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[2014] ZALCJHB 228
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CMI Business Enterprises CC v September and Others; In re: September and Others v CMI Business Enterprises CC (JS1107/2011) [2014] ZALCJHB 228 (26 June 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
REPORTABLE
CASE
NO: JS 1107/2011
In
the matter between:
CMI
BUSINESS ENTERPRISES
CC APPLICANT
AND
THEO
SEPTEMBER
FIRST
RESPONDENT
DEAN
SEPTEMBER
SECOND
RESPONDENT
ROLAND
PAULSON
THIRD
RESPONDENT
IN
RE
THEO
SEPTEMBER
FIRST
APPLICANT
DEAN
SEPTEMBER
SECOND
APPLICANT
ROLAND
PAULSON
THIRD
APPLICANT
AND
CMI
BUSINESS ENTERPRISES
CC RESPONDENT
Heard
:
30 May 2014
Delivered:
26 June 2014
Summary:
Application for Rescission. Different description of dispute in
referral to CCMA and in statement of case –
Jurisdiction. What
constitutes good cause.
JUDGMENT
GUSH
J
[1]
The applicant in this matter applies to
rescind, in terms of section 165(a) of the Labour relations Act 66 of
1995 (LRA) alternatively
in terms of rule 16 A (1)(a)(i) of the rules
of this Court and further alternatively, the common law:
a.
the order of this Court granted by default
on 15 August 2012; and
b.
the default judgment of this Court granted
on 12 February 2013.
[2]
The respondents had referred a dispute to
the CCMA alleging unfair discrimination which dispute was set down
for conciliation before
a Commissioner appointed by the CCMA. On
receipt of the referral of the dispute the applicant’s
instructed a Mr Andrew Lewis,
an official of Ad Finem Employers
Organisation, of which the applicant is a member, to deal with the
dispute. Lewis attended the
conciliation on behalf of the applicant.
The dispute was not resolved and the Commissioner issued a
certificate certifying that
the dispute between the applicant and the
respondents concerning unfair discrimination remained unresolved.
[3]
During January 2012, the respondents filed
an application with this Court in which application, they claimed to
have been automatically
unfairly dismissed on the grounds that the
applicant had unfairly discriminated against them, and claimed
compensation for the
unfair dismissal. The respondents averred that
the dismissal was a constructive dismissal.
[4]
Despite the applicant having been
represented by Lewis, the official of the Ad Finem Employers
Organisation at the conciliation,
the respondents served the
application on the applicant itself. On receipt of the application,
the applicant again instructed Lewis
to represent it.
[5]
According
to the applicant, Lewis contacted the applicant’s managing
member, Cronje (the deponent to the rescission application’s
founding affidavit), on 16 January 2012 in order to take
instructions. Attached to the founding affidavit is an e-mail dated
16
January 2012 that appears, read in context, to be the extent of
the instructions given to Lewis.
[1]
There is nothing in the founding affidavit suggesting that the Lewis
was given any further instructions. Or that Lewis misconstrued
his
instructions.
[6]
Lewis
in turn, on 20 January 2012 filed an opposing affidavit on behalf the
applicant and recording that Ad Finem Employers Organisation
had been
appointed to accept notice and service of all documents. Lewis
deposed to the applicant’s opposing affidavit recording
inter
alia
that the respondents submissions were not true and that "it is
the [applicant’s] submitions that the [respondents] are
misleading the court with the application as they have left their
employment without notice and seek avenues for compensation"
[2]
(sic). In essence, the opposing affidavit avers that the allegations
in the respondents’ statement of case are either “fabricated”,
“denied” or “untrue”.
[3]
[7]
Under
the heading "legal issues", Lewis states that the
respondents’ application "does not qualify with section
(187) of the act or section (186E) of the act of the LRA 1995”
[4]
(sic). This clearly indicates that Lewis, who was present at the
conciliation, clearly understood the respondents’ claim
to be
based on an automatically unfair dismissal (section 187) and a
constructive dismissal (186(e)).
[8]
The e-mail referred to above and the
opposing affidavits stand in stark contrast to the affidavit filed by
the applicant in support
of this application. I shall deal with issue
further below.
