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[2012] ZALCJHB 120
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High Tech Transformers (Pty) Ltd v Lombard (JS171/2010) [2012] ZALCJHB 120 (24 February 2012)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
case no: JS171/2010
In the matter between:
HIGH TECH TRANSFORMERS
(PTY) LTD
..............................................................
Applicant
(Applicant in the
application for leave to appeal)
and
ANTONIE CHRISTOFEL
LOMBARD
...................................................................
Respondent
(Respondent In the
application for leave to appeal)
Heard : In Chambers
Delivered : 24
February 2012
Summary : Application
for leave to appeal. Court refused to condone the applicant’s
non-compliance with Rule 7(2) of the Rules
which requires that a
Notice of Motion be signed. Application dismissed with costs.
JUDGMENT
AC BASSON J
This is an application
for leave to appeal against an order of this Court handed down on 3
August 2011. The Court dismissed the
applicant’s application
to rescind the court order of Molahlehi J, handed down on 20 May
2010 with costs.
The test to be applied
in an application for leave to appeal is whether there is a
reasonable prospect that another court would
come to a different
conclusion as that of the court of first instance.
Before I turn to the
brief reasons for refusing the application for leave to appeal, I
must point out that I have considered the
lengthy written
submissions filed on behalf of both parties before coming to a
conclusion. I will however not necessarily refer
to each and every
submission in this brief judgment.
The applicant submits
that this Court should grant the applicant leave to appeal on the
following grounds:
The Court should have
struck the applicant’s rescission application from the roll
due to its non-compliance with Rule
7(2) of the Labour Relations
Act 66 of 1995 (due to the failure of the respondent to sign the
Notice of Motion of its rescission
application) instead of
dismissing it;
The court should have
condoned the applicant’s non-compliance with Rule 7(2) of the
Labour Court Rules;
The Court erred in
finding that the service and filing of the rescission application
was late in that the application was in
terms of Rule 16A(1)(a)(i);
and
The Court erred in
finding that the court file was not updated.
I do not intend for
purposes of this judgment to summarise the facts that gave rise to
the referral to this Court in detail. According
to the respondent
the reason provided for his dismissal was rationalisation and that
he had received a letter of retrenchment
a day after he was informed
of same. There was, according to the respondent, no compliance with
section 189 of the LRA in that
there was no substantive reason for
his retrenchment. Moreover, no consultation process took place, no
alternatives were considered
and no fair and objective criteria were
considered. Moreover, another employee was subsequently employed to
replace the respondent.
The applicant averred that the reason for
the dismissal was poor work performance and misconduct and not
operational requirements.
The applicant further averred that Eskom
was not prepared to allow the respondent on their sites because they
considered him
to be a danger to himself and to others.
On 23 February 2010,
the respondent served
and filed his statement of case on the applicant. In the statement
of case,
it
is stated that if a party intends to oppose the matter, the response
should be delivered within 10 days of service of the statement.
The
applicant accordingly had to file a response by 9 March 2010. The
Sheriff served the Notice of Intention to Oppose on 23
March 2010.
The return of service is dated 8 April 2010. No application for
condonation was made. The applicant then filed an
‘opposing
affidavit’
1
to the statement of
claim. The applicant’s opposing affidavit was deposed to on 26
March 2010. At that stage,
the
applicant was already 13 days late as the date for opposing the
matter had already lapsed on 9 March 2010. The Sheriff served
the
opposing affidavit and the return of service indicates that a filing
sheet was served on 9 April 2010. The return of service
is dated 12
April 2010. No explanation was tendered as to why the opposing
affidavit (that was deposed to on 26 March 2010) was
not served as
soon as possible thereafter. No application for condonation was made
for the late filing of the applicant’s
opposing papers.
The matter was then set
down by the Registrar of this Court on a default basis as no
opposing papers were in the Court file and
the matter proceeded on a
default basis. I am in agreement with the respondent’s
submission that this Court cannot speculate
or presume that the
Notice of Intention to Oppose and the opposing affidavit was in fact
the court file on 20 May 2010 (the date
of the hearing of the
default). Furthermore, even if it was, the applicant had not applied
for condonation and Molahlehi J, therefore,
had no obligation to
have regard to it
The applicant’s
version is that it became aware of the order by default on 21 May
2010 (a day of the order). The applicant
then launched a rescission
application in terms of Rule 16A of the Labour Court Rules. It was
common cause that the Notice of
Motion is
not
signed as is
required by Rule 7(2) of the Rules of the Labour Court.
On 30 July 2010, the
respondent raised the fact that the applicant’s Notice of
Motion is not signed in the answering affidavit.
