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[2014] ZALCJHB 15
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South African Municipal Workers Union and Another v South African Local Government Bargaining Council and Others (J1201/13) [2014] ZALCJHB 15; (2014) 35 ILJ 2528 (LC) (7 February 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: J1201-13
DATE:
07 FEBRUARY 2014
REPORTABLE
In
the matter between:
SOUTH
AFRICAN MUNICIPAL WORKERS UNION
...........................
First
Applicant
MPHAHLELE
N
A
................................................................................
Second
Applicant
And
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAIMNING
COUNCIL
................................................................
First
Respondent
LUCWABA
NP
N.O
.......................................................................
Second
Respondent
EMFULENI
LOCAL
MUNICIPALITY
...............................................
Third
Respondent
Heard:
15 October 2013
Delivered:
07 February 2014
Summary:
Variation of an order of the Court. The Court has powers in terms of
section 165 of the LRA to vary an order or judgment
erroneously made.
The principles governing variation in terms of
section 165
of the
Labour Relations Act of 1995
discussed.
JUDGMENT
MOLAHLEHI
J
[1]
This is an application for the variation of the order made by Bhoola
J under case number JR 2598/09 on 5 December 2012. That
order reads
as follows:
‘
1.
The arbitration award handed down by the second respondent under the
auspices of the first respondent issued on 15 August 2009
under case
number GPD 030721 is reviewed and set aside;
2.
The dismissal of the second applicant by the third respondent was
unfair
3.
No order as to costs.’
[2]
The order was made subsequent to the successful review application by
the applicant the consequence of which was that the decision
of the
Commissioner was substituted with an order, as appeared above, that
the dismissal of the individual applicant was substantively
unfair.
[3]
As indicated above, the Court reviewed and set aside the arbitration
award. It found that the dismissal of the individual applicant
was
unfair. The Court did not however provide any relief to the
individual applicant.
[4]
In the present instance, the case of the applicant is that the order
made by the Court is ambiguous and should accordingly be
varied to
clear the ambiguity. The ambiguity it would appear can according to
the applicant be corrected by varying the order and
adding the
following to it:
‘
The
third respondent is directed to reinstate the second applicant from
the date of his dismissal (5 September 2006) without any
loss of
benefits.’
[5]
The application was set down for hearing on 15 October 2013 and on
that day it was directed that the applicant should place
the review
application papers before the Court. The Court further directed that
the matter be placed before the judge in chambers
for the
determination of the application. The applicants have placed the
review papers before the Court and accordingly the application
is
considered below.
[6]
The powers of the Court to vary an order or a judgment is provided
for under
section 165
of the
Labour Relations Act of 1995
which
provides as follows:
‘
The
Labour Court, acting on its own accord or on the application of any
affected party may vary or rescind a decision, judgment
or order –
a)
Erroneously sought or erroneously granted in the absence of any party
affected by that judgment or order
b)
In which there is an ambiguity, or an obvious error or omission, but
only to the extent of that ambiguity, error or omission,
or
c)
Granted as a result of a mistake common to the parties to the
proceedings.’
[7]
The purpose of
section 165
of the LRA is similar to that of rule 42
of the Uniform Rules of the High Court.
1
The concept of a judgment or order erroneously granted had received
attention in Bakoven Ltd v G J Howes (Pty) Ltd,
2
where the Court interpreted the concept in the following terms:
‘
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. In contradistinction to relief in
terms of
Rule 31(2)(b) or under the common law, the applicant need not show
'good cause' in the sense of an explanation for his
default and a
bona fide defence (Hardroad (Pty) Ltd v Oribi Motors (Pty) Ltd
(supra) at 578F-G; De Wet (2) at 777F-G; Tshabalala
and Another v
Pierre
1979 (4) SA 27
(T) at 30C-D). Once the applicant can point to
an error in the proceedings, he is without further ado entitled to
rescission.
[8]
The applicant in an application for a variation of an order or a
judgment bears the onus of showing that the judgment of the
order was
erroneously granted. The applicant discharges his or her onus by
showing that at the time the judgment or the order was
granted there
existed a fact which the Court was unaware of and which had the Court
been aware of may have adopted a different
approach in making the
order.
