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[2011] ZALCJHB 185
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Aard Mining Equipment (Pty) Ltd v Swanepoel (JR 129/2010) [2011] ZALCJHB 185 (31 August 2011)
CELE J
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD IN JOHANNESBURG
Reportable
Case
N0: JR 129/2010
In the matter between
AARD MINING EQUIPMENT
(PTY) LTD
................................................................
Applicant
and
PETRUS LOURENS JOHANNES
SWANEPOEL
..............................................
Respondent
Date of hearing: 25
August 2011
Date of Judgment: 31
August 2011
JUDGMENT
CELE J
Introduction
[1] The applicant seeks
to have a decision of this Court dated 27 August 2010 rescinded in
terms of section 165 of the Labour Relations
Act (the LRA),
1
or in the alternative in
terms of rule 16 A of the rules of this Court. In that decision,
an arbitration award
dated 6 December 2009 under case number GAJB15378-09, issued by
Commissioner Tsatsimpe of the Commission for
Conciliation, Mediation
and Arbitration (the CCMA) was reviewed and set aside in favour of Mr
Swanepoel who was an employee of
the present applicant. The dismissal
of Mr Swanepoel by the applicant was found to have been substantively
unfair and the applicant
was ordered by this Court to re-instate him
with retrospective effect. The applicant did not oppose the review
application. When
the review application was scheduled for hearing,
the registrar did not issue a notice of set down to the applicant. Mr
Swanepoel
opposed the rescission application but he also sought
condonation for the late delivery of his answering affidavit, which
application
was not opposed by the applicant.
The Condonation
application
[2] Mr Swanepoel received
the rescission application on 17 September 2010 but filled the
answering affidavit on 13 October 2010
and was therefore 6 days late.
His explanation is that his attorney was engaged in an attempt to
have the rescission and the review
applications heard simultaneously,
which offer was declined by an attorney of the applicant. It remains
unclear how the discussion
contributed to the delay. The short period
of the delay however mitigates the poor explanation proffered. The
applicant has conceded
that it received the review application and
annexures. The review application was considered by this Court and it
made its findings
and this factor augurs well for the prospects of
success in the condonation application.
[3] The condonation
application was considered together with the rescission application,
thus avoiding prejudice that any party
might suffer by the matter
being delayed. In the absence of any other factors that militated
against the granting of condonation,
Court exercises its discretion
in favour of condoning the late filing of the answering affidavit. No
costs order follows the granting
of condonation. The rescission
application accordingly stands opposed by the respondent.
The rescission
application
Factual background
[4] Mr Swanepoel was in
the employ of the applicant as a Field Service Technician. He
commenced his employment with the applicant
in 1995. His services
were utilised mainly in servicing the clients of the applicant. He
was therefore expected to be ready and
available as and when the
clients have called for such interventions. The applicant granted him
a cellular telephone allowance
and instructed him to always keep his
telephone on and to activate the voicemail system in case he was not
available to answer
the telephone.
[5] On 16 and 17 April
2009, South Deep Mines, a client of the applicant, scheduled work
which was to be carried out by the applicant.
Mr Swanepoel was tasked
by the applicant to carry out that job. He never turned up for duty.
The applicant then charged him with
two acts of misconduct of being
absent from work and failed to timeously report and bringing the
company’s name to disrepute.
He was found to have committed the
misconduct and was dismissed. Commissioner Tsatsimpe confirmed the
fairness of the dismissal.
As already indicated, Mr Swanepoel
successfully applied for the review of the award, which order is the
subject of the present
application.
The explanation for
rescission.
[6] The applicant
admitted the receipt of the initial review application papers and
later the transcribed record of the arbitration
hearing. The
applicant reflected on the matter by engaging in some consultancy and
a decision was taken to oppose the review application.
In January
2010, attorneys Johannes de Beer were instructed. The attorneys were
to file a notice of opposition and a Mrs van der
Merwe of de Beer
Incorporate was tasked to attend to it. All documents served to the
applicant were to be handed over to the attorneys,
who were
henceforth supposed to monitor progress in the review application.
