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[2015] ZALCJHB 200
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BMG Hydraulics t/a Goldquest International v Radebe, In re: Radebe v BMG Hydraulics t/a Goldquest International (J2921/12) [2015] ZALCJHB 200 (10 July 2015)
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: J2921/12
DATE: 10 JULY 2015
Not Reportable
In the matter between:
BMG HYDRAULICS T/A GOLDQUEST
INTERNATIONAL
.........................................
Applicant
And
ELLIOT THEMBA
RADEBE
............................................................................................
Respondent
In re:
ELLIOT THEMBA
RADEBE
................................................................................................
Applicant
And
BMG HYDRAULICS T/A GOLDQUEST
INTERNATIONAL
......................................
Respondent
Heard: 08 July 2015
Delivered: 10 July 2015
Summary:
Rescission of Court Order
JUDGMENT
LEPPAN,
AJ
Introduction
[1]
An
Application was instituted by the Respondent in terms of
Section
158(1)(c)
of the
Labour Relations Act, 66 of 1995
, as amended ("the
LRA") to have an arbitration awarded, handed down by a
commissioner of the CCMA, made an Order of Court.
The Applicant
seeks a rescission of such Order which was handed down by this Court
on 18 December 2013.
[2]
The
Respondent was employed by the Applicant on 11 May 2011 as a
semi-skilled artisan.
[3]
On
6 March 2012 the Respondent was suspended on pay for driving a
vehicle without a license.
[4]
The
Respondent referred a dispute about an unfair suspension to the CCMA
where he received an award in his favour which provided:
"
[20] The suspension of the applicant by the respondent was
substantively unfair.
[21] The respondent is ordered to lift the suspension and allow
the applicant to resume his normal duties on the same terms and
conditions existed (sic) prior to his suspension on 6 March 2012. The
respondent is further ordered to pay the applicant back payment
for
the period not at work totalling R20 484.40 … .
[22] The
[applicant] must report for duty on 04 June 2012 at BMG Hydraulics
(Sasol premises)
.
[23] The
amount mentioned in paragraph 22 must be paid by the respondent no
later than 22 June 2012
…
"
[1]
[5]
Reference
to "
applicant
"
in the above quotation is to the Respondent in these rescission
proceedings before this Court and reference to "
the
respondent
"
is to the Applicant herein.
Summary of the Arguments
[6]
The
Order of the Labour Court is dated 18 December 2013 ("
the
Order
").
6.1 The Order provides that -
"
1. The arbitration award dated 20 May 2012,
issued under case number MP2888-12 is made an order of Court in terms
of
Section 158
(1) (c) of the
Labour Relations Act 66 of 1995
.
2. There is no order as to costs.
"
[7]
The
Applicant contends that it only became aware of the Order on 1 April
2014 when the Respondent's attorney sent same annexed to
a letter
demanding action on it the same day.
[8]
The
Applicant contends that at all times it intended to oppose the above
application upon learning that the Respondent had apparently
initiated that step. However, the Applicant had received no
notices nor a copy of the application from the Respondent despite
correspondence requesting same and dated -
8.1 22 October 2013; and
8.2 24 October 2013;
8.3 25 October 2013.
[9]
The
Respondent's attorney did not see fit to reply to this correspondence
apparently on the basis that his client had pursued the
matter
further and the Court file was already before a Judge in Chambers.
The Respondent's attorney said he had no access
to the file and that
he did not have a copy of his client's
section 158(1)(c)
application,
this despite the fact that he had placed himself on record in the
matter on 7 October 2013. None of these developments
were
brought to the attention of this Court before the Order was granted.
[10]
In
spite of this, the matter proceeded on the unopposed role but was not
heard in open Court but in Chambers before the Honourable
Judge E.
Molahleni.
[11]
In
the Applicant's heads of argument reference is made to the legal test
for a rescission application and to the case of
Superb
Meat Supplies CC v Maritz (2004) 25 ILJ 96 (LAC)
[2]
,
which
sets out the following requirements regarding the rescission an Order
-
11.1 the Applicant must give a
reasonable explanation for its default;
11.2 the application must be
bona
fide
; and
11.3 it must be shown on a
prima
facie
basis that the Applicant has reasonable prospects of
success in the main application, in that there must have been a
defence which
existed at the time.
[12]
This
latter requirement is essential in light of the most recent decision
of the Labour Appeal Court in
Professional
Transport Workers' Union v Malema and Others (JA67/12
[2014] ZALAC
53:
dated 7 October 2014)
.
[13]
In
providing an explanation for its default, the Applicant argues that
it had not received notice of the application, despite having
requested same on three separate occasions (as listed above). The
Applicant further attempted to locate the court file, but was
unable
to do so, and that despite the request for the notices. The
Respondent did not dispute that the Applicant was unaware of
the
application.
[14]
The
Applicant further argues that: "
Where
a fact exists which would have precluded the granting of the order or
a fact which would have induced a Judge not to grant
the order
exists, and that fact was unknown to the Judge at the time of the
granting of the order, any order granted is erroneously
granted.
