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[2017] ZALCJHB 20
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Mpahlele v Muswede (JS173/14) [2017] ZALCJHB 20 (25 January 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case
no: JS173/14
DR
TSHEBO MPHAHLELE
First
Applicant
KHATHU
PHUNGU
Second
Applicant
and
ROFHIWA MUSWEDE
Respondent
Heard:
4 April 2016
Delivered:
25 January 2017
Summary:
Rescission of judgment or order in terms of Rule 16A of the Labour
Court Rules – application for default judgment
– failure
to record condonation having been granted in the order (in respect of
the late filing of the statement of claim)
– failure does not
amount to an erroneously granted order in terms of Rule 16A(1)(a)(i).
Service
of statement of claim and application for default judgment by
registered mail – Applicants denying receipt of all
documents –
proof of collection of documents – absence of a
bona
fide
explanation and failure to show good cause – application
dismissed with costs.
JUDGMENT
HOWES,
AJ
Introduction
[1]
This
is an application for the rescission and setting aside of the Court
Order (the order) granted in chambers by Molahlehi, J on
8 August 2014, wherein the dismissal of the Respondent was
held to be automatically unfair in terms of s187(1) of the
Labour
Relations Act
[1]
and the
Applicants were ordered to compensate the Respondent in the amount
equivalent to 24 (twenty-four) months’ salary,
calculated at
the Respondent’s salary as at the date of her dismissal
(R3000.00 per month). There was no order as to costs.
[2]
The
application is opposed by the Respondent.
Background
facts
[3]
The
Respondent commenced employment with the First Applicant, a medical
practitioner, and the Second Applicant, a pharmacist on
1 July 2012.
She rendered services in the capacity as a cleaner/assistant/general
worker at Shop 11 Hertford Junction Centre, Malibongwe
Drive,
Lanseria, which is the location of the First and Second Applicants’
practice.
[4]
The
facts surrounding the termination of the Respondent’s services
are in dispute.
[5]
The
Respondent’s version is that in late October/early November
2012 she advised the First and Second Applicants that she
was
pregnant. In mid-February 2013, the Applicants advised the Respondent
not to continue any further services as a result of her
pregnancy and
that she should return to work on 1 August 2013, after the birth of
her baby. The Respondent’s baby was born
on 13 April 2013. The
Respondent sent both the First and Second Applicant a sms message to
let them know that she had given birth
to her baby. A congratulatory
sms was sent to her from the Second Applicant. The Respondent
reported to work on 1 August 2013
following her maternity leave.
Upon her arrival, she was advised by the First and Second Applicants
that they had in fact employed
someone else in her position.
[6]
The
version of the First and Second Applicant is that the Respondent
absconded from the workplace in mid-February 2013 and only
returned
on 1 August 2013. They in fact attempted to contact the
Respondent telephonically to ascertain her whereabouts,
however, they
were unsuccessful in doing so and as such, they employed someone
else. They deny that they unfairly terminated the
Respondent’s
services.
[7]
On
17 October 2013, the Respondent referred an unfair dismissal dispute
to the Commission for Conciliation Mediation and Arbitration
(the
CCMA). Her referral was accompanied by an application for condonation
in respect of the late filing of her referral. The condonation
hearing was set down for 7 November 2013 and both parties
were present at the CCMA.
[8]
On
19 November 2013, the CCMA handed down the condonation ruling issued
by Commissioner JSC Nkosi. Paragraph 4.2 of the condonation
ruling
[2]
records:
“
It is
submitted by the respondent [the Applicants in the rescission
application] that the applicant [the Respondent in the rescission
application] was employed as a casual appointed on a need basis. It
is further submitted that they indeed told her to stop working
and go
to maternity. It is agreed that upon her return there was someone
else employed.”
[9]
The
ruling further records that: ‘
The
applicant has strong prospects of success as the respondent makes
concessions.’
