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 381
|
|
Starfish Greathearts Foundation v Lekalakala (J2055/2010) [2015] ZALCJHB 381; (2016) 37 ILJ 501 (LC) (29 October 2015)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: J2055/2010
In the matter between:
STARFISH GREATHEARTS
FOUNDATION
Applicant
and
DIMAKATSO
LEKALAKALA
Respondent
Heard: 30 June
2015
Delivered: 29 October
2015
Summary:
Labour Court Practice and Procedure. Application for Rescission,
section 165(a) of the Labour Relations
Act (“the LRA”)
and item 14.1.5 of the Practice Manual of the Labour Court of South
Africa. Applicability of principles
and tests for rescissions of
judgments in circumstances where registrar serves notice of set down
on the parties by way of telefax
and the respondent denies receipt of
the relevant telefax.
Applications such as
the current one avoidable if parties adopt a procedure analogous to
that provided in Rule 4(2)(b) of the rules
read together with item
14.1.5 of the practice manual.
JUDGMENT
SNIDER, AJ
[1]
This is an application for the rescission of the
judgment granted by Van Niekerk, J on 29 May 2014 in this matter.
[2]
A brief chronology of the matter is as follows:
2.1.
On 7 September 2010, it appears that the
commissioner in the Commission for Conciliation Mediation and
Arbitration (“the CCMA”)
certified that the dispute
between the parties was unresolved and indicated that the matter
could be referred to this court;
2.2.
The respondent delivered a statement of case
which, although signed on 22 October 2010, appears to have been filed
with this Court
on 24 November 2010;
2.3.
On 11 January 2011, the applicant answered the
respondent’s statement of case. The Labour Court date stamp on
the applicant’s
answer to the respondents statement of claim is
13 January 2011;
2.4.
On 17 February 2011, a pre-trial conference was
held at the applicant’s attorneys of record’s offices;
2.5.
Between May and November 2011, there was
correspondence between the parties attorneys in relation to the
finalisation of the pre-trial
minute;
2.6.
On 21 November 2011, the last of this
correspondent was sent by the applicant’s attorneys to the
respondent’s attorneys;
2.7.
On 10 October 2013, the respondent’s
attorneys delivered a letter to the applicant’s attorneys
dealing with a request
for condonation for the late filing of the
pre-trial minute;
2.8.
On 13 February 2014, the applicant forwarded a
version of the pre-trial minute that was signed by it;
2.9.
On 15 May 2014, the applicant received an index
and schedule of documents from the respondent;
2.10.
On 8 May 2014, as appears from the court file
itself, the registrar of this court sent a notice to the parties by
telefax setting
the matter down for hearing on 29 May 2014;
2.11.
On 29 May 2014, the matter was heard and judgment
was given by van Niekerk, J; and
2.12.
On 7 August 2014, a letter from the respondent
indicating that judgment had been given on 29 May 2014 and demanding
payment was
sent by the respondent to the applicant.
[3]
There is little value in unravelling precisely why
the matter took from 7 September 2010, when the respondent must have
become aware
that she could refer her matter to this court, until it
being set down for trial on 29 May 2014, a period well in excess of
three
years. I have set out the above chronology merely to illustrate
that it does not appear that either party, for whatever reason,
pursued the litigation with alacrity nor does it seem that either
party displayed a complete lack of interest in the matter.
[4]
It does appear, from the letter sent by the
respondent dated 10 October 2013, that there was a period during
which the respondent
was unable to place her attorneys in funds.
[5]
There are two closely related issues which require
consideration:
5.1.
whether the applicant has made out a case for
rescission of judgment on any basis; whether in terms of the LRA, the
rules or the
common law; and
5.2.
precisely what the consequences are when the
Registrar of this court sends a notice of set down to a party by
telefax, there is
a telefax transmission slip on the file indicating
that the fax was sent, and the party to whom it was sent, in this
case the applicant,
denies receipt thereof.
