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[2012] ZALCD 4
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South African Revenue Services v Mhlongo, In re Mhlongo v South African Revenue Services (J 1915/09) [2012] ZALCD 4 (2 February 2012)
REPUBLIC OF SOUTH AFRICA
Reportable
Of interest to other
judges
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
case no: J 1915/09
In the matter between:
SOUTH
AFRICAN REVENUE SERVICES
…............................................................
Applicant
and
CHARLOTTE
CONNIE MHLONGO
….................................................................
Respondent
In re
CHARLOTTE
CONNIE MHLONGO
…......................................................................
Applicant
(Respondent
in rescission application)
and
SOUTH
AFRICAN REVENUE SERVICES
….......................................................
Respondent
(Applicant
in rescission application)
Heard
:
28 January 2011
Delivered
:
02 February 2012
Summary: Application for rescission of a default judgment:
question to be decided was whether Judgment “erroneously”
granted and the extent to which the respondent could establish
prospects of success.
JUDGMENT
GUSH J
This is an application by the respondent for the rescission of a
judgment granted in favour of the applicant on 9 June 2010.
The
parties are referred to as they appear in the main application.
On 14 October 2009, the applicant in this matter filed an
application with this Court in which application she sought,
inter
alia
, to have her suspension and dismissal declared unlawful and
the restoration of the payment of her salary and benefits. The
application
was opposed by the respondent. After the close of
pleadings, the matter was duly enrolled on the opposed roll to be
heard.
On date on which the matter was enrolled, 9 June 2010, there was no
appearance for the respondent despite the notice of set down
having
been apparently properly served on the respondent’s attorneys
by fax on the fax number appearing on the pleadings
filed by the
respondent’s attorneys as being their fax number. The matter
proceeded in absence of the respondent and the
court gave judgment
in favour of the applicant and granted an order in terms of prayers
(a), (b), (c), (d) and (e) of the applicant’s
notice of
motion.
The respondent’s attorneys thereafter filed this application
for rescission of the judgment on the grounds that they had
not
received the notice of set down and therefore were not aware that
the matter had been enrolled for hearing on 9 June 2010
and
accordingly were not present when the matter was heard.
In the application the respondent explained that the reason why the
respondent had not appeared was due to the respondent’s
attorneys incorrectly recording their fax number as 0866736040 (as
opposed to the correct number which is 0866736940) when filing
the
answering affidavit. Having incorrectly cited their fax number at
that stage of the pleadings, the respondent’s attorneys
proceeded to repeatedly reflect the incorrect fax number on all
subsequent pleadings.
In the rescission application which was filed under the same case
number and filed in the same file as the main application the
respondent’s attorneys gave yet another fax number as the fax
number at which service could be effected.
The applicant opposed the application for rescission and after the
pleadings in the rescission application had closed the application
was enrolled to be heard on 18 August 2011 on the opposed roll.
On 18 August 2011 the matter came before me and yet again neither
the respondent nor their attorneys were present when the matter
was
called. The matter stood down and applicant’s attorneys having
made enquiries from the respondent’s attorneys
as to the
reason for their absence ascertained that the respondent’s
attorneys had not received the notice of set down
for 18 August as
it had been had been faxed to the same incorrect fax number as had
the notice of set down in the main application.
In the circumstances, I adjourned the matter
sine die
and
ordered that the respondent’s attorneys file an affidavit
explaining why they had not taken steps to ensure that the
correct
fax number upon which they wished to rely was specifically brought
to the attention of the registrar.
The respondent’s attorneys duly filed an affidavit explaining
their failure to appear. The explanation was that when the
application for rescission was filed the respondent’s
attorneys had under the signature on the notice of motion recorded
another fax number viz 0866487795 and when the directive calling on
the parties to file heads of argument had been sent to them
this fax
number had been used to transmit the directive. Accordingly they
assumed that the notice of set down would also be faxed
to this
number. It is startling that apart from this assumption the
respondent’s attorneys took no further steps whatsoever
to
ensure that the registrar’s attention was specifically drawn
to the fact that an incorrect fax had been provided initially
and
what the correct fax number was, particularly in light of the
different fax numbers provided in the main and rescission
application and the fact that it was the respondent’s duty to
index and paginate the court file in preparation for the rescission
application.