[9]
The pleadings having closed, the
respondents called for the matter to be enrolled for a pre-trial
conference and the matter was
duly enrolled for the parties to
conclude the pre-trial minute before a Judge at court on 15 August
2012.
[10]
The applicant failed to attend court on 15
August and the following order was granted by default:
1.
The respondent has failed to attend the
pre-trial conferences directed by the court.
2.
The matter has now become unopposed.
[11]
In due course the respondents applied for
the matter to be set down for default judgment and the matter was
duly enrolled on the
unopposed roll, on notice to both parties, on 8
February 2013 for default judgment. The applicants once again failed
to appear.
Judgment was reserved and handed down on 12 January 2013.
[12]
It is this judgment that the applicant
wishes to have rescinded. The judgment reads as follows:
1.
having considered the application for
default judgement and confirmatory affidavits, I am satisfied that
the [respondents] were
constructively dismissed by the [applicant]
when they resigned and 13 September 2011 after being required to work
under intolerable
working conditions which entailed racial abuse, and
racially discriminatory treatment in a variety of forms including
disparate
treatment when it came to accommodation, food and the like.
The extent of the abuse is reminiscent of an era of white supremacy
whose traces should long have vanished.
2.
The [applicant] failed to attend the
pre-trial conferences down before the court and 15 August 2012 and
the learned judge ordered
that the matter would be heard as a default
judgement.
3.
In
the circumstances, I find that the [respondents] were dismissed for
an automatically unfair reason based on their race, in terms
of
section 187 (1) (f) of the Labour Relations Act 66 of 1995 ("the
LRA"). On the question of relief, given the facts
of the matter,
there is no reason not to award the maximum compensation the LRA
permits. In calculating the [respondents’]
monthly earnings I
have used the lower level of the salary range claimed by the
[respondents].
[5]
[13]
the learned judge granting default
judgement ordered that the applicant pay the respondents R240,000;
R240,000 and R192,000 and
that the applicant pay the respondents
costs.
[14]
The respondents’ attorneys demanded
payment of the judgment. Annexed to the applicant’s founding
affidavit is a facsimile
dated 12 February 2013 addressed to Lewis by
the respondents' attorneys demanding payment of the amount of
R672,000. Also attached
is a similar facsimile dated 5 March 2013. A
copy of the writ of execution dated 15 March 2013 was also addressed
to Lewis. This
writ was, according to the applicant, served on it on
3 April 2013.
[15]
The applicant avers that on 12 March 2013,
Lewis contacted the applicant and advised that respondents "now
wants R672,000"(sic)
but avers that it had only learnt of the
default judgment on 3 April 2013.
[16]
The applicant filed this application on 2
May 2013.
[17]
The applicant’s founding affidavit
sets out a chronology of “material facts”; submissions in
support of its rescission
application with regard to its reliance on
section 165 of the LRA alternatively rule 16 A of the Labour Court
Rules; and under
the heading the
Common
Law - Good Cause
the facts and
averments that it avers constitutes a reasonable and acceptable
explanation for its default.
[18]
In the founding affidavit the applicant
states:
a.
the respondents were not entitled to the
order granted on 15 August 2012 and the default judgment granted on
12 February 2013;
b.
the applicant is entitled to have the order
granted on 15 August 2012 and the default judgment granted on:
February 2013 rescinded
on the grounds that:
i.
It had been erroneously sought and/or
granted in its absence; alternatively
ii.
That it has shown the existence of good
cause.
[19]
It is necessary to consider in turn whether
the order and judgment were granted erroneously and if not whether
the applicant has
shown the existence of good cause by providing a
reasonable and acceptable explanation for its default and that it has
a
bona fide
defence.
[20]
Section 165 of the LRA 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-
(a)
Erroneously sought or erroneously granted
in the absence of any party affected by that judgment or order; ...’
[21]
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
(b)
on application of any party affected,
rescind any order or judgment granted in the absence of that party.’
[22]
An
application for rescission in terms of Rule 16A(1)(b) must be brought
within 15 days of the party acquiring knowledge of the
order or
judgment granted in its absence.