[6]
For the purposes of considering whether or not a
case for rescission has been made out by the applicant, Mr Edwards,
the applicant’s
counsel, has, in his heads of argument,
examined the requirements for a rescission application in terms of
section 165(1)(a) of
the LRA as read with Rule 16A(1)(a)(i), Rule
16A(1)(b) and the common law.
[7]
Section 165(1)(a) is, for all intents and
purposes, identical to Rule 16A(1)(a)(i). Accordingly, there is no
need to set out both
here. For the sake of convenience, however, I do
set out the provisions of rule 16A(1)(a)(i):
‘
1.
The court may, in addition to any other powers it may have –
(a)
On its own motion or on application of any party
affected, rescind or vary any order or judgment –
(i)
erroneously sought or erroneously granted in the
absence of any party affected by it…’
[8]
Rule 16A(1)(b) states:
‘
1.
The court may, in addition to any other powers it may have –
…
(b)
On application of any party affected, rescind any order or judgement
granted in the
absence of that party.’
[9]
The
essence of the difference between these two provisions is that in
applications in terms of Rule 16A(1)(a)(i) where an order
was
erroneously granted, the applicant is not required to show good
cause. Apposite in this regard is the decision of Pretorius,
AJ in
CAWU
v Federale Steene (1991) (Pty) Ltd
[1]
where it was found that where a defaulting party is genuinely unaware
of the date of set down, granting judgment by default is
erroneous
and, in these circumstances, it is not necessary to show good cause.
The decisions cited by Mr Edwards in his heads of
argument are to
similar effect.
[2]
As set out
above the applicant has, in the alternative, sought to rely on Rule
16A(1)(b).
[10]
However, the explanation as to why the applicant
did not attend at court on the day on which the matter was set down,
obviously,
does not change regardless of which legislative rubric the
application is brought under or, for that matter, whether it has been
brought under the common law.
[11]
It
seems quite clear from the jurisprudence that where a notice of set
down, genuinely, does not come to the attention of a party,
any
judgment by default would be granted erroneously.
[3]
[12]
There
is a plethora of authority on this point and it seems that
notwithstanding that there is a fax transmission slip which shows
a
successful transmission of the document to the correct fax number
this is merely
prima
facie
evidence
and is not conclusive evidence that the applicant received the fax
and was therefore negligent or wilful in not (in that
matter) filing
its opposing statement of case.
[4]
[13]
The
fact that other documents were successfully sent to and received at
the same fax number as the document under discussion, is
not
convincing evidence of receipt of the statement of case by the
applicant, this was the finding of Molahlehi, J in
Gay
Transport
(
supra
).
[5]
[14]
It is
clear that the denial of receipt of the fax refutes the presumption
of its receipt. The burden is then on the respondent to
show that the
applicant did in fact receive the statement of case through the fax
transmission. The evidence that the applicant
did receive other
documents through the same fax number previously is, as set out
above, not sufficient to discharge the duty on
the respondent to show
that the applicant did receive the notice of set down telefaxed to
the same number.
[6]
[15]
If
there was substantial negligence on the part of the attorney which
lead to it not receiving the relevant telefax, this may, in
my view,
constitute a reason for not granting the rescission application. As
Mr Makgato, on behalf of the respondent, correctly
submitted, there
is a point beyond which a party cannot rely on the negligence of its
attorney.
[7]
[16]
However, in this situation I am unable to find on
the papers that there was negligence on the part of the applicant’s
attorneys.
[17]
It appears that there was active engagement
between the parties in the sense that a statement of case had been
delivered, an answer
thereto had been delivered, the parties had
engaged in a pre-trial conference, ultimately produced a pre-trial
minute, and a schedule
of documents had been delivered by the
respondent to the applicant.
[18]
In these circumstances, I cannot find negligence
on the part of the applicant which would vitiate its right to have
its matter heard
in accordance with the overriding
audi
alteram partem
principal.