The matter was eventually enrolled on the opposed roll on 14
September 2011 on which date both parties were present.
Section 165 of the Labour Relations Act (LRA)
1
deals with the power of the Labour Court to vary or rescind orders.
It provides that:
‘
The
Labour Court, acting of its own 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; ...’
Rule 16 A of the rules of the Labour Court sets out that:
‘
(1)
The court may, in addition to any other powers it may have-
(a) of its own motion or on
application of any party affected, rescind or vary any order or
judgment-
(i) erroneously sought or
erroneously granted in the absence of any party affected by it;
(ii) ...
(iii) ...; or
on application of any party
affected, rescind any order or judgment granted in the absence of
that party.’
In the matter of
Griekwaland Wes Koöperatief v Sheriff,
Hartswater and Others: In re Sheriff, Hartswater and Others v
Monanda Landbou Dienste,
2
the court held that:
‘
The
requirements for filing an application under any of these rules are
different. In terms of rule 16 A(1)(b) read with rule 16A(2)(b),
an
application to rescind or vary an order or a judgment must be brought
within 15 days. The 15-day requirement does not apply
to both rule
16A(1)(a) and the common law. See
Edgars
Consolidated Stores Ltd v Dinat & others
(2006)
27 ILJ 2356 (LC). The other difference between the two rules is that,
whilst rule 16A(1)(b) requires an applicant to provide
a reasonable
explanation for his or her default, this requirement does not apply
to an application in terms of rule 16 A(1)(a)’.
3
In
Sa Democratic Teachers Union v Commission For Conciliation,
Mediation & Arbitration and Others,
4
this Court quoted with approval what was held in
Sizabantu
Electrical Construction v Guma and Others
5
viz:
'In short, good cause is not
required to be shown if a judgment or order was
erroneously
granted in the absence of a
party
'.
6
(My emphasis)
The first question therefore to be decided is whether the order was
granted erroneously. If the circumstances and facts show
that the
order was granted erroneously the respondent need not to establish
that it has good prospects of succeeding in its defence
of the
applicant’s application, and the order must simply be
rescinded.
7
If however the order was not erroneously granted the respondent is
obliged to establish that it has good prospects of succeeding
in its
defence should the order be rescinded.
In its founding affidavit, the respondent conceded that there was a
duty on it to show that it has good prospects of successfully
opposing the applicant’s application should rescission of the
order be granted. This averment was repeated in the respondent’s
filed heads of argument. When the matter was argued counsel for the
respondent abandoned this averment and argued that the order
was
erroneously made and that accordingly the respondent was not
required to show good prospects of success in its opposition
to the
applicant’s application.
Although this change of heart occurred late in the proceedings and
the respondent’s counsel had not seen fit to either
file an
amended affidavit or fresh heads of argument, it is necessary, given
the nature of an application for rescission, to
consider whether the
order granted in the absence of the respondent was granted
erroneously. If not, then, the respondent is
required to show that
it has good prospects of succeeding in its defence in the main
application should the order be rescinded.
Whether it was granted
erroneously depends on the facts and in this matter whether the
court was procedurally entitled to grant
an order in favour of the
applicant in the absence of the respondent..
Erasmus et al in
Superior Court Practice
8
when dealing with the equivalent rule in the High Court viz: Rule
[gnr48y1965r42]42 “Variation and rescission of orders”
say the following:
‘
The
court does not, however, have a discretion to set aside an order in
terms of the subrule where one of the jurisdictional facts
contained
in paragraphs
(a)–(c)
of the
subrule does not exist.
The rule should be construed to
mean that once one of the grounds are established for example that
the judgment was erroneously
granted in the absence of a party
affected
thereby, the
rescission of the judgment should be granted’.