[3]
Condonation was accordingly granted and Commissioner JSC Nkosi ruled
that a certificate of non-resolution should be issued by the
CCMA and
further that the matter may be referred to the Labour Court.
[10]
It
appears that the Respondent was unaware of the fact that she was
required to refer the matter to the Labour Court for adjudication
and
erroneously referred the matter to the CCMA for arbitration. The CCMA
processed the referral forms and the arbitration was
set down for
28 January 2014.
[11]
Both
of the Applicants failed to attend at the CCMA for arbitration.
Commissioner Bongani Khumalo of the CCMA issued a jurisdictional
ruling on or about 3 February 2014 finding
inter
alia
that
the CCMA grossly erred when it set down the matter for arbitration
despite the previous Commissioner’s ruling that the
dispute was
to be referred to the Labour Court.
[4]
[12]
On
or about 5 March 2014, the Respondent served a copy of her statement
of case together with her application for condonation on
the First
and Second Applicants per registered mail and thereafter filed the
original documents together with proof of service
with the Honourable
Court.
[13]
The
Applicants failed to file a reply to the Respondent’s statement
of case within the ten-day period provided for by Rule
6 of the
Labour Court Rules. The Respondent accordingly brought an application
for default judgment on or about 1 April 2014.
The
Respondent served the application for default judgment on the
Applicants per registered mail and thereafter she filed the
application together with proof of service with the Labour Court.
[14]
The
Applicants failed to file any opposition to the application for
default judgment and on 8 August 2014, the Molahlehi, J issued
an
order in chambers finding
inter
alia
that the dismissal of the Respondent amounted to an automatically
unfair dismissal in terms of s187(1) of the LRA and that the
First
and Second Applicants were to pay the Respondent an amount equivalent
to twenty-four months’ compensation.
[15]
On
or about 3 October 2014, the Respondent personally hand delivered a
copy of the order to the Applicants at their premises. In
response
thereto, on or about 24
October
2014 the Applicants filed an application for the rescission and
setting aside of the the order, which the Respondent opposed.
[16]
The
Applicants application for rescission was set down for hearing on
15 February 2016 however the Applicants’ representative,
Advocate Makhubele sought a postponement and tendered costs in favour
of the Respondent. Advocate Makhubele submitted that he had
not
received necessary instructions to argue the matter on the merits due
to a partnership dispute between the First and Second
Applicants. The
Respondent’s representative, Mr Frahm-Arp consented to the
application for postponement with costs. Both
parties confirmed their
availability to argue the said application on 4 April 2016 and
Advocate Makhubele was cautioned to advise
his clients that further
postponements would not be entertained.
[17]
The
Applicants together with their legal representative failed to make an
appearance in court on the agreed set down date, that
being
4 April 2016. Despite the absence of the Applicant’s,
the court heard legal argument from the Respondent’s
representative, Mr Frahm-Arp and judgment was reserved.
The
Applicants application for rescission
[18]
The
Applicants record that their rescission application is brought in
terms of Rule 16A. The exact subsection or subsections of
Rule 16A
upon which they rely are not referred to. Despite this failure, it
appears that the first ground of rescission relied
upon by the
Applicants is an application in terms of Rule 16A(1)(a)(i).
[19]
The
Applicants record that they—
“…
seek
the rescission of the judgment on the basis that it was erroneously
granted in the absence of the applicants and that there
as [sic] an
obvious error as contemplated in Rule 16A of the Rules for the
conduct of proceedings in the labour court.”
[5]
They
further submit that—
“…
the
order was erroneously sought, alternatively, erroneously granted as
it is clear from the order that the employees condonation
application
for the late filing of the statement of case was not granted.”
[6]
[20]
Furthermore,
the Applicants appear to rely on Rule 16A(1)(b) as they submit that—
“
the court
order was granted in the absence of the applicants as they were not
aware that the employee had referred an automatically
unfair
dismissal dispute to this honourable court and further that we [the
Applicants] did not receive any documents/pleadings
from the
registrar of the labour court. I further submit that we did not
receive the notice of set down in this matter.”
