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[2015] ZALCJHB 402
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Department of Arts and Culture v Molapo NO and Others (JR2889/2011) [2015] ZALCJHB 402 (17 November 2015)
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: jR 2889/2011
In
the matter between:
DEPARTMENT OF
ARTS
AND CULTURE
First Applicant
And
MZONDO JOB
MOLAPO (
N.O.
)
First Respondent
GENERAL PUBLIC
SERVICE
SECTORAL
BARRGAINING
COUNCIL
Second Respondent
THANDI MDLELA
Third Respondent
Heard
:
12 November 2015
Delivered
:
17 November 2015
Summary:
(Rescission – notice of set down – not
coming to attention of attorney – arbitrator misconstruing
evidence –
ruling one that no reasonable arbitrator could reach
on the evidence)
JUDGMENT
LAGRANGE
J
Introduction
[1]
This is an application to review and set
aside a rescission ruling, in the alternative, a review of the
original default award.
The review application was also late and an
application for condonation has been made.
[2]
There is also an application by the third
respondent for the late filing of her answering affidavit in the
review application. Further,
there is a rule 11 application brought
by the third respondent to dismiss the review application in view of
the time taken to finalise
the review. This mainly relates to the
review relating to the default arbitration award. In view of my
judgement relating to the
review of the rescission ruling, issues
relating to the review of the default arbitration award essentially
fall away.
Condonation
The
late review application
[3]
The rescission ruling was issued 17
September 2011 and the review and condonation applications were
launched simultaneously on 15
November 2011. The default arbitration
award had been issued on 28 October 2010.
[4]
It is obvious in relation to the review of
the default arbitration award as such, the period of delay is
extremely excessive, but
consideration of that only arises if it is
necessary for the court to entertain that application at all. The
primary application
to consider is the review of the rescission
ruling. In relation to that ruling, the review application was little
more than two
weeks late and there was no discernible prejudice
suffered by the third respondent in relation to that application. In
view of
the evaluation of the merits of the rescission application, I
am satisfied that on consideration of all the factors relevant to
condonation that, condonation for the late filing of the rescission
application should be granted.
[5]
Similarly, the third respondent’s
application for condonation for the late filing of her answering
affidavit, which is not
opposed should be granted.
Merits
of the rescission application
[6]
The general principles in evaluating
rescission applications are well-known:
“
[35]
The test for good cause in an application for rescission normally
involves
the consideration of at least two factors.
Firstly,
the explanation for the default and, secondly, whether the applicant
has a
prima facie
defence
. In Northern Province Local
Government Association v CCMA & other (2001) 22 ILJ 1173 (LC);
[2001] 5 BLLR 539
(LC) at 545 para 16 it was stated:
'An
applicant for the rescission of a default judgment must show good
cause and prove that he at no time denounced his defence,
and
that he has a serious intention of proceeding with the case.
In
order to show good cause an applicant must give a reasonable
explanation for his default, his explanation must be made
bona
fide
and he must show that he has a
bona fide
defence to the plaintiff's claims
.'
[36]
In MM Steel Construction CC v Steel Engineering & Allied Workers
Union of SA & others (1994) 15 ILJ 1310 (LAC) at 1311I-1312A
Nugent J had this to say:
'These
two essential elements ought nevertheless not to be assessed
mechanistically and in isolation.
While
the absence of one of them would usually be fatal, where they are
present they are to be weighed together with relevant factors
in
determining whether it should be fair and just to grant the
indulgence
.'
”
[1]
(emphasis
added)
[7]
In this case, the applicant had appointed
an attorney of record . The notice of set
down for the arbitration
on 28 October 2010 was sent to the parties
in September 2010. The applicant does not dispute receiving it, and
believes it gave
it to their attorneys of record. Mr Soldatos, who
was handling the matter said he did not see the notice of set down if
it was
received by him. According to the applicant’s account it
believed that the notice of set down had been included in a bundle
of
documents given to their attorneys. Soldatos does not deny that this
was the case, but did not see the notice himself. The undisputed
evidence was that Soldatos handled a number of matters for the
applicant at the time.
[8]
On 4 October 2010, the third respondent’s
attorney of record invited the applicant to attend a pre-arbitration
meeting on
27 October 2010. The proposed meeting would have taken
place the day before the scheduled arbitration, though the invitation
itself
made no reference to the arbitration date. The applicant’s
attorney’s response on 5 October, forwarded to the third
respondent’s attorneys via the applicant, was prompt but
somewhat noncommittal, stating: “We are in the process of
taking instructions from our client in this regard and shall revert
to you once we have had an opportunity of doing so.”
[9]
In fact, Soldatos was already committed to
appear in two other arbitration hearings on 28 and 29 October 2010 in
Cape Town both
held under the auspices of another bargaining Council.
Notices of set down in both these matters had also been sent out in
mid-September.
The second Cape Town hearing clashed with another
hearing convened by the second respondent, the GPSSBC, in which the
applicant
was also a party and was represented by Soldatos. On 5
October 2010, as a result of the conflicting engagements on 29
October 2010,
Soldatos sent the following email to Ms T Ramsumair,
the assistant to the applicant’s Director: Legal Services, Mr A
Singh,
which read:
“
Hi
Trisha
I
have received the Ruling in terms of which the disputes have been
consolidated and have noted that the Council has set this matter
down
for hearing on 29 October 2010.
