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[2011] ZALCJHB 255
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Choice Decisions 1225 CC t/a Fastlink Transport and Another v Ontlwaetse and Another (J2418/08; J2389/08; J2390/08) [2011] ZALCJHB 255 (30 September 2011)
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case nos:
J2418/08
J2389/08
J 2390/08
In the matter between:
CHOICE DECISIONS 1225 CC
t/a FASTLINK TRANSPORT
...........................................................................
First
Applicant
J H HANDFORD
..........................................................................................
Second
Applicant
and
MAKHOE JOSEPH ONTLWAETSE
.............................................................
First
Respondent
JANSENS INCORPORATED
..................................................................
Second
Respondent
Heard:
30 September 2011
Delivered:
30 September 2011
Summary:
Rescission of orders granted by default.
JUDGMENT-REASONS FOR ORDER
AC BASSON, J
[1] The first applicant in this matter is Choice Decision 1225CC
trading as FastLink Transport. The second applicant is the sole
member of the first applicant. (I will refer to the first and second
applicants jointly as “the applicant”) The first
respondent is Mr Makhoe Joseph Ontlwaetse, who is the applicant in
the three matters that served before this Court. The second
respondent is Jansens Incorporated, the attorneys acting on behalf of
the first respondent at all relevant times and who was joined
to
enable them to defend themselves against the relief sought against
them (hereinafter referred to as “Jansens”).
From the
correspondence, it appears that at all relevant times, Mr Schöltz
of Jansens was the instructing attorney.
Orders granted by this Court
[2] This
Court made the following two orders on 30 September 2011.
‘
1. The
second Respondent Jansen Incorporated is joined as a party in these
proceedings.
2.
The late filing of the Applicant’s opposing affidavit in the
contempt application is condoned.
3. The late filing of
applications to rescind the orders made under case number J 2418/08,
case number J 2389/08 and case number
J 2390/08 is condoned.
4. The first and second
Respondents are ordered to pay the costs of this application on a
scale as between attorney and client.
The
matter is referred to the Law Society of the Northern Province in
order to investigate the conduct of Jansen Incorporated
(the second
Respondent).
The
second Respondent is to pay the costs reserved by Acting Justice Tip
on the twenty second of September 2010.’
[3] In terms of the second court order, the Court held as follows:
‘
1.
Rescission
of the following 3 (three) orders:
1.1. Case
number J 2418/08 for a certificate of service in terms of Section 42
of the BCEA and costs of the application, granted
by the Honourable
Justice Francis on the of January 2008;
1.2. Case
number J 2389/08 for payment of alleged notice pay and overtime pay
in the amount of R 2 184. 48 and costs of the application,
granted by
the Honourable Justice Francis on the 28
th
of January 2008;
1.3. Case
number J 2390/08 for the provision of information in terms of Section
29(1) of the BCAE (purportedly to enable the first
Respondent to be
able to calculate the amounts owing to him) for which the order has
been granted on 28 January 2008 under case
number J 2389/08 and costs
of the application on a scale as between attorney and own client,
granted by the Honourable Justice
Cele on 25 February 2008;
The
second Respondent is directed to repay to the Applicant, all monies
received by them in terms of the costs orders and pursuant
taxed
bills of costs plus interest thereon at 15% per annum from date of
payment and/or attachment of the money;
Thefirst
and second Respondents are directed, jointly and severally, to repay
the amount of R2 148.48, plus interest thereof received
in terms of
the writs of execution, plus interest thereof received in terms of
writs of execution, plus interest at 15,5% per
annum on the total
amount from date of attachment of the money from Applicant’s
bank account;
The
second Respondent is directed to repay to the Applicant all monies,
received by them in excess of the amount that they had
writs of
execution for, such amount being R 5 2500.00, plus interest at15,5%
per annum from date on which second Respondent received
the money;
The
second Respondent,
de bonis propriis,
to pay the costs of
this application on a scale as between attorney and own client.”
Present application
[4] This is an application for rescission of the following three
orders granted by Francis, J and Cele, J respectively. The first
two
orders were granted on 28 January 2008 and the third order granted on
25 February 2013.
Case no J2418/08 for a
certificate of service in terms of section 42 of the Basic
Conditions of Employment Act 75 of 1997 (“the
BCEA”).
The order was granted with costs by Francis, J on 28 January 2008.
Case no J2389/08 for
payment of alleged notice pay and overtime pay in the amount of
R2184.48. The order was granted with costs
by Francis, J on 28
January 2008.
Case no J2389/08 for the
provision of information in terms of section 29(1) of the BCEA
purportedly in order to enable the first
respondent to calculate the
amounts owing to him for which the order had been granted on 28
January 2008 under case no J2389/08.
