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[2017] ZALCJHB 313
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Moqhaka Local Municipality v SAMWU obo Montsitsi (J2319/15) [2017] ZALCJHB 313 (29 August 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA JOHANNESBURG
JUDGMENT
Not
Reportable
Case
Number: J2319/15
In
the matter between:
MOQHAKA
LOCAL MUNICIPLALITY
Applicant
and
SAMWU
obo MONTSITSI, NJ
Respondent
Heard:
13 July 2017
Delivered:
29 August 2017
JUDGMENT
BARRABLE
AJ
Introduction
[1]
This
is an application for the rescission and setting side of the Court
Order (the order) granted in chambers by Van Niekerk J on
15 March
2016 in terms whereof the arbitration award issued by the South
African Local Govern Bargaining Council (Bargaining Council)
in
favour of the respondent on 14 June 2010 under case number:
FSD120706, was made an order in terms of Section 158 (1) (c) of
the
Labour Relations Act
[1]
(LRA).
[2]
According
to the applicant’s founding affidavit, this application is
being brought in terms of Section 165 (a) of the LRA
read together
with Rule 16 A of the Labour Court Rules. The application is opposed.
Background
facts
[3]
The
respondent was dismissed by the applicant on 6 September 2007
following a disciplinary enquiry in which she was found guilty
of
misconduct. The respondent referred a dispute to the Bargaining
Council and the arbitration was eventually finalised on 28 May
2010.
[4]
On
14 June 2010, the commissioner found that the dismissal of the
respondent was substantively unfair and issued an arbitration
award
in favour of the respondent in the following terms
inter
alia
:
4.1
The
respondent be reinstated on the same terms and conditions that
existed before termination of her services.
4.2
The
respondent to report for duty on 15 September 2010;
4.3
The
applicant to pay compensation to the respondent in the amount of R50
169.26 being the equivalent of 12 months' remuneration
which had to
be paid by 14 September 2010. Interest accrued on the compensation
amount with effect from 14 September 2010.
[5]
A
copy of the arbitration award was sent to the parties on 1 September
2010. To date the applicant has not challenged the award
by way of a
review application.
[6]
On
26 February 2014, the respondent through her legal representatives
launched an application in terms of Section 158 (1) (c) of
the LRA
(Section 158 (1) (c)) under case number JR369/14 to have the
arbitration award made an order of Court. The application
is
supported by a founding affidavit by SAMWU, a confirmatory affidavit
by the respondent together with annexures consisting of
copies of the
arbitration award and an application to certify the Bargaining
Council’s award. A service affidavit is also
attached which
states that the application was served via fax on the respondent on
25 February 2014 and the deponent confirms that
on the same day he
contacted the respondent, spoke to Mr Jantjies Nthimkhulu, a personal
assistant to the municipal manager, who
confirmed receipt of the fax.
[7]
The
applicant does not deny receiving the respondent’s application
in terms of Section 158 (1) (c) but submits that: “
it
laboured on an impression that the application bearing case number:
JR369/2014, which was served on it by the respondent, was
in fact a
review application”
[2]
.
The
applicant did not oppose the application.
[8]
A
year later, under the same case number (JR369/2014), on 24 February
2015, the respondent’s attorneys served a document titled
“notice of motion” on the Bargaining Council and the
commissioner calling on them to: “
deliver
the record of the proceedings to be reviewed and set aside”
.
This document was also served on the applicant on 24 February 2015.
The applicant did not respond to this notice of motion.
[9]
On
19 March 2015, the Bargaining Council delivered the mechanical
records of the arbitration proceedings and the documents used
at the
proceedings together with a notice of filing under case number:
JR369/2014 which was served on the applicant and the respondent.
[10]
Upon
following up on the status of the Section 158 (1) (c) application,
the respondent's attorneys were informed by the Registrar
that the
“JR” case number that had been allocated to the matter
normally applied to review applications and since there
was no
opposition the Registrar advised the representative to apply for a
“J” case number. They were requested to prepare
an
explanatory letter which would be placed in the Court file. The
respondent's attorneys duly applied for another case number
and were
allocated case number: J2319-15. A letter was prepared to the
Registrar by the respondent's attorneys explaining the reason
for the
two case numbers and requesting that the matter be set down on the
unopposed roll. The letter was addressed only to the
Registrar and
despite assertions to the contrary by the deponent to the
respondent’s answering affidavit, there is no proof
that this
letter was sent to the applicant. The letter is dated 10 December
2015 and is in the Court file.
[11]
The
respondent's Section 158 (1) (c) application was considered by Van
Niekerk J in chambers. On 15 March 2016, Van Niekerk J granted
an
order that the arbitration award issued by the Bargaining Council
under case number: FSD120706 be made an order of Court. At
the time
of granting this order the application in terms of Section 158 (1)
(c) bore case number JR369/14 and the index to the
application bore
case number J2319/15.
