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[2015] ZALCJHB 11
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Advance Warehousing Ltd v Mashigo (J631/12) [2015] ZALCJHB 11 (22 January 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: J631/12
DATE: 22 JANUARY 2015
Not Reportable
In the matter between:
ADVANCE WAREHOUSING
LTD
.....................
Applicant
And
ANNAH PRUDENCE
MASHIGO
...................
Respondent
Heard: 3 July 2014
Delivered: 22 January 2015
JUDGMENT
MOTHIBI, AJ
Introduction:
[1] This is an application for the
rescission of an order of this Court granted in the absence of the
Applicant on 8 June 2012 in
terms of which an arbitration award
issued by the Commission for Conciliation, Meditation and Arbitration
under case number GAJB5830/07
was made an order of this Court (“the
award”). The award was made an order of this Court pursuant to
an application
brought by the Respondent in terms of section 158(1)
of the Labour Relations Act 66 of 1995 (“the LRA”).
[2] The application for rescission has
been opposed by the Respondent.
Analysis:
[3] In terms of the award issued on 16
May 2007, the Applicant was found to have unfairly dismissed the
Respondent and was ordered
to reinstate her.
[4] On or about 7 June 2007, the
Applicant instituted review proceedings in this Court (which I have
not had sight of). The Applicant’s
review application was
dismissed by this Court in terms of a court order of 6 September
2011.
[5] On or about 12 March 2012, the
Respondent instituted an application in terms of section 158(1) (c)
of the LRA to make the award
an order of court. The award was
subsequently made an order of court on 8 June 2012. As I said above,
it is the order of 8 June
2012 that is the subject matter of this
application with the Applicant seeking to rescind it in circumstances
where it was granted
in its absence. The Applicant asks that the
order be rescinded because “... there has never been proper
notice served on
the Applicant...”
[6] The issue to be determined is
whether the Applicant has made out a sufficient case having regard to
the applicable legal principles
for an order rescinding the judgment
of 8 June 2012. It is trite that a party in a rescission application
must show good cause
before rescission can be granted. In this regard
the courts have interpreted good cause to mean that an applicant must
provide
it with:
a. A reasonable explanation for its
default;
b. It must show a bona fide defence
which evidences prima facie prospects of success.
[7] It is trite that the existence of
both requirements must be met before an application for rescission
can succeed. In Chetty
v Law Society, Transvaal
1985 (2) SA 756
(A),
the court stressed that compliance with both requirements was
necessary. It stated at page 765 D to E in respect of the interplay
between both requirements:
‘It is not sufficient if only one
of these requirement’s is met, for obvious reasons a party
showing no prospects of
success on the merits will fail in an
application for rescission of the default judgment against him, no
matter how reasonable
and convincing the explanation of his default.
An ordered judicial process would be negated if, on the one hand, a
party who could
offer no explanation of his default other than his
disdain of the Rules was nevertheless to have a judgement against him
rescinded
on the ground that he had reasonable prospects of success
on the merits…’.
[8] The latter approach has been
followed and endorsed by this Court in a number of cases. See
Feuilhenrade and Others v Mthimkhulu,
Enforce Security Group (Pty)
Limited v Mthimkhulu
(2003) 3 BLLR 213
(LAC) and by the Lumka and
Associates v Maqubela (2004) 25 ILJ 2326 (LAC).
[9] Accordingly, the Applicant’s
application for rescission can only succeed if it has shown on its
papers good cause by satisfying
both requirements.
[10] The Applicant has further sought
in its notice of motion an order dismissing the Respondent’s
main application, in the
event of rescission being granted. It seeks
the dismissal of the main application because of “undue delay”
in the prosecution
of the 158(1) (c) application which was brought
five years after the award was issued. Furthermore, it seeks an order
dismissing
the Respondent’s main application because it alleges
that the Respondent failed to comply with the terms of the
arbitration
award as ordered in that the Respondent failed to report
for duty as ordered in the arbitration award. In this regard the
Respondent
was ordered to report for duty within seven days of the
award being issued being on or before 26 May 2007 and, on the
Applicant’s
version, failed to do so.
[11] In support of the above order, the
Applicant has filed a supporting affidavit signed by its Operational
Manager.
[12] The Applicant alleges that it was
not served with the section 158 application and that the only time it
became aware of the
application was when it received notification by
way of a letter from the Respondent’s attorneys Ndumiso Voyi
Incorporated
on or about 12 May 2013 bringing the default court order
to its attention and demanding compliance with it.
[13] It alleges that attempts at
settling the dispute between the parties pursuant to the letter from
Ndumiso Voyi Incorporated
failed to bear any fruit subsequent to
which it investigated the circumstances around the default order
being granted in its absence
and discovered that the application had
been served upon it purportedly on 12 March 2012 by way of telefax.