The order was granted with
costs on an attorney and own client scale by Cele, J on 25 February
2008.
[5] The following applications served before this Court:
5.1. An opposed application for the condonation forthe late filing of
an opposing affidavit in the contempt application under case
no.
J2418/08 and an application for condonation for the late filing of
the three rescission applications (see hereunder).
5.2. An application to rescindthe orders granted under case numbers
J2418/08; J2389/08 and J2390/08 (consolidated under case number
J2418/08). The three rescission applications proceeded on an
unopposed basis as no submissions were advanced on behalf of the
first and second respondents despite the fact that Jansens
Incorporated (“the second respondent”) had a legal
representative
in Court. The applicant prayed for a punitivecost
order against the first and second respondents jointly and severally.
[6] On 22 September 2010, the three matters (J2418/08; J2389/08 and
J2390/08) were consolidated under case no: J2418/08.
The contempt application
[7] The contempt application in respect of matter no J2418/08 became
academic in respect of its merits since the respondents had
been
furnishedwith the certificate of service, before the application had
been brought. The certificate of servicewas also sent
to the second
respondent (Jansens Incorporated). The issue remaining in respect of
the contempt application is only costs. I will
return to these issues
herein below.
[8] Before I proceed with the matter, I need to point out that the
indexed bundle of pleadings and annexures in the condonation
application alone consists of 567 pages. The indexed bundle in
respect of the rescission application consists of 60 pages.The
applicant in the opposed contempt application had not filed an index
to bundle. I have taken this complete waste of the Court’s
time
into consideration in arriving at my decision in respect of costs.
[9] As already pointed out, the attorneys for the first respondent,
Jansens Incorporated (“Jansens”), have been joined
in
these proceedings because certain relief is sought against these
attorneys in terms of prayers 4 and 5 of the notice of motion.
The
applicants in these proceedings have decided to join Jansens to
afford them an opportunity to respond to the allegations levelled
against them. I will return to these allegations hereinbelow.
Brief exposition of the facts giving rise to the current
application:
[10] The factual history of the matter is set out in detail in
thefounding affidavit. I will suffice with a brief summary of the
facts. The applicant explains that the first respondent voluntarily
left the employ of the (first) applicant on 20 February 2008.
It was
in dispute whether the first respondent was dismissed or whether he
had resigned. The first respondent referred an unfair
dismissal claim
to the Bargaining Council. On the day of the arbitration, the first
respondent indicated that he no longer wished
to pursue his claim for
unfair dismissal but that he wanted all monies still owed to him in
terms of salary and overtime to be
paid to him. The Commissioner, Mr
Eric Louw, made calculations regarding the first respondent’s
leave entitlements and the
days that he had worked and it was agreed
that the applicant would pay an agreed amount to the first respondent
in full and final
settlement of the first respondent’s claim.
It is important to point out that the settlement agreement states
that the agreement
was in full and final settlement of the dispute.
The settlement amounted to R 364.18. The date of the settlement is 9
October 2008.
[
11] On or about 29 October 2008, Jansens (more in particular
Mr Schöltz) wrote three letters of demand to the first applicant
claiming information and payments from the applicant in terms of
various provisions of the BCEA. Apparently, the information was
needed in order to calculate whether the applicant still owed the
first respondent any further money. Jansens claimed a further
amount
of R 2077.92 which was allegedly still owed by the first applicant to
the first respondent. In addition, Jansens claimed
the first
applicant’s certificate of service.
[12] The first applicant handed the matter over to SEESA. The staff
file of the first applicant was forwarded to SEESA. Included
in the
file was the contract of service of the first respondent which he
refused to sign as well as the certificate of service
which the first
respondent refused to take on the day that he left. The settlement
agreement referred to was also contained in
the file that was sent to
SEESA. SEESA confirmed with the applicant that all the documents were
forwarded to Jansens.
[13] According to the applicant, the first respondent’s claim
regarding notice pay and overtime has already been dealt with
by the
Bargaining Council as the dispute between them was settled in full.
Moreover, because the service certificate was contained
in the file
and forwarded to Jansens, the applicant has, as far as it was
concerned, compliedwith all the claims by the first respondent
against it. The applicant further submitted that the respondents
ought to have known that the matter was settled in full at the
Bargaining Council and that the settlement included the first
respondent’s claim for notice pay and overtime.
[14] The first respondent then proceeded to institute three separate
actions against the applicant, under the above three separate
case
numbers. The applicant was under the impression that there was only
one Labour Court case namely J2389/08. The applicant gave
instructions to oppose this application and SEESA proceeded to draft
an opposing affidavit. When the Sheriff arrived to attach
goods, the
applicant realised that the first respondent and his attorneys
somehow managed to obtain a Labour Court Order. It transpired
that
SEESA was also not aware of the fact that there were in fact
different Labour Court matters involved.