[6]
[23]
In
the matter of
Griekwaland
Wes Koöperatief v Sheriff, Hartswater and Others: In re Sheriff,
Hartswater and Others v Monanda Landbou Dienste,
[7]
the court held:
‘
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)’.
[8]
[24]
In
SA
Democratic Teachers Union v Commission For Conciliation, Mediation &
Arbitration and Others,
[9]
this Court quoted with approval what was held in
Sizabantu
Electrical Construction v Guma and Others
[10]
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'.
[11]
(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.
[12]
If however the
order was not erroneously granted the respondent is obliged to
establish that it has a reasonable and acceptable
explanation for its
default and that it has a
bona
fide
defence and good prospects of succeeding in its defence, should the
order be rescinded.
[25]
It is common cause that the applicant did
not file its application for rescission within 15 days of acquiring
knowledge of the default
judgment. The applicant learned of the
judgment on 3 April 2013 and launched this application on 2 May 2013.
[26]
The first basis upon which the applicant
relies in seeking rescission of the order and judgment is that the
judgment was granted
erroneously.
[27]
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..
[28]
Erasmus
et
al
in
Superior
Court Practice,
[13]
when dealing with the equivalent rule in the High Court viz: Rule
[gnr48y1965r42] 42 “Variation and rescission of orders”
set out that:
‘
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’.
[14]
‘
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’.
[15]
[Footnote omitted]
[29]
What
constitutes an “order erroneously granted” is set out in
Harms
Civil
Procedure in the Supreme Court
[16]
:
an
order is erroneously granted if it was legally incompetent for the
court to have made such an order, if there was an irregularity
in the
proceedings or if the court was unaware of facts, if none too, would
have precluded from a procedural point of view from
making the order.
The error need not fear ex facie the record. But this does not mean
that if the party is procedurally entitled
to judgment it could be
said that the judgement had been granted erroneously because of court
was unaware of the defence defendant
could have raised but did
not.(footnotes omitted)
[17]
[30]
In
the matter of
Lodhi
2 Properties Investments CC and Another v Bondev Developments (Pty)
Ltd,
[18]
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'.
[19]
[Footnote
omitted]
[31]
The Court in
Lodhi
went further and held:
[17]
in any event a judgement granted against the body in its absence
cannot be considered to have
been granted erroneously because of the
existence of the defence on the merits which had not been disclosed
to the judge who granted
the judgement.
And 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 this the Judge who granted
the order.
[20]
[32]
The question as to whether the order and
judgment in this matter were made erroneously are dependent upon:
a.
firstly was the court on the papers before
justified in granting the order; and
b.
secondly was there a procedural error which
led to the order being granted the judgment in the absence of the
applicant?
[33]
In respect of the first issue, viz: was the
court entitled to grant the order, the applicant in addition avers
that the judgment
was granted erroneously in that, had the court been
aware of the nature of the respondents’ referral of the dispute
to the
CCMA, it would not have granted judgment on the grounds that
the dispute had not been conciliated.
[34]
The applicant specifically avers that the
dispute forming the subject of the respondents’ statement of
claim had not been
referred to the CCMA and accordingly had not been
conciliated prior to it be referred to this Court and therefor the
court did
not have jurisdiction to consider the matter.
[35]
It is so that the respondents’
referral of the dispute to the CCMA is not a masterpiece of clarity
and is categorised as a
dispute involving unfair discrimination. At
the conciliation, the dispute was recorded as being unresolved and
categorised as being
a dispute involving unfair discrimination. The
applicant argued that the respondents’ cause of action in their
statement
of case was not the dispute referred to conciliation,
namely unfair discrimination, but an alleged automatically unfair
constructive
dismissal. The respondents in their statement of claim
set out in some detail the nature of the alleged unfair
discrimination and
alleged that this unfair discrimination primarily
on the basis of their race had led to their decision to resign in
circumstances
where their continued employment had become
intolerable.
[36]
In
dealing with the nature of the dispute referred to the CCMA, both the
applicant and the respondents rely on the decision in
NUMSA
vs
Driveline
Technologies.