9
And where the order was granted in the absence of a party:
‘
An
order or judgment is erroneously granted if there was an irregularity
in the proceedings ... Rescission was refused where the
applicant had
failed to notify the registrar of companies of a change of address
and a summons had been served in accordance with
the rules at the
office properly notified to the registrar as the applicant's
registered head office. The courts have also
consistently
refused rescission where there was no Rule 42 irregularity in the
proceedings and the party in default relied on the
negligence or
physical incapacity of his attorney’
.
10
[Footnote
omitted]
The respondent’s counsel in argument referred to the case of
Topol and Others v LS Group Management Services (Pty) Ltd
11
as authority for the proposition that if the court was unaware of
the fact that the respondent had not received the notice of
set down
it followed that the granting of the order was erroneous and that
accordingly it was not necessary to show prospects
of success and
that the rescission should simply be granted.
In the matter of
Lodhi 2 Properties Investments CC and Another v
Bondev Developments (Pty) Ltd,
12
the Supreme Court of Appeal dealt with the decision in
Topol
and held the following:
‘
In
Nyingwa
at
510F - G White J relying on
Topol
and Others v LS Group Management Services (Pty) Ltd
1988
(1) SA 639
(W);
Frenkel,
Wise & Co (Africa) (Pty) Ltd v Consolidated Press of SA (Pty) Ltd
1947
(4) SA 234
(C);
Holmes
Motor Co v SWA Mineral and Exploration Co
1949
(1) SA 155
(C) said
:
'It therefore seems that a
judgment has been erroneously granted if there existed at the time of
its 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.'
In
Topol,
an application
was dismissed in the absence of the applicants on the basis that the
respondent had given notice to the applicants
of the setting down of
the application and that the applicants despite their knowledge of
the hearing were in default. The application
for rescission in terms
of Rule 42(1)(a) was successful. White J, in
Nyingwa
,
understood the factual position in
Topol
to have been that
notice of the set down of the application had not been given to the
applicants and that the dismissal of the
initial application was for
that reason held to have been erroneous. If that had indeed been the
factual position in
Topol
, the respondent in that matter would
procedurally not have been entitled to a judgment in its favour, the
granting of the judgment
would for that reason have been erroneous
and there could have been no objection in the rescission application
to evidence to the
effect that proper notice of set down had in fact
not been given.
Frenkel
was a case in
which a default judgment was rescinded on the basis that it had been
granted under a misapprehension. The misapprehension
would seem to
have been that the legal representatives wrongly assumed that the
capital sum claimed had not been paid. It was,
therefore, not a case
of a judgment having been granted erroneously but a case of a
judgment having been sought erroneously. In
Holmes,
the
rescission of a default judgment was not granted on the basis of the
judgment having been granted erroneously. Although not
altogether
clear it would appear that White J misunderstood the factual position
in
Topol
. It seems to me that notice of set down had been
given in that case but that the Judge who granted default judgment
was held to
have granted the judgment erroneously by reason of the
subsequently disclosed fact that the defaulting party had not been in
wilful
default. Erasmus J had shortly before the judgment by White J
in
Nyingwa
differed from the finding in
Topol
and said
that in light of the fact that the
Topol
matter had been
properly enrolled and that all the Rules of Court had been complied
with, the plaintiff was quite within its rights
to press for judgment
in terms of the Rules (see
Bakoven Ltd v G J Howes (Pty) Ltd
1992 (2) SA 466
(E) at 472D).
Bakoven
Ltd contended that
judgment had erroneously been granted against it in that although the
matter had been properly set down for
trial it did not have knowledge
of such set down. Erasmus J said:
'An order or judgment is
''erroneously granted'' when the Court commits an ''error'' in the
sense of a ''mistake in a matter of
law appearing on the proceedings
of a Court of record’’ (The Shorter Oxford Dictionary).
It follows that a Court in
deciding whether a judgment was
''erroneously granted'' is, like a Court of appeal, confined to the
record of proceedings.'
