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[2015] ZALCJHB 375
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Nkomo v KGK Diamonds SA (Pty) Ltd and Others (JR666/2014) [2015] ZALCJHB 375 (23 October 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
Case
no:
JR666/2014
In
the matter between:
CONSTANCE
NKOMO
Applicant
and
KGK
DIAMONDS SA (PTY)
LTD
First Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
Second Respondent
MUSOLWA
MPHO RAPALALANE
N.O
Third Respondent
Heard:
10 July 2015
Delivered:
23 October 2015
Summary:
Review of a ruling dismissing the Applicant’s rescission
application
JUDGMENT
COOK
AJ;
Introduction
[1]
The Applicant
seeks to review and set aside the Third Respondent’s
(“Commissioner”) ruling dated 27 March 2014,
under case
number GAJB29662-139 (“ruling”), dismissing the
Applicant’s rescission application and substituting
it for an
order rescinding the ruling of the Respondent dated 21 January 2014
dismissing the Applicant’s case. Furthermore,
the applicant
seeks for an order that the Second Respondent set the dispute down
for conciliation and arbitration.
[2]
The First
Respondent (“the employer”) opposes the application and
prays that the application be dismissed with costs.
The
award
[3]
The
Commissioner found:
’
16
I do concur with the Respondent that the Applicant failed to
substantiate as
to why they failed to attend the arbitration. This
matter was conciliated on 28
th
August 2013 at the Bargaining Council for the Diamond Cutting
Industry; I therefore fail to understand as to what steps did the
representative or the Applicant in person took [sic] to establish
what was happening with her case. The Applicant simply submitted
that
the notice of set down never reached them. Nothing was submitted if
[sic] the address and telefax were still the same or not.
17.
In this case I find the Applicant’s explanation not to attend
an arbitration
proceeding to be unreasonable and unjustifiable.
18.
Turning to prospects of success; the Applicant submitted that he
[sic] was charged
with gross negligence and summoned to a
disciplinary hearing prior to his dismissal. The Applicant did not
submit if his [sic]
dismissal was fair or not; although the Applicant
needs not necessarily deal fully with the merits of the case. However
it is the
Applicant’s responsibility to indicate on the fact of
it that he/she had a bona fide case. I therefore find the Applicant
failed on the face of it to show that he has good prospects of
succeeding in this matter.’
[1]
Case
law
[4]
In
Herholdt
v Nedbank Limited, (Congress of South African Trade Unions as Amicus
Curiae),
[2]
the
SCA described the standard of review as follows:
‘
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in section 145(2)(a) of
the LRA. For a defect in the conduct of the proceedings to
amount to
a gross irregularity as contemplated by section 145(2)(a)(ii), the
arbitrator must have misconceived the nature of the
inquiry or
arrived at an unreasonable result. A result will only be unreasonable
if it is one that a reasonable arbitrator could
not reach on all the
material that was before the arbitrator. Material errors of fact, as
well as the weight and relevance to be
attached to particular facts,
are not in and of themselves sufficient for an award to be set aside,
but are only of any consequence
if their effect is to render the
outcome unreasonable.’
[5]
In
Chetty
v Law Society, Transvaal,
[3]
the
court in considering when there ought to be a rescission of a
judgment, stated the following two requirements:
‘
(i)
that the party seeking relief must present a reasonable and
acceptable explanation
for his default; and
(ii)
that on the merits such a party has a bona fide defence, which, prima
facie, carries
some prospect of success.’
[6]
In
Foschini
Group (Pty) Limited v Commission for Conciliation, Mediation and
Arbitration and Others
:
[4]
‘
To
establish that there is a reasonable probability of success on the
merits, it suffices if an applicant shows a prima facie case
in the
sense of setting out averments which, if established at the
proceedings, would entitle the party to the relief asked for.
An
applicant need not necessarily deal fully with the merits of the
case.’
[7]
In
MTN
South Africa v Van Jaarsveld and Others,
[5]
the
court held:
‘
[13]
It is plain from anyone who attends the hearings of the Labour Court,
that the enormous growth in the
number of applications for rescission
in circumstances where the respondent party claims that albeit on the
face of it a telefax
transmission was sent, it was not received or
did not reach the person responsible for giving it attention, leads
to the conclusion
that the provisions of the Act in this regard
require reconsideration. In my view, it is appropriate that the
statute be reappraised
in this regard and that the Rules Board for
the Labour Courts gives its attention to this matter of procedure. As
aptly illustrated
on the facts of this case, the arrival of a
document in the midst of a deluge of others, handled by staff not
inducted to divine,
in the absence of some clue, who should be given
the document nor how rapidly that should happen, may predictably lead
to delay
or misplacement or outright loss of the document.’
Analysis
[8]
In the
application for the rescission of the dismissal ruling, the following
is stated:
‘
30.
