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[2017] ZALCJHB 18
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National Union of Mineworkers and Others v Aluminium and Shades (Pty) Ltd t/a Procon Interios (JS01/12) [2017] ZALCJHB 18 (18 January 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
CASE No: JS 01/12
In
the matter between:
NATIONAL
UNION OF MINEWORKERS
First
Applicant
RATSHIMO
& 09 OTHERS
Second
to Further Applicants
and
ALUMINIUM
& SHADES (PTY) LTD
t/a
PROCON INTERIOS
Respondent
Heard:
18
January 2017
Delivered:
18
January 2017
Summary:
No proper service of statement of claim-
Application
for default judgment refused.
JUDGMENT
MABASO,
AJ:
Introduction:
[1]
On 22 January 2014, the Applicants brought an application for a
default judgment, as the Respondent had not, according to the
said
application, “…
giving
notice to oppose the referral having expired on the
18th
January 2012
,
[1]
”
as the referral was served on the Respondent on “…
the
5th January 2012
.
[2]
”
[3]
As this is an application for a default judgment, the subtle point
that has to be dealt with first, before dealing with the
merits of
the application, is that: was there a proper service of the referral
on the Respondent whom the dispute has been declared
against?
Background:
[2]
On 05 January 2012, the First Applicant (the union) and the Second to
Further Applicants (the employees) declared a dispute
against the
Respondent (the employer), claiming that the dismissals of the
employees by the employer based on operational
requirements were both
procedurally and substantively unfair and that this Court should
order the employer to reinstate, or alternatively
compensate all the
employees. Initiating this process, they filed, with the Registrar of
this Court, a notice of application which
was not accompanied by an
affidavit as required by the Rules of this Court,
[4]
however, attached thereto a statement of case,
[5]
which amongst other things, deals with the condonation application
without a prayer for such.
[6]
The condonation was necessitated by the fact that the dispute had
been launched, with the Registrar of this Court, outside the
90-day
period from the date on which the conciliation certificate was
issued.
[7]
[3]
Following the delivery of the default application, on 15 April 2014
Thlothlalemaje AJ (as he then was) issued,
[8]
in chambers, a directive (first order) on the following terms: “
The
Applicants are to file and serve statement of case on the Respondent
and to file affidavit in terms of proof of service.”
This
clearly directed the Applicants to do a two-fold task namely; to
serve the statement of case, and thereafter deliver an affidavit
of
service together with such statement of case to this Court.
[4]
Subsequent to the issuing of the first order, another directive
(second order) was issued by Molahlehi J, on 08 August
2014,
directing the Registrar to set the matter down for hearing as the
Applicants had not complied with the first order. The Registrar
swiftly paid heed to this order by setting the matter down before
Lallie J on 28 October 2014 and Ms
T
Mabetha
appeared for the Applicants thereof. The latter Court, upon
presumably realising that the Applicants had still not complied with
the first order, proceeded to give the Applicants a further
opportunity to correct this non-compliance by removing the matter
from the roll and ordered them to comply with the first order.
Mr
Modisane
who appeared for the Applicants confirmed that the Applicants
attorneys were made aware of these three orders.
[5]
On 11 February 2015, the Applicants filed an affidavit dated same,
deposed to by Ms Eugenia Penelope Machaba (Ms Machaba), an
employee
of the Applicant’s attorneys of record.
[9]
In this affidavit, Ms Machaba attached two annexures, marked EPM1 and
EPM2 respectively. The former is a fax transmission report
which
according to it, only two pages were successfully transmitted to
facsimile number 086 590 2979 on 05 January 2012 at
12:48, it
shows the face of a document titled “
notice
of application
”.
[10]
The latter annexure is a copy of an email sent by her to
ceilings@property-pro.co.za which is dated 18 January 2012. This
email states that:
“
Dear Anzel
Attached herein find a notice of
application of the abovementioned matter.
