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[2010] ZALCCT 7
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Public And Allied Workers Union Of South Africa v Avontour and Others (C100/2009) [2010] ZALCCT 7 (18 February 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT CAPE TOWN)
CASE
NUMBER: C100/2009
DATE:
18 FEBRUARY 2010
In the matter between:
PUBLIC
AND ALLIED
WORKERS
APPLICANT
UNION OF SOUTH AFRICA
and
EDWIN
AVONTUUR & 5
OTHERS
RESPONDENTS
J U
D G M E N T
CHEADLE,
AJ
:
[1]
This is an application for rescission of a
default judgment handed down by this Court on 6
th
August 2009. The applicant in this matter is the Public and
Allied Union Workers Union of South Africa. It retrenched
certain of its employees in November 2008. Those employees referred a
dispute to the Commission for Conciliation, Mediation and
Arbitration
(“the CCMA”). That dispute was not resolved at the
CCMA and it is common cause that the union, as
the employer, attended
those proceedings.
[2]
Because the dispute
was not resolved, the
first applicant Avontuur filed and served a statement of claim on the
11
th
March 2009. That statement of claim failed to call upon the
applicant in this matter (the respondent in that one) file a
notice
of intention to defend and a statement of defence if it intended to
oppose the application as is required by the rules.
[3]
The general secretary of the applicant
and
deponent to the founding affidavit in the rescission application, Mr
van Wyk, stated that he did not consider it necessary to
respond to
the application because of its defective nature.
[4] On
the 6th
May 2009 a second statement of
claim was filed and served. I must say by the way that I have
enormous difficulty in working
through these papers because although
the index purports to be an index, it does not disclose what the
indexed document is –
it just states “confirmatory
affidavit” or “affidavit” - so that one cannot find
one’s way easily
through the extensive documentation. The
documents also do not follow chronologically. Another problem is that
the page numbers
do not correlate with those used by the parties. I
accordingly refer to the paginated papers as they are in the Court
file.
[5]
The first
statement of claim is Annexure H
and at page 236 of the Court’s paginated papers. Annexure I at
page 238 is the second statement
of claim which was served on the 6
th
May by way of registered post and that statement of claim states on
the first page that:
“
If
the party intends opposing the matter the response must be delivered
within ten days of the service of the statement in terms
of Rule 6(3)
of the Rules, failing which the matter may be heard in the party’s
absence and an order for costs may be made
against that party”.
[6]
Because the applicant in this application did not file a
notice
of intention to defend or statement of defence, the matter was then
placed on the unopposed roll for default judgment. No
notice of the
application for default judgement was given to the applicant, as is
the practice in this Court. Accordingly
the applicant was
absent when the matter came before the Court for default judgment.
[7]
There were six individuals present in court on 6 August 2009. They
were Mr Avontuur, who is the first applicant in the main
application,
and five others. It is common cause that all six were
ex-employees, all six were retrenched, all six were part
of a group
who referred their dispute to the CCMA. Evidence was led and
default judgment was granted in respect of the six
individuals.
Insofar as the other seven applicants were concerned, the matter was
struck off the roll.
[8]
There
were essentially two grounds in
support of the application for rescission. The first was that
the judgment was made erroneously
in the sense that the Court was not
competent to give such an order or it was so irregular that the Court
was precluded from making
such an order. What Mr
Louw
on behalf of the applicant argued was that the second statement of
claim was so defective that the judgment ought not to have been
given
on 6 August.
[9]
There were many irregularities pointed out in respect of both the
first and the second statements of claim but the critical
irregularity was the failure to identify the applicants, to cite the
applicants by name either on the front page or, as it purported
to do
but did not do, by way of a list to be annexed to the statement of
claim. Accordingly it was argued that the Court
was only
competent to make an order in respect of the first respondent, namely
Mr Avontuur.
[10] However, whatever
uncertainty appears from the face of the second statement of claim,
the fact is that these individuals were
part of the group who
referred their dispute to the CCMA. The applicant could be of
little doubt as to who they were and
that doubt would have been
clarified if they had defended the application. The Court
specifically engaged in a process of
identifying these individuals by
reference to those who had referred their dispute to the CCMA.
I refer to the transcript
at page 209 of the Court’s indexed
documents in which the Judge goes through very carefully a schedule
from the CCMA referral
and he checks the names on that referral in
respect of the people who were present and not present before him.
He goes through
each name on page 210 and finally says:
“
well
that leaves me with five applicants who did refer their cases to the
CCMA, they are E Senta, D Barendse, Z Johannes, N Booi
and Mashinga”.
Then
Mr Mashinga says “and Avontuur”. The Court says
“and who?” and he says “Edwin Avontuur,
he is
because the referral says “Avontuur and Others” “Oh
at the top there”, “correct”
and finally identifies
the individuals as a result.
[11]
It is clear that the Court satisfied itself that the group of
applicants contemplated by the citation “Avontuur &
13
Others” included the individuals in respect of whom a decision
was made in their favour. It follows then that the
Court did
not make an erroneous decision in the sense that the irregularity was
such that it precluded the Court from making the
decision that it
did.