[19]
In her answering affidavit, the respondent does
little more than deny the allegations made by the applicant and makes
relatively
bald allegations of negligence on the part of the
applicant’s attorneys.
[20]
The time period between the last exchange between
the parties when, on 15 May 2014, the applicant received an index and
schedule
of documents from the respondent, and 7 August 2014 when it
received the letter from the respondent indicating that judgment had
been given on 29 May 2014 is a period of a little less than three
months.
[21]
It cannot be regarded as being totally out of the
ordinary that parties would wait that long for a trial matter to be
set down.
This would depend largely on the vagaries of the roll which
in turn depends on the number of matters, during a given period,
which
this court hears.
[22]
What
is of further interest in this matter is the genesis of the
difficulties encountered by the parties. The notice of set down
was
served, by the Registrar of this court by way of telefax. Most of the
jurisprudence surrounding the issue of service by telefax
deals with
service between parties.
[8]
This
situation is well catered for in the Rules and in the Practice
Manual. Rule 4, for the purposes hereof, states that:
‘
(1)
A document that is required to be served on any person may be served
in one of the following
ways; namely…
(iv)
by faxing a copy of the document to the person, if
the person has a fax number;
(2)
Service is proved in court in any one of the
following ways
If service was effected
by fax, by an affidavit of the person who effected service, which
must provide proof of the correct fax
number and confirmation that
the whole of the transmission was completed…’
[23]
Item 14.1.5 of the Practice Manual provides that:
‘
When
a party serves any document by fax in terms of rule 4, the deponent
to any affidavit filed in terms of rule 4(2)(b) must, in
addition to
providing proof of the correct fax number and confirmation that the
whole of the transmission was completed, state
under oath that the
party to whom the fax was addressed telephonically confirmed receipt
of the whole of the fax transmission and
the name of the person who
confirmed receipt of the transmission.’
[24]
It does not appear to be, in my mind it cannot be
the case, that the Registrar is bound to proceed in terms of Rule 4
of the Practice
Manual. These provisions relate to litigants in this
court.
[25]
Similarly, it would be impossible, given that it
is the registrar who serves the notice of set down by fax, for a
party who has
attracted the onus to prove on a balance of probability
that another party, who denies same, has in fact received a
particular
fax. The party seeking to prove such receipt would have to
obtain any evidence that it could from the registrar which would
inevitably
prove a hindrance both to the registrar and to that party.
[26]
I am of the view that given the inordinate delays
that are caused in situations like this where default judgment was
given on 29
May 2014 and the parties are still litigating in July
2015, it would be a salutary and practical course of conduct for
litigants
in this court, upon receipt of a telefax from the court, to
confirm that the other party or parties have similarly received the
said telefax. The relevant party would then be in a position to adopt
a procedure analogous to that provided in Rule 4(2)(b) of
the Rules
read together with item 14.1.5 of the Practice Manual.
[27]
I am not in any way suggesting that this is a
practice of this court or that there is any obligation whatsoever on
the parties to
conduct themselves as outlined above. I am simply
suggesting a practical method to avoid unnecessary delays and the
incurring of
unnecessary costs.
[28]
Mr
Makgato urged me to consider the decision in
Edgars
Consolidated Stores Limited v Dinat and Others
[9]
to the effect that a situation such as the current one does not lead
to the conclusion that the judgment was erroneously sought
or
granted. With respect to the Learned Judge in that matter, I prefer
the decision of Molahlehi J in
Gay
Transport
(
supra
)
and other decisions to the same effect. In any event, in that case,
there was an affidavit confirming service by telefax.
[10]
The matter is thus in any event distinguishable. It is also a matter
where the service was
inter
partes
as
opposed to, as in this situation, service effected by the Court.