[21]
The applicant relied on that part of the judgment where it was held
that:
‘
to
me it is as clear as daylight that the wording of section 191(5)
imposes the referral of the dismissal dispute to conciliation
as a
precondition before such a dispute can either be arbitrated or
referred to the Labour court for adjudication. I cannot see
what
clearer language the legislature could have used other than the
language chose to use in section 191 (5) it had if it had
intended
that the referral dismissal dispute to conciliation to be a
precondition to such dispute be arbitrated or being referred
to the
Labour court for adjudication.’
[37]
The respondent cited the judgment of
Conradie JA where he held
In
exercising its discretion the court will undoubtedly ask itself
whether the dispute, in the sense of the essential quarrel between
the parties, had been submitted to conciliation. It is the factual
matrix which should be looked at. The idea of the act, after
all, is
that parties should, in the presence of a knowledgeable outsider,
have an opportunity of talking over the differences before
going to
court.
[22]
[38]
This view finds resonance in rule 15 of the
rules for the conduct of proceedings before the CCMA that came into
effect in 2003.
[39]
The essence of the decision in Driveline
Technologies is that the dispute between the parties must be referred
to conciliation before
it is arbitrated or adjudicated.
[40]
It is clear from section 191 of the LRA
that it refers to disputes about both unfair dismissals and unfair
Labour practices. It
requires that such dispute to be conciliated and
that if the dispute is not resolved it may be referred either to
arbitration or
to the Labour Court.
[41]
In addition, the applicant referred to the
categorisation of the dispute by the respondents where they marked
the box reading "Unfair
Discrimination: S10 of the Employment
Equity Act" as being authority for the fact that the dispute
that formed the respondents’
cause of action was not the
dispute that was referred to the CCMA for conciliation.
[42]
The applicant appears to have lost sight of
the provisions of rule 15 of the Rules for the Conduct of Proceedings
before the CCMA
that provides that the nature of the dispute must be
identified "as described in the referral document
or
as identified by the Commissioner during the conciliation process
”.
It goes without saying that in order to attempt to conciliate the
dispute, it is necessary for a Commissioner to determine
the nature
the dispute. This would not be possible if a conciliating
commissioner was precluded from enquiring into the nature
the dispute
because the referrer of the dispute did not absolutely accurately
describe the dispute.
[43]
The form LRA 7.11 is the prescribed form
that the parties who wish to refer disputes to the CCMA for
conciliation must complete.
This form is not a pleading but is
designed to facilitate the referral disputes to the CCMA for
conciliation. Under the heading
nature of the dispute, the referrer
is given a number of options and invited to "tick only one box".
The only reference
on this form to unfair discrimination has a
reference to section 10 of the Employment Equity Act. In disputes
such as the dispute
that forms the respondents’ cause of action
in their statement of case, the form does not provide for the
categorisation
of the dispute as an automatically unfair dismissal on
the grounds that the employer has unfairly discriminated against the
erstwhile
employee. To strictly interpret the nature and description
of the dispute in the referral would simply serve to frustrate the
function
of the Commissioner tasked with conciliating the dispute
having in particular identified the nature of the dispute.
[44]
In
this matter, it is abundantly clear that during the course of the
conciliation the dispute that was referred to conciliation
was
determined to be a dispute based on unfair discrimination that
warranted referral to the Labour Court. Lewis attended the
conciliation and it is inconceivable that he did not report back to
the applicant as to what had transpired during the conciliation.
In
the statement of opposition, Lewis states that the respondents had
absconded and that the court had no jurisdiction.
[23]
This convincingly suggests that that Lewis was aware of the nature of
the respondents’ dispute that was conciliated, viz
that it
involved an allegation that they had been dismissed.
[45]
It is inconceivable that had the nature the
dispute as set out in the statement of claim been at odds with the
dispute conciliated
that this issue would not have been raised in the
opposing affidavit by Lewis, who had attended the conciliation.
[46]
The Commissioner identified the dispute as
one pertaining to unfair discrimination and, albeit gratuitously,
advised the parties
that the dispute could be referred to the Labour
Court. There can be no doubt that the respondents’ cause of
action embodied
in their referral namely that they were
constructively dismissed is based on unfair discrimination.
