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[2013] ZALCJHB 18
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Powertech Transformers (Pty) Ltd (formerly ABB Powertech Transformers (Pty) Ltd) v Metal and Engineering Industrial Bargaining Council and Others (JR1250/09) [2013] ZALCJHB 18 (12 February 2013)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case No JR 1250/09
In the matter between
POWERTECHTRANSFORMERS
(PTY) LTD
(FORMERLY ABB
POWERTECH
TRANSFORMERS (PTY)
LTD)
.................................................................................
Applicant
and
THE METAL AND
ENGINEERING INDUSTRIAL
BARGAINING COUNCIL
.............................................................................
First
Respondent
COMMISIONER ZODWA
NDLADLA
......................................................
Second
Respondent
NUMSA obo JORASIAH
MOTUBATSE
.....................................................
Third
Respondent
Heard: 09 January 2013
Delivered: 12 February
2013
Summary: Application
for rescission of an order granted by default. Consideration of the
question whether the judgment was erroneously
granted in terms of
rule 16(1)(a) and was good cause established pursuant to rule
16A(1)(b).
JUDGMENT
SEEDAT, AJ
Background
[1] Consequent to his
dismissal by the applicant, the employee assisted by the third
respondent referred an unfair dismissal dispute
to the first
respondent. On 16 July 2009, an arbitration award was issued by the
first respondent under the hand of the second
respondent finding the
dismissal of the employee to be unfair and reinstating him with full
back pay.
[2] On 2 September 2009,
the applicant filed an application to review the award.
[3] In the interim, the
applicant and the third respondent attempted to settle the matter but
these talks fell through and, on 7
April 2010, the third respondent
launched an application to dismiss the review application for not
complying with the rules of
this court.
[4] The applicant, in the
meanwhile, continued with its attempts to obtain the transcript of
the arbitration proceedings necessary
for the review application.
[5] The dismissal
application was set down for hearing on the unopposed role for 25
January 2012. The parties were notified of this
date on 28 November
2011.
[6] On 25 January 2012,
Lagrange J, in an unopposed motion, dismissed the review application
for non-compliance with the court’s
rules and made the
arbitration award an order of court.
The arguments
[7] The first that it
heard of the judgment against it, avers the applicant, was when it
received a letter from the third respondent
saying that the employee
would be resuming his duties with the applicant on 5 March 2012 in
accordance with the order of the Labour
Court. The applicant then
immediately contacted its attorneys. On perusing the court file, the
attorneys found, among the documents,
the index to the application to
dismiss which was filed on 4 May 2011. The index was not served on
the applicant and made no reference
to the applicant’s
answering affidavit in the application to dismiss.
[8] The third respondent
counters that because there was no answering affidavit it was under
no obligation to serve the index on
the applicant. It is common cause
that the answering affidavit though served on the registrar was not
in the court file. The third
respondent denied receiving the
answering affidavit despite the fact that there was proof that it was
served on the third respondent.
[9] The applicant now
wants to rescind this order of Lagrange J in terms of
s 165
of the
Labour Relations Act 66 of 1995
or
rule 16A(1)
of the Rules for the
Conduct of Proceedings in the Labour Court (the Labour Court Rules).
The application for
rescission
[10] The applicant argues
that the learned judge was not aware that the application by the
third respondent to dismiss the review
application was opposed by the
applicant and the ensuing order was erroneously granted in terms of s
165 or rule 16A(1)(a)(i).
In the alternative, the applicant submits,
there is good cause to grant the rescission within the contemplation
of s 165 or rule
16A(1)(b).
[11] The applicant states
that consequent to the launch of its application to review the award
of the second respondent, the parties
entered into discussions with a
view to possible settlement of the dispute. When no agreement could
be reached the third respondent
filed, on 7 April 2010, an
application to dismiss the review application because the applicant
had not delivered the record of
the arbitration proceedings and
therefore ‘dismally failed to prosecute their [sic] review
application’. On 21 April
2010, the applicant served its
answering affidavit to the application to dismiss on all the
respondents.
