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[2015] ZALCJHB 28
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NUMSA obo Khumalo v M&D Specialised Fasteners CC (J2332/10) [2015] ZALCJHB 28 (22 January 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: J2332/10
DATE: 22 JANUARY 2015
Not Reportable
In the matter between:
NUMSA obo ALFRED
KHUMALO
...........................................
Applicant
And
M&D SPECIALISED FASTENERS
CC
................................
Respondent
Heard: 1 July 2014
Delivered: 22 January 2015
JUDGMENT
MOTHIBI, AJ
Introduction:
[1] This is an application in terms of
section 158(1) (c) of the Labour Relations Act 66 of 1995 (“the
LRA”) in terms
of which the Applicant has asked that an
arbitration award dated 14 March 2008 (“the award”) be
made an order of this
Court.
[2] The Respondent has opposed the
application.
Analysis:
[3] The award which the Applicant seeks
to be made an order of court was issued on 14 March 2008. It is
common cause between the
parties that on or about 12 November 2008,
the award was certified in terms of section 143 of the LRA by the
Commission for Conciliation,
Mediation and Arbitration (“CCMA”).
[4] The certification of the award by
the CCMA on 12 November 2008 occurred after the Respondent failed to
reinstate the Applicant.
The Respondent advised the Applicant in a
letter dated 11 June 2008 that it intended to take the award on
review.
[5] Notwithstanding the Respondent’s
letter of 11 June 2008 expressing its intention to approach this
Court to review the
arbitration award, it did not do so.
[6] Consequently and as I have said
above, the Applicant approached the CCMA and had the award certified
in terms of section 143.
The certification of the award was made on
12 November 2008.
[7] The Respondent failed to comply
with the certified award.
[8] On or about 3 June 2011, the
Applicant served an unsigned notice of motion and supporting
affidavit applying for the award to
be made an order of this court.
The unsigned notice of motion and commissioned affidavit were filed
with this Court on or about
9 June 2011.
[9] The Respondent did not, upon
receipt of the unsigned notice of motion and signed affidavit file
papers opposing the application.
[10] It only filed its opposing
affidavit on or about 4 March 2013. The opposing papers were filed
pursuant to Applicant filing
a signed notice of motion on or about 18
February 2013.
[11] The Respondent has taken issue
with the Applicant’s failure to bring its section 158
application on the basis of a signed
notice of motion. In short, the
Respondent’s case is that the arbitration award that the
Applicant seeks to make an order
of court has prescribed because
prescription was not interrupted when the Applicant brought its
application in terms of an unsigned
notice of motion. The
Respondent’s argument is that it was only served with the
application in terms of section 158 of the
LRA on 18 February 2013
when it was served with the signed notice of motion. On its
construction therefore there was no proper
service when the Applicant
on or about 3 June 2011 served on it an unsigned notice of motion. It
submits that the notice was materially
defective.
[12] Accordingly, if the Respondent’s
argument is to be accepted this application was only initiated after
more than three
years had elapsed since the award was issued on 14
March 2008.
[13] The issue to be determined by this
Court therefore is whether in as much as it is common cause that the
notice of motion was
unsigned, the court has discretion to condone
this irregularity.
[14] The parties in their submission to
this Court are in agreement that notwithstanding the peremptory
wording contained at rule
7(2) of the rules of this Court which
requires an application to be brought on a notice of motion signed by
the Applicant, that
the court should not be unduly formalistic in its
approach when dealing with an unsigned notice of motion and has a
discretion
to condone such noncompliance with its rules. In High Tech
Transformers (Pty) Limited v Lombard (2012) 33 ILJ 919 (LC) it was
held
that:
‘It appears from the clear
wording used in rule 7(2) that it is peremptory and therefore a
requirement to sign a notice of
motion. It is, however, accepted
that, despite the fact that it appears to be peremptory to sign the
notice of motion, the court
should not be unduly formalistic and
inflexible and that circumstances may exist which require a court to
condone an irregularity
or a non-compliance with the rules of the
Labour Court’.
[15] It is common cause between the
parties that when the Applicant served its affidavit in pursuit of
this application, it failed
to ensure that the notice of motion was
signed. Furthermore, they agree that I have discretion to condone
such noncompliance. In
the circumstances, if I were to condone the
failure by the Applicant to sign its notice of motion on 3 June 2011
then it would
follow that the Respondent’s submission that the
arbitration award which the Applicant seeks to be made an order of
court
has prescribed would fall away. This is so having regard to the
fact that the award was certified on 12 November 2008. The
prescription
period would accordingly, run until November 2011. The
application on the unsigned notice of motion was made in June 2011.