The number used to
effect service was (012) 666 7514. The Applicant
does not deny that at all material times the fax number used to
effect service
belonged to it. It only states that the Respondent
previously used a different fax number when it served the arbitration
award
on it, being (011) 331 2752. Later on, and by way of a replying
affidavit, the Applicant states that fax number (012) 666 7514 was
its “initial fax number used at its former premises”, but
it did not receive “the said papers”.
[14] The Applicant contends that in any
event it has a prima facie defence to the Respondent’s
application in circumstances
where the award had, in terms of the
Prescription Act, prescribed when the Respondent brought the section
158 application on 12
March 2012. It will be remembered that the
award was issued on or about 16 May 2007 and, in accordance with
submissions made by
the Applicant, it prescribed in May 2010.
[15] The Respondent has opposed the
application for rescission. In the main, the Respondent contends that
the Applicant has failed
to proffer a reasonable explanation for its
failure to oppose the section 158 application. The Respondent
correctly points out
that the Applicant does not deny in its
affidavits that the fax number used to serve the section 158
application being fax number
(012) 666 7514 belonged to it. I agree
with the Respondent that the Applicant has failed to give this Court
a reasonable explanation
for its default.
[16] The Applicant has failed to put
sufficient facts before me to enable me to understand how it really
came about that the default
order was issued in its absence. In its
founding affidavit, the Applicant simply states that the reason for
its failure to oppose
the application was because the application was
served on fax number (012) 666 7514 without asserting that the fax
number was incorrect
alternatively that it did not belong to it. The
Applicant merely makes the glib statement in its founding affidavit
that the Respondent
has previously used a different fax number being
the (011) 331 2752 when it served the arbitration award. This is not
an explanation.
The fact that the Respondent in serving the section
158 application used a fax number different to the one that it used
when it
served the arbitration award does not establish lack of
“proper” service on the Applicant. It does not follow
that
by using a different fax number (012) 666 7514 that there has
not been “proper service and notice” on the Applicant.
If, as was deposed to by the Respondent in her affidavit of service
accompanying the section 158 application, the court is satisfied
that
service was made on the Applicant by use of a correct fax number
then, unless this assertion is pertinently denied the court
must
accept as a fact that fax number (012) 666 7514 belonged at all
relevant times to the Applicant. The Applicant alleges at
paragraph
17 of its supporting affidavit that ‘... there has never been
proper notice served on it’. This is patently
false based on
the common cause facts that the fax number used belonged to the
Applicant.
[17] The fact that the Applicant does
not dispute that the fax number used to serve the 158 application was
correct was highlighted
by the Respondent in its replying affidavit.
It is only upon the Respondent pointing out that the Applicant did
not deny that the
fax number used was correct that the Applicant
belatedly sought to expand on its explanation that there has been no
proper service.
Such an explanation is contained in the Applicant’s
replying affidavit (paragraph 17 and 18). I find such an explanation
insufficient and unreasonable to establish on a balance of
probabilities that there had been no proper service of the section
158
application upon the Applicant, as it alleges.
[18] It is clear that the fax number
used at one point belonged to the Applicant. The Applicant only tells
this Court that whilst
the fax number at some point belonged to it,
that it was at some later stage changed. The Applicant does not
inform the court when
this change took place which is an issue that
is material to determining whether at the time that the Respondent
alleges in her
affidavit of service that she served the section 158
application on the Applicant that the fax number no longer belonged
to the
Applicant. There are no facts to second guess the Respondent’s
affidavits of service stating that the notice of motion and
affidavit
in the section 158 application were served on the Applicant by
telefaxing to (012) 666 7514 on 12 March 2012 at 12h30.
Furthermore,
and pertinently there is no denial by the Respondent to this
allegation.
[19] In the absence of any other facts
to the contrary I accept that proper service was effected upon the
Applicant in respect of
the Respondent’s section 158
application and reject the Applicant’s allegation that ‘...
there has never been
proper notice served...’
[20] It was incumbent upon the
Applicant to provide this Court with a sufficient and reasonable
explanation to explain its failure
to oppose the application giving
rise to the order that it seeks to rescind. It has failed to do so.
In the absence of a sufficient
explanation, I am unable to come to
the assistance of the Applicant by granting it rescission. The
application is accordingly dismissed
on this basis.
Costs:
[21] I see no reason why costs should
not follow the results in this matter, in the circumstances, I order
the Applicant to pay
the costs of this application.
Order:
[22] WHEREFORE it is ordered as
follows:
i. The Applicant’s application
for rescission of the order granted by this Court on 8 June 2012 is
dismissed.
ii. The Applicant is ordered to pay the
costs of this application.
Mothibi, AJ
Acting Judge of the Labour Court of
South Africa
APPEARANCES:
On behalf of the Applicant: Advocate
K Maleka
Instructed by: Carrim Attorneys
On behalf of the Respondent:
Advocate N Mbelle
Instructed by: Voyi Attorneys