[12] The applicant then
contends that there followed ‘a series of delays associated
with the applicant’s attempts to
secure a complete transcript
and, in this context, a number of letters were exchanged between
NUMSA [the third respondent] and
the applicant’s attorneys of
record. For present purposes it suffices to record that NUMSA was
kept fully abreast of the
applicants’ [sic] difficulties and,
importantly, that the record as filed by the first respondent (the
MEIBC’) was
materially deficient’.
[13] The applicant’s
attorneys practised from the Regus office complex and it would seem
that Regus also managed its administrative
function. The notice of
set down for the dismissal application hearing was addressed to the
third respondent and at the bottom
of the notice were added the words
‘and to: Powertech Transformers (Pty) Ltd’. Because the
notice of set down was not
addressed to the applicant’s
attorneys, the staff at Regus did not identify it as mail for the
applicant’s attorneys.
[14] The applicant claims
that the order was erroneously granted in terms of s 165 or rule
16A(1)(a)(i) on the grounds that the
learned Judge had accepted that
the application was unopposed. The learned Judge was obviously not
aware that an answering affidavit
to the application to dismiss had
been filed or of the events that transpired after the delivery of the
answering affidavit. The
third respondent’s answer was simply
that the notice of set down was properly served on the applicant and
it had elected
not to attend court.
[15] In the alternative,
the applicant argued that pursuant to rule 16A(1)(b)(ii) read with
rule 16A(2)(b) it has good cause to
sustain the rescission. There is
a reasonable explanation for the delay in prosecuting the review
application and it has a
bona fide
defence on the merits.
[16] Explaining its
failure to attend the rescission hearing, the applicant asserts that
the notice of set down ‘miscarried’
within the Regus
office complex and was not brought to the attention of the
applicant’s attorneys - an occurrence which cannot
be
attributed to the negligence of the applicant or its attorneys. Its
failure to pursue the review application expeditiously,
continued the
applicant, was the result of the failure of the first respondent to
furnish the transcript of the arbitration hearing.
The law applicable to
rescission
[17] The application for
rescission may be brought in terms of s 165, rule 16A(1)(a) or rule
16A(1)(b) or the common law.
[18] Pursuant to s 165 of
the LRA, this court may of its own motion or on application by any of
the parties, rescind an order or
judgment erroneously sought or
granted in the absence of the party affected by such order or
judgment.
[19] Rule 16A of the
Labour Court Rules states:
‘
(1) The
court may, in addition to any other powers it may have-
of its own motion or on application
of any party affected, rescind or vary any order or judgment-
erroneously sought or erroneously
granted in the absence of any party affected by it;
in which there is an ambiguity or a
patent error or omission, but only to the extent of such ambiguity,
error or omission;
granted as the result of a mistake
common to the parties, or
on application of any party affected,
rescind or vary any order or judgment granted in the absence of that
party.
(2) Any party desiring any relief
under-
(a) subrule 1(a) must apply for it on
notice to all parties whose interests may be affected by the relief
sought.
(b) subrule 1(b) may within 15 days
after acquiring knowledge of an order or judgment granted in the
absence of that party apply
on notice to all interested parties to
set aside the order or judgment and the court may, upon good cause
shown, set aside the
order or judgment on such terms as it deems
fit.’
[20] The requirements for
moving an application under the two rules are different. While rule
16A(1)(a) permits a rescission of
a judgment granted in error in the
absence of a party, rule 16A(1)(b) assists a party affected by a
judgment granted in its absence
to apply for rescission of such a
judgment on good cause shown. However, unlike rule 16A(1)(a) which
imposes no time limits, an
application to rescind under rule
16A(1)(b) must be made within 15 days.
[21]
Rule
16A(1)(a) substantially replicates the provisions of s 165(a) which
is in turn modelled on rule 42(1)(a) of the High Court
Rules. In this
respect,
our
courts have held that if an order was erroneously made in the absence
of any affected party, the court should on the application
of that
party rescind the order without further enquiry.