Kindly confirm
receipt.…”
[6]
Ms Machaba’s affidavit put the Applicants non-service issue on
the edge of the abyss, in that, among other things, states—
“
I served
THE
STATEMENT OF CLAIM WITH ANNEXURES
in
this matter on the Respondent’s by way of
telefaxing
it to the number
086 590
2979
on
18
th
day
of January 2012
at 14:22.”
As
this statement goes against the averment by Ms Machaba that the
service was done on 05 January 2012, as mentioned in the
preceding paragraph, which presumably guided the attorney who
prepared the notice of motion in support of the application before
me, that the service was effected on the latter date as stated in
paragraph 1 above.
[7]
The “EMP1” refers to the transmission report which
indicates that there are two pages that went through on 05 January
2012, therefore, this statement by Ms Machaba cannot be correct.
Ms Machaba in her affidavit further indicated that she had
a
conversation with one Anzel who provided her with an email address to
“…
which
I forwarded the documents faxed earlier the above application with
annexure by way of an email and attached hereto marked
EMP2.”.
If
this statement is accepted as being correct, it will mean that there
are only two pages that were transmitted via email to Anzel
taking
into account that “EMP1” reflects that two pages were
successfully transmitted.
[8]
Rule 4 of the Rules of this Court, in respect of service by fax,
provides that—
“
Service of
documents.—
(1)
A
document that is required to be served on any person may be served in
any one of the following ways, namely—
. . .
(a)
…
(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
—
. . .
(a)
by an affidavit by the person who effected service;
(b)
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
;…”
(Emphasis added)
[9]
Taking into account the proof of service that was delivered in this
matter, reflecting that only two pages were successfully
transmitted
as per annexure EMP1, I clearly understand why the three judges were
not satisfied with the manner of service that
had been effected on
the employer, which led to the three orders being issued. However, to
date, the Applicants have not complied
with the first order which
required that a proper service must be done. I am also not satisfied
that there was proper service taking
into account what I have stated
above.
Principles
and application thereof:
[10]
In deciding as to whether it will be proper to grant the default
application, despite this deficiency, I am guided by the following
instructive authorities.
[11]
Dr Harms (Civil Procedure: Superior Courts)
[11]
,
says:
“…
A
cornerstone of our legal system is that a person is entitled to
notice of the institution of proceedings against him or her. Legal
proceedings cannot, in general, commence unless the party against
whom relief is claimed (and any other party with an interest
in the
matter) is notified of the initiating process by means of service.
When proceedings have begun without any notice, the subsequent
proceedings are null and void and may be disregarded or set aside
at
the option of the other party.
However,
if the initiating document such as the summons was served
incorrectly, the subsequent proceedings are not void, but may
be
voided: the summons may be set aside as an irregular step although
the court may condone the irregularity
.”
(Footnotes omitted and emphasis added)
[12]
The Constitutional Court in the matter of
National
Union of Metalworkers of South Africa v Intervalve (Pty) Ltd and
Others,
[12]
where it was called upon to decide, amongst other things, the
non-referral of a matter to conciliation before escalated to the
Labour Court,
[13]
it said the
following, regarding the importance of service to an employer who is
a role player in a dismissal dispute:
“
In
determining the objectives of s 191, none of its provisions can be
ignored. They must all be taken into account. That includes
the
requirement in s 191(3) that the employee must satisfy the council
that a copy of the referral has been served ‘on the
employer’.
The general purpose of s 191 provides the background against which
the specific purpose of s 191(3) must be understood.
The subsection
ensures that the employer party to a dismissal or unfair labour
practice dispute is informed of the referral. The
obvious objective
is to enable the employer to participate in the conciliation
proceedings, and, if they fail, to gird itself for
the conflict that
may follow.
[14]
[13]
A delivery (both serving a Respondent and filing with the registrar),
is one of the requirements which determine if a court
has
jurisdiction or not. In line with the abovementioned
dictum
in
Intervalve
,
I conclude that without proper service this Court cannot grant the
Applicant the default application sought, as this would prejudice
the
Respondent who is not before this Court. This is because it is
clear that the Respondent was not served with the papers,
meaning it
will go against the principle elucidated by Dr Harms above, which is
“
A
cornerstone of our legal system”
.