In its reply the
applicant merely states that all other documents have been signed
save for the one provided to the respondent
as courtesy. (The
respondent points out in its submissions that the respondent had to
raise the issue of the unsigned Notice
of Motion on paper as a point
in limine).
The respondent was then reassured by the
applicant in its replying affidavit that the Notice of Motion was
signed just not the
one that was given to the respondent.
Matter should have
been struck from the roll due to non-compliance with Rule 7(2) of the
Labour Court Rules
The applicant submitted
that the Court should have struck the matter from the roll due to
non-compliance with Rule 7(2) of the
Labour Court Rules. There is no
merit in this submission. In terms of Rule 15, a matter is struck
from the roll because the party
who initiated the proceedings was
not present. This was not the case in the present matter. In the
present case, the Notice of
Motion was not signed. Rule 7(2) of the
Rules are couched in peremptory terms and it is therefore a
requirement that the Notice
of Motion be signed. It is however,
accepted that this Court may condone any irregularity or
non-compliance with the Rules. However,
on the facts there exists no
reason for the Court to condone the non-compliance with the Rules
with reference to the facts the
Court concluded not to condone the
irregularity. Suffice to reiterate that the applicant had ample
opportunity to rectify the
non-compliance with the Rules when it was
raised for the first time by the respondent on 30 July 2010. The
applicant had another
opportunity when it attended to indexing and
paginating the court file and a third opportunity when the
respondent raised the
issue again in its Heads of Argument. The
applicant, accordingly, had more than a year to ensure that it
complies with the Rules.
There is no explanation why the applicant
had not attempted to rectify the papers.
In the Heads of
Argument, it is now argued that:
‘
[o]n the day of the hearing,
the Applicant was represented by Counsel who was caught totally by
surprise and could not give any
explanations. Neither could the
attorney nor his candidate for that matter, but for some reasons
Counsel was reluctant to apply
for a postponement/standing down as he
was convinced that the matter was beyond redemption. In consequence,
it is correct that
no explanations were forthcoming, However, the
Applicant, who employs many people, said that it now wants to further
reduce its
staff complement as it is afraid of the technical dangers
inherent in the application of the rules and regulations.’
I find this explanation
simply astonishing. Firstly, the applicant is in fact now, in its
submission to the Court in an application
for leave to appeal,
conceding that no explanation was given to the Court. Secondly, its
own counsel was, on the day of the hearing,
of the view that the
‘matter was beyond redemption’. Furthermore, the
explanation that the applicant is now afraid
of reducing staff
because of technical dangers is likewise astonishing. The Labour
Relations Act
2
does not prohibit
employers from reducing staff. What the LRA requires is for employers
to act fairly in doing so. In the present
case,
it
appears from the limited facts before this Court that the applicant
had dismissed the respondent on the pretext of a retrenchment
whereas
the real reason for the dismissal seemed to have been something
different. This was, in fact, conceded in the applicant’s
papers as follows:
‘
I realised that the Applicant
could have been dismissed but I specifically chose not to follow this
route in fairness to the Applicant
so that he would benefit
financially from a retrenchment’.
I am therefore of the
view that, on the issue of the non-compliance with Rule 7(2),
another court would not come to a different
conclusion on the facts
that served before this Court. On this ground alone, the application
for leave to appeal is dismissed
with costs.
On the issue of
condonation, I am likewise of the view that another court would not
come to a different conclusion on the facts
that served before this
Court. The rescission application was late and the applicant did not
serve and file an application for
condonation. Although Rule
16A(1)(a) of the Rules does not contain a specific time period
within which the rescission application
had to be filed, it is
however trite that the application should be filed within a
reasonable time. Where the application is
brought under Rule
16A(1)(b), the application must be brought within 15 days after
acquiring knowledge of the order or judgment.
In the present case, the
application was launched six weeks after the applicant acquired
knowledge of the order. Under both Rule
16A(1)(a) and Rule
16A(1)(b), the rescission application is late. The applicant did not
apply for recession. I am further in
agreement that in any event,
the applicant’s application for rescission is not sustainable
under Rule 16A(1)(b). In respect
of the prospects of success, on the
applicant’s own version, the dismissal of the respondent was a
sham as the real reason
for his dismissal was for alleged misconduct
or poor work performance.
Order
In the event, the
application for leave to appeal is dismissed. I can see no reason
why costs should not follow the result.
_______________________
A C BASSON J
JUDGE OF THE LABOUR COURT
APPEARANCES:
For the Applicant: Mr. H
Pretorius of GEO Isserow & TL Friedman Incorporated
For the Respondent: Mr. C
De Fries of Norton Rose Attorneys
1
As
opposed to a response to the statement of claim.
2
Act
No 66 of 1995 (LRA).