[29]
As I
have set out above, the applicant goes further than relying solely on
the “erroneously granted” ground and does
set out what
is, in my view, a
bona
fide
defence
which
prima
facie
carries
some prospects of success. In fact, only the applicant deals with the
merits of the matter in its affidavit. In its answering
affidavit,
the respondent does nothing more than deny the allegations made by
the applicant.
[11]
[30]
I must
say that I was rather surprised by the allegation in the founding
affidavit
[12]
that the
applicant’s attorneys advised the applicant that there was no
notice of set down in the court file. On my perusal
of the court
file, there is such a notice of set down and it does appear that it
was affixed to the court file in the ordinary
chronological course.
[31]
The
following extract from Herbstein & Van Winsen was referred
to:
[13]
‘
An
applicant for the rescission of a default judgment must show good
cause and prove that he at no time renounced his defence and
that he
has a serious of intention of proceeding with the case. In order to
show good cause an applicant must give a reasonable
explanation of
his default, his application must be made
bona
fide
and
he must show that he has a
bona
fide
defence
to the plaintiff’s claim… When a defendant appears in
order to have the judgment set aside he must, in addition
to
explaining the failure to deliver a notice of intention to defend,
place before the court sufficient evidence from which it
can be
inferred that he has a
bona
fide
defence
to the action. It is not sufficient for the applicant to content
himself with saying that he has a
bona
fide
defence.
In order to establish a
bona
fide
defence,
the defendant must set out averments, which, if established at the
trial, would entitle him to the relief he asks for;
he need not deal
with the merits of the case or produce evidence that the
probabilities are actually in his favour.’
[32]
Mr
Makgato also referred me to De
Wet
and Others v Western Bank Limited.
[14]
[33]
The above extract does not deal with the erroneous
granting of a judgment. In any event, I am satisfied that the
applicant did not
at any time renounce its defence. Its intention to
proceed with the case is
bona fide, it
has a
bona
fide
defence and has shown sufficient
evidence of such defence.
[34]
In considering the issue of costs, I am of the
view that if the respondent has sought to oppose this application and
it ultimately
comes to pass that she was not entitled to judgment,
she should bear the costs of this matter. Similarly, if it comes to
pass that
the applicant is unsuccessful at the trial, it should bear
the costs of this application.
[35]
In the premises, I make the following order:
35.1.
The judgment of van Niekerk J in this matter dated
29 May 2014 is rescinded;
35.2.
The costs of this application are costs in the
main matter.
__________________
Snider, AJ
Acting Judge of the
Labour Court
Appearances
For
the Applicant:
Advocate
B Edwards
Instructed
by:
Schindlers Attorneys
For
the Respondent:
Advocate M C Makgato
Instructed
by:
Phamane Mokane Inc
[1]
[1998]
4 BLLR 374 (LC).
[2]
Lumka
and Associates v Maqubela
(2004)
25
ILJ
2326
(LAC) at para 26 and
Gay
Transport (Pty) Limited v SA Transport and Allied Workers Union and
Others
(2011)
32
ILJ
1917
(LC) at para 13.
[3]
CAWU
(
supra)
,
Gay
Transport
(
supra
)
and
Roux
v City of Cape Town
[2004]
8 BLLR 836 (LC).
[4]
Gay
Transport
(
supra
)
at para 17 and 19.
[5]
Ibid
at para 18.
[6]
Ibid
at para 19.
[7]
Superb
Meat Supplies CC v Maritz
(2004)
25
ILJ
96
(LAC) at paras 15-16.
[8]
With
an exception of
Roux
v City of Cape Town
(
supra
)
and
CAWU
(
supra
).
[9]
(2006)
27
ILJ
2356
(LC).
[10]
Ibid
at para 15.
[11]
The
answering affidavit at para 5 of the founding affidavit on page 7
and para 11.
[12]
The
answering affidavit para 4.11 on page 6.
[13]
The
Civil Practice of the Supreme Court of SA at 540-1
[14]
1979
(2) SA 1031
(A).