[47]
The Labour Court’s jurisdiction to
consider disputes is set out in section 157 of the LRA. It provides
that the court may
refuse to determine any dispute if the court is
not satisfied that an attempt has been made to resolve the dispute
through conciliation.
In this matter, it is abundantly clear that the
dispute between the applicant and the respondents
was
referred to conciliation and that
a
certificate of outcome recording that the dispute had not been
resolved was issued
. On the strength of
this alone there can be no doubt that the court had jurisdiction to
consider the matter.
[48]
As there was clearly no error in the
procedure, or any mistake, that resulted in the court granting the
order and the default judgment,
I am accordingly not persuaded that
the court in the circumstances granted the order and judgment
erroneously.
Given
that the applicant’s did not refer the application for
rescission within the 15 day time period provided for in Rule
16A(2)(d) what remains to be considered is whether the applicant has
satisfied the the common law requirement that its application
was
brought within a reasonable time and thereafter whether it is
entitled to an order rescinding the order on the grounds that
that
the applicant has established good cause in that it has a reasonable
and acceptable explanation for its default and that it
has a
bona
fide
defence and good prospects of
succeeding in its defence should the order be rescinded. .
[49]
Dealing firstly with the issue of whether
the applicant brought its application within a reasonable time, it is
clear that with
the exercise of reasonable care, the applicant should
have enquired from Lewis why the amount of compensation claimed by
the respondents
had been determined to be R670,000. At very least on
being advised that this was the amount and that he, Lewis, “had
to see
an advocate”, it is not unreasonable to have expected
the applicant to make further enquiries. I am, however, not satisfied
that the delay from 12 March 2013 to the date on which the
application was brought cannot be said to be a reasonable time.
[50]
As
far as the issue of good cause is concerned the requirements are
considered at length in
De
Wet and Others v Western Bank Ltd
,
[24]
where it was held that the court had a discretion to decide whether
to grant an applicant the indulgence of granting rescission
of a
default judgment or order “having regard to all the
circumstances of the case including the [applicants] explanation
for
the default”.
[25]
[51]
In
Shoprite
Checkers v CCMA and Others
,
[26]
the LAC explained the requirements to show good cause in a rescission
application:
‘
The
test for good cause in an application for rescission normally
involves the consideration of at least two factors. Firstly, the
explanation for the default and, secondly, whether the applicant has
a prima facie defence.’
[52]
In
Northern
Province Local Government Association v CCMA and others
,
[27]
it was held that:
‘
An
applicant for the rescission of a default judgment must show good
cause and prove that he at no time denounced his defence, and
that he
has a serious intention of proceeding with the case. In order to show
good cause an applicant must give a reasonable explanation
for his
default, his explanation must be made bona fide and he must show that
he has a bona fide defence to the plaintiff's claims.’
[28]
[53]
In
MM
Steel Construction CC v Steel Engineering & Allied Workers Union
E of SA and others,
[29]
when dealing with these elements the court held that:
‘
Those
two essential elements ought nevertheless not to be assessed
mechanistically and in isolation. While the absence of one of
them
would usually be fatal, where they are present they are to be weighed
together with relevant factors in determining whether
it should be
fair and just to grant the indulgence.’
[30]
[54]
In summary, therefore, the basic test for
an applicant wishing to show good cause is that it must satisfy the
court that its explanation
is reasonable and
bone
fide
and that it has a
prima
facie
defence.
[55]
In considering whether it is fair and just
to grant the indulgence, it is necessary to consider all the
circumstances including
the interests not only of the applicant but
those of the respondents.
[56]
The applicant’s explanation for its
default is that its chosen representative did not keep it advised of
what was happening
or what had transpired in the matter but had
simply allowed the default order to be taken and subsequently the
default judgment.
In essence, it blames its predicament entirely on
the ubiquitous Mr Lewis of
the Ad Finem
Employers Organisation which it was a member.
[57]
The applicant elected to use the services
of an employer’s organisation of which it was a member. There
is no indication as
to whether it used the services previously and
whether if it had it had received proper service. The absence
of such an explanation
weighs against the applicant.