He concluded that the judgment
granted against Bakoven Ltd in its absence could not be said to have
been erroneously granted 'in
the sense contemplated in Rule 42(1)(a),
as applicant cannot point to any error or irregularity appearing from
the record of proceedings'.
13
[Footnote omitted]
The Court in
Lodhi
concluded:
[25] However, a judgment to
which a party is procedurally entitled cannot be considered to have
been granted erroneously by reason
of facts of which the Judge who
granted the judgment, as he was entitled to do, was unaware, as was
held to be the case by Nepgen
J in Stander. See in this regard
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
2003 (6) SA 1
(SCA) ([2003]
2
All SA 113)
in paras 9 - 10 in which an application in terms of Rule
42(1)(a) for rescission of a summary judgment granted in the absence
of
the defendant was refused notwithstanding the fact that it was
accepted that the defendant wanted to defend the application but
did
not do so because the application had not been brought to the
attention of his Bellville attorney. This Court held that no
procedural irregularity or mistake in respect of the issue of the
order had been committed and that it was not possible to conclude
that the order had erroneously been sought or had erroneously been
granted by the Judge who granted the order
.
14
The question as to whether the order in this matter was made
erroneously therefore must be: was the court on the papers before
it
justified in granting the order in the absence of the respondent or
was there a procedural error which led to the order being
granted?
It is relevant in that regard that the respondent’s failure to
attend was caused by its own negligence in providing
an incorrect
fax number and thereafter perpetuating the mistake in the subsequent
documents filed with the court. There was clearly
no error in the
procedure or mistake which resulted in the court granting the order
and I am accordingly not persuaded that the
court in the
circumstances granted the order erroneously.
The application for rescission therefore must be considered in
accordance with the provisions of Rule 16 A(1)(b) of the Labour
Court Rules and accordingly it is necessary in deciding whether to
grant rescission to consider the respondent prospects of
successfully defending the applicant’s claim.
In her notice of motion in the main application, the applicant
sought an order:
‘
(a)
declaring the decision of the respondent to suspend and subsequently
dismiss the applicant on 19 May 2009 unlawful;
declaring the failure by the
respondent to follow its disciplinary code and procedure, a breach
of the terms of the employment
contract between the applicant and
the respondent;
the respondent be ordered to
allow the applicant to return to work;
the respondent be ordered to
pay the applicant her salary and all benefits from 19 May 2009 to
the date on which her salary and
benefits are restored.
The cost of this application.’
The applicant was employed by the respondent as manager: legislative
interpretation on 1 February 2005 until her dismissal on
19 May
2009. The applicant was dismissed for failing to report for duty.
The circumstances giving rise to the applicant’s dismissal
were as follows:
On 31 March whilst at work the applicant was arrested by a member
of the South African Police Services who was accompanied
by an
employee of the respondent a Mr. Seshoka. Seshoka advised the
applicant that she was suspended from her employment with
immediate
effect.
The applicant provided the respondent with medical certificates
certifying her unfit for work for the periods 3 – 8 April
2009 and 8-17 April 2009.
The applicant consulted her attorneys on 2 April 2009 who in turn
wrote to the respondent on 19 April 2009, recording firstly
that
Seshoka had advised the applicant of her suspension and had
confiscated her access card, and secondly that the applicant
had
not received written confirmation of her suspension. The letter
concluded by demanding written confirmation of the suspension.
The
respondent received the letter on 20 April 2009 but did not
respond.
The respondent avers that it sent a letter to the applicant on 8
May 2009, which the applicant denies having received. This
letter
read:
‘
It has
come to the attention of management of this office that you have been
absent from your place of work without permission and/or
approved
leave and/or having communicated to your team leader/manager since 20
April 2009 to date.
You are hereby requested to
immediately report for duty, or to inform your team leader/manager of
your whereabouts and the reason/s
thereof as is required from you in
terms of the SARS RS Policy,
Timely Reporting of Unexpected
Absences.
