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[2015] ZALCJHB 394
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WEPU obo Pillay v Join Aid Management (JAM) International (JR2351/2013) [2015] ZALCJHB 394 (13 November 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable/
Not
Reportable
Case no: JR 2351/2013
In the matter between:
WEPU obo PILLAY,
GEEVANAYAGI
Applicant
and
JOINT
AID MANAGEMENT (JAM)
INTERNATIONAL
Respondent
Heard:
2 July 2015
Delivered:
13 November 2015
Summary:
Rescission – default judgment – condonation for late
filing thereof. Unacceptable explanation
for inordinately long
delay in bringing rescission. Reliance on negligence of
attorneys and labour consultants: principles
restated. Very
little prospects of success on review. Application dismissed.
JUDGMENT
Bank AJ;
[1]
The respondent in this
matter, Joint Aid Management International (“JAM”) seeks
an order of rescission of a default
judgment granted on 18 December
2013 by the Honourable Justice Molahlehi, in which he made the
arbitration award dated 8 October
2013 under case number GAJB10590-13
an Order of Court.
[2]
Although the notice of
motion in the rescission application does not state so explicitly, it
is alleged in the founding affidavit
that the rescission application
has been brought in terms of section 165 of the LRA, read with Rule
16A(1)(b) of the Labour Court
Rules. In terms of this section, such
an application is brought where it is alleged that a default judgment
was erroneously sought
or erroneously granted in the absence of an
applicant affected by that judgment, or a judgment in which there is
an ambiguity,
obvious error or omission or where such judgment has
been granted as the result of a common mistake.
[3]
Rule 16A(1)(b) allows a
court, in addition to any other powers it may have, and on the
application of any affected party, to rescind
any order or judgment
granted in the absence of that party. An application under Rule
16A(1)(b) must be brought within 15 days
after acquiring knowledge of
the order or judgment granted in the absence of that party. Once this
has been done, the court may,
upon good cause shown, set aside the
order or the judgment on such terms as it deems fit (Rule 16A
(2)(b)).
[4]
It is by now trite that
in order to show good cause for rescission an applicant must provide
a reasonable explanation for its default.
Before doing so,
however, it is appropriate that I briefly set out the factual
background to the arbitration award and subsequent
default judgment.
The arbitration award
[5]
The arbitration award
was issued by Commissioner Francois van der Merwe (“the
Commissioner”) who found that the applicant
in this matter,
Pillay, had been dismissed in a substantively unfair manner. He
ordered that Pillay was to be reinstated
into JAM’s service
with effect from the date of dismissal, being 15 April 2013,
with no loss of service, on terms and
conditions no less favourable
than those which applied at the time of her dismissal and ordered
back pay in an amount of three
months’ remuneration calculated
at R70 000,00 per month.
[6]
It appears that Pillay
was previously employed by JAM as its general manager until her
dismissal after a disciplinary enquiry into
her misconduct, on 15
April 2013. According to the arbitration award, the matter had been
set down for hearing on 30 September
2013 at the Johannesburg Offices
of the CCMA. Pillay was represented by Mr M Dawson, a union official,
and JAM by Mr P Bekker (“Bekker”),
an employers’
organisation official.
[7]
The award records that
JAM had requested a postponement of the matter because its
representative, Bekker, had to attend another
arbitration at the same
date and time. It appears that application in writing for such
postponement had been made quite some time
prior to the hearing date,
as well as a number of telephonic contacts with the CCMA, all to no
avail. Pillay, for her part, opposed
the postponement.
[8]
On the date of the
hearing and after hearing both parties, the Commissioner dismissed
the application for postponement and provided
his reasons for so
ruling. He stated that he was unconvinced that JAM had done enough to
attempt to obtain Pillay’s agreement
to the postponement. He
was, furthermore, unconvinced that JAM could not have obtained
another representative from its employers’
organisation (other
than Bekker) to represent it at the arbitration. He noted that there
had also been other delays and a consolidation
procedure. Finding
that the reasons advanced for postponement were insufficient and that
Pillay’s prejudice was growing,
the Commissioner, citing the
interests of justice, ruled against the postponement.
[9]
In his award the
Commissioner goes on to state that, prior to dismissing the
postponement application, he granted an opportunity
for the parties
to conduct discussions to attempt to resolve the matter and for JAM
to call its witnesses or arrange another representative.
