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[2017] ZALCJHB 151
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Noriega v Sony South Africa (Pty) Ltd (JS45/13) [2017] ZALCJHB 151 (8 May 2017)
THE
LABOUR COURT OF SOUTH AFRICA JOHANNESBURG
JUDGMENT
Case
no: JS45/13
Heard:
1 December 2016
In the
matter between:
RAUL
NORIEGA
Applicant
and
SONY
SOUTH AFRICA (PTY) LTD
Respondent
Heard:
1 December 2016
Delivered:
8 May
2017
JUDGMENT
GOLDEN,
AJ
Introduction
[1]
This
is an application for rescission of a judgment granted on 20 March
2015
.
Background
facts
[2]
The
applicant was employed by the respondent as a sales person
.
He
earned commission on sales, paid monthly in arrears. He resigned on
or about 15 January 2010 and had commission outstanding,
which he
queried
.
According
to the applicant he approached various employees of the respondent to
request information necessary for him to determine
if a bonus was
owing to him and how this bonus was to be calculated. According to
him
,
it
was
only on 23 July 2010 that the respondent provided him with the
revised reconciliation of the applicable budget and sale figures
,
including
revised commissions and
bonuses
payable.
[3]
Having
received the information from the respondent he on 23 August 2013 was
able to determine that a bonus was owing to him and
was able to
quantify the amount in the sum of R887 460
.
53.
[4]
The
applicant instituted action against the respondent in early 2013 for
payment of commissions he alleged was due to him
.
The
matter was postponed in mid 2014 and eventually came to trial
in
early
2015. The applicant
'
s
attorney sought a postponement shortly before the trial, which was
granted.
[5]
There
was no appearance for the applicant at trial roll call on 12 February
2015
,
either
by the applicant
'
s
attorney or his counsel. The presiding judge stood the matter
down for the applicant's attorney to be called to court
.
The
matter was then postponed
sine
die
.
The
matter was then enrolled for hearing on the opposed motion roll for
20 March 2015
.
On
20 March 2015
,
the
respondent's
representatives
and
witness
was
.
present
,
but the applicant and
his legal representatives were
absent.
Upon
hearing legal argument
,
the
judge upheld the prescription point which had been taken by the
respondent
,
and
dismissed the applicant's claim.
[6]
The
applicant's attorney learned of the default judgment on 23
March 2015. According to the applicant's attorney
,
who
deposed to the founding affidavit in support of the rescission
application
,
he
was mistaken as to the set down date and thought that the date
was 30 March instead of 20 March
.
It
was only when he spoke to the respondent
'
s
attorney that he was advised that the matter had
been heard on 20 March 2015 and that judgment had been granted
in the
respondent
'
s
favour in respect of the prescription issue
.
[7]
The
applicant
'
s
attorney avers that it was a
bona
fide
mistake
on his part wh
i
ch
should not be visited on the applicant and prevent h
i
m
from having his day in court. He submits that he has
provided a reasonable explanation
,
albeit
of a peculiar circumstance. He submits in his founding affidav
i
t
that the applicant has a reasonable prospect of
succeeding in
his
defence to the special pleas
which were raised by the respondent in the action
.
[8]
The
applicant's attorney however does not deal with the prospects of
success in his affidavit and merely states that in order to
avoid
prolixity he has not dealt with the merits of the matter in great
detail and that they are fully ventilated in the papers
before the
Court in the main matter.
[9]
Rule
16A permits the Court to rescind a judgment or Order granted in the
absence of a party, on good cause shown
.
[1
0]
Rule 16A(1)(b) provides that this
Court may on application by any party affected
,
rescind any order or
judgment granted
_
in
the absence of that party.
[11]
Rule
16A(2)(b) provides
that
'
Any
party desiring any relief under-
(b)
Subrule (1)(b) may
,
within
15 days of acquiring knowledge of an order or judgment granted in the
absence of that party apply on notice to all interested
part
i
es
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.'
[12]
In
order to demonstrate good cause, an applicant for
rescission must satisfy two main requirements
:
a
reasonable explanation for the default, and a bonda fide
defence which carries some prospect of success
.
(Vermisani
Security Services CC v Mmusi
&
Another
:
In
re
:
Mmusi
&
Another v Vermisani Security
Services CC (2013) 34 ILJ 440 (LC) at para [11])
.
The Court ultimately exercises a
discretion based on policy and fairness when deciding to grant
a rescission
application.
[13]
This
Court must accordingly consider both the explanation for the
default and the prospects of success in the main
action
.
[14]
The
applicant's attorney was not present at trial roll call
on
12
February 2015
.
The
matter was then postponed
sine
die
,
and
had to be placed
on
the motion roll for evidence and
argument in respect of the prescription point. The matter was
then enrolled for 20 March
2015
.
The
applicant's attorney does not dispute that he had received the
necessary notice of set down
.
He
avers that he was mistaken as to the date. He then learned of
the default judgment on 23 March
2015
.
[15]
The
jurisprudence of this Court is clear that where a notice of set
down does, genuinely, not come to a party
'
s
attention, any judgment by default would be granted erroneously
.
(Gay
Transport (Pty) Ltd v SA Transport & Allied Workers Union &
others (2011) 32 ILJ 1917 (LC) and Roux v City of Cape
Town
[2004] 8
BLLR 836
(LC))
.
[16]
The
applicant
'
s
attorney however received the notice of set down
.
His
explanation was that he was mistaken as to the enrolment date.
[17]
It
took the applicant
'
s
attorney a further 15 days to bring the rescission application.
There is no explanation provided for this
delay.