[16] In exercising my discretion on
whether to condone the Applicant’s failure to sign its notice
of motion when it initially
filed its application in June 2008 I must
exercise such a discretion ‘... judicially upon a consideration
of the circumstances
of the case and with due consideration as to
what will be fair to both sides’ (see High Tech Transformers
(Pty) Limited v
Lombard at paragraph 21 to 22).
[17] With the aforegoing in mind, I
condone the Applicant’s failure to sign the notice of motion
and find in the circumstances
that when it brought its application on
or about 3 June 2011 the award had not been extinguished by
prescription in terms of the
Prescription Act 68 of 1969
. I find that
the Applicant, through the replying affidavit of Ms Norman Craven of
NUMSA has given this Court an acceptable explanation
for the failure
by the Applicant to file a signed notice of motion on or about 3 June
2011. The Applicant has been candid with
this Court and has not tried
to obfuscate matters by denying its failure to sign the notice of
motion. This is particularly so
having regard to the fact that the
Applicant was represented by a lay person with no legal qualification
nor formal legal training
and who had only recently been appointed by
NUMSA as its Regional Legal Officer. His experience insofar as labour
law was concerned
and in particular the LRA was, according to the
affidavit signed by Ms Craven, ‘through conducting arbitration
proceedings
in the CCMA and Bargaining Councils’. He had no
experience in preparing Labour Court pleadings and was accordingly,
unaware
of the rules of the court. I see no reason why the Applicant
should be penalised in the circumstances. Furthermore, it appears
that as soon as NUMSA became aware of the fact that the notice of
motion filed in June 2011 was not signed, it took steps to correct
this irregularity by filing a signed notice of motion on or about 18
February 2013.
[18] It is unfortunate that the
Respondent, when served with the unsigned notice of motion as well as
accompanying affidavit did
not at that stage alert the Applicant to
its non-compliance with
rule 7
but rather chose to sit back with the
view of profiting from this omission and adopting a formalistic
approach to this application.
[19] Justice and fairness dictates that
the Applicant should not be deprived of his right to be reinstated in
circumstances where
the respondent has failed to adhere to an order
of the CCMA and further failed to challenge such an order in the
event that it
was dissatisfied with it. Indeed notwithstanding the
Respondent’s initial written communication to the Applicant
that it
would review the award it failed to do so.
[20] I agree with the Applicant that
the irregularity which the respondent seeks to rely on in opposing
this application should
be condoned in circumstances where it was
committed by a lay person who had no formal legal training. I further
accept that the
Applicant was forced to approach this Court for an
order in terms of section 158 of the LRA in circumstances where the
Respondent
refused or failed to comply with the arbitration award for
no good reason. The Respondent did not comply with the award
notwithstanding
the fact that it was certified by the CCMA in terms
of
section 143.
[21] In the circumstances, I condone
the Applicant’s failure to sign the notice of motion filed in
terms of
section 158(1)(c)
of the LRA and as a consequence the
application was brought on or about 9 June 2011.
[22] In the light of the fact that the
application was brought before it prescribed and in the light of the
fact that the Respondent
has failed, without good reason, to comply
with the arbitration award I make the award an order of this Court.
Costs:
[23] I am of the view that the
Respondent’s approach and conduct since the award was issued
deserves to be censured. When
the award was issued it initially
indicated its intention to review and set aside the award but failed
to do so. It further, notwithstanding
the fact that the award was
certified by the CCMA failed to adhere to the award. The Respondent’s
failure to alert the Applicant
to the fact that its notice of motion
was unsigned when it was first served upon it on or about 3 June 2011
suggests to me that
the Respondent was determined to place as many
obstacles as possible in the Applicant’s path in pursuit of his
rights as
enshrined in the Constitution. In the circumstances, the
Respondent is ordered to pay the costs of this application.
Order:
i. I accordingly, make the following
order:
a. The arbitration award dated 14 June
2008 is made an order of this Court.
b. The Respondent is ordered to pay the
costs of this application.
Mothibi, AJ
Acting Judge of the Labour Court of
South Africa
APPEARANCES:
For the Applicant: Mr David
Cartwright
Instructed by: David Cartwright
Attorneys
For the Respondent: E Wessels
Instructed by: Du Toit Pelser
Attorneys