[58]
Equally concerning is the failure of the
applicant to provide either an explanatory affidavit from Lewis as to
what transpired with
the matter or even a confirmatory affidavit
regarding his failure to deal with the matter properly. The applicant
does not even
attempt to explain why there is no affidavit from
Lewis.
[59]
The only excuse the applicant offers is
that on various occasions in response to telephone calls from one of
its an employees (
a Ms Meiring) that Lewis had assured her the
matter was in hand. Only one date is mentioned in this regard namely
23 January 2012
some seven days after the applicant had given
instructions to Lewis to oppose the application. It is suggested
without any further
detail that Meiring telephoned Lewis "at
least once every month from February 2012 up to and including March
2013 to enquire
into the status of the dispute.” This
explanation is improbable. It is highly unlikely that if Meiring had
been that diligent
in making all these telephone calls that she would
not have recorded the dates on which the telephone calls were made;
made some
contemporaneous note; or addressed some form of memo to the
applicants members, and in particular Cronje.
[60]
The deponent to the founding affidavit,
Cronje, avers that he met with Lewis twice during September with
regard to other matters
and that he too coincidently was assured, as
was Meiring, that all was in order.
[61]
The
bald averment by the applicant without any further detail that it
regularly contacted Lewis is improbable. The applicant’s
initial attitude towards the respondents’ application is
graphically illustrated by the extent of instructions given to Lewis
as set out in the e-mail annexed to the applicant’s papers in
this application.
[31]
Not only
is there is nothing in the applicants papers to suggest that Lewis
was given any further instructions. The opposing affidavit
filed by
Lewis reflects the applicant’s instructions. It must be
borne in mind that the applicant had had sight of
the respondents’
statement of case when Lewis was given instructions as the statement
of case had been served on the applicant
itself.
[62]
The applicant attaches to its founding
affidavit an email addressed to Lewis in response to having received
the respondents statement
of claim. The e-mail reads as follows:
Lanklaas gehoor, ek hoop
dit gaan goed? Hierdie drie manne wat sulke lelike aantuigings teen
my maak, is geld soekers. Jy moet aaseblief
probeer om hierdie saak
te wen. Ek wil n siviele saak van naamskending teen hulle maak, ek
het baie wit swart en kleurlinge wat
vir my werk wat kan getuig dat
hierdie aantuigings teen my n klomp snert is. Ek is wel baie streng
maar het nog nooit iemand aangerand
of sleg behandel of enige
politiek in my besigheid bedryf nie. Ek is onder die indruk hierdie
manne wil vir my laat sleg lyk in
die hof om die hof se simpatie te
kry. Ek was net goed vir hulle, my opinie is dat hierdie manne agter
geld is, hulle skuld my
duisende waarmee hulle weggeloop het toe
hulle gedros het.”
[63]
Lewis’s notice of opposition and
opposing affidavit in essence reflect, albeit almost incoherently,
the contents of the applicant’s
e-mail. This stands in stark
contrast to the now detailed explanation given by the applicant in
its founding affidavit in this
application. This suggests that the
applicant at the commencement of this matter approached the
respondents’ application
in an unseemly cavalier and dismissive
manner.
[64]
I am not satisfied that the applicant has
managed to establish that its explanation for its default is
reasonable and
bona fide
.
[65]
It is so that in
MM
Steel Construction CC v Steel Engineering & Allie
d
Workers Union,
it
was held that the absence of a reasonable explanation is usually
fatal if not necessarily so.
[66]
Although the explanation offered by the
applicant does not satisfy the test of reasonableness or
bona
fide
, it is necessary to consider
whether the applicant’s defence suggest that it has
a
prima facie
defence to the respondents’ claim.
[67]
The applicant offers no explanation for the
defence raised in Lewis’s notice of opposition and affidavit
and in particular
the contents of the e-mail. It cannot be gainsaid
that the notice of opposition and opposing affidavit initially filed
by lewis
on the instructions of the applicant amounted to what was a
disdainful and simple bare denial all the allegations raised in the
respondents’ statement of claim. This opposing affidavit does
not disclose a
bona fide
defence.