[7]
The
Applicants submit that—
“
a case has
been made out for the rescission of judgment and that the applicants
should not be prejudiced as they were not in wilful
default and there
are reasonable prospects of successfully opposing the employee’s
claim of automatic unfair dismissal in
that the employee was not
dismissed but she absconded or went awol.”
[8]
[21]
Accordingly,
this rescission is brought in terms of Rule 16A(1)(a)(i) and in the
alternative, Rule 16A(1)(b).
The
applicable legal principles
[22]
Section
165 of the LRA read together with Rule 16A of the Labour Court Rules
governs the variation and rescission of judgments and
orders of the
Labour Court. An affected party may apply for the variation or
rescission of an order or judgment of the Labour Court,
which was
granted in the absence of any party affected.
[23]
Rule
16A of the Labour Court Rules states:
“
(1)
The court may, in addition to any other powers it may have—
(a)
of its own motion or on application of any party affected, rescind or
vary any order
or judgment—
(i)
erroneously
sought or erroneously granted in the absence of any party affected by
it;
(ii)
in
which there is an ambiguity or a patent error or omission, but only
to the extent of such ambiguity, error or omission;
(iii)
granted
as the result of a mistake common to the parties, or
(b)
on application of any party affected, rescind any order or judgment
granted in the
absence of that party.
(2)
Any party desiring any relief under—
(a)
subrule 1
(a)
must
apply for it on notice to all parties whose interests may be affected
by the relief sought.
(b)
subrule 1
(b)
may
within 15 days after acquiring knowledge of an order or judgment
granted in the absence of that party apply on notice to all
interested parties to set aside the order or judgment and the court
may, upon good cause shown, set aside the order or judgment
on such
terms as it deems fit.”
[24]
As
the Applicants appear to bring this application in terms of Rule
16A(1)(a)(i) and in the alternative Rule 16A(1)(b), it is necessary
to record that there are distinctions between the two sub-sections
and the requirements for the two sub sections are also
different.
[25]
In
terms of Rule 16A(1)(a)(i), where the Applicants successfully show
that the order was granted in error in their absence, they
are not
required to show good cause. Whereas Rule 16A(1)(b) requires the
Applicants to show good cause, in order to succeed.
[26]
In
Bayete
Security Holdings v Mokgadi & Others
,
[9]
the Labour Court distinguished between Rule 16A(1)(a) and Rule
16A(1)(b). According to the Court, Rule 16A distinguishes between
judgments erroneously granted in the absence of a party (e.g. where
notice was not given to a party) and judgments granted in the
absence
of a party other than erroneously (e.g. where notice had been
properly given but the party was nevertheless absent). In
the first
situation, there is no need to show good cause and there are no time
limits, whereas, in the second situation, good cause
must be shown
and the application must be brought within the prescribed time
limit.
[10]
[27]
In
dealing with the distinctions between Rule 16A(1)(a) and Rule
16A(1)(b) Gush, J in
SA
Revenue Services v Mhlongo: In re: Mhlongo v SA Revenue Services
[11]
referred to the case of
Griekwaland
Wes Koöperatief v Sheriff, Hartswater and Others: In re Sheriff,
Hartswater and Others v Monanda Landbou Dienste
[12]
,
and held that:
“
The
requirements for filing an application under any of these rules are
different. In terms of rule 16 A(1)(b) read with rule 16A(2)(b),
an
application to rescind or vary an order or a judgment must be brought
within 15 days. The 15-day requirement does not apply
to both rule
16A(1)(a) and the common law. See
Edgars
Consolidated Stores Ltd v Dinat & others
(2006) 27 ILJ 2356 (LC). The other difference between the two rules
is that, whilst rule 16A(1)(b) requires an applicant to provide
a
reasonable explanation for his or her default, this requirement does
not apply to an application in terms of rule 16 A(1)(a).”
