About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2013
>>
[2013] ZALCJHB 40
|
|
Ratshitanga v Commission for Conciliation Mediation and Arbitration and Others (JR 236/09) [2013] ZALCJHB 40 (6 March 2013)
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Reportable/ Not reportable
case no: JR 236/09
In the matter between:
EDWIN RATSHITANGA
......................................................................................
Applicant
and
THE COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION
.........................................................
First
Respondent
JOHN SIAVHE
....................................................................................
Second
Respondent
ROSY
BLUE (PTY) LTD
........................................................................
Third
Respondent
Heard: 09 January 2013
Delivered: 06 March 2013
Summary: Review application-rescission ruling. Fax transmission
creates a presumption of receipt of service but is not conclusive
proof of that fact.
JUDGMENT
NAIDOO AJ
Introduction
[1] This is an application to review and set aside a rescission
ruling made by the second respondent (the Commissioner) under case
number GAPT 4192-08, in terms of which the applicant’s
rescission application was dismissed.
[2] Despite opposing the application, the third respondent was not
represented at the hearing. Once satisfied that proper notice
had
been sent to the third respondent, I continued to hear the
application in default. I did however consider the salient points
of
the third respondent’s argument as set out in its papers.
Background facts
[3] On 13 June 2008 the applicant’s dismissal dispute was set
for arbitration. Both parties attended but as a result of there
being
no Tshivenda speaking interpreter to assist the applicant, the
process was postponed.
[4] The first respondent rescheduled the arbitration for 10 September
2008 and allegedly served the applicant with notice via registered
mail. Due to the applicant’s non attendance, his dispute was
dismissed once the arbitrator was satisfied that proper notice
had
been affected.
[5] The applicant became aware of the dismissal ruling on 11 November
2008 and soon thereafter, together with an application for
condonation, lodged his application to rescind the dismissal ruling.
[6] On 23 December 2008
the Commissioner condoned the late filing of the applicant’s
rescission application and in a separate
ruling, dismissed the
applicant’s rescission application. It is the Commissioner’s
second ruling which forms the subject
matter of in these proceedings.
Grounds of Review
[7] Mr. Makinta, instructed by the Legal Aid Board of South Africa,
argued that the Commissioner erred in finding the applicant
was
informed of the arbitration proceedings, this despite the applicant’s
averments denying ever being notified of such a
date. The crux of the
matter, as Makinta put it, was that the applicant did not receive any
notification from the first respondent
and was, for the first time
informed of the arbitration date on 11 November 2008. Makinta further
argued that the fact that the
applicant attended the arbitration on
13 June 2008 was indicative of his intention to pursue his dispute.
In essence the argument
proffered, as I understand it, is that the
applicant’s rescission application was on the basis that the
dismissal ruling
was erroneously granted and that the Commissioner
did not properly evaluated the evidence in support of this.
The rescission ruling
[8] In his ruling the only issue the Commissioner deals with is
whether or not the applicant received proper notification. In finding
that proper notice was given to the applicant, the Commissioner
relies on the fact that the address used to send the notice, via
registered mail, was the same address tendered by the applicant in
his referral forms, which address the applicant had received
notices
in the past. On this basis the Commissioner was satisfied that the
applicant was properly served and therefore dismissed
his rescission
application.
Evaluation
[9] From the Commissioner’s ruling it is unclear whether or not
he had sight of a registered slip establishing that notice
had been
sent to the address the applicant tendered. The applicant takes issue
with the fact that no proof, in the form of a registered
slip, was
attached to the third respondent’s papers in this matter. I do
not intend probing this issue and for purposes of
this judgment will
assume notice was sent via registered mail and proof to such effect
was on file.
[10] The presence of a registered slip does not lay foundation to a
legal claim that the intended recipient did in fact receive
same. The
slip creates nothing more than a positive presumption regarding
receipt, which is open for the intended recipient to
rebut.
