About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 243
|
|
National Prosecuting Authority v Ramushowana NO and Others (JR2774/2012) [2015] ZALCJHB 243 (3 August 2015)
REPUBLIC
OF SOUTH AFRICA
Not reportable
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: JR 2774/2012
In the matter between:
NATIONAL PROSECUTING
AUTHORITY
APPLICANT
and
SILAS RAMUSHOWANA
N.O.
FIRST RESPONDENT
GPSSBC
SECOND RESPONDENT
DANIEL
WILLEM PETRUS NEL
THIRD RESPONDENT
Heard
:
31 July 2015
Order
made
:
3
August 2015
Reasons
furnished: 5 August 2015
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to rescind an order granted by this court on
12 May 2015, when the court dismissed with costs an application
filed
by the applicant to review and set aside an arbitration award issued
by the first respondent. The applicant also seeks an
order in terms
of which the enforcement of the award be stayed pending the outcome
of the review application.
[2]
The third respondent (the employee) was employed with effect from 1
January 2008 in terms of a fixed term contract that was
to terminate
on 31 December 2009. The contract was extended to 31 December 2011.
When the employee’s contract was not further
renewed, he
referred a dispute to the second respondent, the bargaining council,
contending that he had been unfairly dismissed.
The dispute was
ultimately referred to arbitration before the first respondent. On 26
September 2012, the first respondent issue
an award in the employee’s
favour.
[3]
On 7 November 2012, the applicant field an application to review and
set aside the award. In compliance with the Rules, the
first and
second respondents were called on to dispatch to the registrar the
record of the proceedings under review. On 4 March
2013, the
employee’s attorney enquired when the record would be filed.
The applicant responded by stating that it was waiting
for the record
to be filed.
[4]
On 27 September 2013, presumably after making its own enquiries, the
employee’s attorney sent a letter to the applicant
recording
that the record had been filed on 19 December 2012. On 28 October
2013 the applicant’s attorney requested the bargaining
council
to provide it with the compact disc containing the record of the
proceedings. When the disc was sent to the transcribers,
it was found
that the disc was blank. On 31 October 2013, the applicant’s
attorney advised the employee’s attorney
that a proper record
was being sought.
[5]
On 2 December 2013, the employee’s attorney enquired from the
applicant’s attorney whether it had received a disc
containing
the proper record and indicated that an application would be brought
to have the review application dismissed. On 3
December 2013, the
applicant’s attorney relied by proposing that they meet in
order to reconstruct the record. On the same
date, a Mr. Phamba, who
had been dealing with the matter, wrote to the bargaining council
requesting a proper record of the proceedings.
The record was finally
sent to Phamba on 14 March 2014 and sent for transcription.
[6]
Phamba left the applicant’s attorney’s employ in April
2014. He failed to effect a proper hand over and refused
to
co-operate in any hand over of matters with which he was dealing.
There was no further correspondence between the parties’
attorneys between April 2014 and March 2015.
[7]
On 26 March 2015, the application to dismiss was filed on the
applicant. That application was not opposed, nor was any answering
affidavit filed. A Ms. Sahib of the applicant’s attorney
consulted senior counsel. On 10 April 2015 counsel advised Sahib
that
the record with which he had been briefed was incomplete and
requested Sahib to arrange a consultation with Phamba.
[8]
The application to dismiss was set down for hearing on 12 May 2015.
The applicant says that it did not receive notice of the
hearing. On
12 May 2015, the order sought to be rescinded was granted.
[9]
On 8 June 2015, Sahib advised counsel that Phamba was no longer
employed by the applicant’s attorney and that his emails
could
not be accessed. On 9 June 2015, oblivious to the order granted on 12
May, Sahib wrote to the bargaining counsel noting the
incomplete
record and proposing a reconstruction of the record.
[10]
On 18 June 2015, the employee’s attorney advised the
applicant’s attorneys of the existence of the order and claimed
payment of the compensation awarded to the employee in terms of the
award. Counsel was obliged to withdraw his appointment when
he was
appointed as an acting judge. On 25 June 2015 the applicant’s
present counsel was briefed with instructions to prepare
the present
application.
[11]
The applicable legal principles regulating the rescission of an order
granted in the absence of a party are based on a threshold
of good
cause shown. Specifically, this requires the applicant to furnish a
reasonable explanation for its absence on 12 May 2015
when the order
sought to be rescinded was granted, the application must be
bona
fide
and the applicant must show on a
prima
facie
basis that it has a
bona
fide
case to present in respect of that application.
[12]
The applicant’s failure to appear on 12 May 2015 must
necessarily be seen in context. It is a context where despite the
provisions of the Practice Manual to the effect that a review
application is not unlike an urgent application and that the failure
by a party to file the record within 60 days has the consequence of
the deemed withdrawal of the application, the filing of the
record is
now two years and seven months overdue. In the Rule 11 application,
the applicant’s answering affidavit is now
three months
overdue.