Ultimately,
Bekker indicated that he was not in a position to present JAM’s
case and then left the proceedings. The arbitration
then continued in
his (and JAM’s) absence and the Commissioner proceeded to hear
Pillay’s evidence.
[10]
Testifying on her own
behalf, the award records that Pillay had stated that she had been
employed as JAM’s general manager
for South Africa with a gross
monthly remuneration of R70 000.00. After being served with a notice
to attend a disciplinary enquiry
on 11 March 2013, Bekker had come to
see her and offered her a 3-month severance settlement, giving her 30
minutes to think about
it. Although she had asked for a copy of the
proposed agreement Bekker was not prepared to give this to her. After
consulting with
her union, Bekker handed her a letter of suspension
dated 13 March 2013.
[11]
On the same day, Pillay
attended her disciplinary enquiry but her union representative was
excluded therefrom. Pillay refused to
plead and a plea of not guilty
was entered on her behalf. According to her, no witnesses were
brought in to testify against her.
It appears from the arbitration
award that Pillay chose not to participate any further in the
proceedings. It is not clear whether
she remained in the hearing or
simply chose not to participate as evidence against her was led.
[12]
On 19 March 2013, she
received a report from the chairman of the enquiry and a sanction of
dismissal was issued to her on 14 April
2013, with her last day of
work being 15 April 2013. She referred both an unfair suspension and
unfair dismissal dispute to the
CCMA.
[13]
The award records that
Pillay informed the Commissioner that she had been an above average
performer and received bonuses. She vehemently
denied the allegations
against her. The papers in this matter are silent as to what these
allegations might have been. I have trawled
the record and am unable
to find so much as a charge sheet against Pillay. Be that as it may,
Pillay believed that there had been
an ulterior motive in dismissing
her and stated that the dismissal had damaged her career. She,
however, believed that reinstatement
was appropriate because any
issues between her and JAM could be resolved professionally.
[14]
The
Commissioner found that Pillay’s suspension was not unlawful
and that it is generally not improper for even senior employees
to be
suspended if there is reason to believe that they might tamper with
or influence an investigation. He found that the period
of suspension
had not been
not
unduly long and had been on full remuneration. To this extent he
dismissed her unfair suspension dispute.
[15]
With regard to the
procedural fairness of her dismissal, the Commissioner found that
Pillay had not been prejudiced in that she
had sufficient information
of the allegations against her and that the general gist of these
allegations was reasonably clear,
especially for someone at her level
of seniority. Moreover, the Commissioner was not convinced that
Pillay had been unduly prejudiced
by the exclusion of her union
representative at the disciplinary enquiry, finding that she was
quite capable of defending herself.
He stated that Pillay had freely
and voluntarily chosen not to participate further in the internal
hearing after her union representative
had been excluded. He
therefore found there to be no procedural unfairness.
[16]
With regard to
substantive fairness, he found, on Pillay’s unchallenged
evidence, that there was no evidence of misconduct
presented against
her and that her dismissal had been substantively unfair. The
Commissioner considered the appropriateness of
reinstatement and
accepted Pillay’s version that any points of disagreement
between her and the managing director were “
not
insurmountable and could well be resolved on a professional basis
”.
He exercised his discretion against ordering full back pay, stating
that this was not warranted in view of Pillay’s
decision not to
participate in the disciplinary hearing “
which
arguably may have turned out differently had she stayed on and
presented her side of the story
”.
He therefore ordered reinstatement with three months’ back pay.
The enforcement
application and order
[17]
Pursuant
to the arbitration award in her favour, Pillay then launched an
application in terms of section 158(1) (c) of the Labour
Relations
Act, 66 of 1995 (“the LRA”) seeking that this arbitration
be made an order of court (“the enforcement
application”).
As part of this application, Pillay deposed to an affidavit in
support of proof of service on JAM, stating
that she had served the
notice of motion, affidavits and annexures on JAM at 08h56 on 18
October 2013 by telefaxing these documents
to fax number
(
011
)
548 3948 and telephonically confirming receipt of the entire fax
transmission with one Lebo Tumelo on telephone number
(
011
)
548 3914 on the same date. She attaches a fax transmission report
showing successful transmission of 12 pages taking some five
minutes
and 37 seconds at this time. The arbitration award is attached to
this application as annexure “X”.