[12]
That leaves the second basis upon which the applicant based its
application for rescission. That basis is that
it was
erroneously made in the absence of the applicant, erroneous in the
sense that the applicant had intended to defend the matter
and had a
bona fide
defence and had an explanation for the failure to be present and but
for its failure, it would have opposed the matter.
[13] That requires us
first to look at the explanation. That is set out by Mr van Wyk
in paragraphs 31 to 36 of the founding
affidavit (page 18-19 of the
Court’s bundle) and it is confirmed by a confirming affidavit
of Mr Cottle.
[14] In summary the
explanation is that on 11 March the first respondent faxed to the
applicant a statement of claim. This
purported pleading had a
heading “case number” but did not comply with the Rules
of Court. He says there that
“I am advised” that it
did not comply - that advice one must assume is the advice he got
when the founding affidavit
was formulated and not at the time he
made the decision not to file a notice of intention to defend.
[15] The most obvious and
significant non-compliance was that it failed to notify the applicant
that it may file a notice of opposition
if it so wished. It failed to
provide any address whatsoever in respect of any of the respondents
for service. The statement
of claim marked “Annexure F”
was received by Mr van Wyk and Mr Cottle and Mr Cottle being a full
time shop steward
employed by the Department of Education. This
is what he says:
“
We
did not consider it necessary to take any action in terms of the
purported statement of claim because in the absence of a notification
that the applicant should oppose the application if it so wished, we
were under the impression that it is only a notification that
the
applicants (respondents in herein) intended to make application to
the Labour Court. Furthermore, and in any event, we
did not
know who to respond to”.
[16]
It must be borne in mind that this is a general secretary of a trade
union. Trade unions litigate in these courts and
it is really
very difficult to believe that a general secretary of a trade union
would not understand the import of even a defective
statement of
claim. If he was not able to serve on the respondents, he could
certainly have filed a notice of intention to
defend in the Court
file. He could have written a letter to the registrar to ensure that
its opposition to this defective claim
be placed in the file for the
record of any judge that may be faced with the matter based on that
statement of claim.
[17] He then goes on:
“
On
or about the 6
th
May 2009 a second statement of claim was served on the applicant’s
head office by registered mail”.
A copy of that second
statement is attached and it is at Annexure I page 238 of the
paginated Bundle:
“
The
second statement of claim was not addressed to me but only to the
union. In this instance however the statement of claim
was
received by Mr Cottle, Mr Cottle is a full time shop steward and not
an employee of the applicant. Mr Cottle has no legal
training
and is not conversant with this Court’s rules and procedures.
Mr Cottle failed to inform Mr van Wyk of the
second statement of
claim. Mr Cottle’s explanation is that because Mr van Wyk
had informed him upon receiving the first
statement of claim that he
was of the view that it was not necessary then to deal with it, it
would again apply in the instance
of the second statement of claim”.
In
other words, Mr Cottle then interpreted that the appropriate response
to the first statement of claim should be followed in respect
of the
second statement of claim.
[18]
No allegation is made that Mr Cottle cannot read and if he had merely
looked at the first page he would have seen that the
union was being
called upon within ten days to file a notice of intention and a
statement of defence. Mr Cottle was under
the impression that
if anything were to come of the application by the applicants, the
applicant would be duly notified of a court
date in which case it
would attend the court and deal with the matter.
[19]
What is not explained is why Mr Cottle is opening up the post for the
union. What is not explained is the lack of a system
for
dealing with registered letters and court processes and what is not
explained is why Mr Cottle never hands the document to
the general
secretary. Mr
Louw
was correct to say that this was negligent, probably gross
negligence. But I accept that it may not have been wilful but
so grossly negligent, particularly that this is a union and it is
part of the practice of a trade union to know just how important
court documents are, that I find it very difficult to accept that
this is in any way an acceptable explanation for its failure.
[20]
That then brings me to the question of whether it has a
bona
fide
claim and part of that
determination is of course whether it has a
prima
facie
case. What is important to
recognise in respect of this case is that there are two aspects to
the claim. The first
is that the decision to retrench is a
decision made by one faction against another. It is alleged in
the second statement
of claim where it talks about the split in the
National Executive Committee (“the NEC”) and the
reference to a rogue
NEC and a case that was lost in the High Court,
but that is not the High Court case that is attached to the
application as I understand
it, this is the case that is referred to
in the evidence before Judge
Cele
when he heard the application. This is part of the case as is evident
from that record.
[21]
If one goes to the record at page 212 of the paginated papers, Mr
Alistair Charles is called as the first witness and he was
the acting
general secretary. He then gives evidence as to the split, the
factional dispute between one group of NEC members
and another.
It is central to the claim that there was no authority to retrench in
the first place let alone once the retrenchment
had been purportedly
effected that there had been no proper consultation and no proper
application of the provisions of section
189.
[22]
The evidence in the record is not specifically traversed in the
founding affidavit, although many of the issues are dealt with
in the
High Court application, which is still to be resolved.
Accordingly, there may be some basis of the case that could
be
advanced by the applicant but when it is weighed up, and I say the
prima facie
nature of the case is slight in view of the very serious disputes
concerning who had the authority to dismiss who, I do not believe
that it is sufficient to discharge the degree of negligence on the
part of the applicant in failing to heed documents produced
by this
Court.
[23] Accordingly I
dismiss the application, with costs.
CHEADLE,
AJ