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2015
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[2015] ZALCJHB 443
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Bougaard v Commission for Conciliation, Mediation and Arbitration and Others (JR716/07) [2015] ZALCJHB 443 (30 June 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JOHANNESBURG
Not
Reportable
Case
no: JR716/07
In
the matter between
DUDLEY
REGINALD
BOUGAARD
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
First Respondent
FAZIEL
MOOI
N.O.
Second Respondent
JDG
TRADING (PTY) LTD t/a BRADLOUWS
FURNITURE
Third Respondent
Heard:
30 June 2015
Delivered:
30 June 2015
Edited:
20 January 2016
Summary:
Application for rescission of ruling refusing leave to appeal.
No proper grounds placed before
the court. Applicant relying on
alleged filing of written submissions which could not be established
by him. Merits
in any event poor. Commissioner hearing
condonation application clearly acting reasonably. Applicant on
review seeking
to rely o
n document that was found by the court
not to have emanated from the first respondent.
EX-TEMPORE
JUDGMENT
SNIDER,
AJ
[1]
This is an application for the rescission
of a ruling of Bhoola, J made on 30 August 2012, dismissing an
application for leave to
appeal. The ruling appears at page 10 of the
current application and states:
‘
No
submissions have been filed as directed by the court. The application
for leave to appeal is dismissed.’
[2]
At page 12 to 17 of the papers in this
application written submissions do indeed appear. However, it is not
possible to discern
when, or if, they were filed. There is a faint
outline of a stamp which appears as if it may be the stamp of this
court.
There is also a second copy of this document which was
handed up to me in court, which similarly has a stamp which appears
to be
the stamp of this court. It is, however, not an original and it
is similarly not possible to discern with any clarity what the date
on it is.
[3]
I am of the view that it would have been
relatively simple for the attorney for the applicant to ascertain
that the document had
indeed been filed; whether by perusing the
archives of this court or otherwise. He would have had, in his file
for the matter,
an original stamped version, or stamped copy, of this
document.
[4]
He has failed to provide such proof, and in
addition thereto, Mr Bleazard has alerted me to the allegations
contained in his answering
affidavit in this application, where he
says at paragraph 7.5.3 on page 25 of the papers:
‘
Furthermore,
the applicant makes the allegation that his attorney of record filed
written submissions. There is no affidavit by
the attorney of record
of the applicant confirming that statement by the applicant.
Accordingly, the allegation by the applicant
is hearsay and there is
no statement before this honourable court that the written
submissions upon which the applicant now seeks
to rely were ever
filed in court.’
[5]
There is no replying affidavit in this
matter and I am in any event bound by the general principle, in terms
of which affidavits
are evaluated, to the effect that it is the
allegations made by the applicant that are admitted by the respondent
that are generally
to be accepted.
[6]
On the strength of that principle, it
appears to me that indeed I cannot accept that the written
submissions were filed.
[7]
Even if I am to look at the substance of
the matter in relation to the judgment of Bhoola, J, and the original
award of the Commissioner;
the grounds for review are extremely thin.
[8]
The situation that pertained was that the
application initially before the Commissioner was a condonation
application where the
applicant was represented by one Advocate
Mapaleni and the respondent was represented by Mr Bleazard. Papers
were filed and oral
submissions were made.
[9]
In concluding his award, the Commissioner
states the following:
‘
The
applicant argued that there are prospects of success as the procedure
was not fair as there was no consultation and he was not
furnished
with the reasons for his dismissal. The letter incorrectly dated 2
nd
December 2005, Annexure D, is clearly headed ‘notification:
closure of repair centre’. From the start the applicant
was
aware of the reason for the retrenchment process. The letter also
refers to a meeting that took place in which the employees
were
informed of the decision to close the repair centre. There is some
basis for substantive fairness as the repair centre was
indeed
closed. Prospects of success are slim. Both sides will suffer a
degree of prejudice and therefore not much can turn on this
point. As
the reason for the delay is not valid and the prospects of success
are slim, an initial delay of almost three months
and then a further
delay of almost two months to submit the condonation application is
excessively late.’
[10]
The Commissioner was not only concerned
with the delay in referring the matter, but also the further delay in
bringing the condonation
application. It is very difficult, having
regard to the award, to imagine a basis on which it could be
reviewed. It is clearly
a reasonable award. As it was the review was
brought on a narrow and somewhat spurious ground, as dealt with
below.
[11]
In relation to the issue of the condonation
itself, the Commissioner neatly unpicks the applicant’s version
when he finds
that the applicant was aware of his dismissal before he
admits to having been aware of it. This emerged from a document that
the
applicant received called ‘process flow’. The
process flow document indicated when the retrenchment exercise would
terminate, and that date was before the date the applicant said he
was dismissed. Clearly this is an anachronism and the
commissioner correctly found against the applicant in this regard.
[12]
This indicates again the extraordinary
difficulties which the applicant faces in bringing this application.
[13]
If I can then briefly refer to the judgment
of Bhoola, J, dated 30 March 2012, the following passage which
appears at paragraph
10 on page 4 of the judgment is relevant:
‘
Even
if it can be accepted on the probabilities that the ‘dismissal
ruling’ was issued by the first respondent, it is
patent that
this was an error and had to be regarded as a bad cut and paste job
that found its way to the applicant in circumstances
that remain
questionable. The applicant could at the very least have sought
clarity from the first respondent in this regard. For
the applicant
to continue to rely on the ‘dismissal ruling’ in these
circumstances is patently an exercise in futility,
rendering this
application misconceived from its very inception. Thus, in my view,
the application borders on frivolous and vexatious
and I am in
agreement with the third respondent that costs on a special scale
would be justified.’
[14]
Bhoola, J then goes on to dismiss the
application and grant costs on a scale as between attorney and own
client. What Bhoola, J
was referring to in this paragraph was a
ruling of dubious origin which was found by the court not to have
been issued by the first
respondent.
[15]
Under those circumstances, both from the
perspective of the inability on the part of the applicant,
notwithstanding a long opportunity
to do so, to prove that the
written submissions were filed; and the award of the Commissioner,
who makes a proper evaluation of
the evidence before him, I come to
the conclusion that this application cannot be sustained.
Accordingly I make the order
set out below.
Order
The
application is dismissed.
There
is no order as to costs.
________________
Snider,
AJ
Acting
Judge of the Labour Court
Appearances:
For
the Applicant: Mr. H Kgotleng of Kgotleng Attoreys
For
the Respondent: Mr.B Bleazard of Brian Bleazard Attoreys