About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 263
|
|
St Michaels Spar and Others v SACCAWU obo Nyapholi (J653/15) [2017] ZALCJHB 263 (6 July 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: J653/15
In
the matter between:
ST
MICHAELS
SPAR
First
Applicant
ANDREW
CHRISTODOULOU
Second
Applicant
SOPHIA
CHARALAMOUS
Third
Applicant
VASILIOS
MICHAELIDES
Fourth
Applicant
SOTIRIS
MICHAELIDES
Fifth
Applicant
CHRISTODOULOUS
MICHAELIDES
Sixth
Applicant
and
SACCAWU
obo NYAPHOLI
THANDI
Respondent
Heard:
19 May 2017
Delivered:
06 July 2017
Summary:
Rescission application-section 165(a) read with Rule
16A(a)(i)of the Rules- Time frames to deliver rescission
application-Rule
42(1)(a) of the Uniform Rules-Rule 16A(b) of the
Rules-Section 3 of the LRA-Reasonable time under LRA.
JUDGMENT
MABASO,
AJ
Introduction
and the parties
[1]
The
following remarks are germane to this application. Van der Westhuizen
J, writing for the Court
in
Gcaba
,
[1]
whereby the
exclusive
jurisdiction of the Labour Court in employment related matters had to
be determined, made these opening remarks:
“
One
of the purposes of law is to regulate and guide relations in a
society. One of the ways it does so is by providing remedies
and
facilitating access to courts and other fora for the settlement of
disputes.
As supreme law, the Constitution
protects basic rights. These include the rights to fair labour
practices and to just administrative
action.
Legislation based on the Constitution is supposed to concretise and
enhance the protection of these rights, amongst others, by
providing
for the speedy resolution of disputes in the workplace and by
regulating administrative conduct to ensure fairness
.
(Emphasis added.)
More
recently, in
Toyota
(Pty) Ltd v CCMA
[2]
Nkabinde
J emphasised the importance of time frames in the speedy resolution
of labour disputes, as well as the detrimental effects
any delays may
have on employers and employees held thus:
“
Time
periods in the context of labour disputes are generally essential to
bring about timely resolution of the disputes
.
The dispute resolution dispensation of the old Labour Relations Act
was uncertain, costly, inefficient and ineffective. The
new
Labour Relations Act (LRA) introduced a new approach to the
adjudication of labour disputes. This alternative process was
intended to bring about the expeditious resolution of labour disputes
which, by their nature, require speedy resolution. Any delay
in the
resolution of labour disputes undermines the primary object of the
LRA. It is detrimental not only to the workers who may
be without a
source of income pending the resolution of the dispute but,
ultimately, also to an employer who may have to reinstate
workers
after many years.” (Emphasis added and footnotes
omitted.)
[2]
According to the affidavits, the applicants state the following: The
first applicant is St Michael Supermarket CC t/a Michaels
Spar (the
employer), the second applicant is Andrew Christodoulou (Mr
Christodoulou) who is the manager of the employer. The third,
fourth,
fifth and sixth applicants are Sophia Charalamous, Vasilios
Michaelides, Sotiris Michaelides, Michaelides Christodoulous
respectively and will be collectively referred to as the Members. The
respondent is the South African Catering and Allied Workers
Union
(the Union) which is cited in these proceedings in its representative
capacity, in terms of section 200 of the LRA, on behalf
of its member
Ms Nyapholi Thandi (the employee).
[3]
This is an application to rescind and set aside a court order issued
on 14 July 2016 by Thlothlalemaje J, which had
made an
arbitration award (the award) issued on 10 November 2014 an order of
this Court.
Relevant
background
[4]
Dismissal of the employee took place on 1 July 2014, more than 3
years ago, but she still has not been reinstated. Despite having
the
award in her favour, her unfair dismissal dispute is still pending,
although there being processes available in the Labour
Relations
Act
[3]
which have time
frames to facilitate the speedy resolutions of employment related
disputes. The third, fourth, fifth, and sixth
applicants have now
approached this Court in terms of section 165(a)
[4]
of the LRA (read the same as sub-rule 16A (1)(a)), and
sub-rule 16A(1)(b)
[5]
of the Rules of this Court seeking a rescission of the said court
order. The application was delivered by the applicants on
25 April 2017.
In it, they further ask that any party
opposing this application be ordered to pay costs. The respondent is
opposing this application.
