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[2011] ZALCJHB 138
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SACCAWU obo Seletele v Commission for Conciliation Mediation and Arbitration and Others (JR 958/07) [2011] ZALCJHB 138 (9 December 2011)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH
AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
Case
no: JR 958/07
In
the matter between:
SACCAWU
OBO SELETELE J
..........................................................
Applicant
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
........................................
First Respondent
COMMISSIONER
BONGE MASOTE N.O.
.......................
Second
Respondent
SHOPRITE CHECKERS (PTY) LTD
....................................
Third Respondent
Heard
:
28
October
2011
Delivered
:
09 December
2011
JUDGMENT
BHOOLA
J
Introduction
[1] This
is an application for rescission of my judgment of 11 June 2010 in
which I dismissed the applicant’s application
for review with
no order as to costs.
Background
facts
[2] The
applicant was dismissed by the third respondent on 7 July 2006. He
referred a dispute arising from his unfair dismissal
to conciliation
and it then proceeded to arbitration before the second respondent on
7 Febraury 2007. On 19 February 2007 the arbitrator
delivered an
award dismissing the applicant’s claim. Thereafter on or about
23 April 2007 the applicant served and filed
an application for
review of the award. Almost two years later, on or about 13 March
2009, the applicant served and filed a supplementary
affidavit. It
then filed its notice in terms of Rule 7A(6) on the respondents on 6
April 2009. The third respondent served is answering
affidavit on the
applicant’s attorneys on or about 30 April 2009. The applicant
filed a replying affidavit on 19 June 2009,
a period of approximately
40 days late and also filed a condonation application. The parties
were directed to file heads of argument,
and in compliance the third
respondent filed heads of argument on or about 8 December 2009. The
applicant did not file its heads
of argument.
[3] The
matter came before me on 11 June 2010, and the applicant was not
present in court when the matter was called. The third
respondent’s
counsel, Ms Lapham made its submissions and I dismissed the review
application.
[4] The
applicant brought an application for rescission of this judgment
which was served on the third respondent on 19 July 2010.
The matter
came before July AJ in December 2010 when it was postponed and the
applicant ordered to pay costs
de bonis propriis
.
[5] On the
date allocated for hearing the In considering the merits of the
rescission application, Mr Seletele appeared in person
and indicated
he wanted to proceed as his union and legal representatives had let
him down. I have had regard to the pleadings
as well as oral
submissions and heads of argument.
Merits
[6] Rule
16A (1)(a)(i) provides that this court may of its own motion or on
application rescind or vary any order or judgment made
erroneously.
Rule 16A(1)(a)(ii) provides for a party to make application for
rescission of any order granted in its absence. The
applicant is
required (see
inter alia Edgars Consolidated Stores Ltd v Dinat &
others
(2006) 27 ILJ 2356 (LC)) to show that good cause exists
for the rescission and that he has a
bona fide
defence on the
merits. In the present matter the applicant would have to persuade
this court that he has prospects of success in
the review.
[7] In
deciding whether to rescind my judgment of 11 June 2010 I am required
to determine whether there was good cause for the failure
to appear
when the matter was set down. The applicant was previously appeared
at the time to be represented by its attorneys of
record, Messrs
Segaole Attorneys, who had filed a notice of appointment on 7 April
2009. They withdrew on 4 February 2010 and were
at some point
replaced by Messrs De Villers Attorneys. The latter have never
presented themselves in court. The applicant is vague
on whether he
was represented at the time or not. The applicant does not indicate
who informed him on the day that the file had
gone missing. In any
event it later transpired that this was not the case. Whether the
file is missing or not it is his obligation
as
dominus litis
to appear in court when his matter is called. The applicant then
stated that he had not received the notice to appear in court
on 11
June 2010. In regard to the prospects of success on review the video
footage moreover of the incident for which he was charged
and
dismissed indicates that he was guilty of the assault. When he made
submissions before me the applicant indicated that it was
not him on
the video and this was the reason why he sought to review the
arbitration award. In his pleadings he states that the
video
exonerates him. In addition, he states that the chairperson of the
disciplinary enquiry was biased. There appears to be no
indication of
this on the record.
[8] The
third respondent did not persist in seeking costs given that the
applicant is no longer represented.
[9]
Therefore, I make the following order :
[10] The
application is dismissed with no order as to costs.
_______________________
U BHOOLA
Judge
APPEARANCES
APPLICANT: In person
THIRD
RESPONDENT:
K Lapham
Instructed
by Perrot Van Niekerk Woodhouse Matyolo Inc.