[18]
The
applicant
'
s
attorney undertook to provide an affidavit from counsel to confirm
the alleged mix-up regarding the dates
,
and
the default order. This was subsequently not
provided
.
[19]
The
explanation provided by the applicant
'
s
attorney is unsatisfact0ry, aggravated by his previous conduct when
he was not present at court on a
.
previous
occasion when the matter was on the roll. The matter had to stand
down so that his whereabouts could be determined. The
matter
inevitably had to
be
postponed.
[20]
The
application is problematic for another reason
.
The
application does not at all deal with the prospects
of success in the main action.
This
,
in
my view
,
is
fatal to the rescission
application
.
[21]
I
am of the view that the main action has poor prospects of success in
any event.
[22]
The
applicant seeks payment of R887 000
.
00
plus interest in respect of commiss
i
on
earned between April 2008 and December 2009
.
The
statement of claim was served on the respondent on 22 January 2013
.
The
respondent has raised a special plea of prescription in terms of
Section 11(d)
of the
Prescription Act 69 of 1969
. The applicant has
replicated to the plea as
follows
:
[22
.
1
.
]
The applicant only became aware of the facts necessary to support his
cause of action after 22 January 2010
,
and prescription commenced to run
after this
date
.
[22
.
2.]
Prescription was interrupted by way of an acknowledgement in writing
(during May
,
alternatively
July
,
alternatively
October 2010) by the respondent of its liability towards the
applicant.
[22.3
.
] The debt
only arose seven days after termination of the applicant's
employment, by virtue of the definition of
"
remuneration
"
as
contained in the
Basic Conditions of Employment Act 75 of
1997
.
[23]
The
respondent submits that each commission payment became due one month
after month end in the period in which the sales took place
.
This
,
according
to the respondent, is when the "debt" became due, and when
prescription commenced
.
According
to the respondent
,
unless
delayed or
i
nterrupted
,
the
debt therefore prescribed three years after this date which is
,
at
the end of May
,
June,
July and November 2011
,
and
at the end of December 2012 in terms of Sect
i
on
11(d) of the
Prescription Act.
[24
]
According
to the respondent the applicant accepted the terms of his employment
letter dated 4 April 2008 and was aware
of the
terms thereof at all relevant times
.
Accordingly
,
the
applicant was aware of the debt and the facts from which it arose
.
On
the respondent's version, the debts prescribed between May 2011
and December 2012 and that the last of
the
debts had become prescribed by
the time that the statement of claim was
i
nstituted
.
[25]
I
do not agree that the formal tender for payment of R54 011
.
14
made by the respondent
'
s
attorney
in the course of 2010 following a formal demand by the applicant can
be construed as an acknowledgement of liability for
commission on
the
basis
claimed for by the applicant.
[26]
Given
that the applicant has not dea
l
t
with the prospects of success in any detail as he ought to have done
,
I
am constrained to accept the respondent
'
s
version of the facts
.
[27]
The
applicant was aware that he was due commission when he accepted
employment with the respondent and that payment of commission
became
due monthly in arrears
.
It
is not disputed that the applicant had received commission payments
.
At
some stage he questioned the calculation of the payments
.
Not
much detail of this is provided in the rescission application
.
Eventually
the respondent reverted with the basis of its calculation of the
commission payments which the applicant did not agree
with
.
The
applicant then instituted action
,
a
few years later
,
on
what he believed was the correct formula for the calculation of the
commission. The applicant now alleges that he only became
aware of
the necessary facts to support his cause of action after January
2010
.
He
alleges that he enquired of the respondent's employees as
to
the correct calculation of the commission
.
There
is nothing to support this allegation in the application
.
The
applicant has not
attached to the
application any email
correspondence or letters to
demonstrate these enquiries to this Court or what efforts he has
made. The applicant does not at all
deal with his letter of
employment dated 4 April 2008 which the respondent alleges contained
the terms of his employment and the
basis for the calculation of
commission. The respondent, in this regard, avers that the applicant
was aware of the facts upon which
the debt arose
.
The applicant does not deal with his
employment letter in his replying affidavit and merely states that
"
these
allegations once again deal in
detail with the merits of the matter'.
[28]
I
do not agree that the applicant only became aware of the basis of the
calculation after 22 January 2010. The fact that the basis
of the
calculation for the commission payments was recorded in his
employment
letter is in itself dispositive of this issue.
[29]
I
am also not persuaded hat the claim for commission falls within the
definition of remuneration as contemplated in the
Basic Conditions of
Employment Act 75 of 1997
. The applicant's counsel has provided the
court with no authority for this proposition as to why commission, as
a special category
of payment, constitutes remuneration. Counsel also
did not provide the Court with legal argument as to how the
interpretation of
the BCEA, according to the applicant, impacts the
wording and interpretation of the
Prescription Act, and
the interplay
between the two vis-a-vis
the
applicant's claim.
[30]
On
an interpretation of the relevant provisions of the
Prescription Act
,
I
accordingly find that the entire claim had prescribed by the time
that the statement of claim was
filed
.
[31]
The
application for rescission is accordingly
dismissed
.
Conclusion
[32]
I
accordingly make the following order
:
(a)
The
application for rescission is dismissed
.
(b)
There
is no order as to costs
.
____________________
GOLDEN
,
AJ
Acting
Judge of the Labour Court of South Africa
Appearances
:
Applicant's
attorneys
:
Kramer
&
Wesemann
Attorneys
Tel
:
0824130137
Respondent
'
s
attorneys:
Brian
Bleazard
Attorneys
Tel
:
011-4675450