[5]
Before this Court, there were three applications, namely: an
application for consolidation, an application for contempt against
the Members, and a rescission application. It was agreed between the
parties,that the rescission application would be dealt with
first —
taking into account that the rescission application relates to the
same court order which the Members are said to
be in contempt of and
the legal implications of a rescission application thereof.
[6]
[6]
Resulting in
the dismissal of the employee, on 1
July 2014, an unfair dismissal dispute was declared at the CCMA
against the employer. Subsequent
to the hearing of the dismissal
dispute by Commissioner Makama, the award was issued directing the
employer to reinstate the employee.
Thereafter, in November 2014
the employee reported for duty in terms of the award, however, the
employer did not reinstate
her. She was advised by Mr Christodoulou
that she should come the next day as the employer intended to bring a
review application
against the award.
[7]
In May 2015, the Union brought an application in terms of
section 158(1) (c) of the LRA, to make the award an order of
this Court. The employer was the only respondent in that
application[taking into account that the award was issued against it
and is the one which has been directed to reinstate the employee].
That application was heard on 14 July 2016, which led to
the
order being issued.
[8]
Subsequent to the issuing of the order, the Union brought an
application for contempt of court against Mr Christodoulou, and
on 28
October 2016 LaGrange J issued an order calling upon Mr
Christodoulou to appear before the Court on 2 December 2016
to give
reasons why he should not be held in contempt of Court.
On
this date, Mr Christodoulou appeared before Prinsloo J, and he
delivered an affidavit in opposing the contempt application.
Prinsloo J varied the court order and further made a directive
that the contempt application should be heard on 17 February 2017.
[9]
On 15 February 2017, both the Union and Mr Christodoulou agreed to a
postponement of that scheduled hearing to allow the parties
to
exchange further documents. Indeed on 17 February 2017, the matter
was adjourned to 01 March 2017 for an application
for
joinder of the Members, which had been brought by the Union. On 01
March 2017, the application for joinder was heard and granted,
and
the contempt hearing was then set down for 18 May 2017 for the
Members to give reasons why they should not be found in contempt
of
court, for failing to comply with the section 158(1) (c) order. On 27
April 2017, this rescission application was served on
the Union via
email.
[10]
The Members contend that they have considered the history of the
matter and the papers that have been filed in various proceedings
herein, before the date of this application and they have been
advised that they may apply for a rescission of the order which
was
made in “
their absence”.
[11]
The issue in this matter is whether or not, the application in terms
of section 158(1) (c), was served on the employer-the
party that
has not complied with the terms of the award. According to the
Members, the employer neither received that application,
nor the
notice of set down. Therefore, according to them, if the employer had
been served with that application, it would have
proceeded to oppose
it because there was a pending review application that had been
delivered against the award.
Applicable
principles and application thereof
[12]
Mr Venter on behalf of the applicants, submitted that their case is
premised on (a) the fact that there was no proper service,
of the
section 158(1)(c) application as there was no service affidavit as
required by the rules of this Court—despite the
fax
transmission report indicating that there were documents served on
the employer by the Union, (b) the employer did not receive
the
application; and (c) the respondent did not file the original papers
on time, within five days as it was filed “on 25
February
2016”, following the alleged service on 5 May 2015.The latter
point is found in the answering affidavit of the respondent,
meaning,
it is not pleaded by the applicants.
[13]
Therefore, according to him, based on that, this application should
be granted. When I asked Mr Venter, as to whether this
rescission
application was not supposed to have been delivered within 15 days -
from 02 December 2016; when the employer and/or
Mr Christodoulou
appeared in Court; instead of April 2017; his answer was that it was
not required because the Members have only
been joined in March
2017.I disagree with this, based on what is contained below, in
paragraphs 18 and 19 .And, according to him,
it has been brought
within
a reasonable time
,
as the Members reliance is not only on rule 16A(1)(b), but
section 165(a) (read with rule 16A(1)(a)) which are not specific
about the time to bring a rescission application.
[14]
The provision that the Members rely on is section 165(a) of the LRA
which reads as follows:
“
Variation
and rescission of orders of Labour Court.—The Labour Court,
acting of its own accord or on the application of any
affected party
may vary or rescind a decision, judgment or order—
(a)
erroneously sought or erroneously granted in the
absence of any party affected by that judgment or order;”
[15]
The Constitutional Court, in emphasising what is required from
an applicant bringing a rescission application relying
on the
provisions of this section, signposted that it mirrors the provisions
of 42(1)(a) of the Uniform Rules and reasoned thus:
“
A
party may have an order of the Labour Court rescinded under section
165(a) if it is shown that the order was erroneously sought
or
granted in the absence of that party.
