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[2013] ZALCJHB 155
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Top Car Panelbeaters CC v Dispute Resolution Centre and Others (JR 2614/12) [2013] ZALCJHB 155 (11 July 2013)
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGEMENT
Not reportable
Case no: JR 2614/12
In
the matter between:
Top
Car Panelbeaters CC
................................................................................
Applicant
and
Dispute
Resolution Centre
....................................................................
1
st
Respondent
Commissioner
MC Van Aarde
..............................................................
2
nd
Respondent
J
Van Eck & 3 others
..............................................................................
3
rd
Respondent
Heard
: 9 July 2013
Delivered
: 11 July 2013
_____
JUDGMENT
_____
BRUINDERS
AJ
The employees were dismissed at the end of November
2011. On 25 April 2012 a default arbitration award was issued under
the auspices
of the Dispute Resolution Centre, an appointed body
acting under the Main Collective Agreement of the Motor Industry
Bargaining
Council. In terms of that award their dismissal was found
to be unfair and they were granted compensation. On 9 September 2012
under case number MINT 29745A the Dispute Resolution Centre refused
to rescind the default award. On 31 October 2012 the employer
brought an application to review that award. On 20 May 2013 the
employees brought this application under rule 11 to have the
review
application dismissed and to have the award made an order of court.
It is unopposed.
On the morning that the application was set down, an
advocate representing the employer appeared. He informed court that
the rule
11 application had not been served on the employer who
intended opposing the application and that he might even advise it
to
amend its review application. There is a certificate of service
to which is attached a registered post office slip establishing
that
the application was served on the employer by registered mail on 14
February 2013. No affidavit was filed explaining the
failure to
oppose the rule 11 application or seeking an indulgence to allow the
employer to file an affidavit opposing this application.
It is trite that in the absence of agreement, a party
who has failed to deliver an affidavit must explain its default
satisfactorily,
give reasons for why it seeks an indulgence to be
allowed to file an affidavit out of time, show that it is not in bad
faith
and not merely seeking to delay the relief sought and show
that its case on the merits is in broad outline, genuine. The
employer
has failed to do any of this on affidavit. Where there is
no agreement, as is the case here, and the matter has been set down
on the unopposed roll, it proceeds as an unopposed matter.
I am satisfied that the employees are entitled to the
orders sought in the notice of motion. I make the following order:
(a)
The review application filed by applicant on 31 October 2012 is
dismissed.
(b)
The default arbitration award issued on 25 April 2012 under case
number MINT 29745A is made an order of court.
(c)
The applicant is ordered to pay the costs of this application.
T J Bruinders
Acing Judge of the Labour Court