And the defect herein cannot be cured by any application, today,
except by a proper service accompanied by a condonation application,
as the aforesaid non-compliance touches the issue of jurisdiction of
this Court to hear this matter. I, therefore, opine that under
these
circumstances I cannot grant the application before me. Considering
that the dismissal of the employees took place on 17
August 2011,
which is more than 6 years ago,
[15]
but still the fairness of the dismissal has not been dealt with and
this defeats the purpose of the
Labour Relations Act 66 of 1995
.
[16]
Order
[14]
I, therefore, conclude that the following order will be proper:
(a)
That
the application for the default judgment is refused;
(b)
The
Applicants are ordered to comply with the directive of this court
issued on 15 April 2014, by serving and filing the statement
of
claim, and this must be done by no later than 01 February 2017;
(c)
The
Applicants are further directed to deliver a condonation application
for late delivery thereof.
(d)
In
case the Applicants fail to comply with orders (b) and (c) above, the
statement of case and the notice of application dated 05
January 2012
shall be deemed to be dismissed.
(e)
No
order as to costs.
_______________________
S
Mabaso
Acting
Judge of the Labour Court of South Africa
APPEARANCES
For
the Applicants:
Mr TT Modisane
Instructed
by:
Finger Phukubje Inc Attorneys
For
the Respondent:
No appearance
[1]
Court underlining.
[2]
Court underlining.
[3]
Pleadings at page
45.
[4]
Rule 7(3)
of the
Rules.
[5]
Rule 6(1)
of the
Rules.
[6]
The Labour Appeal
Court in the matter of
HSL
RANI V TELKOM LIMITED
,
JA91/10, decided on 05
September
2012. In deciding on an issue of condonation where a statement of
case had been delivered late, it held as follows,
regarding manner
in which condonation should be brought in this court: “
there
must be a prayer
to
that effect in
some
application
”.
(Emphasis added)
[7]
In terms of the
provisions of
section 191
(11) (b) of the
Labour Relations Act 66 of
1995
, read with
Rule 12
of the Rules of the Conduct of Proceedings
in the Labour Court.
Section 191
(11) provides:
“
(a)
The referral, in terms of subsection (5) (b), of a dispute to the
Labour Court for adjudication,
must be made within 90 days after the
council or (as the case may be) the commissioner has certified that
the dispute remains
unresolved.
(b)
However, the Labour Court may condone non-observance of that
time-frame on good
cause shown.”
Rule
12
provides is entitled “Extension of time limits and
condonation” and provides:
“
(1)
The court may extent or abridge any period prescribed by these rules
on application, and
on good cause shown, unless the court is
precluded from doing so by an Act.
(2)
If a party fails to comply with any notice or direction given in
terms of these
rules, any interested party may apply on notice for
an order that the notice or direction be complied with within a
period that
may be specified, and that failing compliance with the
order, the party in default will not be entitled to any relief in
the
proceedings.
(3)
The court may, on good cause shown, condone non-compliance with any
period prescribed
by these rules.”
[8]
Rule 4(3)
of the
Rules of this Court provides that—
“
if
the court is not satisfied that service has taken place in
accordance with this rule, it may make any order to service that
it
deems fit.”
[9]
Above n 3 at page
41.
[10]
The same document
mentioned in paragraph 2 above.
[11]
LAWSA, 3
rd
Ed, vol 4, LexisNexis, 2012 at para 94.
[12]
[2014] ZACC 35
;
2015 (2) BCLR 182
(CC);
[2015] 3 BLLR 205
(CC); (2015) 36 ILJ 363
(CC).
[13]
Id at para 1.
[14]
Id at para 47.
[15]
Pleadings at page
6.
[16]
Toyota SA Motors
(Pty) Ltd v Commission for Conciliation, Mediation and Arbitration &
Others (2016) 37 ILJ 313 (CC) at para
1.