Applicant’s attorneys then waited for Mr Swanepoel
to comply
with rule 7 A (8) so that they could thereafter deliver the answering
affidavit. However, as the applicant and its attorneys
were waiting,
they were engaged in preparatory acts in which the applicant
consulted with its attorneys and counsel involved in
the matter. To
this extent, on 27 August 2010, a letter was issued by its attorneys
to Mr Swanepoel’s attorneys inviting
them to serve the rule 7 A
(8) notice. At that stage, it came to light that the notice of
opposition had never been issued and
served to E S Makinta Attorneys,
acting for Mr Swanepoel. Still on 27 August 2010, Mr Makinta issued a
letter notifying applicant’s
attorneys that this Court had on
that day, considered and granted the review application in this
matter on unopposed basis.
[7] All along, the
applicant had operated its business from 9 Pilans Street, Chamdor,
Krugersdorp. In October 2009, it then relocated
to 44 Jacobs Street,
Chamdor, Krugersdorp. In so doing it also changed its telefax number
from 011 762 5834 to 011 279
5392.
[8] Unbeknown to the
applicant the address of its attorneys, through which it had sent the
review papers, had changed. Mrs van der
Merwe was tasked with having
to communicate the information of such address change to the
applicant but she did not. Attorneys
of the respondent were similarly
uninformed of the change and they used the old address to serve court
papers. The result was that
no opposing papers were filed against the
review application.
[9] The further
complication was that the registrar of this Court did not serve the
applicant with a notice of set down of the review
application, as
would customarily be done even for unopposed review applications. The
applicant therefore did not wilfully fail
to attend Court when the
review application was heard since:
It had no knowledge of
the set down date;
It did not deliberately
refrain from entering an appearance to defend;
The applicant had an
attitude insofar as the review application was concerned. At the
outset there was an intention to defend
the review application.
[10] In terms of showing
that an applicant has substantial defence, court was urged not to
look at the probability of success but
to consider a
prima
facie
case
made by the applicant.
Legal principles
applicable.
[11] This Court acting of
its accord or on the application of any affected party may vary or
rescind a decision, judgment or order
erroneously sought or
erroneously granted in the absence of any party affected by that
judgment or order
2
.
Further, this Court may, in addition to the powers it may have, on
application of any affected party, within 15 days after acquiring
knowledge of such order or judgment, rescind any order or judgment
granted in the absence of that party upon good cause shown
3
.
[12] Various decisions
have come for consideration by this Court in which a party sought to
rescind a judgment or order. One such
is
Chadi
v K O Interior Design,
4
where reliance was made
on the decision in the case of
Chetty
v Law Society, Transvaal
5
.
The
Chetty
case concerned a
rescission at common law, which law is relevant when a rescission
application premised on rule 16A of this Court
is considered. Miller
JA,
while
relying on the rules of the High Court, observed:
“
The
appellant's claim for rescission of the judgment confirming the rule
nisi cannot be brought under Rule 31(2)(b) or Rule 42(1)
but must be
considered in terms of the common law which empowers the court to
rescind a judgment obtained on default of appearance
provided
sufficient cause therefor has been shown (See
De
Wet and Others v Western Bank Ltd
1979
(2) SA 1031
(A) at 1042 and
Childerly
Estate Stores v Standard Bank of SA Ltd
1924 OPD 163).
The term 'sufficient cause' (or 'good cause') defies
precise or comprehensive definition for many and various factors are
required
to be considered (see
Cairn's
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 are:
(i) that the party seeking relief must
present a reasonable and acceptable explanation for his default; and
(ii) that on the merits such party has
a bona fide defence which prima facie carries some prospect of
success (
De Wet's
case
supra
at 1042;
P E Bosman
Transport Works Committee and Others v Piet Bosman Transport (Pty)
Ltd
1980 (4) SA 794
(A); Smith NO v Brummer NO and Another;
Smith
NO v Brummer
1954 (3) SA 352
(O) at 357-8).