[12]
The
applicant became aware of the aforesaid Court order on 22 April 2016
when the respondent delivered a copy to the applicant and
tendered
her services.
[13]
The
applicant's application for rescission was launched on 18 April 2016
and the applicant has simultaneously applied for condonation
for the
late filing of the application.
Application
for rescission
[14]
According
to the applicant’s founding affidavit, this application is
based on the contention that the order was erroneously
sought or
erroneously granted in the absence of the applicant. Although the
Applicant does not refer to the exact sub sections
of Rule 16 A upon
which it relies on, in light of the assertions and arguments made by
the applicant in its founding papers, this
application clearly falls
under Rule 16 A (1) (a) (i) of the Rules of the Labour Court.
[15]
The
applicant submits that the error was caused by the confusion that had
been created by the respondent's attorneys in the use
of the two case
numbers and the subsequent documents that were filed in the
proceedings. The applicant contends that as a result
of the confusion
caused, it did not deliver opposing papers and had the Court been
aware of these facts it would not have granted
the enforcement order.
Secondly, the applicant submits that the order granted by this Court
was erroneously sought or erroneously
granted in the absence of the
applicant due to the fact that essentially at the time the order was
granted the arbitration award
had prescribed.
Legal
principles
[16]
Rule
16 A of the Rules of the Labour Court states as follows:
“
(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 or vary any order or
judgment granted in the absence of that party”.
[17]
The
timing requirements for moving an application under Rule 16 A (1) (a)
and Rule 16 A (1) (b) are different. Under Rule 16 A (1)
(b) a
rescission application must be brought within fifteen days of the
applicant acquiring knowledge of the order or judgment
whereas no
time limit is imposed under Rule 16 A (1) (a)
[3]
.
As the applicant has brought this application on the basis of an
order being erroneously granted or sought (in terms of Rule 16
A (1)
(a)), there is no need for me to consider the application for
condonation. I am satisfied that the application has been brought
within a reasonable time and is therefore properly before me.
[18]
Our
Courts have held that if an order was erroneously made in the absence
of any affected party, the Court should on the application
of that
party rescind the order without any further enquiry
[4]
.
[19]
In
Superb
Meat Supplies CC v Maritz
[5]
,
the
Labour Appeal Court accepted that
“
when
the Court considers whether a judgment has been granted erroneously
it does not investigate whether good cause has been established
or
whether there has been wilful default”.
[6]
[20]
Relying
on
Sizabantu
Electrical Construction v Guma and others
[7]
,
Molahlehi
J in
Gay
Transport (Pty) Ltd v S A Transport and Allied Workers Union and
Others
[8]
and
in
SA
Democratic Teachers Union v CCMA and others
[9]
confirmed
that a party seeking rescission on the basis that a judgment was
erroneously granted does not have to show good cause.
[21]
The
concept of “erroneously granted” is defined by
Cilliers,
Loots and Nel
[10]
,
as follows:
“
It
has been stated that it seems that a judgment has been erroneously
granted if there existed at the time of its issue a fact of
which the
judge was unaware, which would have precluded the granting of the
judgment and which would have induced the judge, if
aware of it, not
to grant the judgement”.
[22]
In
Gay
Transport (Pty) Ltd,
the
Court said that:
“
the
finding that the order or judgment was erroneously made, means that
the affected party has been denied a hearing in terms of
the rules of
natural justice. But more importantly, in considering the error, I
would say that the fact that the Court was inveigled
into giving a
judgment because material facts were either omitted or misrepresented
to the judge is decisive”
[11]
.
Order
erroneously sought or erroneously granted
[23]
The
question I have to answer is whether the order of Van Niekerk J was
erroneously granted.
[24]
The
applicant does not deny receiving the respondent’s application
in terms of Section 158 (1) (c) however, the applicant
contends that
it laboured under the impression that this application was in fact a
review. This impression, so the applicant contends,
was created by
the confusion caused by the use of a “JR” case number
with the result that the applicant did not file
a notice to oppose.
[25]
Whilst
I accept that a “JR” case number is usually allocated to
reviews I fail to understand how the case number alone
could have
created confusion as to the nature of the application. It is
absolutely clear from the wording of the Section 158 (1)
(c) notice
of motion and founding affidavit that the respondent was seeking to
make the arbitration award an order of Court. I
see no reason why a
case number would cause the applicant to misconstrue the document and
prevent it from filing a notice to oppose.
[26]
The
applicant further states that the confusion created by the incorrect
case number was fortified by the respondent issuing its
notice on 24
February 2015, requesting the Bargaining Council and the commissioner
to deliver the record. Whilst I accept that
this document was
erroneous and should not have been delivered by the respondent’s
attorneys, I do not agree that this materially
changed the nature of
the application that was initially served on the applicant. I have
already noted that the content of the
Section 158 (1) (c) application
is unambiguous. The applicant did not respond to the notice received
on 24 February 2015 nor did
it make any attempt to contact the
applicant’s attorneys to clarify any confusion that it may have
been harbouring. I cannot
accept the applicant’s explanation
for not opposing the application.