[13]
What the applicant appears to have overlooked, both in the founding
and replying affidavits and in argument, is that the applicant
(the
NPA) is not the state attorney, and the state attorney is not the
NPA. The state attorney acts for and on behalf of the applicant,
and
owes the applicant the same duty of care as any attorney acting for a
client in the private sector. Equally, the NPA as a client
of the
state attorney cannot escape the result of the latter’s
negligence or the insufficiency of the explanation tendered
by the
state attorney. In the present matter, the deafening silence of the
applicant or any of its officials in relation to the
conduct of the
review and the application in terms of Rule 11 and in particular,
their failure to provide any evidence as to what
steps, if any, were
taken to ensure that the applications were prosecuted with due
diligence, suggests a degree of disinterest
so as to amount to wilful
default.
[14]
It is apparent from the court file that the third respondent’s
request for a court date in the Rule 11 application and
the request
that the matter be allocated a date on the unopposed motion roll was
successfully telefaxed to fax number 011 337 7180
on 26 April at 8.25
am. That fax was marked for the attention of a Mr. Fumanekile, with a
reference number corresponding to the
number used by the applicant in
the present application. The applicant does not deny having received
this notice (which served
as adequate prior warning that the third
respondent was proceeding to enroll the Rule 11 application), nor is
there any explanation
as to who Mr. Fumanekile might be or what role
he played in the present saga after Phamba’s departure. The
applicant does
not dispute that the notice of set down of the Rule 11
application was sent and received by the office of the applicant’s
attorney. What it disputes is that the notice was received by the
attorney dealing with this particular matter. Both telefax numbers
to
which the notice of set down was addressed (0866756737 and 011
3377180) indicate a successful transmission. The supplementary
affidavits filed by the parties suggest no more than that the fax
number used to transmit the notice of set down was not one that
the
registrar was requested some years ago to use. It may be that the
notice of set down was not sent to the designated fax number,
but
that does not detract from the fact that both the applications to
have the Rule 11 application set down for hearing and the
notice of
set down itself were successfully transmitted, with correct reference
numbers, to the applicant’s attorney. There
is no cogent
explanation for the failure by the applicant’s attorney to
respond to these notices.
[15]
For the above reasons, in my view, the applicant is in wilful default
of appearance on 12 May 2015 when the review application
was
dismissed.
[16]
The conclusion to which I have come disposes of the present
application. However, even if I wrong in coming to the conclusion
that I have in regard to the adequacy of the explanation proffered by
the application is concerned, the application in any event
stands to
be dismissed on account of the failure by the applicant to establish,
even on a
prima facie
basis, that it has a
bona fide
defence to the proceedings in respect of which rescission is sought.
The deponent to the founding affidavit, for reasons that are
not
apparent, makes out the applicant’s case in respect of the
merits of the review application. He refers in some detail
to the
findings made by the arbitrator, and sets out the grounds on which
the review of the award is sought. The deponent to the
founding
affidavit fails to address in any respect the case that the applicant
has to present in respect of the merits of the Rule
11 application.
In that sense, the applicant has failed to recognize that its defence
to the Rule 11 and the review application
respectively are separate
issues and must necessarily be dealt with as such (see
Powertech
Transformers (Pty) Ltd v MEIBC
(JR 1250/09) at paragraph [41].
[17]
To the extent that the founding affidavit can be generously read to
include a defence to the Rule 11 application, it is clear
that the
applicant and the applicant’s attorney have failed to prosecute
the review application with due diligence and that
the explanation
for the failure to file the record of the proceedings under review
and a Rule 7A (8) notice despite an effluxion
of some 16 months (as
at the date of the filing of the application to dismiss). The conduct
of the applicant and its attorney was
nothing less than dilatory in
nature and represented a failure to promote the statutory purpose of
expeditious dispute resolution.
[18]
For the above reasons, the application stands to be dismissed. In so
far as costs are concerned, in my view, the requirements
of the law
and fairness dictate that the third respondent should not be deprived
of the costs of having to defend these proceedings,
such costs to
include the costs of the proceedings on 9 July 2015, and those on 29
July 2015, when the application was stood down
to 31 July 2015.
I
make the following order:
1.
The
application is dismissed.
2.
The
applicant is to pay the costs of the application, such costs to
include the costs of the proceedings on 9 July 2015 and those
on 29
July 2015, when the application was stood down to 31 July 2015.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
REPRESENTATION
For
the applicant: Adv. IS Ngwetjana, instructed by the State Attorney
For
the third respondent: Mr. R Menses, Garlicke Bousfield Inc.