[15] It also appears that the applicant had entered into a settlement
agreement with Jansens Attorneys in terms of which it will
pay their
claim in instalments of R 750.00 each month. It appears that Jansens
Attorneys has instituted a claim in the Magistrate’s
Court in
Potchefstroom under case number 4204/09 for an amount of R 10541.74
plus interest. At that stage, the applicant was under
the
bona
fide
belief that this was the total amount payable in respect of
the Court order against it. However, on 10 August 2010 Jansens
Attorneys
attached the bank account of the applicant and removed R
40 438.40 from the first applicant’s bank account. It was
then
that the applicant realised that something “is very
wrong”. An investigation was then conducted and it was only
then
that it was discovered that Jansens Attorneys have instituted
three matters under three different case numbers all concerning the
first respondent.
Case number J2418/08
[16] Under case number J2418/08, the first
respondent claimed that certain information ought to have been given
to him upon the
termination of his employment in terms of
section
77(1)
and (3) of the
Basic Conditions of Employment Act
1
(“the
BCEA”),namely, a certificate of service in terms of
section 42
of the BCEA. The order ordering the first applicant to furnish the
certificate of service was granted and a cost order was alsogranted
against the applicant. In the confirmatory affidavit deposed to by Mr
WP Schöltz of Jansens Incorporated attached to the application,
he confirmed the contents of the first respondent’s affidavit
as far as it relates to him. One of the averments that is made
in the
founding affidavit is that the certificate of service has not been
furnished to the first respondent. However, as will become
clear
herein below, it now transpires that Jansens (and by implication Mr
Schöltz) has been in possession of the certificate
of service
all along and has failed to disclose this to the Court. There is also
no indication that the second respondent had ever
contacted SEESA and
informed them that the certificate of service was not included in the
documents forwarded to them.
[17] Furthermore, under case number J2418/08, the first respondent
also brought an application for contempt of court for the imposition
of a fine or imprisonment of the second applicant for purportedly not
complying with the Court’s order in terms of which
the
applicant was ordered to furnish the first respondent with a
certificate of service. This application became academic, I have,
however ordered the second respondent to pay the costs of this
application on a scale as between attorney and client.
[18] As pointed out, it now transpires that when the Court order for
the certificate of service was granted under case nr J2418/08,
Jansens had already been in possession of the certificate of service
but failed to disclose this to the Court. What is of concern
to this
Court is the fact that it appears that Mr Schöltz withheld this
important information from the Court.
[19] I have already pointed out that there is no indication from the
file that Mr Schöltz has contacted SEESA to inform them
that the
certificate of service was not amongst the documents that were
forwarded to them. The certificate of service must, therefore,
have
been in the possession of Jansens. Moreover, from the answering
affidavit in opposing the condonation application, the respondents
now disclose that they have been in possession of copies of the first
respondent’s staff file from the outset. Mr Schöltz
also
confirmed under oath that the second respondent received 44 pages
from SEESA.
[20] In the opposing affidavit to the condonation application, it is
now alleged that some candidate attorney had committed an
oversight
by not attaching all the documents.
Case numberJ2389/08
[21] In this application, the first respondent claimed an amount of R
2184.48 in respect of four weeks’ notice that was purportedly
not paid to him. This amount amounted to R 799.20. In addition, the
first respondent claimed an amount of R 1278.72 in respect
of
overtime. Again, this application was granted with costs. Attached to
the application is a letter from SEESA clearly stating
that the first
respondent had deserted and that the first respondent was not
entitled to any leave pay. Also attached to the papers
are some of
the documents that were sent by SEESA to the second respondent.
Strikingly absent is any letter from Jansens to SEESA
indicating to
them that the documents sent to SEESA did not also contain the
certificate of service. Furthermore, if the clock
cards together with
the pay slips and proof of payment are perused, it appears that the
first respondent had made false statements
under oath. These
documents were in the possession of the second respondent and the
question arises why did the attorney then allow
this application to
serve before the Court.
[22] Following the Court order in respect of Case no J2389/08,
Jansens caused a writ of execution to be issued for the amount
awarded to the first respondent. Costs were awarded by Cele, J on 25
February 2008 on a scale as between attorney and own client.
The
applicant seeks an order directing the first and second Respondents,
jointly and severally to repay the amount of R 2184.48
plus the
interest thereof received in terms of the writs of execution plus
interest at 15.5% per annum on the total amount from
date of
attachment of the money from the Applicant’s bank account. The
applicant seeks a further order directing secondrespondent
to repay
to the applicant all money received from them in excess of the amount
that they had writs of execution for such amount
being R5250.00 plus
interest at 15.5% per annum from the date on which the second
respondent received the money.