Whether
the court grants a rescission application under this provision does
not depend upon the applicant showing good or sufficient
cause. It is
simply enough if the order was erroneously sought or granted in the
absence of that party
.
That is also the position under rule 42(1)(a) of the Uniform Rules of
Court. In respect of rule 42(1)(a) this was held to be the
position
by a Full Bench in
Tshabalala
and Another v Peer
.
Both the Supreme Court of Appeal and this Court have also made this
point. The Court may even rescind or vary its order on its
own accord
under this provision”
[7]
(Emphasis added and footnotes omitted.)
[16]
In terms of this section, the phrase “erroneously sought or
erroneously granted” is not defined in the LRA or in
the rules
of this Court and/or Uniform Rules. For example to clarification of
this phrase, the South Gauteng High Court in the
matter of
Pretoria
Society of Advocates v Salimane & Others
,
[8]
the full bench, faced with a case whereby an applicant who had
approached a court
a
quo
to
be admitted as an advocate, did not disclose certain relevant
information to that court
a
quo
, it
was held that:
“
from
the effects of this matter, it is more than plain that had the two
judges who commanded the first respondent admission application
been
aware of the fact that the first respondent does not possess the LLB
degree,
there would not have granted the
order
…”
[17]
The question that has to be answered is whether this Court can
rescind the order. Put simply, does this Court have jurisdiction
to
rescind the order? In answering this question, during argument, I
asked Mr Venter if this matter is properly before me taking
into
account the provisions of rule16(A)(2)(b).
[9]
He provided the answer as set out above, paragraph 13.
[18]
The Members, in describing their involvement with the employer
confirmed their association with it, as follows:
“
15.
… Although we are members of the close corporation which owns
the supermarket,
we are not involved in
the running of the business of the supermarket and has no knowledge
of the day to day operational issues
17.
[
Mr
Christodoulou]
is
the manager of the supermarket
, and
he has a number of support staff to run the business”. (Own
emphasis)
This
clearly indicates that the only person who would be in a
position to receive documents for the employer and/or the Members
would
be Mr Christodoulou. I, therefore, am of the view that it would
be appropriate to establish as to when Mr Christodoulou received
and
/ or probably became aware of the court order, as he is a
representative of the employer and Members, taking into account these
assertions by the Members.
[19]
The court order was issued against the employer, and the applications
for joinder and contempt followed thereof. Mr Christodoulou,
by
2
December 2016, knew about the court
order as he had been ordered to appear before the Court to answer the
contempt allegations.
He submitted an affidavit in response to the
contempt proceedings. As the representative of the employer, he was
the one who should
have advised them, the Members, about the court
order as they have indicated that their involvement is “limited”.
Therefore,
in my view, the employer has not complied with the 15-day
period as required by sub-rules 16A (1) (b) read with (2)(b).
[20]
In respect of sub-rule 16A(1)(a)(i), I am aware that there is no
overt timeframe to deliver the application for rescission
under this
provision, however, taking into account what the Constitutional Court
said in
Gcaba—
[10]
“
providing
for the speedy resolution of disputes in the workplace and by
regulating administrative conduct to ensure fairness”
,
as Mr Venter indicated that the application has been delivered within
a reasonable time, it is important to look at what could
be the
reasonable time under the facts and circumstances of this matter , in
line with the provisions of the LRA.
[21]
In deciding this, the following time frames are critical to mention:
If a person is claiming unfair dismissal he/she has to
refer a
dispute to the appropriate forum within 30 days;
[11]
if the claim is one of challenging a ruling or an award of a
commissioner such challenge should be done within six (6) weeks upon
served with it.
[12]
Time
periods in the rules of this Court-sub-rules 6(1)(a)(iv)
(a);7A(2)(b),(9); 9 (2
)-“…the
notice of appeal must be filed within 10 days of the date on which
the person filing the notice of appeal is
notified of the decision
that is the subject of the appeal.”;
and 30 (2)- “…
an
application for leave must be made and the grounds for appeal
furnished within 15 days of the judgment or order against which
leave
to appeal is sought”
[22]
In the matter of
Bakoven
Ltd v GJ Homes (Pty) (Ltd),
[13]
it was held that rescission application “
Rule
42(1)(a)
…
it
seems to me, is a procedural step designed to correct
expeditiously
an obviously wrong judgment or order
”.
