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[2017] ZALCJHB 506
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Washington and Others v AMT Placement Services and Others (JR1395/15) [2017] ZALCJHB 506 (25 October 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR 1395/15
In
the matter between
MODIBA
MOTLATJO
WASHINGTON
Applicants
AND
OTHERS
and
AMT
PLACEMENT SERVICES
First
Respondent
METAL
AND ENGINEERING BARGANING COUNCIL Second
Respondent
ITUMELENG
WILLIAMS
Third
Respondent
Heard: 21 July 2017
Delivered: 25 October
2017
Summary: Rescission
application: The Labour Court dismissed the Applicants’
statement of claim due to their non-attendance
after the Labour Court
issued a notice of set down to the Applicants’ attorneys.
Applicants applied for rescission of the
order on the basis that the
order was issued erroneously in the absence of a party affected by
it. The rescission application dismissed
as the order was not issued
erroneously.
JUDGMENT
MOLEBALOA
AJ
Introduction
[1]
This is an
application for the rescission and setting aside of the Court Order
granted by Honourable Justice Van Niekerk dated 01
September 2016.
The application is opposed
Background
[2]
The
Applicants launched a review application following an award made
against them by the Third Respondent.
[3]
The
Registrar of this Honourable Court sent a Notice of Set down
enrolling the application for a hearing on 01 September 2016 at
10:00, 6
th
Floor, Arbour Square, corner Juta and Melle Streets, Braamfontein,
Johannesburg.
[4]
The Notice
of Set down was faxed to the Applicant’s attorneys, Ndobela &
Lamola.
[5]
On 01
September 2016 the Honourable Justice Van Niekerk dismissed the
application in the absence of the Applicants. Their attorneys
were
also not in attendance.
[6]
On 06
September 2016 the Applicants’ attorneys discovered a fax
containing a Notice of Set Down informing parties that the
matter was
enrolled for hearing on 01 September 2016. Upon enquiring with the
Labour Court, they were informed that the Notice
was sent to the
Applicants’ attorneys by facsimile on 25 August 2016. They then
learned on 14 September 2016 after the judgment
was typed that their
review application was dismissed with costs on 01 September 2016 by
the Honourable Justice Van Niekerk.
[7]
The
Applicants’ attorneys indicated that they experienced problems
with their fax line and same was reported to Telkom. Reference
was
made to Telkom short messages services (sms) acknowledging receipt of
the complaint. The problem was fixed as on 25 August
2016.
[8]
The
Applicants contended that they did not wilfully absent themselves
from court as their failure to attend was due to technical
challenges
involving Telkom fax line.
Application
for rescission
[9]
The
Applicants then applied for the rescission of the order. In their
Notice of Motion the Applicants, however, indicated that they
were
reviewing and setting aside the award made by Honourable Justice Van
Niekerk dated 01 September 2016. They later applied to
amend the
Notice of Motion to read “rescinding the order” and not
“reviewing and setting aside the award”.
The Third
Respondent vehemently opposed the amendment.
[10]
I granted
the amendment as the application clearly was for the rescission of
the order and not for the reviewing or setting aside
of the award.
The application was identified as a rescission application. It was
only in the prayers part of the Notice of Motion
that reference was
made to the “review”. To me this is pardonable. It was a
typographic error.
[11]
The
Applicants did not clearly set out in their application whether they
were relying on Rule 16A (1)(a)(i) or Rule 16A(1)(a)(ii)
of the
Labour Court Rules. As I demonstrated hereunder, the requirements to
be satisfied in the two provisions are different. Sometime
after the
Applicants had filed the rescission application, they attempted to
supplement their rescission application by introducing
averments
dealing with the prospects of success which were clearly not pleaded
in the first set of rescission application papers.
Advocate Choeu
however clarified the Applicants’ case as she indicated to the
Court that it should ignore the supplemented
application and confine
itself to the first set of papers which make no reference to the
prospects of success as their application
is based on Rule
16A(1)(a)(i) and not Rule 16A(1)(a)(ii) of the Labour Court Rules.
The
applicable legal principles
[12]
Section 165
of the Labour Relations Act
[1]
(LRA) read together with Rule 16A of the Labour Court Rules governs
the variation and rescission of judgments and orders of the
Labour
Court.