[23] According to the applicants, the date in respect of notice pay
and overtime had been dealt with at the Bargaining Council
and was
settled in full and final. It was submitted that had the Court been
made aware of the settlement agreement, the Court would
not have made
the orders under case number J 2418/08. I can find no reason, in
light of these facts, to grant the applicant the
order it sought. I
can also find no reason to grant an order directing the second
respondent to repay the said amount with interest
[24] As will be indicated herein below, the question also arises why
it was necessary to split the different actions and moreover,
why did
Mr Schöltz of Jansens advised the first respondent to approach
this Court under three different case number whereas
the cause of
action (at best for the first respondent) arose from the same cause
of action and to claim costs in respect of each
of these applications
separately. This scheme was in my view clearly devised to farm the
maximum amounts of costs.
[25] This Court has already expressed its dismay
at the manner in which Mr Schöltz (of Jansens Attorneys)
litigates in this
Court. See in this regard the decision in
Indwe
Risk Services (Pty) Ltd v van Zyl in re van Zyl v Indwe Risk Services
(Pty) Ltd
:
2
‘
[38] I
have little hesitation to award costs on this extraordinary scale in
the light of the conduct of Jansens Inc in prosecuting
the
respondent's claim in the manner in which it did.
[39] I am also mindful of the
fact that an order for costs de bonis propriis is only awarded in
exceptional cases and usually where
the court is of the view that the
representative of a litigant has acted in a manner which constitutes
a material departure from
the responsibilities of his office. Such an
order shall not be made where the legal representative has acted bona
fide or where
the representative merely made an error of judgment.
However, where the court is of the view that there is a want of bona
fides
or where the representative had acted negligently or even
unreasonably, the court will consider awarding costs against the
representative.
Because the representative acted in a manner which
constitutes a departure from his office, the court will grant the
order against
the representative to indemnify the party against an
account for costs from his own representative. (See in general
Erasmus
Superior Court Practice
at E12-27.)
[40] As already pointed out, it
cannot in the present case be concluded that Jansens Inc was merely
negligent or made an error in
law. I am also not of the view that the
conduct was merely unacceptable. I am of the view that the conduct
was improper. Jansens
Inc, and Schöltz in particular (and this
appears to have been a trend in this matter having regard to his
conduct before the
CCMA), acted in a manner which constitutes a
material departure from his duties as an officer of this court. I
have no hesitation
in making a special costs order and ordering that
Jansens Inc pay the costs. It will be manifestly unfair to saddle the
respondent
with the costs in the present circumstances. See also
SA
Liquor Traders’ Association and others v Chairperson, Gauteng
Liquor Board andOthers
2009 (1) SA 565
(CC) at para 54:
“
An
order of costs
de
bonis propriis
is made against attorneys where a court is satisfied that there has
been negligence in a serious degree which warrants an order
of costs
being made as a mark of the court's displeasure. An attorney is an
officer of the court and owes a court an appropriate
level of
professionalism and courtesy. Filing correspondence from the
Constitutional Court without first reading it constitutes
negligence
of a severe degree. Nothing more need be added to the sorry tale
already related to establish that this is an appropriate
case for an
order of costs
de
bonis propriis
on the scale as between attorney and client... This court's
displeasure is primarily directed against the office of the State
attorney in Pretoria whose systems of training and supervision appear
to be woefully inadequate.”
[41] See also in general
Cooper
NO v First National Bank of SA Ltd
2001 (3) SA 705
(SCA) at 37:
“
There
remains to be considered the appeal against the costs order. The
general principle of the common law is that a trustee, who
acts in a
representative capacity, cannot be ordered to pay costs
de
bonis propriis
unless he has been guilty of improper conduct. The Judge
a
quo
found the appellant's conduct to be ''unacceptable'. Improper conduct
is always unacceptable; but unacceptable conduct is not necessarily
improper. While the appellant's conduct may have been ill-considered,
and his application lacking in certain essential detail to
the extent
that it may be said that he did not make a full disclosure of all
relevant facts, one cannot, in my view, go so far
as to hold that his
conduct was improper. It has not been shown that there was a
conscious attempt on his part to mislead the magistrate
or to use
s
69(3)
unfairly to his advantage. In the circumstances the special
costs order against the appellant was not justified and falls to be
set aside.”
Referral to the Law Society
of the Northern Provinces
[42] In light of the conduct of
Jansens Inc and Schöltz in particular, I have instructed the
Registrar of the Labour Court
to refer the matter to the disciplinary
committee of the Law Society of the Northern Provinces. The registrar
has done so. I will
in furtherance of this referral also request the
registrar to forward a copy of this judgment to the law society.’
