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[2015] ZALCJHB 453
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IDWU obo Mputi v CCMA and Others (JR2848/2010) [2015] ZALCJHB 453 (4 December 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
Case
no.: JR 2848/2010
In
the matter between
IDWU
obo MPUTI
BIBBY
Applicant
And
CCMA
First
Respondent
MXOLISI
MANTSHULE
Second
Respondent
SHUMBA
VALLEY
LODGE
Third
Respondent
Heard:
1 December 2015
Delivered:
4 December 2015
JUDGMENT
VAN
NIEKERK J
[1] This
matter has a long and sorry history. On 10 October 2010, the second
respondent (the commissioner) had issued a jurisdictional
ruling in
which he held that the first respondent, the CCMA, had no
jurisdiction to entertain an unfair dismissal dispute referred
by the
applicant on 7 September 2010. The basis for the ruling was that the
applicant had concluded an agreement with the third
respondent in
terms of which she had settled the dispute between them and in
effect, waived any right to refer a dispute to the
CCMA. On or
about 15 October 2010, the applicant filed an application to review
and set aside a settlement agreement concluded
on 30 August 2010. The
case then made was that despite the wording of the agreement, which
indicated a full and final settlement,
the agreement was signed on
the basis of ‘justus error’ (sic). It is on some
significance that the applicant sought
to review was the settlement
agreement, and not the commissioner’s ruling.
[2] On 8
July 2013, the applicant filed a notice of representation in terms of
which she advised that she had joined the United
Chemical Industries,
Mining, Electrical, State, Health and Aligned Workers Union and that
service of all documents would be accepted
at the union’s
address. There is no proof of service of that notice on the third
respondent, but the fax number indicated
on the document is 011 572
1565. That telephone number is incorrect – documents in
relation to the CCMA hearing had been
sent to 086 572 1565. I have no
doubt that the third respondent did not receive the notice indicating
the change of representative,
or the change in address for service.
[3]
Not much appears to have transpired until 4 December 2013 when this
court issued an order to the effect that since the CCMA
and the
commissioner had not been cited as respondents the matter ought to be
removed from the roll to enable the applicant to
file an amended
application to review and set aside the commissioner’s ruling.
The notice of set down in respect of those
proceedings was addressed
to fax number 011 572 1565, the incorrect number.
[4] On 14
January 2014 the applicant filed an amended application in which he
sought to have the commissioner’s ruling reviewed
and set
aside, the dismissal of the applicant to be declared unfair, payment
of compensation in a maximum amount, and costs. During
the course of
the present hearing, Mr Ngubane, who appeared for the applicant,
conceded that only the first and the last of these
prayers were
competent.
[5] I
raised with Mr. Ngubane the issue of the service of the application.
He drew to my attention a service affidavit and copies
of telefax
transmission reports. The telefax transmission reports indicate that
six pages were telefaxed to the destination noted
only as ‘Andy
young’ at 15:41 on 3 August 2014. Mr Ngubane submitted that Mr
Young was the general manager of the third
respondent and that the
telefax had been addressed to him in that capacity. The second fax
transmission indicates what appears
to be service on the CCMA at
14:09 on 17 June 2014. The transmissions are obviously generated by
different telefax machines. In
the affidavit filed in terms of rule
4(2) (b) in support of proof of service, the deponent, Mr Ngubane,
avers that he served the
notice of motion (the reference to
affidavits and annexures has been struck out of the pro forma
affidavit) at 15:45 on 3 August
2014. He avers further that the fax
was sent to fax number 0865721565 and that Mr Young personally
confirmed receipt of the entire
transmission on the same date.
[6] The
affidavit filed in support of service was commissioned on 24 July
2014, 10 days before the day on which the documents were
said to have
been served. When this anomaly was put to Mr Ngubane, he had no
explanation as to how he had come to sign an affidavit
in these
circumstances. Mr Ngubane could also not explain why the application
had been served on the respondent parties six months
and more after
the application was filed in this court. The Rules of this court
require that an application be served on all parties
prior to filing
(see rule 4).
[7] There
is a further issue in relation to service that is of some concern. On
11 June 2011, the third respondent’s representative,
an
employers’ organisation, had addressed a letter to the
applicant’s then union requesting that all papers in the
matter
should be addressed to the employers’ organisation at PO Box
102 Modderfontein 1645. None of the papers served by
the applicant
have been served on that address.
[8] I put
to Mr Ngubane that in all probability, these proceedings had been
conducted in the absence of any proper service on the
third
respondent and that it was unlikely that the third respondent was
aware of them. I did not understand Mr Ngubane seriously
to contest
this proposition.
[9] Rule
7 requires an application to be brought in substantial compliance
with the provided form on notice to all persons interested
in the
application. The rule also requires the application to be delivered.
The definition of deliver in rule 1 contemplates that
the applicant
serve the application on other parties and file it with the
registrar. In the present instance, the application was
clearly not
brought on notice to all parties who have an interest in the in the
application, nor was it served on those parties
before it was filed
with the registrar.
[10] In
Mbatha v Lyster NO & others
[2000] 7 BLLR 795
(LC), Basson
J said the following:
[19]
If the application is not duly filed with the Registrar and is merely
served, such an application is inherently defective.
The same
principle has to apply where an application is merely filed but not
served on the other parties. An application is for
the same reason
inherently defective as it is not “delivered” as is
required by the Rules. Furthermore, it is clear
that such application
is not brought “on notice” as is required in terms of the
provisions of section 33 (1) of the
Arbitration Act and, more
importantly, rule 7 (1) of the Rules of this court.
[20]
The logic behind these rules and statutory provisions,
it must be
reiterated, is to bring finality to and to expedite arbitration
proceedings…
[11] The
application is accordingly inherently defective on account first of
the applicant’s failure to effect proper service
and filing of
the amended notice of motion and supporting affidavit and secondly,
on account of the applicant’s failure to
provide proper proof
of service of the application. In this regard, I make no specific
finding of impropriety in relation to dating
of the affidavit
proffered in support of proof of service, it is sufficient for
present purposes to find that the affidavit does
not constitute proof
of service of the application by telefax, nor does it constitute
proof of any confirmation of receipt of the
telefax by any
representative of the respondent.
[12]
There is a further reason why the application stands to be dismissed,
one related to the statutory purpose of expeditious dispute
resolution alluded to by Basson J. This matter has its roots in a
dismissal that occurred in August 2010, more than five years
ago. The
Practice Manual notes that review applications are by their very
nature urgent, and ought to be pursued with due diligence.
The manner
in which the present application has been handled displays nothing
less than a profound ineptness and a manifest failure
to prosecute
the proceedings with due diligence.
For the
above reasons, I make the following order:
1.
The application is dismissed.
ANDRÉ
VAN NIEKERK
JUDGE OF THE LABOUR
COURT
APPEARANCES
For the
Applicant: Union Official