1
[22]
Joubert AJ in
Transport
and General Workers Union and Others v Kempton City Syndicate and
Another
2
remarked:
‘
If a court
holds that an order or judgment was erroneously granted in the
absence of any party affected thereby it should, in terms
of rule
42(1)(a), without further enquiry, rescind or vary the order.’
[23]
Nicholson JA in
Superb
Meat Supplies CC v Maritz
3
accepted that ‘when
the court considers whether a judgment has been granted erroneously,
it does not investigate whether good
cause has been established or
whether there has been wilful default’.
[24]
In
Lumka
and Associates v Maqubela
4
Jafta AJA held ‘where
rescission is sought on the basis that an order was erroneously
granted, the applicant is not required,
over and above that, to show
good cause’.
[25]
Relying on
Sizabantu
Electrical Construction v Guma and Others,
5
Molahlehi J in
Gay
Transport (Pty) Ltd v SA Transport and Allied Workers Union and
Others
6
and in
SA
Democratic Teachers Union v CCMA and Others
7
confirmed that a party
seeking rescission on the basis that a judgment was erroneously
granted does not have to show good cause.
The application in
terms of rule 16A(1)(a)(i)
[26]
The
question I have to answer is whether the order of Lagrange J in this
matter was erroneously granted.
[27] Cilliers, Loots and
Nel write:
‘
It has been
stated that it 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
aware of it, not to grant the
judgment.’
8
[28]
In
simple terms, in
Gay
Transport (Pty) Ltd
,
the court said that
‘
the
finding that the order or judgment was erroneously made, means that
the affected party has been denied a hearing in terms of
the rules of
natural justice’.
9
But more importantly, in
considering the error, I would say that the fact that the court was
inveigled into giving a judgment because
material facts were either
omitted or misrepresented to the judge is decisive.
[29]
The
applicant does not deny that the notice of set down was faxed to its
attorneys and was received by Regus, its office administrator.
Because the notice was
addressed to ‘NUMSA’ and the name of the applicant
appended at the bottom of the page, an employee
of Regus marked it as
unidentified. It therefore did not reach the offices of the attorneys
and the applicant consequently remained
unaware of the notice.
[30]
The
facts in
Halcyon
Hotels (Pty) Ltd t/a Baraza v CCMA
10
were not dissimilar to
the present case. Baraza did not have its own fax machine but used
the fax facility of a neighbouring restaurant.
It is to this fax that
the notice for an arbitration hearing had been faxed. Baraza claimed
that it had not received notice. Faber
AJ held at para 14 that a
telefax transmission slip is ‘only
prima
facie
proof
that a document has come to the knowledge of the party on whom it has
been served’.
[31]
In
Roux v
City of Cape Town,
11
a notice to attend a
pre-trial conference was sent to the applicant’s attorney by
fax. But the attorney claimed that the notice
had not come to his
attention. The court found that the failure of the applicant and his
attorney to attend the pre-trial conference
was not wilful and it was
‘satisfied that the notice was transmitted to the applicant’s
attorneys but for reasons that
cannot be explained the notice did not
come to the attention of the attorney handling the matter’.
12
[32]
Sutherland AJ (as he then
was) in
Northern
Province Local Government Association v CCMA
13
stated:
‘
Axiomatically,
in deciding whether or not a fax transmission was received, proof
that the fax was indeed sent creates a probability
in favour of
receipt, but does not logically constitute conclusive evidence of
receipt… [there has to be] a fairminded enquiry
into whether
or not as a fact the notice did not come to the attention of the
party’.
[33]
Molahlehi J in
Gay
Transport (Pty) Ltd
confirmed
that ‘the fax slip creates a presumption of receipt but does
not constitute conclusive proof of receipt’.
14
[34]
The
applicant does not deny that the notice of set down was received by
its office administrator. Unlike
Roux,
in the present matter
there is a reasonable explanation that because the notice was
addressed to NUMSA and the name of the applicant
was written at the
bottom of the page it did not alert the staff of the office
administrator that this could be for the applicant’s
attorney.
