
noted that up to the 4
th
day of January 2007, they have not yet done so! I faxed to them a
notice requesting them to do so. …..
4.19 On the same day I
faxed to the Company’s attorneys of record a notice requesting
them to come up with a manner in which
to settle this belated
matter. This was because they have failed to prosecute
the matter within a reasonable period.
……
4.20 A few days
thereafter they sent me a notice of withdrawal as my attorneys.
4.21
Up to the day I signed this affidavit, the Company had not yet
responded to my reasonable and humble request. The delay the
company
has caused in this matter has prejudiced me greatly.”
The
legal principles governing rescission
[7]
There are three grounds upon which an
application for rescission of a judgment or an order of a court can
be made. An application
can be brought under the common law,
s165
of
the
Labour Relations Act 66 of 1995
and
Rule 16A
of the Rules of the
Labour Court case
Griweland
Vescoporative v Sheriff Hards Waters and Others in: Re-Sherrif Hard
Wasters and Others v Molander 2010 (31)ILJ 632 (LC).
The explanation for
the default
[8]
The applicant did not place in issue the
averment of the employee that he served his application to dismiss on
them via a registered
mail. The applicant specifically placed in
issue as to whether or not any of the documents in the “application
to struck
out” were indeed served by registered post to Denez
Rietz; any of the documents were indeed send, what those documents
were;
whether any of the documents were faxed to Denez Rietz as
indicated as an alternative form of deliver in the “notice to
struck
out”; whether any of the documents were simply posted to
Denez Rietz post box as indicated on the filling sheet. The applicant
also contends in its founding affidavit that it never receive a
notice of application to dismiss. The applicant emphasises in their
heads of argument that nothing in the documents referred to indicate
that the were specifically addressed to a particular attorney
who was
dealing with the matter.
[9]
The essential part of the explanation for
the default on the part of the applicant is set out at paragraph 52
which reads as follows:
“
[52]…..
It is noted that this application is alleged to have been served on
Denetz Rietz by registered post. The copy of
this letter is annexed
to Marked “BGP31.”Whilst I cannot dispute this, I have
not been able trace such application
in my office. I have no idea
whether it was in fact received. I do, however, state categorically
that I did not receive the copy
of such application and that I was
entirely unaware of this application was to be brought and heard on
the 1
st
August 2007. Moreover, arising from the above I was not in a
possession to advice BP of this application not to address the relief
sought in the application prior to the hearing of the matter.”
[10]
In essence what the applicant say in the
above paragraph is that neither itself nor its attorneys received the
respondent’s
application to dismiss their review. The applicant
further argued that had it received the application to dismiss it
would have
opposed the application vigorously.
Evaluation
[11]
In my view had the court being aware of the
background facts and circumstances relating to the causes of the
delay in prosecuting
the applicant’s review it would not
have granted the first respondent the relief he sought in that
application. The
court would also not have granted the relief sought
had the first respondent taken the court into its confidence and
disclose fully
the background and the circumstances relating to the
delay in the prosecution of the review. I agree with the applicant
that the
material facts which may have swayed the court otherwise
which the first respondent failed to disclose one of the following:
(1)
that the respondent had instituted his own review application a
day after the applicant had brought its review application. (2)
That
there was an attempt by the respective parties attorneys to
consolidate the two reviews,(3) that the attorneys had a
common
understanding of working towards producing the record of the
arbitration proceedings before the CCMA, (4) that the first
respondent also contributed to the delay towards the finalisation of
the prosecution of the review application and (5) that
the
withdrawal of the respondent’s review application was not done
with the consent or knowledge of the applicant.
[12]
In the light of the above it is my view
that the default order was erroneously made and should accordingly be
rescinded in terms
of
s 165
of the LRA. I do not belief that a cost
order should in the circumstances of this case be made.
[13]
In the premises the order granted by the
court on the 1
st
August 2007 is rescinded, with no order as to costs.
_______________
Molahlehi
J
Date
of Hearing :
28
th
August 2010
Date
of Judgment :
8
th
December 2010
Appearances
For
the Applicant :
Mr A. I. S. Redding
Instructed
by :
Evershed
For
the Respondent: Mr Dan
Gobile of Karabo Labour Organisation