In my view, a period of more than four months cannot be said to be a
reasonable time, therefore, a reasonable time, based
on the facts and
circumstances of this matter, in line with the purpose of the LRA, as
found in the section 3 thereof, and the
Rules of this Court would be
15 days from 02 December 2016, the date Mr Christodoulou become aware
of the order which is a subject
of this rescission application.
[23]
Therefore, as the Applicants have not delivered a condonation
application, this application cannot succeed.
Order
[24]
In the event, the following order is made:
1.
The rescission application is dismissed .
2.
There is no order as to costs.
3.
The Registrar to enrol the contempt hearing
against the applicants, before any Justice of this Court.
_____________________
Mabaso
AJ
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant: Mr Venter
Instructed
by: Jassat Mitchell Inc.
For
the Respondents: Mr Ngoato -Union Official
[1]
Gcaba
v Minister for Safety and Security and Others
2010 (1) SA 238
(CC);
2010 (1) BCLR 35
(CC); (2010) 31 ILJ 296 (CC);
[2009] 12 BLLR 1145
(CC) at para 1.
[2]
Toyota
SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(CCT 228/14);
[2015] ZACC 557
at para 1.
[3]
66 of 1995,
as amended. (LRA).
[4]
Section 165(a) is entitled “
Variation
and rescission of orders of Labour Court
”
and provides:
“
The Labour Court, acting of
its own accord or on the application of any affected party may vary
or rescind a decision, judgment
or order—
(a) erroneously sought or erroneously
granted in the absence of any party affected by that judgment or
order”. (Emphasis
added.)
[5]
Rule 16A(1)(b) states:
“
(1) The court may in addition
to any other powers it may have—
. . .
(b) on application of any party
affected, rescind any order or judgement granted in the absence of
that party.”
This
subrule has to be read with subrule (2)(b), which provides that
an application under subrule (1)(b) must be done “
within
15 days after acquiring knowledge of an order or judgment”
concern. And a court may grant such relief “
upon
good cause shown”
. (Emphasis added.)
[6]
Khoza & Others v Body
Incorporate Ella Court
2014 (2) SA 112(GSJ)
at para 25. Peniel Development (Pty) Ltd and
Another v Pietersen and Others 2014 (2) SA 503 (GSJ);
Erstwhile Tenants
of Williston Court and Others v Lewray Investments
(Pty) Ltd and Another 2016 (6) SA 466 (GJ). I am
alive to the
different views expressed in these two judgments.
[7]
F & J Electrical CC v
MEWUSA obo E Mashatola and Other
[2015] ZACC 3
;
2015 (4) BCLR 377
(CC); (2015) 36 ILJ 1189 (CC);
[2015] 5 BLLR 453
(CC) at para 27.See also Ferris and Firstrand Bank
Ltd and another
2014 (3) BCLR 321
(CC) at para 13.
[8]
(2016) JOL 35095
(GJ) at para 25.
[9]
Rule 16A(2)(b) provides:
“
(2) Any party desiring any
relief under—
. . .
(b) subrule (1) (b) may within 15
days
after acquiring knowledge
of an order or judgement
granted in the absence of that party apply on notice to all
interested parties to set aside the order
or judgement and the court
may, upon
good cause shown
, set aside the order or judgement
on such terms as it deems fit.” (Emphasis added.)
[10]
Gcaba
above
n 1.
[11]
Section 191(1)(b)(i) of the LRA.
[12]
See section 145(1)(a) of the LRA which provides:
“
(1) Any party to a dispute who
alleges a defect in any arbitration proceedings under the auspices
of the Commission may apply
to the Labour Court for an order setting
aside the arbitration award—
(a) within six weeks of the date that
the award was served on the applicant, unless the alleged defect
involves the commission
of an offence referred to in Part 1 to 4, or
section 17, 20 or 21 (in so far as it relates to the aforementioned
offences) of
Chapter 2 of the
Prevention and Combating of Corrupt
Activities Act, 2004
”
[13]
1992(2) SA 466(E), at para 471E-F. See also
FNB
v Van Rensburg NO & Others
1994(1) SA 677 (T)