[3]
"
[15]
In
arguing that the main application has good prospects of success, the
Applicant states that it had fully complied with the arbitration
award in having made full payment of the compensation to the
Respondent but that he had failed to report for duty, whereafter the
Respondent was held to have absconded.
[16]
The
Respondent argues that the Applicant failed to deny receipt of the
Respondent's
section 158(1)(c)
application and contends, in his heads
of argument, that he did serve the notice of motion and founding
affidavit via facsimile
on the Applicant.
[4]
[17]
Proof
of service is contained as an annexure to the Respondent's answering
affidavit, marked "
RB
",
which is dated 5 August 2013. Reference is made to the application
being served on one "Amanda" by the Respondent
and his
attorney. No clarity is provided as to who Amanda might be or whether
she was in a position of authority in the Applicant's
business.
[18]
The
Respondent goes on to argue that at no point did the Applicant
indicate that it wished to oppose the
section 158
(1) (c)
application. With respect, this is disingenuous in view of the
numerous requests for documents and information made by
the
Applicant.
[19]
Further,
the Respondent argues that the Applicant never sought to review the
arbitration award and that: "
The
Applicant failed to seek the review of the Award and as such there
was/is no action brought by the Applicant setting out that
the Award
was unreasonable and as such it must comply therewith.
"
[5]
[20]
Argument
is further made that there is no defence mentioned by the Applicant
which would have prevented the Award being made an
order of this
Court. The Applicant has pre-empted the execution of the Award by
paying the back pay ordered. It requested the Respondent
to report
for work, but he decided not to as he had been "chased away"
from the Applicant's premises on 4 June 2012.
This is a fact disputed
by the Applicant.
[21]
With
regard to the prospects of success in the matter the Respondent
argues that the only allegation made to this effect by the
Applicant
is that the Respondent did not report for duty. It is argued that:
"
The
problem with this allegation is that same is not a defence to a
section 158
(1) c) application, it is only a defence to a contempt of
court application – As set out in a
section 158
(1) (c)
application the Court cannot look at the merits only whether or not
there has been compliance with the Award/Settlement
Agreement.
"
[6]
[22]
In
conclusion the Respondent submits that there is no prospects of
success in the opposition of the
section 158
(1) (c) application and
therefore there is no need to rescind the Order.
Analysis
[23]
In
considering whether the application is opposed or not, the first port
of call is whether there was proper and effective service
of the
notice of motion and founding affidavit of the
section 158
(1) (c)
application. As noted above it is stated in the Respondent's
answering affidavit that proper service had been effected.
[24]
It
would not be proper to accept this evidence as proof of service in
light of the three separate letters which were sent to the
Respondent's attorney requesting information in connection with or
service of the "
notices
",
to which no response was forthcoming. No attempt was made by the
Respondent's attorney to assist the Applicant when he knew
that
access to the Court file was not possible so he just abandoned and
left matters pending.
[25]
Further,
if one accepts that proper service had been effected initially and
three letters requesting service were sent, the Respondent's
attorney, as an officer of this Court, would be required to
investigate and at the very least assist in locating and providing
the Applicant with the pleadings and even alert the Court to that
dilemma in an endeavour not to have the matter considered on
the
unopposed role. There appears to have been an abuse of Court process,
resulting in further unnecessary litigation which further
burdens
this Court.
[26]
I
accept that the only discretion this Court has is to make the
arbitration award an Order of this Court or not to do so.
I
refer to
SA
Post Office Limited v CWU
(2013) 12 BLLR 1203
(LAC) at paragraphs 21-22.
[27]
The
discretion must be judiciously exercised. I am not prepared to
exercise that discretion in the Respondent's favour where
I am
alerted to the Applicant wanting to understand the litigation against
it and wanting to be afforded the opportunity to consider
the
Respondent's application, which it did not have in its possession,
and was denied access to same. These facts were not
before the
Court on 18 December 2013 when Molahlehi J considered the matter in
Chambers and on an unopposed basis. It points
to undesirable
conduct by the Respondent's attorney and for that reason the
rescission application should be granted.
Order
1.
The
Rescission is granted.
2.
No
Order as to Costs
Leppan, AJ
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: A Bosch
Instructed by: Snyman Attorneys
For the Respondent: A. Goldberg
Instructed by
Goldberg Attorneys
[1]
The
Arbitration Award Page 5.
[2]
This
decision was later followed in the case of
Chemical
Energy Paper Printing Wood & Allied Workers Union & others v
Metal Box t/a MB Glass (2005) 26 ILJ 92 (LC).
[3]
The
Applicant's Heads of Argument, at para 3.8, where reference is made
to the decisions of Enzo Panelbeaters CC v CCMA &
Others (1999)
20
ILJ
2620
(LC) and Sherwood Strategic Advertising CC v Scott (2001) 22
ILJ
2046
(LC).
[4]
The
Respondent's Heads of Argument at para 18.
[5]
The
Respondent's Heads of Argument at para 23.
[6]
The
Respondent's Heads of Argument at para 32, where the Respondent
refers to the decision of FAWU and Others v Cape Hospitality
Services t/a Savoy Hotel (Case no: C540/08; Heard: 30 January 2014
Delivered: 2 February 2014).