[27]
At
the time of receiving the notice on 24 February 2015, the applicant
would have been aware of the arbitration award which was
favourable
to the respondent. It would also have been aware that despite the
inordinate lapse of time, it had taken no steps whatsoever
to
challenge that award. In these circumstances, in my view, the
applicant could not have genuinely believed that the respondent
was
proceeding with a review application to set aside an award that was
in her favour.
[28]
It
is clear to me that at the time the enforcement order was granted,
the learned judge was aware of the two case numbers in this
matter.
This is evident from the papers in the Court file and the Court order
itself which cites both case numbers. Also, in the
Court file is the
letter from the respondent’s attorneys dated 10 December 2015
addressed to the Registrar, explaining the
two case numbers. It
therefore cannot be said that at the time the order was granted, the
learned judge was unaware of the relevant
facts. Knowing these
relevant facts, the Court correctly granted the order which was made
in the context where the Section 158
(1) (c) had been received by the
applicant but not opposed.
[29]
The
applicant contends that it was irregular for the respondent to have
sent the letter dated 10 December 2015 to the Registrar
without being
informed thereof and without being notified of the nature of the
application. I do not agree that this letter was
an irregular step as
it merely clarified the case numbers and did not change the nature of
the application launched by the respondent.
As the applicant had not
opposed the respondent’s application the respondent was
entitled to request the Registrar, as it
did in the letter of 10
December 2015, to set the matter down on the unopposed roll.
[30]
I
do not believe that the applicant has been denied a hearing in terms
of the rules of natural justice as it was given an opportunity
to
oppose the enforcement application but it chose not to.
[31]
With
regard to the applicant’s argument that the enforcement
application should not have been made an order of Court as the
arbitration award had already prescribed, I refer to Section 17 of
the Prescription Act
[12]
(Prescription
Act) which provides as follows:
“
(1)
A Court shall not of its own motion take notice of prescription;
(2)
A
party to litigation who invokes prescription, shall do so in the
relevant documents filed of record in the proceedings; Provided
that
a Court may allow prescription to be raised at any stage of the
proceedings”.
[32]
In
this matter the main proceedings are the Section 158 (1) (c)
application as envisaged by Section 17 (2) of the Prescription Act.
The applicant did not oppose the main proceedings and at the time of
making the order Van Niekerk J was precluded from
mero
motu
invoking
prescription in terms of Section 17 (1) of the Prescription Act.
[33]
In
any event, in light of the recent conclusion of the Constitutional
Court in
Mogalia
v Coca Cola Fortune (Pty) Ltd
[13]
and
in
Myathaza
v Johannesburg Metropolitan Bus Services (SOC) Limited t/s Metrobus
and others
[14]
,
the reinstatement order as contained in the arbitration award has not
prescribed. As a result, it cannot be said that the order
was
erroneously sought or granted on the grounds of prescription.
[34]
In
the circumstances, the applicant has not established that the order
was erroneously granted or sought in terms of Section 16
A (1) (i) of
the Rules of this Court. I see no reason why in these circumstances
the costs should not follow the result.
[35]
I
make the following order:
Order
1.
The
applicant’s application for rescission is dismissed with costs.
______________________
G
Barrable
Acting
Judge of the Labour Court
Appearances:
For
the Applicant:
Advocate
S J Mushet
Instructed
by:
Lebea and associates
For
the Respondent:
Advocate J Eastes
Instructed
by:
Maenetja Attorneys
[1]
Act 66 of 1995.
[2]
Founding affidavit
– para 5.1 page 6 of the bundle
[3]
Powertech
Transformers (Pty) Ltd (Formerly ABB Powertech Transformers (Pty)
Ltd)
v
Metal
and Engineering Industrial Bargaining Council and others
(2013) ZALCJHB 18
[4]
Cilliers, Loots
and Nel
The
Civil Practice of the High Courts and the Supreme Court of Appeal of
South Africa
5
th
ed (2009) Juta: Cape Town at 933
[5]
(2004) 25 ILJ 96
(LAC) at para 15
[6]
Lumka and
Associates v Maqubela
(2004) 25 ILJ 2326 (LAC) at para 26
[7]
(
1999)
20 ILJ 673 (LC)
[8]
(2011) 32 ILJ 1917
(LC) at para 11-12
[9]
(2007) 28 ILJ 1124
(LC) at para 17
[10]
Above n 4 at page
931
[11]
Above n 8 at para
13
[12]
Act 68 of 1969
[13]
(2017) 38 ILJ 1273
(CC)
[14]
(2017) 38 ILJ 527
(CC)