[18]
It appears that there
is no dispute that JAM indeed received this application as the
deponent to the affidavit in support of the
rescission application,
Hanlie Joubert (“Joubert”), JAM’s Human Resources
“Generalist” (whatever
that might mean) states that she
forwarded the application to Merri Wilson of Labouraide, JAM’s
labour consultants. Joubert
attaches a copy of the relevant email as
evidence of this. It appears that Bekker is also an employee of
Labouraide and he in turn
confirms that he forwarded this application
to Sean Simpson of Simpson Attorneys, who had by then also been
instructed to launch
an application for the review of the default
arbitration award. It then appears that a review application under
case number JR
2472/2013 was indeed launched by JAM on or about 21
November 2013.
[19]
It
does not appear that there was any application to stay the
enforcement of the arbitration award, nor was any opposition to the
enforcement application itself noted prior to its being set down for
hearing before Molahlehi J on 18 December 2013. Accordingly,
on 18
December 2013
,
the learned judge, in chambers, made the arbitration award an order
of court.
[20]
JAM was obviously
unaware that such an order had been granted because, early in the New
Year and on 10 January 2014, it served its
answering affidavit
opposing the enforcement application. This affidavit was deposed to
by the aforesaid Bekker, who states that
the grounds of opposition
are that it would be a miscarriage of justice should JAM be compelled
to reinstate Pillay “in light
of the serious nature of the
misconduct engaged in by her which gave rise to her dismissal”
but gives no details of this
alleged serious misconduct. Furthermore,
he states that the arbitrator’s decision to refuse the
postponement sought, as well
as the order of reinstatement made by
the Commissioner, caused the balance of convenience to favour JAM and
that the application
ought to have been dismissed with costs,
alternatively, stayed pending the determination of the review.
Condonation
application
[21]
JAM then brought an
application for condonation for the late bringing of the rescission
application. In a supporting affidavit
filed on behalf of JAM
by its previous attorney, David Morgan (“Morgan”) it is
stated that JAM only became aware of
the order that had been granted
against it in terms of section 158(1)(c) on or about 15 October 2014.
I note in passing that this
is some 10 months after the granting of
the order by Judge Molahlehi. He goes on to state that the
application for rescission was
duly prepared after consultation with
Joubert and filed with the registrar on 30 October 2014. However, and
owing to difficulties
in serving the application on Pillay (which are
detailed in this affidavit) and further difficulties with Pillay’s
union
when it was attempted to fax a copy of the rescission
application to them, Morgan’s offices resorted to the services
of the
Sheriff: Johannesburg East in order to attempt to serve a copy
of this application on Pillay. It was only when Pillay finally agreed
to meet Morgan at Eastgate Shopping Centre on 11 November 2014 that
he was able to personally serve a copy of the rescission application
upon her.
[22]
It is therefore clear
that JAM relies upon the inattentiveness of its first set of
attorneys, Simpson Attorneys, in timeously opposing
the application
in terms of section 158(1)(c). Indeed, Joubert states (para 31 p 8 of
the founding affidavit) that “Simpson’s
apparent lack of
diligence has resulted in the need for the current application”.
[23]
I pause to note that
what appears to be missing from the rescission application (read
together with the application for condonation)
is a full and proper
explanation of the period between the granting of the default
judgment on 18 December 2013 and 15 October
2014, the date on which
knowledge of this order supposedly came to JAM. This is an
inordinately lengthy period and, despite Morgan’s
affidavit
which I believe adequately explains the period between 15 October
2014 and the service of the rescission application
upon Pillay, the
events of the preceding 10 months clearly do not fall within his
knowledge and he quite correctly cannot say anything
about this. This
does not, however, absolve JAM and its labour consultants of
explaining this lengthy delay.
[24]
In
considering the above affidavit in conjunction with that deposed to
by Joubert in the rescission application, I am not satisfied
with
Joubert’s explanation for the fact that JAM delegated all
responsibility for the matter to Labouraide who, in turn,
delegated
responsibility for both the opposition to the section 158(1) (c)
application as well as the review application to Simpson
Attorneys.
The courts have consistently refused to grant rescission where the
alleged negligence of one’s attorney is responsible
for the
default (see
Enzo
Panelbeaters CC v CCMA and Others
(1999) 20
ILJ
2620 (LC) per De Villiers AJ). Furthermore, Steenkamp J has
also held that this Court generally accepts those judgments to
the
effect that if an attorney displays “
gross
ineptitude
”
a court cannot extend any indulgence to the applicant (see
Silplat
(Pty) Ltd v CCMA
and
Others
(2011) 32
ILJ
1739 (LC) at para 58)
]
.