[26] As
in the case before Van Niekerk, J,
the case before Cele, J was also not framed in contractual terms but
fell squarely within the
ambit of the BCEA which affords certain
statutory rights to employees. It is noteworthy to point out that Mr
Schöltz (of Jansens
Incoporated) was also the legal
representative in the matter before Van Niekerk, J. Van Niekerk,J
correctly, in my view, pointed
out (at paragraph 5) that applications
in terms of
s 77
(as opposed to claims based on contract) should be
dealt with by the duly appointed functionaries of the Department of
Labour and
that the Labour Court should not be the point of first
entry in the enforcement process:
'In the absence of any provision
in the BCEA that confers jurisdiction on this court to enforce the
provisions of the Act directly
and as an agent of first instance, the
applicant's claim is misconceived. To hold otherwise would entirely
undermine the system
of enforcement established by chapter 10 of the
Act. Chapter 10 establishes the mechanisms to monitor and enforce the
protections
guaranteed by the Act. In summary, the entry point into
the system is the office of the labour inspector, to whom complaints
may
be made. The labour inspector is required to endeavour to seek an
undertaking from the employer against whom the complaint is made
(s
68), failing which the inspector may, if the inspector has reasonable
grounds to believe that an employer has not complied with
the Act,
issue a compliance order (s 69). An employer may object to a
compliance order by making representations to the director-general
(s
71) and appeal to this court in terms of s 72 against any order made
by the director-general. In terms of s 73, the director-general
may
apply to this court to have a compliance order made an order of court
in terms of s 158(1)
(c)
of the Labour Relations Act.
What relevance and purpose would this carefully crafted system
continue to have if an employee were
entitled to bypass it and
approach this court for orders directly enforcing the provisions of
the Act?'
3
[27] I concur fully with this statement. The processes of this Court
should not be usedto enforce statutory rights often at great
expense
to the other party. Van Niekerk J expressed a similar concern in
respect of the conduct of Schöltz in bringing applications
in
terms of s 77 of the BCEA in the matter that was before him. Of
particular concern to the court in that matter (
Ephraim
) was
Schöltz’s strategy of approaching the Labour Court with
claims which are relatively small and which are accompanied
by a
prayer for costs on a punitive scale. The Court further expressed the
view that the strategy adopted by Mr. Schöltz in
instigating
litigation in circumstances where the first point of entry should
have been the Department of Labour was with the intention
of running
up legal costs that might later be recovered from the employer. This
clearly amounts to unprofessional conduct.
[
28] It was also submitted on behalf of the
applicants that the application for a certificate of service under
case number: J2418/08
was simply a fraudulent application. The
certificate of service was forwarded to the second respondent by
SEESA, which is the portion
the second respondent sought to withhold
from the Court and which constitutes fraudulent non-disclosure. The
second respondent
failed to attach the documents so forwarded, to
their opposing affidavit.
[29] The applicants sought thatall three of these judgments be
rescinded and set aside, including the cost orders. As is evident
from the orders, I have granted the rescission in respect of all
three applications with a special cost order.
Condonation application forthe late filing of the rescission
application.
[30] The rescission application in the present matter is brought in
terms of section 165(a) read with rule 16A(1)(a)(i) which provides
for the “rescission of a judgment, erroneously sought or
erroneously granted in the absence of a party”
.
Neithersection 165, nor rule 16(1)(a)(i) of the Rules of this
Court stipulates a prescribed periodwithin which the application for
rescission must be brought. It is, however, accepted that such an
application must be brought within a reasonable time after becoming
aware of the judgment.
[31] The question of what constitutes a reasonable
time, is determined by the facts of each matter. See in this regard:
Wolgroeiers Afslaers v Munisipaliteit
van Kaapstad.
4
In
terms of this judgment, and the many other judgments that followed it
was held that since equity principles are applicable, prejudice
to
the respondent is the most important consideration, followed by
prospects of success, public interest and proper administration
of
justice. The effect of the proceedings on parties not before the
court may also be taken into account.
5
[32] In the matter before the Court, two issues
are important in considering the period of delay. The first is
whether there was
an unreasonable delay in bringing the application
for rescission; and secondly, if the delay is found to have been
unreasonable,
what would have been a reasonable time on the facts
within which the applicant could reasonably have been expected to
bring the
application and whether the delay should be condoned.