It is not sufficient if only one of
these two requirements is met; for obvious reasons a party showing no
prospect of success on
the merits will fail in an application for
rescission of a default judgment against him, no matter how
reasonable and convincing
the explanation of his default. An ordered
judicial process would be negated if, on the other hand, a party who
could offer no
explanation of his default other than his disdain of
the Rules was nevertheless permitted to have a judgment against him
rescinded
on the ground that he had reasonable prospects of success
on the merits.”
Evaluation.
[13] A legal practitioner
who changes a postal address which was communicated to other parties
as an address through which legal
documents were to be served has a
legal obligation to notify such parties that are likely to be
adversely affected by such change,
of the fact of such change. A
secondary obligation entails taking precautionary measures that
documents which are continually dispatched
through that address are
timeously collected for attention. To hold otherwise would be to
encourage negligent and reckless conduct
in the process of servicing
legal documents in compliance with the rules of this Court to satisfy
the basic common law principle
of
audi alteram partem rule
.
[14] There is a limit
beyond which a party may not successfully rely on the mistake of its
legal practitioner. In this respect,
it behoved of the applicant to
have shown that that limit had not been reached otherwise it may be
held liable even for the mistakes
of the legal representatives of its
choice. What however is of more concern in this case is that there
was effective communication
between the applicant and its attorneys
up to 27 August 2010. This can be seen from the very evidence of the
applicant that its
attorneys issued a letter on that day to Makinta
Attorneys, following a consultation the applicant had with them. The
change of
address of the attorneys has therefore not been shown to
have had any contribution to them not receiving correspondent for
this
matter. No date of such change was given for that matter. It is
noticeable that the date of change of address of the applicant was
given. Again the address change of the applicant had no bearing in
this matter as it took effect in October 2009. In January 2010,
the
applicant received the initial review application papers and later
the record of the arbitration hearing.
[15] During the
presentation of this matter in Court, Mr Venter appearing for the
applicant submitted that the rule 7 A (8) notice
was never served to
the attorneys of the applicant. The contrary was proved in Court,
clearly to his amazement and surprise; Another
indication that there
was effective service of the papers by Mr Makinta.
[16]
In
terms of the rules of this Court therefore,
the
registrar was never, at the time of the set down of this application,
obliged to notify the applicant of the date of hearing.
Neither the
rules of this Court nor a practice directive of this Court make any
provision for the registrar to issue such a notice.
This ground must
accordingly fail.
[17]
It is clear therefore that the version of the applicant has failed to
give a credible account of why it did not file an answering
affidavit. The change of addresses was not shown to explain the
inactivity of the applicant and its attorneys. This is not a matter
in which the order of this Court sought to be rescinded because of an
order that was erroneously sought and erroneously granted
in the
absence of a party seeking rescission.
[18]
The alternative relief sought in terms of rule 16A (1) (b) is then to
be considered. The review application in this matter
was considered
by this Court. The grounds for review identified by the respondent
were the main, if not the sole basis for the
application. For the
applicant to succeed in a rescission application, it had to show on a
prima facie
basis that its contribution to the review
application had the potential of introducing another angle to the
issues that court had
to deal with and that there was a likelihood
that a conclusion different from the one reached by court might
inure. Granting rescission
would be erroneous if the same results in
the review application would be attained, whether the application is
opposed or not.
It has to be assumed, unless good cause is shown,
that court applied its mind to all relevant review considerations for
this matter.
The silence of the applicant in this regard is
deafening. This ground also stands to fall.
[19]
In the consequence, the following order will issue:
The
rescission application is dismissed.
The
applicant is ordered to pay the costs thereof.
________
Cele J
Appearances:
For the Applicant :
Advocate F Venter
Instructed by : Johannes
De Beer Incorporated
For the Respondent: Mr.
E.S Makinta of E.S Makinta Attorneys
1
66
of 1995.
2
Section
165 of the LRA.
3
Rule
16A (b).
4
(1999)
20 ILJ 2326 (LC).
5
1985
(2) SA 756
(A) at 764J-765E.
9