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[2011] ZALCCT 26
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Kwesthuba Consulting (Pty) Ltd v Adesemowo (C142/2010) [2011] ZALCCT 26 (8 September 2011)
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN)
CASE NUMBER
:
C142/2010
DATE
:
2011-09-08
In the matter between:
KWESTHUBA CONSULTING (PTY) LTD
…......................................................
Applicant
and
KAYODE ADESEMOWO
…...........................................................................
Respondent
J U D G M E N T
_________________________________________________
STEENKAMP, J
:
The respondent in the main application, Kwesthuba Consulting (Pty)
Limited, applied for rescission of the default judgment handed
down
on 26 November 2010. In that judgment the respondent was ordered to
pay the applicant, who is the employee, Mr Kayode, the
equivalent of
nine months’ remuneration, the Court having found that his
dismissal was unfair. No order was made as to costs.
The application for rescission was brought in terms of Rule
16A(1)(b), read with Rule 16A(2)(b), read with section 165 of the
Labour Relations Act. In terms of that rule, the application for
rescission had to be brought within 15 days after acquiring knowledge
of the judgment sought to be rescinded.
Although the judgment was already handed down on 26 November 2010,
the application for rescission was only brought on 14 February
2011.
When questioned about that, Mr
Coetzee
, who appeared for the
company, submitted that the judgment only came to the attention of
the company on 24 January 2011 when the
Sheriff of the Court attended
at its premises to serve a warrant of execution.
Although it could have been more pertinently stated in the
application for rescission, I accept that that was the case, and
that,
therefore, the application was brought on the 15
th
day after the judgment came to the attention of the company. There
was, therefore, no need to apply for condonation.
The test for rescission has been set out in numerous judgments of
this Court, for example by the Labour Appeal Court in
Shoprite
Checkers v CCMA
[2007] 10 BLLR 917
(LAC), and even though that
case dealt primarily with the rescission of a CCMA award in terms of
section 144, it dealt with the
principles relating to rescission
generally. In paragraph 35 of that judgment, Jappie AJA said the
following –
"The test for good cause in an application for rescission
normally involves the consideration of at least two factors. Firstly,
the explanation for the default, and, secondly, whether the applicant
has a
prima facie
defence.”
In
Northern Province Local Government Association v CCMA and
others
[2001] 5 BLLR 539
(LC) at 545 paragraph 16, it was stated
with reference to Herbstein & Van Winsen,
The Civil Practice
of the Supreme Court of South Africa
(4
th
ed 540-541):
"An applicant for the rescission of a default judgment must show
good cause and prove that he at no time renounced his defence,
and
that he has a serious intention of proceeding with the case. In order
to show good cause an applicant must give a reasonable
explanation
for his default, his explanation must be made
bona fide
and he
must show that he has a
bona fide
defence to the plaintiff’s
claim...”
Jappie AJA went on, in paragraph 36 of his judgment in
Shoprite
Checkers
, to quote from the earlier judgment of Nugent J, as he
then was, in
M M Steel Construction CC v Steel &
Engineering and Allied Workers Union of South Africa and others
(1994) 15
ILJ
1310 (LAC) at 1311J to 1312A, where Nugent J
said:
"Those two essential elements are, nevertheless, not to be
assessed mechanically and in isolation. While the absence of one
of
them would usually be fatal, where they are present they are to be
weighed together with relevant factors in determining whether
it
should be fair and just to grant the indulgence.”
The relevant authorities were also usefully summarised in
Edgars
Consolidated Stores Limited v Dinat and others
(2006) 27
ILJ
2356 (LC), with specific reference to Rule 16A(1)(b). In discussing
that rule, the Court quoted from the earlier judgment of
Grant v
Plumbers (Pty) Limited
1949(2) SA 470 (O) that the following
requirements should be complied with in order to show good cause:
A “(a) An applicant must give a reasonable explanation of his
default. If it appears that his default was wilful, or that
it was
due to gross negligence, the Court should not come to his assistance.
B “(b) The application was
bona fide
, and not made with
the intention of merely delaying plaintiff’s claim.
C “(c) The applicant must show that he has a
bona fide
defence to the plaintiff’s claim. It is sufficient if he makes
out a
prima facie
defence in the sense of setting out
averments which, if established at the trial, would entitle him to
the relief asked for. He
need not deal fully with the merits of the
case and produce evidence that the probabilities are actually in his
favour.”
It is further clear from the authorities that the applicant for
rescission must satisfy both elements of the test.