6
In this regard, the applicant contended that,
having regard to the facts, the delay is not unreasonable and, in the
alternative,
that the applicants have an acceptable explanation for
the unreasonable delay. The first respondent’s only prejudice
will
be that he may have to repay the amount of R2184.48, which
amount, according to the applicant, he was in any event not entitled
to. On behalf of the applicant, it was further submitted that in any
event, any prejudice to the first respondent can also be addressed
by
the Court by only granting the orders against Jansens particularly as
the first respondent instituted the actions on the advice
of Jansens.
[33] Turning to the facts as set out in the founding affidavit in the
condonation application,it appears from the founding affidavit
that
the applicant believed and had good reason to do so that the
settlement agreement at the Bargaining Council was in full and
final
settlement of all disputes between the applicant and first
respondent. Furthermore,SEESA did in fact forward the required
documentation and information to Jansens but Jansens failed to
disclose this information to the Court at the time the default
judgments were obtained from this Court. More in particular, the
settlement agreement and the certificate of service were forwarded
to
Jansens. Jansens also failed to disclose the documents faxed to them
by SEESA in these proceedings.
[34] When the applicant came to realise the impact of the default
judgments the applicant immediately took steps to address the
issue.
It was only then discovered that Jansens recovered much more money
than what they were entitled to in terms of the court
orders and
taxed bills of cost.
[35] It was also submitted that if the applicant’s case cannot
be heard, it will result in severe injustice to applicant,
not only
in monetary terms, but also in respect of having its case heard
fairly. It was further submitted in strong terms that
not allowing
the applicant’s case to proceed, will effectively allow default
judgments, which had been obtained fraudulently
to stand and condone
failure by officers of the Court to place all relevant facts and
information before the court. If the undisclosed
facts were disclosed
to the Court, the default judgments would not have been granted.
[36] I have considered the length of the delay. Although the length
is substantial, I am satisfied that there is an adequate explanation
for the delay.
[37] In respect of prospects of success, prejudice, the importance of
the case and public interest, I am equally of the view that
condonation should be granted. I will refer to these facts in more
detail where I refer to the merits of the application in the
rescission application. Before I do so, I shouldalso briefly refer to
the points
in limine
raised on behalf of the first respondent.
Firstly, the respondents are of the view that the Court does not have
the jurisdiction
to entertain the condonation application in the
absence of rescission applications having been filed first. I can
find no merit
in this point and the point is dismissed. The
respondents also contended that the sole member of a close
corporation is not “an
affected party” as contemplated by
section 165. This proposition is equally ill-founded.If the
contention is that the second
applicant does not have the necessary
locus standi
the point falls to be dismissed. The second
applicant is the sole member of the first applicant and its directing
mind and therefore
both the first and the second applicant have an
interest in the outcome of the rescission application.
[38] In respect of the merits, it is clear from the papers that it
was in dispute whether the first respondent was dismissed or
whether
he resigned. I have already referred to the fact that a dismissal
dispute was referred to the National Bargaining Council
for the Road
Freight Industry by first respondent and that the “dismissal
dispute” was settled fully and finally. The
applicants’
submission in this regard was that this settlement was in respect of
all
disputes between the parties arising from the termination
of the employment relationship between the parties. The respondents
on
the other hand contended that the amount paid by the applicants in
terms of the settlement agreement was compensation for unfair
dismissal.What is of concern to the Court in this regard is what the
first respondent says in his own affidavit. Firstly, the first
respondent states that he was paid salary for the period 1 to 12
February 2008, which salary was owed to him for that period worked.
This amount could therefore not have represented compensation.
Secondly, the first respondent denies that he was advised by the
Commissioner that he had not been dismissed, but then admits that the
Commissioner advised him to accept the salary to which he
was
entitled for the period he had worked.Then the first respondent says
that he realised after he discussed the matter with his
attorneys,
that he should not have accepted the settlement offer. Thirdly, what
is of further concern to the Court is the fact
that the settlement
agreement was never disclosed to the Court during any of the three
default application. This is of concern
especially in light of the
fact that it is clear from the papers that Jansens had in fact been
in possession of the settlement
agreement even before they had sent
out their letter of demand.
[39] As far as the merits of the rescission application are
concerned, the merits are overwhelmingly in favour of the applicants.
In the event the application for condonation is granted.
Why were the three matters in the default judgment not
consolidated?
[40] It is trite that one of the primary
objectives of the Labour Relations Act
7
is the effective and speedy resolution of labour
dispute. One way of ensuring that labour disputes are resolved
speedily is to consolidate
proceedings to ensure that disputes are
resolved speedily and not in a piecemeal fashion.