I wish to inform you that should
you fail to report for duty or inform your team leader/manager of
your whereabouts in five working
days from the first day of your
absence, SARS will immediately stop your remuneration and will
terminate your employment contract
with immediate effect.
You are hereby instructed to
report for duty or to contact your team leader/manager immediately.”
(sic)
On 19 May 2009, the respondent addressed a further letter to the
applicant this time recording:
‘
You
have failed to report for duty or to inform your team leader/manager
of your whereabouts and the reason/s thereof within the
prescribed 5
working days from the first day of your absence as is required from
you in terms of the SARS Policy,
Timely
Reporting of Unexpected Absences.
I wish to inform you that you
have made yourself guilty of abscondment and/or desertion and/or
services will therefore be terminated
with immediate effect.
You have the right to appeal
against the termination of service within 10 working days from the
date of receipt of this letter following
the appeal procedure as
provided for in terms of the
Disciplinary Code and Procedures”
On 15 June, the attorneys again wrote to the respondent recording
that they had not received a reply to their previous letter
and
that the applicant had not received her salary for June 2009 and
seeking confirmation that it would be paid.
On 19 June 2009, the applicant’s attorneys received a fax
from the respondent dated 18 December 2008 referring to the
letter
of 15 June 2009 and advising the attorneys that the applicant had
been dismissed on 19 May 2009 and that accordingly
she would not be
paid her salary.
In the answering and supporting affidavits,
15
the respondent confirms not only that it had been unsuccessful in
contacting the applicant it had not managed to deliver the
letters
dated 8 May 2009 and 19 May 2009 to the applicant. By their own
admission the respondent knew why the applicant was not
at work (she
believed that she had been suspended); and more importantly how the
respondent could contact her. In fact the letter
addressed to the
respondent by the applicants attorneys specifically asked for a
response to their letter which the respondent
acknowledges having
received on 20 April 2009.
In addition, despite the contents of the letters the purported
reason for attempting to contact the respondent; the deponent
to the
affidavit states:
‘
the
respondent made several unsuccessful attempts to contact the
applicant with a view of having her return to work. The letters
sent
to the applicant by the respondent on 8 May 2009 and 19 May 2009,
calling upon the applicant return to work are annexed...
The two
letters were written include in compliance with the respondents
internal HR Policy: Timely Reporting of Unexpected Absences.
The respondent's attempts to
contact the applicant and requests that she return to work when made
with the view of making arrangements
for the applicant to attend a
proper disciplinary hearing in line with the respondent’s
disciplinary code and procedure”
16
The deponent to the answering affidavit repeated the above averment
and added:
‘
when
it became obvious that the applicant was not prepared to return to
work she was duly dismissed on 19 May 2009’
17
The applicant in her founding affidavit averred that the
respondent’s “Disciplinary Code and Procedure” and
the “Policy on Timely Reporting of Unexpected Absences”
were incorporated into her contract and formed part thereof.
This
was not denied by the respondent in their answering affidavit. The
“Disciplinary Code and Procedure” is recorded
in a
collective agreement.
The “Disciplinary Code and Procedure” provides
inter
alia
that:
‘
10.2
No employee may be dismissed, demoted or suspended without pay for
misconduct, without being granted a formal disciplinary
hearing as
contemplated in this disciplinary code and procedure unless the
holding of a disciplinary hearing is made impossible
by the employee
failing to attend the hearing for no valid reason, or the employee
indicating clearly and unequivocally that he/she
is not prepared to
participate in the disciplinary hearing.’
The respondent recorded that it had terminated the applicant’s
employment on the grounds that she had absconded and had
relied on
the provisions of the respondent’s Policy on Timely Reporting
of Unexpected Absences viz.:
‘
2.4.5
if an employee fails to advise the team leader or direct manager of
his or her absence, and is absent for three successive
workdays, the
team leader or direct manager shall send a communication by
registered mail to the employee's last known address
or via other
practical means e.g. hand delivered notification, requesting the
employee to return to work, simultaneously notifying
the employee
that failure to do so will result in dismissal.