(Footnotes omitted)
Rescission
in terms of Rule 16A(1)(a)(i) – erroneously granted court order
[28]
The
essence of the Applicants’ argument is that the Honourable
Court erroneously granted the order in the Applicants absence
as
Molahlehi, J failed to deal with the Respondent’s condonation
application (in respect of the late filing of the statement
of claim)
and in doing so, he erroneously granted the order in the Applicants’
absence.
[29]
The
Applicants further complain that the Labour Court failed to issue a
set down notice for the hearing of the default judgment.
[30]
In
the event that the Applicants successfully convince this Court that
the order was erroneously granted in terms of Rule 16A(1)(a),
this
Court must grant the rescission application. The Applicants do not
have to show good cause nor do they have to provide a reasonable
explanation for the delay.
[31]
The
provisions of Rule 16A(1)(a) of the Rules of the Labour Court are
similar to Rule 42(1)(a) of the High Court Rules.
[32]
The
High Court, in dealing with the application for rescission under Rule
42(1) of the Rules of the High Court in
Transport
and General Workers Union and Others v Kempton City Syndicate and
Another
[13]
held that—
“
If a court
holds that an order or judgment was erroneously granted in the
absence of any party affected thereby it should, in terms
of rule
42(1)(a), without further enquiry, rescind or vary the order.”
[33]
Accordingly,
the fundamental question before this Court is whether the order was
in fact erroneously granted as a result of Molahlehi,
J’s
failure to specifically record in the order that he had granted
condonation prior to granting default judgment and awarding
compensation.
[34]
Factually,
the Applicants are correct. The order itself does not reflect the
specific wording that condonation was granted.
[35]
It
is my view however that the failure by Molahlehi, J to specifically
record the granting of condonation, does not amount to the
order
being “erroneously granted in the absence of any party”.
[36]
The
rationale for my finding stems from the test or enquiry that the
Court is required to undertake when assessing whether an order
or
judgment was erroneously made or granted. The test or enquiry to be
undertaken is reflected in
Beveral
Investment T/A KFC v Fraser and Another
,
[14]
“
The enquiry which the Court has
to conduct in determining whether the order or judgment which is the
subject of the rescission application
was erroneously made,
essentially entails investigating whether there existed a fact, at
the time the order or judgment was made,
which the Court was not
aware of and that had it been aware it would not have made the order
as it did.”
[37]
This
enquiry was further also supported in
The
Department of Correctional Services v Abel Montgomery Baloyi
[15]
In this
matter, Molahlehi, J found:
“
It is now well established in
our law that a litigant affected by a judgment/or order granted in
default can have such an [sic]
judgment/or order rescinded on the
basis of showing that it was granted erroneously or by showing good
cause for the default. In
this respect the court has a discretion
[to] rescind a judgment/or order erroneously granted or sought in the
absence of an affected
party. The order or judgment will also be
erroneously granted if it is shown that there was an irregularity in
the proceedings
or that the court did not have the competency to
grant the order or judgment. The authorities are in agreement that
there is no
need to show good case [sic] where it has been shown that
the default judgment was erroneously sought or granted.
It
has also generally been accepted that a judgment is erroneously
granted if, at the time of granting it, there existed facts which
the
Court had not been aware of and that had it been aware, it would not
have granted the judgment or the order.
”
[Emphasis added and footnote omitted].
[38]
As
such, when investigating whether there existed a fact, at the time
that the order was made, which the Court was not aware of
and that
had it been aware of, it would not have made the order as it did, I
do not arrive at a different outcome to that of
Molahlehi
J.
[39]
In
this case, the ‘fact’ alleged to not have been considered
resulting in the ‘erroneous’ granting of the
order, is
the failure to specifically record that condonation had been granted.
It is submitted by the Applicants that had the
Labour Court been
aware of this ‘fact’ (i.e. the condonation application)
at the time that it was considering the matter,
it would not have
granted the order.
