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[2015] ZALCJHB 17
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Beveral Investment t/a KFC v Fraser and Another (J1421/13) [2015] ZALCJHB 17 (28 January 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: J1421/13
DATE: 28 JANUARY
2015
Not Reportable
In
the matter between:
BEVERAL
INVESTMENT
T/A
KFC
......................................
Applicant
And
ALEN
FRASER
............................................
First
Respondent
MARIA
NDZIMA
....................................
Second
Respondent
Heard:
19 November 2014
Delivered:
28 January 2015
Summary:
Rescission application- rescinding order making the arbitration
award the order of the Court in terms of section 158(1) (c) of the
LRA. The approach to adopt when dealing with rescission in terms of
rule 16A (1) (a) and (b) of the Rules of the Labour Court restated.
JUDGMENT
MOLAHLEHI
J
[1] This is an
application to rescind the order obtained in terms of section
158(1)(c ) of the Labour Relations Act whereby the
default
arbitration award in favour of the employee was made an order of
Court. The application to have the arbitration award made
an order of
Court was considered and determined in chambers.
[2] The arbitration
award which had been made an order of Court had been obtained by
default. At the time these proceedings were
launched, the applicant
had already instituted a rescission application of that arbitration
award. Those proceedings were subsequently
stayed pending the outcome
of the present application.
[3] The application
to have the arbitration award made an order of Court was made three
months after the rescission application
of the arbitration award was
filed with the bargaining council.
[4] The case of the
respondent is that the applicant failed to oppose section 158 (1) (c)
application despite being aware of it.
[5] An application
for rescission of a judgment or order of Court can be made in term of
rule 16A of the Rules of the Labour Court
which reads as follows:
‘
(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)
in which there is an ambiguity or a patent error or omission, but
only to the extent of such ambiguity, error or omission;
(iii)
granted as the result of a mistake common to the parties, or
(b) on application
of any party affected, rescind or vary any order or judgment granted
in the absence of that party.
(2)
Any party desiring any relief under-
(a)
subrule 1(a) must apply for it on notice to all parties whose
interests may be affected by the relief sought.
(b)
subrule 1(b) may within 15 days after acquiring knowledge of an order
or judgment granted in the absence of that party apply
on notice to
all interested parties to set aside the order or judgment and the
court may, upon good cause shown, set aside the
order or judgment on
such terms as it deems fit.”
[6] It is apparent
from the above that the requirements of Rule 16A (1)(a) are different
to those of 16A(1)(b). In terms of Rule
16A (1) (a) an applicant in a
rescission application has to show that the judgment or order was
granted in error in his or
her absence. Rule 16A (1) (b) on the other
hand requires that the applicant has to show good cause that the
judgment or order sought,
in order to succeed.
[7] The provisions
of Rule 16A (1) (a) of the Rules replicates the provisions of section
165 (a) of the Labour Relations Act of
195 and are also similar to
those of rule 42(1) (a) of the Rules of the High Court.
[8]
The
Court in dealing with the application for rescission under Rule 42(1)
of the Rules of the High Court in
Transport
and General Workers Union and Others v Kempton City Syndicate and
Another
[1]
held that:
‘
If
a court holds that an order or judgment was erroneously granted in
the absence of any party affected thereby it should, in terms
of rule
42(1)(a), without further enquiry, rescind or vary the order.’
[9]
In
Superb
Meat Supplies CC v Maritz
,
[2]
the Court held that that:
‘
When
the court considers whether a judgment has been granted erroneously,
it does not investigate whether good cause has been established
or
whether there has been wilful default.’
[10]
This
Court confirmed the above in
Gay
Transport (Pty) Ltd v SA Transport and Allied Workers Union and
Others
[3]
and
in
SA
Democratic Teachers Union v CCMA and Others.
[4]
The
enquiry which the Court has to conduct in determining whether the
order or judgment which is the subject of the rescission application
was erroneously made, essentially entails investigating whether there
existed a fact, at the time the order or judgment was made,
which the
Court was not aware of and that had it been aware it would not have
made the order as it did.
[11]
The
error which the applicant relies on in the present matter has to do
with the issue of service of the application of the first
respondent
in terms of section 158(1) (c) of the LRA. The issue of service by
fax received attention in N
orthern
Province Local Government Association v CCMA,
[5]
where the Court in dealing with the issue of service by fax had the
following to say:
‘
Axiomatically,
in deciding whether or not a fax transmission was received, proof
that the fax was indeed sent creates a probability
in favour of
receipt, but does not logically constitute conclusive evidence of
receipt… [there has to be] a fair-minded
enquiry into whether
or not as a fact the notice did not come to the attention of the
party.’
[12]
It
is now well established that production of a fax slip as proof of
service creates a presumption of receipt but does not constitute
conclusive proof of receipt.
[6]
[13] In the present
instance, whilst there is no dispute about the transmission of the
fax notifying the applicant about the section
158(1) (c) application,
there is, however, a dispute as to whether the service was received
by the applicant.
[14] In the absence
of proof of receipt of the service, it means that, the order made by
the court was erroneously made. In other
words, had the court been
aware that the applicant did not receive the application to make the
arbitration award an order of court,
it would not have made the order
as it did.
[15] In the
circumstances, I am of the view that the order made by this court on
16 September 2014 stands to be rescinded. It follows
from this that
the contempt application also stands to fail. I do not, however,
believe that it would be appropriate to allow costs
to follow the
results.
[16] In the
premises, the following order is made:
1. The order made by
this Court on 16 September 2014 is rescinded.
2. The respondents
in the contempt of Court application are not guilty of contempt.
3. There is no order
as to costs.
Molahlehi, J
Judge of the
Labour Court of South Africa
Appearances:
For
the Applicant: T. Lethetsa of Moodie & Robertson
For
the Respondent: Advocate S Saunders
Instructed
by: Fluxmans Attorney
[1]
(2001)
22
ILJ
104
(W) at 108C.
[2]
(2004)
25
ILJ
96
(LAC) at para 15.
[3]
(2011)
32
ILJ
1917
(LC) at paras 11–12.
[4]
(2007)
28
ILJ
1124
(LC) at para 17.
[5]
(2001)
22 ILJ 1173 (LC) at para 46.
[6]
Gay
Transport (Pty) Ltd v SA and Allied Workers Union and Others
(2011)
32
ILJ
1917
(LC).