[13]
Since Rule
16A (1) mirrors the provisions of Section 165 of the LRA, I only
quote herein the provisions of Rule 16A of the Labour
Court which
states that:
“
(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 of
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;
(b)
on application of any party affected, rescind any order of 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 within15 days after acquiring knowledge of an order
of 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”.
[14]
There is a distinction between an application brought in terms of
Rule 16A(1)(a)(i) and Rule16A(1)(b). The requirements for
the two
sub-sections are also different. In terms of Rule 16A(1)(a)(i),
applicants are not expected to show good cause for
them to
succeed. They only need to show that the judgment or order was
erroneously issued in their absence. Rule 16A(1)(b), on
the other
hand, requires the applicants to show good cause in order to succeed.
[15]
The above principle was applied in the case of
Bayete
Security Holdings v Mokgadi and Others
[2]
where the Labour Court distinguished between Rule 16A(1)(a)(i) and
Rule16A(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. This
was quoted in approval in the case
of
Mphahlele
v Muswede
[3]
.
[16]
The Applicants launched their application in terms of Rule 16A(1)(a)
which means that they only have to proof that the order
was issued
erroneously in their absence. How this question has to be answered is
to determine 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. Such was
enunciated in
Beveral
Investment T/ A KFC v Fraser and Another
[4]
where
the court said:
“
..the enquiry which the court
has to conduct in determining whether the order of 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”.
[17]
This enquiry was further also supported in the
Department
of Correctional Services v Abel Montgomery Baloy
i
[5]
where the court found:
“
It
is now well established in our law that a litigant affected by a
judgment / or order grated in default can have such an judgment
/ or
order rescinded on the basis of showing that the 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 of 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 cause
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”.
[18]
The Notice of Set down was properly served on the Applicants’
attorneys. The contention that they did not receive the
notice of set
down as a result of technical problems is incorrect. The only
technical problem the Applicants mentioned in their
rescission
application was the defective Telkom lines. However, they were
repaired as Telkom notified the Applicants’ attorneys
on 25
August 2016 that the lines were in order. I agree that the lines were
indeed fixed as at 25 August 2016 as that is the day
the Notice of
Set Down was sent to the Applicants’ attorneys. The Notice was
successfully transmitted. It was received. The
problem is that the
Applicants’ attorneys only noticed it on 06 September 2016. If
the problem was technical then the Notice
could not have been
successfully transmitted. There is nothing technical about not
reading incoming correspondences. This is what
happened in the matter
in
casu
.
The correspondence received on 25 August 2016 was only given
attention on 6 September 2016.
[19]
The notice was therefore properly served on the Applicants’
attorneys. There was no irregularity in the proceedings.
In line with
the above quoted authorities the order in the matter
in
casu
was
not erroneously made. There existed no 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”.
[20]
The Applicants decided not to launch its application in terms of Rule
16A(1)(b) where it would have been expected to show good
cause. Since
that was not the Applicants’ case as clearly explained by
Advocate Choeu, the good cause requirement plays no
role. Even if I
could be tempted to look into whether or not good cause was shown,
the Applicants did not plead in their papers
as they stand, prospects
of success which is a relevant factor to be considered when
determining whether good cause was shown.
[21]
In short, the Applicant’s application failed to comply with the
requirements enunciated in Rule 16A(1)(a)(i). The order
by Honourable
Justice Van Niekerk was not erroneously made.
[22]
Accordingly, I issue the following order:
Order
1.
The rescission application is dismissed.
2.
There is no order as to costs.
___________________________________
MOLEBALOA
MS
Acting Judge of the
Labour Court of South Africa
Appearances:
For
the Applicants: Advocate Choeu.
Instructed
by: Ndobela & Lamola Attorneys.
For
the Respondents: Mr. D.O Pretorius of Fluxmans Inc.
[1]
Act 66 of 1995 as
amended.
[2]
(2000) 9 BLLR
1020 (LC).
[3]
(JS 173/14(2017)
ZALCJHB 20 (25 January 2017).
[4]
(2015)
ZALCJHB 17 at para. 10.
[5]
(2016) 37 ILJ
22852 (LC) at para. 13.