Unfortunately
I am involved in a part-heard matter in Cape Town on that day and
under those circumstances I will not be in a position
to represent
the Department. I know that this is a particularly contentious issue
and this is an important matter requiring my
involvement.
Please
enquire if there is any way that the matter may be removed from the
roll on 29 October and perhaps enrolled for hearing in
the following
week, for example, 3, 4 or 5 November 2010. If this is not possible,
then perhaps we will have to be somebody else
to attend this matter,
but I am loathe to do so given all the considerations.
…”
According
to Soldatos, he was then instructed to apply for the postponement of
the applicant’s matter enrolled 29 October.
He claims that if
he had been aware of the third respondent’s matter set down the
day before, he would have also sought a
postponement of that.
[10]
On the day of the arbitration hearing in
this matter, Soldatos was in Cape Town attending to the first of the
other arbitration
proceedings set down there. Nobody appeared for the
applicant in the proceedings convened under the auspices of the
second respondent.
Soldatos said he only became aware of the clashing
hearings on 28 October during the lunch adjournment in his
proceedings in Cape
Town when he was contacted by his secretary to
tell him that the applicant’s legal service’s Department
had been trying
to get hold of him to find out why he was not at the
GPSSB hearing . At the hearing itself, the Commissioner contacted the
applicant
after 30 minutes and was advised that if the applicant’s
Legal Services section was dealing with the matter and was apparently
told that the applicant would get back to him “in five
minutes”. After waiting about 10 minutes after that call, he
started the arbitration. There is no indication that he made any
attempt to contact the applicant’s attorneys of record and
it
is very probable the arbitrator himself was unaware that attorneys
had been appointed since he contacted the applicant directly
and was
only advised that the applicant’s Legal Services section was
attending to the matter.
[11]
The reasoning of the arbitrator who made
the rescission ruling is very limited and appears to misconstrue the
nub of the applicant’s
reasons for not being represented at the
hearing. The arbitrator reasoned thus:
“
4.
The crux of this application is that the applicant seeks to have
default award that was made in their absence rescinded because
the
applicant’s assigned attorney of record Mr Ari Soldatos from
Fluxmans Inc had a heavy workload to attend to. The deponent
Mr
Soldatos raises two issues that I found wanting: firstly that
after receiving the notice of set down he was busy with
another case
which had a lot of paperwork applicant also thought that his
colleague attend to the matter. The applicant in this
matter did not
show that the award was erroneously made its absence.
5.
The Commissioner was satisfied that the applicant was served properly
with the notice, which the applicant admits. The applicant
seeks to
inconvenience both the council and the respondent in this matter by
expecting that its administrative defect should be
remedied by the
rescission of this award.
6.
It is my considered view that granting an application will not only
promote laxity in the Public Service but also defeat the
primary
person purpose of dispute resolution at the level of this Council. “
[12]
It is true that Soldatos may have taken on
too many matters and that may have contributed to him not seeing the
notice of set down.
However, there was no evidence that he thought a
colleague was attending to the matter as the arbitrator seems to have
assumed.
On the contrary, he did not think that the matter was
proceeding on the same day that he was in Cape Town. The arbitrator
completely
misconstrued the applicant’s explanation why it was
not represented on that occasion. As such, cannot be said that he
acted
reasonably in drawing the conclusions he had. Had he not
misconstrued the evidence and if he had considered the fact that
Soldatos
had clearly tried to make arrangements to postpone another
matter which clashed with one of his Cape Town hearings, he would
have
found it hard to conclude that Soldatos knowingly did not attend
the hearing on 29 October, or make an alternative arrangement for
someone else to do so. There is no evidence to suggest that the
applicant did not intend to defend itself against the claim.
[13]
In
the circumstances, I am satisfied that the rescission ruling should
be set aside. It is not necessary to consider in any detail
the
parties’ relative prospects of success save to say that if the
applicant is able to prove the allegations it makes against
the third
respondent, it should succeed in demonstrating that the applicant was
guilty of serious misconduct that might justify
her dismissal. I wish
to emphasise that this is not a finding based on the probabilities
but merely a consequence of applying the
attenuated test for
prospects of success in rescission applications, otherwise
characterised as having’ a
bona
fide
defence’.
[2]
Order
[14]
The third respondent’s late filing of
her answering affidavit in the review application is condoned.
[15]
The applicant’s late referral of its
review application in respect of the rescission ruling of the first
respondent dated
17 September 2011 under case number GPBC 2475-2010
is condoned and the rescission ruling is reviewed and set aside.
[16]
The first respondent’s rescission
ruling is substituted with a ruling rescinding the arbitration award
issued in favour of
the third respondent by panellist M J Malopo on
10 November 2010.
[17]
The third respondent’s unfair
dismissal claim is remitted to the second respondent for a hearing
de
novo
before an arbitrator other than
the first respondent or panellist M J Malopo.
[18]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
For The APPLICANT:
Z Z Matebese instructed by
Magaga Inc.
For The THIRD RESPONDENT:
B Joubert
[1]
Shoprite
Ch
eckers
(Pty) Ltd v Commission For Conciliation, Mediation & Arbitration
& others
(2007) 28
ILJ
2246 (LAC)
at 2257
[2]
See
MM
Steel Construction CC v Steel Engineering & Allied Workers Union
of SA & others (1994) 15
ILJ
1310 (LAC)
at
1312G-I.