[11] While I accept the presumption is strengthened by the fact that
the applicant received notice in the past using the same method
of
service, this on its own does not necessarily confirm the
presumption. In
Gay Transport (Pty) Ltd v SA Transport and Allied
Workers Union and Others
,
1
faced with a similar enquiry, the court said the following:
‘
As
indicated above the fax slip creates a presumption of receipt but
does not constitute conclusive proof of receipt. The applicant
in the
present matter does not deny the correctness of the fax number used
to fax the statement of case. It however denies ever
receiving the
same, thereby refuting the presumption of receipt. The burden is then
on the respondents to show that the applicant
did indeed receive the
statement of case through the fax transmission. The evidence that the
applicant did receive other documents
through the same fax number
previously is not in my view sufficient to discharge the duty on the
respondents to show that the applicant
did receive the statement of
case sent through the same fax number.’
[12] From a reading of the Commissioner’s ruling it becomes
plain to see that he accepts, as conclusive proof, the applicant
did
receive notice once it was established that notice was sent to an
address the applicant tendered and which address he received
prior
notices. Nothing in the ruling remotely suggests that the
Commissioner was alive to the fact that the evidence before him,
created a mere presumption that notification was received. It was for
the commissioner to consider the allegations made by the
applicant,
together with other relevant information (including the fact that the
applicant did attend the previous arbitration
which was postponed due
to no fault of his own) and weigh this against the presumption
created. In the absence of adopting such
an approach, the ruling
stands to be set aside.
[13] In its opposing papers, the third respondent mero motu attacks
the applicant for not dealing with the issue of ‘good
cause’
in his rescission application. I am uncertain as to what point the
third respondent wishes to make in setting out
this argument. While
it is correct the applicant did not deal with this issue in his
application before the Commissioner, what
should not be forgotten is
the fact that it is the Commissioner’s ruling that is at the
core of this application. In his
ruling the Commissioner also does
not deal, or even make mention of the aspect of good cause and as
stated above, arrives at his
conclusion on the sole basis that the
applicant did received proper notification. It seems to me the
Commissioner’s failure
to apply the applicable test, which
includes addressing the issue of good cause, lends support for the
setting aside of the ruling;
2
a conclusion I am sure the third respondent’s is not asking me
to make.
It can hardly be argued that the applicant’s failure to address
the issue of good cause, in his rescission application nullified
the
Commissioner’s duty to address the issue. On this point the
Labour Appeal Court, in
Maepe v Commission for Conciliation,
Mediation and Arbitration and Another
3
had the following to say:
‘
....where
the law is that a commissioner must take into account a certain
factor in deciding a certain question, he is obliged to
take that
factor into account even if none of the parties asks him to take it
into account. When he is obliged to take it into
account, it is no
defence to say that he was not asked to take it into account. If the
factor was a critical one and he did not
take it into account, he may
well have committed a gross irregularity justifying the reviewing and
setting aside of his award.’
[14] It was open for the Commissioner to dismiss the applicant’s
rescission application on grounds that the applicant did
not address
the issue of good cause, alternatively to refer the application back
to the applicant for him to supplement same. As
mentioned the
Commissioner failed to chose either option and in doing so, confined
his enquiry to whether the applicant received
notice or not.
[15] In light of the above I am satisfied that the applicant has made
out a case which warrants the setting aside of the rescission
ruling.
On the issue of costs, fairness and justice dictates that each party
bear their own costs.
Order
[16] In the premises, the following order is made:
16.1. The rescission ruling made by the second respondent under case
number GAPT 4192-08 is reviewed and set aside
16.2. The matter is remitted to the first respondent to be considered
afresh by a commissioner other than the third respondent.
16.3 There is no order as to costs.
_______________
Moksha Naidoo, AJ
Acting Judge of the Labour Court
APPEARANCES
For the Applicant: M.E.S Makinta instructed by Legal Aid South Africa
For the Respondent :
1
(2011)
32 ILJ 1917 (LC
)
at para 19.
2
See
Martin v Commission for Conciliation, Mediation and Arbitration
and Others
(2008) 29 ILJ 2254 (LC) at para 17;
3
(2008)
29 ILJ 2189 (LAC
)
at para 11.