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[2015] ZALCJHB 189
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Yellow Jersey Logistics CC v Shezi NO and Others (JR788/13) [2015] ZALCJHB 189 (2 July 2015)
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR
788/13
DATE: 02 JULY
2015
Not Reportable
In the matter
between:
YELLOW JERSEY
LOGISTICS
CC
.....................................................................................
Applicant
And
SHEZI, N
N.O
...............................................................................................................
First
Respondent
NATIONAL
BARGAINING COUNCIL FOR THE ROAD
FREIGHT AND LOGISTICS
INDUSTRY
............................................................
Second
Respondent
MACHUSENG,
ADAM
..............................................................................................
Third
Respondent
Heard: 06 January
2015
Delivered: 02
July 2015
Summary:
Application for an order in terms of Rule 7A(4)
REASONS –
ORDER IN TERMS OF RULE 7A(4)
FOUCHE, AJ
Introduction
[1]
On 6 January 2015 I issued an order in the
following terms:
“
1.
The First and Second Respondents are compelled to file the part of
the record of the arbitration proceedings, consisting of the
electronic recording of the arbitration hearing which took place on
26 February 2013 in the Second Respondent as contemplated by
Rule
7A(2)(b), with the Registrar of the Labour Court.
2.
The First and Second Respondents are directed to file such electronic
record as contemplated by Rule 7A (2)(b) within 10 days
of the date
of receipt of this order.
3.
Reasons for this order to follow.”
The facts
[2]
There was no appearance on behalf of the
First or Second Respondents at the hearing.
[3]
The Second Respondent filed, through its
attorneys, a notice of compliance in terms of rule 7A( 2)(b),
7A(3) and 7(9) on 30
April 2013, which consisted of the mechanical
record of the proceedings held under the auspices of the Second
Respondent under
case number GPRFBC23453 consisting of one compact
disc. The Second Respondent also filed an amended notice of
compliance
dated 27 May 2013 in terms of which the Second Respondent,
inter-alia, also filed certain documents with the Court.
[4]
The Applicant’s attorneys attended at
Court on several occasions in order to collect the record, including
a compact disc.
The said attorneys were informed, presumably by the
registrar’s office, that the compact disc had not been filed as
stated
in the Second Respondent’s notice of compliance.
[5]
The Applicant’s attorneys addressed a
letter to the Second Respondent’s attorneys on 1 July 2013,
recording the fact
that the compact disc was not filed and requesting
the compact disc to be filed. Neither the Second Respondent nor
its attorneys
responded to the letter.
[6]
The Applicant’s application for an
order in terms of Rule7A(4) of the Rules of the Court was served on
the First and Second
Respondents by fax on 23 July 2013.
Neither the First Respondent nor the Second Respondent has filed an
answering
affidavit explaining their omission to file the compact
disc or any notice of intention to oppose the Applicant’s
application
for an order in terms of rule 7A(4).
Merits
[7]
Rule 7A(4) provides as follows:
“
(4)
If the person or body fails to comply with the direction or fails to
apply for an extension of time to do so, any interested
party may
apply, on notice, for an order
compelling
compliance with the direction.”
[8]
The First and/or Second Respondent have not
applied for any extension of time to file the compact disc. In
the absence of
any answering affidavit from the First or Second
Respondents to the Applicant’s application for an order in
terms of Rule
7A(4), it is thus clear that the First and Second
Respondents do not intend to oppose the Applicant’s application
for an
order in terms of Rule 7A(4).
[9]
There
is no confirmation on the Court file that the First or Second
Respondents received notice of the set down of the matter. In
terms of Rule 16(1) the Registrar must in the absence of a
response from the Respondent set a matter down for default on notice
only to the Applicant.
[1]
The notice of set down only recorded the particulars of the
Applicant and Third Respondent and there seems to have been no
attempt at delivering the notice of set down on the First and Second
Respondents.
[10]
However, the difficulty with the notice of
set down is that it did not record the default nature of the set down
and only referred
to the review being set down on the unopposed
motion roll. I am satisfied that all the parties to the matter
were aware that
the next step to be dealt with in the review process
was the Applicant’s application in terms of Rule 7A(4).
[11]
Having considered the First and Second
Respondents’ failure to comply with Rule 7A(2)(b), respond to
the Applicant’s
correspondence and respond to the Applicant’s
application in terms of Rule 7A(4) I am satisfied that the absence of
notice
to the First and Second Respondents should not sway me. The
reason for the conclusion is best expressed in the words of
Sutherland
AJ:
“…
it
is manifestly clear that the applicant was indeed aware of the
application, and had been put on its guard. The fact that it filed
its opposing papers late, and then did nothing further in regard to
protecting its interest, constitute difficulties which must
lie at
its own door.”
[2]
[12]
In the interest of justice and in order to
avoid any further delays in the resolution of the dispute I have
concluded that it would
be appropriate to grant the above order. It
is inappropriate that applicants and the Court should be burdened
with applications
of this nature in circumstances where the duties of
bargaining councils are clearly provided for in the Rules of the
Court.
[13]
The Applicant also sought a cost order
against the First and Second Respondents. The First and Second
Respondents did not
oppose the application. More importantly
the notice of set down was not clear that the matter was set down for
default judgement
and there is no confirmation on the Court file that
the First and Second Respondents had received the notice of set
down.
In such circumstances it would not be appropriate to
grant an order for costs against the First or Second Respondents.
FOUCHE
AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicants: Ms S Morgan
(SNYMAN
ATTORNEYS)
For
the Respondents: No appearance
[1]
BTI
World Travel v Alexandrakis
(JR
543/06)
[2009] ZALC 198
(22 July 2009)
at para 28-31
[2]
BDO
Spencer Stuart (Jhb) Inc v Otto
[2002]
9 BLLR 831
(LC), at para 14-15