Section 74
of the
Basic Conditions of Employment Act
8
(“BCEA”) further allows the Labour
Court and the CCMA to adjudicate claims for amounts owing to an
employee in terms
of the BCEAtogether with a dismissal dispute. In
this regard,
section 77
provides that “[s]ubject to the
Constitution and the jurisdiction of the Labour Appeal Court, and
except where this Act provides
otherwise, the Labour Court has
exclusive jurisdiction in respect of all matters in terms of this
Act”. Section 74 specifically
provides for claims that sound in
money arising from the BCEA, which includes overtime, salary and
leave pay, that the Labour Court
and the CCMA can determine such
claim in proceedings regarding unfair dismissal. Section 138(9)(b)
and (c) of the LRA further specifically
empowers an arbitrator to
make an award that gives effect to the primary objectives of the Act
and which may be in the form of
a declaratory order. In other words,
in so far as that the first respondent had a claim for overtime or
leave pay as later claimed
in the Labour Court, he should have
claimed it in the Bargaining Council. In respect of the certificate
of service,he could have
approached the Department of Labour. There
exists absolutely no reason why the first respondent had approached
this Court in three
separate actions to claim overtime, leave pay and
a certificate of service. The only reason why this was done was for
Jansens to
obtain a cost order in respect of each of the three
separate actions. The institution of the claim for alleged further
notice and
overtime pay in the Labour Court is an abuse of process.
What is of further concern to the Court is the fact that the first
respondent,
on the advice of Jansens split the same set of facts,
which is contemplated by section 74 of the BCEA read with section 1
and section
138(9)(b) and (c) to be heard in one process at the
Bargaining Council, to create different causes of action. As a
result, Jansens
obtained a cost order in respect of each of these
actions. I am in agreement with the submission that it appears as if
this scheme
could only have been devised by Jansens in order to
generate fees and not by
the first
respondent.
9
The splitting of claims, as was done here by
Jansens amounts to a shocking abuse of process. It is also not the
first time that
this Court has commented on his practice.
[41] Furthermore, in terms of the recognised
common law rule, a party is obliged to claim in a single cause of
action whatever remedies
the law allows. As already pointed out, the
BCEA specifically provides a remedy for all money claims in terms of
the BCEA in the
CCMA or Bargaining Council, to be heard, together
with an unfair dismissal dispute. There was, therefore, no reason why
the first
respondent could not have instituted these claims in the
Bargaining Councilas part and parcel of the dismissal dispute and why
it was necessary to institute a further claim in the Labour Court for
leave pay and overtime pay. What makes matters worse, it the
fact
that Jansens had instituted three different claims on exactly the
same set of facts. This is an appalling abuse of court processes.
10
[42] In addition to the aforegoing, the first
respondent engaged in forum shopping, a practice that has also been
strongly condemned
by the Constitutional Court.
11
[43] The Court has also taken into consideration in making the costs
order that it did, the fact that Jansens has overburdened
this Court
with vast amounts of papers. The matters that were referred to the
Court are simple matters and not remotely complicated,
yet Jansens
generated voluminous papers in all three matters.
[44] The most alarming aspect of this matter is the fact that it is
evident from the court bundle itself, that the Jansens has
failed to
attach the relevant documentation that was forwarded to them by SEESA
to their application or at any time during the
default hearings or to
disclose the content thereof to the presiding Judge.In the opposing
affidavit, Jansens blames the failure
on a candidate attorney (one Mr
Willard Chisora). Mr J H Jansen of Jansens states that Chisora “may”
have neglected
to attach the rest of the documents. The fact remains
that Jansens has failed to bring these documents to the attention of
the
Court whereas it appears from the papers that Jansens were in
possession of all the relevant information pertaining to the
dismissal
dispute.
[45] I am in agreement with Ms Anderson that the irresistible
deduction to be made is namely that Jansens had wilfully not
disclosed
the settlement agreement and other information to the Court
and that this has influenced this Court to grant the orders (and the
costs orders) by default.
Rescission applications in terms of Section 165(a) Read with Rule
16(1)(a)
[46] In terms of section 165(a) (read together with Rule
16(1)(a),rescission of an order or judgment may be granted when such
order or judgment was ‘erroneously sought or erroneously made
in the absence of any party affected by that award.’
[47] Section 165(a) of the LRA, as amended and rule 16A (1)(a)(i) is
similar to rule 42(1)(a) of the Uniform rules of the High
Court.
[48] In
Ntombela v
Herridge Hire and Haul CC and Another
12
and
in
Sizabantu Electrical Construction v
Guma and Others
13
the
Labour Court distinguished between the requirements for rescission in
terms of section 165 and rule 16A(1)(b) and (2)(b). The
same
distinction obviously applies to rule 16a(1)(a)(i). The Court held
that for an order in terms of section 165, good cause is
not required
if it can be shown that the judgment or order in question had been
erroneously granted in a party’s absence.
