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[2015] ZALCCT 9
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Venter v Commission for Conciliation Mediation And Arbitration and Others (C34/2014) [2015] ZALCCT 9 (5 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C34/2014
DATE:
05 FEBRUARY 2015
Not
Reportable
In
the matter between:
HEIN
VENTER
................................................................................................
Applicant
And
THE
CONCILIATION FOR CONCILIATION
MEDIATION
AND ARBITRATION
................................................
First
Respondent
COLIN
RANI
N.O
.........................................................................
Second
Respondent
CEB
MAINTENANCE AFRICA (PTY) LTD
...............................
Third
Respondent
Date
heard: 7 October 2014
Delivered:
5 February 2015
JUDGMENT
RABKIN-NAICKER
J
[1]
This is an opposed application to review a rescission ruling made by
the second respondent (the Commissioner) in which an application
for
rescission in terms of section 144 of the LRA was refused.
[2]
The arbitrator issued a dismissal ruling on 18 October 2013 due to
the non-attendance of the applicant at arbitration proceedings.
On 31
October 2013, the applicant brought an application in terms of
section 144 (a) of the LRA and such application was decided
on the
basis of a founding affidavit by the applicant and an opposing
affidavit on behalf of the third respondent (the company).
[3]
The arbitrator records as follows in respect of the rescission
application:
“
5.
The applicant applied for postponement of the arbitration hearing on
14 October 2013. The reason for the request for postponement
was that
he had recently obtained a new job, and he had to attend training in
order to be eligible for an employment contract.
6.
The CCMA refused the application for the postponement on the ground
that obtaining a new job was not an exceptional reason for
granting
postponement. The applicant was advised to attend the arbitration as
scheduled on 18 October 2013.
7.
The applicant did not attend the hearing on 18 October 2013. His
representative, Mr. Zaheer Parker reported that the applicant
obtained a new job, and he had to attend training. Mr. Zaheer
reported that the applicant did not give him a mandate to settle
the
case. He asked for postponement.”
[4]
The reasons given for the refusal to rescind the ruling are set out
by the Commissioner. He records that because the applicant
had been
informed by the CCMA that it did not regard the reason for the
request for postponement as “exceptional”,
and that on
the 18 October 2013 the same reasons forwarded to the CCMA on 14
October 2013 were repeated by applicant’s legal
representative:
“The postponement was denied for the same reason i.e. obtaining
a new job and attending a training was not
an exceptional reason to
for granting postponement.” (sic)
[5]
On the question as to whether the applicant was in wilful default of
the arbitration proceedings, the Commissioner stated that:
“
His
representative also alerted him that the CCMA grant postponement on
exceptional circumstances. Even though the CCMA made him
aware that
his reason for asking for postponement was not exceptional, the
applicant decided not to attend the arbitration proceedings.
I find
the applicant was in willful default of the arbitration proceedings.
”
[5]
In respect of the prospects of success should the arbitration
proceedings be allowed to proceed, the arbitrator records that:
“
28.
The applicant submitted that he has good prospects of success because
he was charged with fourteen counts of misconduct and
found guilty on
seven counts. He said that there was no valid reason for his
dismissal. The respondent disputed this. The respondent
submitted
that the applicant’s dismissal was procedurally and
substantively fair. The applicant failed to show a prime facie
case
in the sense that he has a winnable case. The mere denial of charges
is not enough. I find that the applicant has no prospects
of success.
The applicant is currently employed. Therefore, he will not be
prejudiced. The CCMA gave him an opportunity to present
his case, but
he elected not to do so.”
[6]
The applicant submits in his founding affidavit that the arbitrator’s
findings in relation to his willful default are
irrational and
unjustifiable in relation to the material properly before him.
Further, that the Commissioner exceeded his powers
and committed a
gross irregularity by taking irrelevant considerations into account
and ignored relevant ones. In particular, in
that he concluded that
the application for rescission was not merited because the new
employment and training was not an exceptional
circumstance. A
further issue raised by the applicant is that the arbitrator failed
to grasp the contents of the applicant’s
affidavit in the
rescission application. According to the applicant, the Commissioner
also erred in finding that the applicant
would not be prejudiced
because he had found alternative employment.
[7]
In his supplementary affidavit, applicant submits that the
Commissioner made an error of law by not properly applying section
144 of the LRA. The contents of the supplementary affidavit are in
fact merely a repetition of the review grounds in the founding
papers
and although they cover some 15 pages, take the applicant’s
case no further.
[8]
In
Shoprite
Checkers (Pty) Ltd v Commission for Conciliation, Mediation &
Arbitration & others
[1]
,
a case referred to by the Commissioner, the LAC held that:
“
[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.'”
[9] A look at the
record shows that the notice of set down for the arbitration was
dated 26 September 2013. The Acting Senior Commissioner
of the CCMA
Western Cape informed the applicant on the 15 October 2013 that he
was duty-bound to attend the hearing. This was in
reply to a letter
from the applicant’s attorney, dated 14 October 2013, which
stated that:
“
Our
client advises that he has recently obtained another source of
employment and it requires him to be sent on training, failing
which
he will not be eligible for the contract. Commencement date was 11
October 2013 and thus he apologizes for the lateness of
his request,
but he was attending to finalizing the details of his employment. The
training has in fact already commenced and will
conclude in three
weeks’ time on the 1 November 2013. Client cannot take leave
during the training period as it would jeopardize
his chances of
securing the contract.”
[10] In
Maujean
t/a Audio Video Agencies v Standard Bank of SA Ltd
[2]
King J (as he then was) considered the meaning of the word 'wilful'
in the context of a default judgment, and held that it connoted
deliberateness in the sense of knowledge of the action and of its
legal consequences, and a conscious and freely taken decision
to
refrain from giving notice of intention to defend, whatever the
motivation for this conduct might be.
[3]
In this matter, the applicant was guided by legal advice and must
have known the legal consequence of his non-appearance. The
arbitrator’s finding that the default was willful was correct,
based on the facts of the matter and on the law. In addition
he was
mindful of the principle that exceptional circumstances should be
present when a Commissioner grants a postponement
[4]
.
[11] The
applicant elected not to attend the arbitration rather than ask for
leave from his training to do so. The outcome of the
ruling certainly
does not fall into the category of one which a reasonable
decision-maker could not make. In the result the application
must
fail. I make the following order, bearing in mind that the applicant
is an individual litigant and I do not consider a costs
order
appropriate:
Order
1. The review
application is dismissed.
H.
Rabkin-Naicker
Judge
of the Labour Court
Applicant:
Zaheer Parker Attorneys
Third
Respondent: Snyman Attorneys
[1]
(2007) 28 ILJ 2246 (LAC)
[2]
1994 (3) SA 801 (C)
[3]
@ 803H-I
[4]
Carephone (Pty) Ltd v Marcus NO & others
[1998] 8 BLLR 872
(LC)