[25]
Moreover, I cannot
gloss over the inordinately long period between the granting of
default judgment on 18 December 2013 and the
complete lack of
explanation on the part of JAM and its labour consultants for its
failure to make any enquiries regarding the
fate of the section
158(1) (c) application. It is not enough to simply state that they
relied upon the attorneys to take care of
matters, particularly where
the enforcement of an award is at stake. They ought to have
been aware that, in order to successfully
oppose such an application,
an answering affidavit would have to be deposed to and that, because
none of the relevant personnel
(either Joubert or Bekker) had as yet
deposed to such an affidavit, this had not been done. This negligence
is of a type that is
not excusable or understandable in the
circumstances. Although there is nothing to suggest that JAM or its
consultants had any
knowledge of the default judgment granted in
favour of Pillay until 15 October 2014, this automatically begs the
question as to
why it took so long for such knowledge to come to
their attention. This is also not explained in the papers.
[26]
Finally, although
repeated references are made to the serious misconduct of which
Pillay is accused, I am, quite surprisingly, unable
to find any
details of this supposed serious misconduct of which she was accused.
[27]
I
therefore have before me an application for rescission of a default
judgment which provides an unacceptable explanation in respect
of an
inordinately long delay, with many large gaps in the timeline that
are simply unaccounted for. What is more, this is
accompanied
by no inkling of the merits of the applicant’s case such that
it may be said that it carries a reasonable prospect
of success. In
National
Union of Mineworkers v Council for Mineral Technology
(1999) 3 BLLR 209
(LAC) at para
[
10
]
,
the Labour Appeal Court held:
‘“…
A
slight delay and a good explanation may help compensate for prospects
of success which are not strong. The importance of the issue
and
strong prospects of success may tend to compensate for a long delay.
There is a further principle which is applied and that
is that
without a reasonable and explanation for the delay, the prospects of
success are immaterial, and without prospects of success,
no matter
how good the explanation for the delay, an application for
condonation should be refused
’
.
”
[28]
No explanation was
tendered by Bekker as to why he filed the affidavit opposing the
enforcement award without first ascertaining
the status of this
application which had been launched by Pillay. One assumes that when
this affidavit was indeed filed at court,
a representative of either
JAM, Labouraide or Simpson Attorneys would have easily been able to
ascertain, from a quick perusal
of the cover of the court file, that
judgment had indeed been granted several weeks beforehand. The
failure to explain this is
notable.
[29]
There can be no doubt
that had JAM sent another representative to the arbitration on the
day in question it would have been in a
position to challenge
Pillay’s case for unfair dismissal and also lead evidence on
its own behalf. No explanation has been
tendered as to why Joubert or
some other official of JAM could not have attended owing to the
unavailability of Bekker. No explanation
is given as to why some
other representative of Labouraide could not have come to his
assistance.
[30]
In light of the reasons
given by the Commissioner for refusing the postponement and
proceeding to hear the matter after Jam’s
representative
deliberately absented himself from the proceedings, I find very
little prospects of success of the review application.
The
Commissioner clearly exercised his discretion to refuse a
postponement in light of all the arguments presented for and against
such postponement and, as mentioned before, JAM has failed to take
this Court into its confidence by disclosing the alleged dire
nature
of Pillay’s supposed serious misconduct.
[31]
As was argued on behalf
of Pillay, Jam knew as early as 6 September 2013 that the arbitration
hearing had been postponed to 30 September
2013 and therefore had
ample opportunity to obtain legal or other representation and to
properly prepare for the arbitration proceedings.
[32]
With regard to the
question of costs, I see no reason why costs should not follow the
result in this matter and that JAM be ordered
to pay the costs of
having launched this application.
[33]
In the result, I make
the following order:
1.
The application to
condone the late filing of the application for rescission of judgment
is dismissed.
2.
The application for
rescission of the default award granted by Judge Molahlehi on 18
December 2013 is dismissed.
3.
The respondent in the
main proceedings, Joint Aid Management International (JAM), is to pay
the costs.
________________
Bank AJ
Acting Judge of the
Labour Court of South Africa
APPEARANCES:
For the
Applicant:
Mr C Higgs
Instructed
by:
Higgs Attorney
For the First Respondent:
Mr J Gwebu
Instructed
by:
Madela Gwebu Mashamba inc