2.4.6 should an employee the
absent from work for five consecutive workdays without communicating
his or her absence and the reasons
thereof as described in this
policy the employee will be regarded as having absconded and his or
her employment must summarily
be terminated’ (sic
)
It is abundantly clear from the respondent’s papers that the
it did not follow its own procedures despite its somewhat
clumsy and
contradictory attempt to explain in its affidavits that the
dismissal of the applicant was in accordance with the
respondent’s
own policies and procedures. This is quite apart from the
respondents failure to address the following in
its affidavits:
Why having received the letter from the applicant’s attorney
on 19 April explaining her absence it was ignored it to
the extent
of not bothering to reply;
Why having received the letter from the applicant’s attorneys
the respondent it did attempt to contact the applicant
via her
attorneys if it was endeavouring to contact the applicant to
arrange a disciplinary enquiry; and
Why if its intention in attempting to contact the applicant as
stated in the affidavits was to contact the applicant to arrange
a
disciplinary enquiry the letters addressed to the applicant do no
more than advise the applicant that her absence constitutes
“abscondment” and that unless she contacts her team
leader/manager she will be dismissed.
The respondent’s own disciplinary code and procedure clearly
contemplates the holding of a disciplinary enquiry prior to
dismissal unless it holding such an enquiry is made impossible by
the employee. The respondent states quite categorically that
attempts to contact the applicant and the requests for her to return
to work were “with a view of making arrangements for
the
applicant to attend a proper disciplinary hearing in line with [the
respondents] disciplinary code and procedure. If this
was so the
respondent offers no explanation for its failure to comply with its
own procedure.
The respondent, aware of the letter from the applicant’s
attorney and of the fact that it had not successfully delivered
its
letters of 8 and 19 May 2009 or communicated its intentions to the
applicant simply proceeded to dismiss the applicant.
Given the facts and the circumstances of this matter, I am not
persuaded that the respondent has succeeded in establishing that
it
has any prospects at all of successfully opposing the applicant’s
application should rescission of the judgment by this
Court be
granted.
As regards costs and taking into account the state of the file and
the circumstances which lead to the delays in hearing this
application, I am satisfied that it is just and equitable that the
respondent pays the applicant’s costs on an attorney
and
client scale. The file was replete with unnecessarily duplicated
documents. For example the respondent saw fit to attach
the entire
main application to its rescission application despite it being
aware of the fact that all these documents were in
the file.
I accordingly make the following order:
The respondent’s application for the rescission of the judgment
granted in favour of the applicant on 9 June 2010 is refused
with
costs on an attorney and client scale.
_______________________
D H Gush
Judge
APPEARANCES
APPLICANT: Adv Motaung
Instructed by: Mpoyana Ledwaba Inc.
THIRD RESPONDENT: Adv Sibuyi
Instructed by: Eversheds
1
Act
66 of 1995.
2
(2010)
31 ILJ 632 (LC).
3
Griekwaland
Wes Koöperatief
at page 635 para 9.
4
(2007)
28 ILJ 1124 (LC) at para 17.
5
(1999)
20 ILJ 673 (LC);
[1999] 4 BLLR 387
(LC).
6
Sizabantu
Electrical Construction
at para 17 page 1129.
7
See
Erasmus et al
Superior Court Practice
(1994, Juta) at
B1-308A.
8
Supra.
9
Eramus
et al Superior Court Practice at B1-306G.
10
Eramus
et al Superior Court Practice at B1 308A and B1-309.
11
1988
(1) SA 639
(W).
12
2007
(6) SA 87
(SCA).
13
Lodhi
2 Properties Investments CC at
pages 92 – 93 paras 18 –
21.
14
Lodhi
2 Properties Investments CC
at page 94 para 25.
15
See
the affidavit by Kgapola.
16
Answering
affidavit paras 32 and 33 page 90 of the indexed pleadings in the
main application.
17
Answering
affidavit paras 38.2 and 38.3 page 92 of the indexed pleadings in
the main application.