3
In other words, it cannot be contended that an order or judgment was
erroneously made where the Court has granted a relief which
was
sought by the applicant in the notice of motion. This means that the
party which by his or her own mistake or negligence fails
to pray for
a particular order cannot later, once the order or judgment has been
made, seek to have such order or judgment varied
in order to address
his or her mistake or negligence.
4
[9]
According to Erasmus, Superior Court Practice an order or a judgment
is erroneous “...if there was an irregularity in
the
proceedings, or if it was not legally competent for the court to have
made such an order, or if there existed at the time of
its issue a
fact of whish the judge was unaware, which would have precluded the
granting of the judgement and which would have
included the judge, if
he had been aware of it, not to grant the judgment…”
[10]
In First National Bank of South Africa Ltd v Jurgens and Others,
5
in refusing to grant a variation order, the Court held that:
‘
The
ordinary meaning of ‘erroneous’ is ‘mistaken’
or ‘incorrect. The relief accorded to the plaintiff
was
precisely the relief that its counsel requested. The complaint now is
that there is an omission of an accessory feature from
the judgment.
I am unable to perceive how an omission can be categorised as
something erroneously sought or erroneously granted.
[11]
Furthermore the Court held that:
‘
I
consider that the Rule (Rule 42) has no operation where the applicant
has sought an order different to which it was entitled under
its
cause of action as pleaded. Failure to mention a form of relief which
would otherwise be included in the relief is not in my
opinion such
an error.’
6
[12]
The order which is the subject of the present proceedings arose from
the application proceedings which the applicant had instituted
to
review the arbitration award which had been given in favour of the
third respondent. That being the case it meant that the applicant
had
to show in the notice of motion what order it was seeking and why.
[13]
The two orders which the applicant sought in the notice of motion in
the review proceedings are; to have the arbitration award
dismissing
his claim reviewed and set aside and to have his dismissal declared
unfair. In the alternative the applicant prayed
to have the matter
remitted back to bargaining council for consideration afresh.
[14]
There is no mention in the notice of motion that the Court should, if
it was to grant the declaratory order sought, grant the
relief
envisaged under section 193 of the LRA.
7
The
founding and the supplementary affidavits are also silent on the
issue of the remedy. The founding affidavit in the present
matter is
also silent as to where the issue of the remedy in terms of section
193 of the LRA was raised during the arbitration
proceedings.
[15]
In light of the above, I am of the view that the proposition that the
order of Bhoola J is ambiguous or was erroneously made
is
unsustainable. The learned judge made an order in line with the
notice of motion which is silent as to the issue of the remedy
once
the Court declared the dismissal unfair as prayed for by the
applicant. The order is specifically what the applicant had prayed
for in the notice of motion. It should be noted that there is also no
mention of the remedy in both the founding and the supplementary
affidavits of the applicants in the review application.
Order
[16]
In the premises, the applicant’s application is dismissed with
no order as to costs.
E
Molahlehi
Judge
of the Labour Court South Africa
APPEARANCES:
FOR
THE APPLICANT: Cheadle Thompson and Haysom Inc.
FOR
THE RESPONDENTS: No appearance
1
Rule
42(1)(a) of the High Court provides that: ‘(1) The court may,
in addition to any powers it may have,
mero
motu
or
upon the application of any party affected, rescind or vary:
an
order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby…’
2
1992
(2) SA 466
(E) at 471 E-G.
3
See
Nyingwa
v Moolman
N
O
1993
(2) SA 508
(TKGD).
4
See
First National Bank of South Africa Ltd v Jurgens and Others
1993 (1) SA 245
(W).
5
1993
(1) SA 245
(W) at 247C-D.
6
At
D-E.
7
Section
193 of the LRA provides:
(1)
If the Labour Court or an arbitrator appointed in terms of
this
Act
finds that a
dismissal
is unfair, the Court or the arbitrator may -
(a) order the employer to
reinstate the
employee
from any date not earlier than the
date of
dismissal
;
(b) order the employer to
re-employ the
employee
, either in the work in which the
employee
was employed before the
dismissal
or in other
reasonably suitable work on any terms and from any date not earlier
than the date of
dismissal
; or
(c) order the employer to
pay compensation to the
employee
.