[49] In
Halcyon Hotels
(Pty) Ltd t/a Baraza v CCMA andOthers,
14
Faber,
AJ found, with reference to rule 42(1)(a) of the Uniform Rules of the
High Court:
‘
[A]n
order or judgment will be held to be erroneously granted if there was
an irregularity in the proceedings, or if it is not legally
competent
for the court to have made the order or judgment, or there existed at
the time of issue a fact of which the judge was
unaware, which would
have precluded the granting of the judgment and which would have
induced the judge, if he had been aware of
it, not to grant the
judgment.’
15
[50] In the present case, it was not legally competent for the Court
to have made the order or judgment, and there existed at the
time
issues and facts of which the Judges were unaware, which would have
precluded the granting of the judgments and which would
have induced
the Judge, if he or she had been aware of it, not to grant the
judgment.
[51] The issues and facts that the Judges were not
aware of had wilfully been withheld from the Court, being information
pertaining
to the Bargaining Council Proceedings and the dismissal
dispute, the settlement agreement and the fact that the applicant had
furnisheda
certificate of service. I am, therefore, satisfied that
the order was erroneously granted.
16
[52] In conclusion, I am satisfied that the applicants have made out
a good case for the relief sought. I also can find no reason
not to
grant the further orders as set out in my order dated 30 September
2011. The rescission is, therefore, granted. I further
direct the
Registrar to refer the matter to the Law Society for investigation.
[53] In respect of costs, I have no hesitation to grant a special
cost order against Jansens in light of the manner in which litigation
has been conducted in this Court.
__________________
AC Basson, J
Judge of the Labour Court
APPEARANCES:
For the
Applicant : Jansens Incorporated Attorneys
For the
Respondents: Riki Anderson Attorneys
1
Act
75 of 1997.
2
(2010)
31
ILJ
956 (LC) at paras 38-42.
3
Ephraim
v Bull Brand Foods (Pty) Ltd
(2010) 31 ILJ 951 (LC) at para 5.
4
1978
(1) SA 13 (A).
5
See
Associated Institutions Pension Fund and Others v van Zyl and
Others
[2004] 4 All SA 133
(SCA) at para 53.
6
Bayete
v Security Holdings v Mokgadi and Others
[2000] 9 BLLR 1020
(LC).
7
Act
66
of 1995.
8
75
of 1997.
9
See
De La Noski v Bredell,
Brown
Co 1911 TPD at 118;
Darby v Levinsohn
1926 NPD 146
at 147
;
Mahomed and Son v Mohamed
1959 (2) SA
688
(T) at 692A and
Polverini v General
Accident Insurance Co Sa
Ltd
1998 (3)
SA 546
(W) at 552D.
10
Custom
Credit Corporation (Pty) Ltd v Schoombie
1972 (3) SA 462
(A.
11
See
in this regard Gcaba v Minister of Safety and Security and Others
2010 (1) SA 238
(CC)
at para 57where
theCourt held as follows: “Following from the previous points,
forum shopping by litigants is not desirable.
Once a litigant has
chosen a particular cause of action and system of remedies (for
example, the structures provided for by the
LRA) she or he should
not be allowed to abandon that cause as soon as a negative decision
or event is encountered. One may specifically
now want litigants to
relegate the LRA dispensation because they do not trust the
structures to do justice as much as the high
court could be trusted.
After all, the LRA structures were created for the very purpose of
dealing with labour matters, as stated
in the relevant parts of the
two majority judgments in
Chirwa
, referred to above.’
12
[1999]
3 BLLR 253
(LC).
13
[1999]
4 BLLR 387
(LC).
14
[2001]
8 BLLR 911
(LC) at para 10.
15
See
Promedia
Drukkers and Uitgewers (Edms) Bpk v Kaimowitz and Others
1996
(4) SA 411
(C) at 417G-I;
Stander and Another v Absa Bank
1997
(4) SA 873
(EC) at 883-884.
Romani Plant Hire CC and Another v
SASTWU and Others
[2001] 8 BLLR 961
(LC) at 7;
Roux v City of
Cape Town
[2004] 8 BLLR;
Electrocomp (Pty) Ltd v Novak
[2001]
10 BLLR 1118
(LC) 1120E-F.
16
It
was further held in the
Halcyon
casethat once it is found
that a judgment was erroneously granted, it is not necessary for a
party to show good cause. Also see
Data Delta v De Bruin
[1999]
5 BLLR 482
(LC).In
CAWU and Another v Federale Stene (1991) (Pty)
Ltd
[1998] 4 BLLR 374
(LC) it was held that where a defaulting
party was unaware of a hearing date, granting judgment by default
was erroneous and
rescission will be granted without proof of good
cause.