On the other hand, the Applicant is not guilty of the charges against
her, as she performed her
duties to the best of her ability, and
dismissal was inappropriate in the circumstances.’
[6]
Further:
‘
27.
It is submitted that, as the notice of set down for the arbitration
never reached the Applicants
or their representative, there are good
prospects of success of the rescission application.
28.
In particular, even the CCMA confirmed that the fax number to which
the notice of set down
was sent was not the Applicant’s
number.
29.
The postal copy of the notice of set down never reached us.’
[7]
and
‘
34.
I submit that as it is reflected below, the absence of the Applicant
and I on the 21
st
day of January 2014 was not deliberate, but due to the fact that we
were not aware that the matter had been set down for arbitration,
as
notice of set down never reached us.’
[8]
[9]
The finding
that the Applicant failed in her responsibility to indicate that she
had a
bona
fide
case
is not a reasonable finding, as the Applicant in her affidavit made
out a
prima
facie
case
in the sense of setting out averments which, if established at the
arbitration, would entitle the Applicant to the relief
sought.
[10]
The
Commissioner failed to deal with the registered letter not having
been sent to the Tshiawelo Post Office as evidenced in terms
of
Annexure “B” to the replying affidavit in the rescission
application.
[9]
[11]
The
Commissioner also failed to take into proper consideration the
Applicant’s allegations in the replying affidavit
[10]
:
‘
21.
On the 21
st
day of January 2014, when the Commissioner called Rabothata and said
the notice of arbitration set down had been successfully transmitted
to the Applicant, Rabothata asked him about the number to which the
notice has been faxed, according to the fax transmission report
the
Commissioner had. In response the Commissioner mentioned two
numbers, one an 011 and the other an 086.
22.
Rabothata then told him that both numbers were not of the Applicants
and referred the Commissioner
to the Applicants’ contact
numbers as reflected in the arbitration referral, which reflected
011 403 9421 as the only
fax number for the Applicants, and
which number is not one of those the Commissioner had said the notice
had been sent to.
23.
Although the notice of set down reflected our correct fax number, but
it was not sent to
this number, and event the CCMA fax report did not
reflect the number on the notice of set down, according to the
Commissioner
arbitrating the matter.’
[12]
The notice of
set down attached as Annexure “B” to the First
Respondent’s answering affidavit is illegible and
one cannot
determine from the heading to which number the fax was sent.
Furthermore, there is no fax transmission report in respect
of the
set down.
[13]
However, even
if the notice of set down was faxed through to the Applicant’s
representative, this in itself does not mean
that it came to the
attention of the relevant person. From the evidence, it was clear
that on the day that the matter was set down
for arbitration, the
parties were not in attendance and the Commissioner then phoned in
order to find out their whereabouts. Both
the representative and the
employee indicated that they were not aware of the notice of set
down. On a balance of probabilities,
their version should be
accepted, as there is no good reason as to why they would not have
attended if they were aware of the notice
of set down.
[14]
Even if the
notice of set down was sent through to the employee’s
representative, on the facts before me, the conduct of the
employee
was not such that the negligence of the representative should be
extended upon the employee.
[15]
This matter
highlights the perils of setting matters down by way of fax and that
is why the Practice Manual in this Court requires
that if a party
does serve by way of fax, a follow-up call is made to ensure that the
person received the fax.
Conclusion
[16]
Accordingly,
the Court is of the view that the ruling of the Commissioner is
unreasonable in light of all the facts and evidence
that were
properly before the Commissioner.
[17]
The Court
finds that the opposition to the review was not unreasonable in the
circumstances and, accordingly, the Court will not
order costs.
[18]
In the
circumstances, the Court makes the following order:
1.
The Third
Respondent’s ruling dated 27 March 2014, under case number
GAJB29662-13, is reviewed and set aside.
2.
The ruling is
substituted with the order that the ruling of the Third Respondent
dated 21 January 2014 dismissing the application
is rescinded.
3.
The Second
Respondent is to set the matter down for arbitration.
4.
No order as to
costs.
____________
Cook
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES
For
the Applicant:
Mr E S Makinta
Instructed
by:
E S Makinta Attorneys
For
the Respondent:
A Bosch
Instructed
by:
Snyman Attorneys
[1]
Review
Application Pleadings
at 24 and 25.
[2]
[2013]
11 BLLR 1074
(SCA) at para 25.
[3]
1985 (2) SA 756
(A) at 765B-C.
[4]
(2002) 23
ILJ
1048 (LC) at para 21.
[5]
(2002) 23
ILJ
1597
(LC) at para 13.
[6]
Record
Bundle
at 13, para 30.
[7]
Record
Bundle at 12.
[8]
Record Bundle at
13.
[9]
Record Bundle at
46.
[10]
Record Bundle at 39