The reference ‘Mr PG Bam/bc’ is inconsequential. I am
satisfied that the notice of set down did not come
to the attention
of the applicant or its attorneys.
[35]
Ms
Craven, the deponent to the opposing affidavit in this rescission
application does not elaborate on what was placed before the
judge.
Critical to the finding is the applicant’s affidavit opposing
the application to dismiss the applicant’s review
application.
[36] The question is
whether the learned Judge’s ignorance of the answering
affidavit constitutes a fact which, had he been
aware of it, he would
not have granted the order. It can be accepted that for some reason,
despite proper service on the registrar,
the answering affidavit to
the application to dismiss was not in the court file. There was
service on the third respondent too.
However, Ms Craven, in her
answering affidavit to the application for rescission, persists with
her denial that the answering affidavit
was in the file held at the
third respondent’s office. Mr Cartwright, representing the
third respondent is adamant that this
affidavit was not filed. But
the confirmation by all the respondents on the filing page
accompanying the answering affidavit that
a copy was received is
incontrovertible proof that it was served. I have no reason to doubt
that if the learned judge had been
aware of the answering affidavit,
he would not have made an order by default.
[37] The application for
rescission of the default award in terms of rule 16A(1)(a)(i) must
succeed.
The application in
terms of rule 16A(1)(b)
[38] The applicant also
founded its application for rescission in rule 16A(1)(b). Rule
16A(2)(b) requires that an application in
terms of rule 16A(1)(b)
must be made within 15 days from the date on which it came to know of
the order. In terms of rule 12(3)
of the Labour Court Rules, this
court may on good cause shown condone any non-compliance with the
time limits prescribed in the
rules. At the hearing, Mr Cartwright
withdrew his opposition to the application for condonation.
[39]
This
court has a discretion when considering an application for
condonation for the filing of any pleading or document.
15
In exercising this
discretion the court is guided by the established principles of the
degree of lateness, the reasons for the delay,
the prospects of the
party seeking condonation succeeding in its claim or defence, the
prejudice the parties will suffer if condonation
is granted or
refused and whether it is in the interest of justice to grant the
condonation sought.
[40]
Contrary to the assertion
by Mr Cartwright, the definition of a ‘day’ in the Labour
Court Rules is ‘any day other
than a Saturday, Sunday or public
holiday’. Accordingly, I accept the submission by Mr Hollander
who appeared for the applicant
that the application was two court
days late. The reason for the delay was ‘an oversight on the
part of [the applicant’s
attorney] whose initial reading of the
Rules and authorities in point was that there is no prescribed
time-period in respect of
all applications for rescission’.
This is a reasonable and acceptable explanation for the delay. But
even if it were not
so, it would not constitute an absolute bar to
condonation.
16
The prospects of success
in the application to dismiss are good. The third respondent did not
claim that it or the employee would
suffer any prejudice should
condonation be granted in these proceedings. In any event, the factor
of prejudice becomes important
only when the delay is substantial.
17
It would therefore not be
in the interest of justice to disallow the application of
condonation.
[41]
To
succeed in a rescission application in terms of rule 16A(1)(b), the
applicant must show good cause which, though not defined
in Labour
Court Rules, is understood to consist of a
bona
fide
defence
on the merits of the case with some prospect of success.
18
This would, of course,
pertain to the application to dismiss the review application and not
the review application itself because
rescission is sought in respect
of an order dismissing the review application. Factually, of course,
the two will overlap.
[42]
Regarding the requirement
of a
bona
fide
defence,
Mokgoatlheng AJ (as he then was) said in
Edgars
Consolidated Stores Ltd v Dinat and Others
:
19
‘…
it
is sufficient if the applicant sets out averments which, if
established at the trial, would entitle the applicant to the relief
sought, [and] the applicant need not deal fully with the merits of
the case or produce evidence that the probabilities are in its
favour.’
[43]
Essential to the
requirement of good cause is the absence of the element of wilfulness
which can only be established by the reasons
for its default.
20
For an applicant to be in
wilful default it must be shown that-
it was aware that action
is being brought against it;
it deliberately desisted
from filing a notice of opposition or an answering affidavit; and
a certain mental
attitude towards the consequences of the default exists.