[40]
Having
considered the condonation application and the merits thereof, and
having weighed the facts and submissions against the test
for
condonation, in my opinion, there is no doubt that the Labour Court
would have granted condonation. The Respondent provided
a substantive
explanation for her delay, and the CCMA took substantial
accountability for the Respondent’s referral having
been
delayed as a result of the CCMA entertaining the same. Commissioner
Bongani Khumalo of the CCMA found
inter
alia
that
the CCMA grossly erred when it set down the Respondent’s matter
for arbitration as the dispute was to be referred to
the Labour
Court.
[41]
Furthermore,
the Respondent timeously referred her dispute to the CCMA for
arbitration. Had the Respondent been aware that she was
required to
refer the matter to the Labour Court, it is unlikely that she would
have been required to apply for condonation at
all.
[42]
In
addition, the Respondent’s prospects of success and the
considerations relating to prejudice, weigh heavily in the
Respondent’s
favour. The delay in referring this matter to the
Labour Court was not excessive when considering the reason for the
delay.
[43]
The
Respondent’s statement of claim was not opposed and her
application for condonation was not opposed. Proof of service
on the
Applicants via registered mail together with proof of the collection
receipt from the South African Post Office was attached
to this
application by the Respondent.
[44]
In
addition, despite the order not specifically recording that
condonation had been granted, from the wording of the order, namely
that— “
Having
read the documents and considered the matter”
,
such wording may be interpreted positively to include the
understanding that Molahlehi, J did in fact read and consider all of
the documents filed by the Respondent, (as opposed to just the
statement of claim argued by the Respondents) and in doing so,
proceeded to deal with the merits, particularly since the matter was
unopposed.
[45]
In
so far as the Applicants complain that the Labour Court failed to
serve a notice of set down on them prior to the hearing of
the
default judgment, there is no merit to this argument. The Labour
Court is not required to serve a notice of set down on the
Applicants
recording the date and time for the hearing of a default judgment.
[46]
When
the facts are assessed against the test for the erroneous granting of
the order, had the Court been aware of the existence
of the
condonation application, I do believe that it would have granted the
order. Further, it is my view that given the obvious
finding that
condonation would have been granted (when assessed against the test
for condonation) and the fact that the matter
was unopposed, there
was no need to specifically record the granting of condonation in the
order.
[47]
I am
of the view that the Labour Court would have granted condonation and
accordingly, default judgment would have been granted.
The Applicants
therefore fail to succeed with their application for rescission on
the basis of Rule 16A(1)(i).
Rescission
in terms of Rule 16A(1)(b)
[48]
The
Applicants submit that in the event that the Labour Court is not
persuaded that Rule 16A(1)(a)(i) has been satisfied, then in
the
alternative, they submit that the Labour Court should grant their
rescission application on the basis of Rule 16A(1)(b), as
the order
was granted in the absence of the Applicants.
[49]
In
terms of Rule 16A(1)(b), the Applicants are required to file their
rescission application within a 15-day time period and in
addition,
the Applicants must provide a reasonable explanation for their
default. While the Applicants have complied with the 15-day
time
period, they have not, based on the papers before me, provided a
reasonable explanation for their default.
[50]
The
founding affidavit deposed to by the First Applicant together with
the confirmatory affidavit deposed to by the Second Applicant
both
record that their business address is shop 11 Hertford Junction
centre, Malibongwe Drive, Lanseria.
[16]
[51]
The
Applicants deny receiving either the Respondents statement of claim
(and condonation application) which the Respondent says
she posted on
5
March 2014
and the Applicants further deny receiving the Respondent’s
application for default judgment which the Respondent
says she posted
on 1 April 2014.
[52]
The
Applicants deny receipt of both sets of documents and further allege
that they could not ascertain the whereabouts of the documents
from
the South African Post Office due to industrial action.