[68]
Nowhere does the applicant suggest that it
had not had sight of or been given a copy of Lewis’s notice of
opposition and opposing
affidavit and accordingly it is inconceivable
that it was not aware of the defence initially pleaded. Despite this
the applicant
offers no explanation whatsoever regarding the
contents of the notice of opposition and opposing affidavit nor does
it seek
to distance itself from this defence.
[69]
Faced with the judgment the applicant now
endeavours, in its rescission application, to provide some form of
defence which now includes
a detailed response to or explanation for
the specific issues raised by the respondents. This must of necessity
raises serious
questions regarding the
bona
fide
nature of the applicant’s
defence.
[70]
It is not unreasonable in the circumstances
to conclude that at the time the respondents’ statement of
claim was served the
applicant disdainfully dismissed the claim as
being
brought simply by
“
manne”,
“
geld soekers” who were making
“lelike aantuigings”. This suggests that the defence and
supposed explanation now
raised by the applicant is no more than a
simple and cynical attempt to satisfy the court that the applicant
has a
bona fide
defence. In the circumstances and for the reasons set out above, I am
not persuaded firstly that its explanation is reasonable
and
bone
fide
and that it has a
prima
facie
defence; or secondly that it is
fair
and just
to
grant the applicant the indulgence it seeks.
[71]
As far as costs are concerned there is no
reason in law or fairness why cost should not follow the result.
[72]
I accordingly make the following order:
a.
Neither the order the order of this Court
granted by default on 15 August 2012 nor the default judgment of this
Court granted on
12 February 2013 were granted erroneously;
b.
The applicant has failed to provide a
reasonable and acceptable explanation for its
default or that it has a
bona fide
defence and good prospects of succeeding in its defence should the
order be rescinded; and accordingly;
c.
The applicant’s application is
dismissed with
costs.
________________________________
D H Gush
Judge
of the labour Court of South Africa
APPEARANCES
FOR THE APPLICANT:
Adv E Cosyn
Instructed
by Klopper Jonker In
c
FOR
THE
FIRST RESPONDENT: Luway
Mongie Bowman Gilfillan Attorneys
[1]
Annexure
CMI 14 page 88 of the pleadings.
[2]
Notice
of opposition page 60 of the pleadings.
[3]
Annexure
CMI 06 pages 56 – 64 of the pleadings.
[4]
Page
64 of the pleadings.
[5]
page
81 – 83 of the indexed pleadings
[6]
Rule
16A(2)(d)
[7]
(2010)
31 ILJ 632 (LC).
[8]
Griekwaland
Wes Koöperatief
at
page 635 para 9.
[9]
(2007)
28 ILJ 1124 (LC) at para 17.
[10]
(1999)
20 ILJ 673 (LC); [1999] 4 BLLR 387 (LC).
[11]
Sizabantu
Electrical Construction
at
para 17 page 1129.
[12]
See
Erasmus et al
Superior
Court Practice
(1994, Juta) at B1-308A.
[13]
Supra
.
[14]
Eramus
et
al
Superior Court Practice at B1-306G.
[15]
Eramus
et
al
Superior Court Practice at B1 308A and B1-309.
[16]
Harms
Civil Procedure in the Supreme Court; Lexus Nexus
[17]
B42.4
page B – 301 [issue 43]
[18]
2007
(6) SA 87 (SCA).
[19]
Lodhi
2 Properties Investments CC at
pages
92 – 93 paras 18 – 21.
[20]
Lodhi
2 Properties Investments CC
at
page 94 para 25.
[21]
[2007] ZALC 66
;
2000
1 BLLR 20
LAC.
[22]
At
page 24 para 8
[23]
Pleadings
page 60.
[24]
1979
(2) SA 1031 (A).
[25]
At
page 1043.
[26]
(2007)
28 ILJ 2246 (LAC).
[27]
(2001)
22 ILJ 1173 (LC).
[28]
at
545 para 16.
[29]
(1994)
15 ILJ 1310 (LAC).
[30]
at
1311J-1312A.
[31]
Page
88 of the pleadings.