In applying those authorities to the present application, I will deal
firstly with the second leg – that is if the company
appears to
have a
bona fide
defence to the employee’s claim of
unfair dismissal.
In this regard, there are various disputes of facts on the papers.
Given those disputes, I am prepared to accept that the employer
–
that is the company – may have a
prima facie
defence in
the sense of having set out averments which, if established at trial,
would establish a
bona fide
defence to the claim. As I have
pointed out, though, both requirements must be satisfied.
I turn then to the explanation for the default.
It is common cause that the respondent company did receive the
applicant’s – that is the employee’s –
statement of claim on the 7
th
of May 2010. That was
shortly after both parties had attended the conciliation at the CCMA,
and the CCMA issued a certificate of
outcome that the dispute
remained unresolved and had to be referred to the Labour Court, on 19
January 2010.
The applicant – that is the employee -- served the statement of
claim on the respondent company in terms of Rule 4 of the
Labour
Court Rules by telefax. There is no dispute that the respondent, and
more specifically its director, Mr William Davy, who
opposed to the
founding affidavit in the rescission application, did receive that
statement of claim, and that it was properly
served.
The statement of claim is in the prescribed Form 2 in terms of Rule
6, and sets out pertinently in paragraph 2:
"If a party intends opposing the matter, the response must be
delivered within 10 days of service of this statement, in terms
of
Sub-Rule 6(3) of the Rules of the Labour Court, failing which the
matter may be heard in that party’s absence, and an
order for
costs may be made against that party.”
Despite that, the respondent’s Mr Davy did nothing about it. He
explains in his affidavit that he was under the impression
that he
would be informed by the Labour Court regarding the “further
conduct of the matter”. Before having received
the statement of
claim, he had what he called “an informal discussion”
with an acquaintance of his who is familiar
with labour law, who
informed him that the company would be notified by the Labour Court
of any proceeding initiated. He does not
elucidate who that
acquaintance was, what his familiarity with labour law consists of,
and on what basis he formed the clearly
mistaken impression that the
Labour Court would inform him of any proceedings initiated. Neither
does he attach a confirmatory
affidavit by that unnamed acquaintance.
Having received the statement of claim notifying him that he, or the
company, had to submit its response within 10 days, the company,
in
the form of Mr Davy, did nothing further. Despite the fact that he
had obtained advice on the dismissal of the employee from
a labour
consultant, one Redge Wrigget, he did not enquire from that
consultant what he should do. Neither did he obtain any advice
from
attorneys or counsel, despite the fact that he says he had previously
been involved in civil litigation matters with counsel
on brief. He
simply says that he assumed the statement of claim to be “a
mere courtesy”, and that he would still be
issued with a
summons by the Sheriff of the Court, or by an attorney representing
the employee.
For the next eight months, until the sheriff knocked on its door on
the 24
th
of January 2011, Mr Davy and the company did
absolutely nothing to either respond to the statement of claim, or to
make further
enquiries.
Mr
Dhansay
, who appeared for the employee, referred me in his
argument to the unreported case of Pillay J in
The Marine Coffee
Shop and another v Msomi
, which appears on SAFLII at
[2001] ZALC
81
, and specifically the penultimate paragraph, where Pillay J had
the following to say:
"The first applicant had sufficient notice of the proceedings …
On its own version, it failed to make reasonable enquiries
to
establish what was required of it in order to defend its rights and
to take the necessary steps to do so. In these circumstances,
the
application for rescission is dismissed with costs.”
In the matter before me, the circumstances are similar. The company’s
failure to respond to the statement of case, or to
make any further
enquiries, amounts, at the very least, to gross negligence.
In that regard, as the Court pointed out in the
Edgars
case
with reference to
Chetty v Law Society Transvaal
1985 (2) SA
756
(A):
"A court will not come to the assistance of a defendant whose
default was wilful or due to gross negligence.”
And further, that:
"it is not sufficient if only one of these two requirements is
met; for obvious reasons a party showing no prospects 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. And orderly 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.”
It is clear to me that, even if the respondent may have some
prospects of success on the merits, his explanation for the default
amounts to no more than gross negligence.
In those circumstances, the application for rescission must fail. In
law and fairness, costs should follow the result.
THE APPLICATION FOR RESCISSION IS DISMISSED WITH COSTS
.
____________________
STEENKAMP, J
For the applicant: Adv A Coetzee
Instructed by: Brink & Thomas Inc.
For the respondent: AS Dhansay of Parker attorneys.