[53]
The
Respondent records that upon receipt of the rescission application,
she attended at the South African Post Office where she
was handed
copies of the proofs of receipt that both documents had in fact been
collected. The said documents are marked as annexures
“RM2”
and “RM4” attached to the Respondent’s answering
affidavit. In addition, the Respondent attached
copies of her
affidavits in support of her proof of service for both sets of
documents and provided the registered postal slips
which reflect the
correct address of the Applicants. These documents were attached as
annexures “RM3” and “RM5”
to the Respondent’s
answering affidavit.
[54]
The
Applicants in reply, merely deny that the identity numbers reflected
on the collection slip are not their identity numbers,
however, they
fail to take any action to investigate or enquire further with the
South African Post Office as to the person/s who
allegedly collected
the documents. The Applicants make absolutely no effort to explain to
this Court, what the ordinary practice
is in relation to the
collection of mail in their practice and who is usually tasked with
the collection of mail. The Applicants
effectively provide a bare
denial of receipt of the documents and do not, in my view make any
effort to show ‘good cause’.
The Applicants fail to
provide copies of their identity books and they fail to provide a
copy of all of their employee’s
identity books to demonstrate
to this Court that they have not received the documents. It would be
rather unlikely that the Applicants
would attend to the collection of
mail themselves as they have a practice to run and they have other
employees employed in the
workplace.
[55]
There
is no reasonable explanation provided to support their default and in
fact, when assessing the Applicants conduct as a whole,
they have
been less than diligent and attentive to this dispute. They failed to
attend at the CCMA on various occasions and in
fact they failed to
attend before this Honourable Court on agreed dates in an application
that they in fact launched.
[56]
Paragraph
8 of the CCMA condonation ruling records “the concessions”
made by the Applicants at the CCMA—
“
It
is submitted by the respondent [the Applicant in the rescission
application] that the applicant [the Respondent in the rescission
application] was employed as a casual appointed on a need basis. It
is further submitted that they indeed told her to stop working
and go
to maternity. It is agreed that upon her return there was someone
else employed.”
[57]
While
the Applicants deny the accuracy of the condonation ruling in their
replying affidavit, they do not provide any evidence to
support the
denial. On their own papers, there is an admission that save for a
few ‘attempts’ to call the Respondent,
no process was
followed to discipline the Respondent for her alleged abscondment.
Furthermore, they did not deny receipt of the
sms communication
between the Respondent in relation to the birth of her baby and as
such, the version of the Applicants, is on
the whole, not plausible.
[58]
The
Applicants have fallen short of the requirements set out in Rule
16A(1)(b).
[59]
It
would be a material injustice to grant the Applicants the relief
sought in their application.
Order:
1)
The
First and Second Applicants’ application for rescission is
dismissed; and
2)
The
First and Second Applicants’ are to pay the Respondent’s
legal costs on a party and party scale.
__________________
Howes, AJ
Acting
Judge of the Labour Court of South Africa
Appearances
On
behalf of the Applicants:
No appearance
Instructed
by:
No appearance
On
behalf of the Respondent: Mr
Ludwig Frahm-Arp
Instructed
by:
Fasken Martineau
[1]
66 of 1995 (the
LRA).
[2]
Rescission
application bundle at page 26.
[3]
Rescission
application bundle
at
para 5, page 26
.
[4]
Jurisdictional ruling at para 8 and
9.
[5]
Applicants’
founding affidavit in the
Rescission
application bundle
at
para 8.
[6]
Id
at para 23.
[7]
Applicants’
founding affidavit at para 22.
[8]
Id
at
para
25.
[9]
[2000] 9 BLLR 1020
(LC).
[10]
[2000] 9 BLLR 1020
(LC) 1025 para 6.1
- 6.3.
[11]
[2012] ZALCD 4 at para 14.
[12]
[2010] 31 ILJ 632
(LC) at para 9 G-I.
[13]
[2001] 22 ILJ 104
(W) at para 108C.
[14]
[2015] ZALCJHB 17 at para 10.
[15]
[2016] 37 ILJ 2852
(LC) at para 13.
[16]
See
founding affidavit
at
page 5,
para 1 and
confirmatory affidavit page 13.