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[2017] ZALCJHB 250
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Mathobisa v Commission for Conciliation, Mediation and Arbitration and Others (JR2461/07) [2017] ZALCJHB 250 (4 July 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Not Reportable
CASE NO: JR 2461/07
In
the matter between
LENTIKILE
NATHANIEL
MATHOBISA
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First
Respondent
CINDY
DICKENS
N.O
Second
Respondent
EDCON
LTD t/a JET
STORES
Third
Respondent
Heard:
6 September 2016
Delivered:
4 July 2017
Summary:
Judgment may not be granted in the absence of the third respondent
when the applicant is unable to prove proper service
of the notice in
terms of Rule 7A (8)(b) on the third respondent.
JUDGMENT
LALLIE
J
[1]
The applicant launched this application seeking an order reviewing
and setting aside a ruling of the second respondent. The
application
is unopposed.
[2]
Before an order can be granted in the absence of the respondents the
applicant has to prove proper service of its papers on
the
respondents. In the affidavit confirming service of the notice in
terms of Rule 7A (8) (b) of the Rules for conduct of Proceedings
in
the Labour Court (the Labour Court Rules), the applicant’s
legal representative stated that he served the Rule 7A (8)
(b) notice
on the respondents by fax. Clause 14.1.5 of the Practice Manual of
the Labour Court of South Africa (the Practice manual)
provides as
follows:
‘
14.1.5 When a party serves any
document by fax in terms of Rule 4, the deponent to any affidavit
filed in terms of Rule 4 (2)(b)
must, in addition to providing proof
of the correct fax number and confirmation that the whole of the
transmission was completed,
state under oath that the party to whom
the fax was addressed telephonically confirmed receipt of the whole
of the fax transmission
and the name of the person who confirmed
receipt of transmission’.
[3]
The affidavit confirming service of the Rule 7A (8) (b) notice is
defective in that it does not confirm that the third respondent
in
particular, received it. The significance of the service of the Rule
7A (8)(b) notice is that answering affidavits can only
be filed after
it has been filed and served on the respondents. As clause 14.1.5 of
the Practice Manual has not been complied with,
a decision cannot be
properly reached to proceed with the hearing of the application in
the absence of the third respondent on
the basis that it is in wilful
default. The review application is therefore not properly before
Court for lack of proper service
of the Rule 7A (8)(b) notice on the
respondents. The applicant needs to cure the defect if he wishes to
pursue his review application.
[4]
In the premises, the following order is made:
Order:
1.
The matter
is removed from the roll.
Z
Lallie
Judge
of the Labour Court of South Africa
Appearance
For
the Applicant: Advocate Maharay of the Justice Centre