(See
Vorster v EET SA
(Pty) Ltd
(2006) 27 ILJ 2439 (LC) at 2444B-D)
[44]
In
Maujean
t/a Audio Video Agencies v Standard Bank of SA Ltd
,
21
the court held that the
word ‘wilful’ connotes deliberateness ‘in the sense
of knowledge of the action or consequences
and a conscious and freely
taken decision to refrain from giving notice of intention to defend
(or file a plea), whatever the motivation
of his conduct might be’.
Thus a court will not come to the assistance of an applicant whose
default was wilful or due to
gross negligence.
22
[45]
Despite the protestations
by Mr Cartwright, it is obvious that the applicant intended to pursue
its review application. It may have
been somewhat tardy in procuring
the record of the arbitration proceedings but it had delivered its
answering affidavit to the
application to dismiss to the registrar
and all the respondents. That the notice of set down did not come to
its attention was
an unfortunate hiccup in its attorneys’
administrative management. The applicant’s conduct was neither
wilful nor grossly
negligent. The applicant does therefore have a
bona
fide
defence.
I am of the view that the
applicant has shown good cause as contemplated in rule 16A(1)(b).
[46] It remains to be
said that the inordinate delay in bringing this matter to finality is
anathema to the expeditious dispute
resolution regime envisaged in
the LRA and it will be appropriate to hasten the parties to
finalising the dispute.
Costs
[47] In my view, both
parties must shoulder some blame for the judgment having been granted
by default. In the circumstances, fairness
dictates that each party
must carry its own costs for this application.
The order
The order granted on 25
January 2012 is rescinded.
The third respondent
may, if it so desires, serve its replying affidavit to the
applicant’s answering affidavit within seven
days of this
judgment.
The registrar will then
set this matter down as expeditiously as practicable on the opposed
role for arguments in the application
to dismiss the review.
There is no order as to
costs.
__________________
SEEDAT AJ
Acting Judge of the
Labour Court
APPEARANCES
Applicant: Advocate L
Hollander
Instructed by:
For the Respondent:
Attorney D Cartwright
1
Cilliers,
Loots and Nel
The Civil Practice of the High Courts and the
Supreme Court of Appeal of South Africa
5ed (2009) Juta: Cape
Town at 933.
2
(2001)
22 ILJ 104 (W) at 108C.
3
(2004)
25 ILJ 96 (LAC) at para 15.
4
(2004)
25 ILJ 2326 (LAC) at para 26.
5
(1999)
20 ILJ 673 (LC).
6
(2011)
32 ILJ 1917 (LC) at paras 11–12.
7
(2007)
28 ILJ 1124 (LC) at para 17.
8
Above
n 1 at 931.
9
Gay
Transport (Pty) Ltd
at para 13.
10
[2001]
8 BLLR 911
(LC).
11
[2004]
8 BLLR 836
(LC).
12
Id
at para 23.
13
(2001)
22 ILJ 1173 (LC) at para 46.
14
Gay
Transport (Pty) Ltd
(
supra
) confirmed at para 19.
15
SA
Post Office Ltd v CCMA
(2011) 32 ILJ 2442 (LAC) at para 17.
16
See
in this regard
Toyota SA Marketing v Schmeizer
[2002] 12 BLLR
1164
(LAC), implicitly approved in
National Education Health and
Allied Workers Union on behalf of Mofokeng and others v Charlotte
Theron Children’s Home
(2004) 25 ILJ 2195 (LAC).
17
SA
Post Office Ltd
(supra) at para 18.
18
Lumka
and Associates
(supra) at para 22.
19
(2006)
27 ILJ 2356 (LC) at para 14.
20
(
Ndhlela
v Transnet Ltd
(2004) 25 ILJ 565 (LC) at para 30;
Edgars
Consolidated Stores Ltd
at para 14.
21
1994
(3) SA 801
(C).
22
Edgars
Consolidated Stores Ltd (supra)
at 2366C-D.