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[2018] ZALCJHB 117
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Maluti FET College v Kruger and Others (JR1571/15) [2018] ZALCJHB 117 (9 March 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
C
ase
no:
JR1571/15
In
the matter between:
MALUTI
FET COLLEGE
Applicant
and
JJ
KRUGER AND
OTHERS
Respondent
Heard
:
16 August 2017
Delivered
:
16 August 2017
Edited:
09 March 2018
EX
TEMPORE JUDGMENT
MOSHOANA
J
: This is an application to
rescind an order made by this court on the 17
th
of May 2016 in terms of which this court set aside an arbitration
award and ordered that the dispute be determined
de
novo
by another commissioner.
It
is common cause in these proceedings that at the time when the order
was made, the other parties affected by the award was not
present,
being JJ Kruger and others. However, when the applicants – that
is JJ Kruger and others; in the course of this judgment
it is easier
to refer them as such – became aware of the order in September
2016 or thereabout, they then brought an application
to have the
order rescinded and principally raised the fact that they were not
aware of the sitting of the court on the 16
th
of May 2016 when the order was made.
In
opposing the application for rescission, the college (Maluti FET
College) raised a number of points in
limine
.
On the opposing affidavit the points in
limine
were recorded as such:
“
I have been
advised that the following points apply to the applicant’s
application:
5.1 The parties are
not properly cited as applicant as referred to as respondent and vice
versa.
5.2 The Education
Labour Relations Council and Advocate Raynold Bracks, the author of
the arbitration award under
case number ELLC043-13/14 have not been
joined as parties to the application.
5.3 It is not clear
which members constitute the applicant in his application.
5.4 The applicant’s
supporting affidavit does not comply with regulation 4(1) of the
regulations promulgated
in terms of the Justice of the Peace and
Commissioners of Oath, Act 16 of 1963.”
I
hasten to point out that Mr Choeu appearing for Maluti FET College
indicated that the first point relating to the parties not
properly
cited is not persisted with. What he persisted with related to what I
would summarise as the non-joinder, the
locus
standi
and the defect in the founding
affidavit relating to gender and also the place at which the
affidavit was commissioned.
Mr
Thateng appearing for JJ Kruger and Others indicated that these
issues were argued before my brother Van Niekerk J and they were
decided upon and ought to not have been raised again. I do not agree,
because the court order of the 15
th
of February 2017 clearly states that the rescission application is
enrolled for hearing. In the rescission application there lay
the
points in
limine
which
had been raised and the court need to consider them. Given the view I
take at the end, it may not be necessary to deal with
the points in
any details, but I will return to them later in this judgment.
Regarding
the merits of this application, it is common cause that notification
of proceedings of this court are sent out of the
office of the
registrar. The registrar had sent out a notice of set-down to a
particular fax number. Now, a dispute arose during
argument as to
whether that fax number belongs to anyone.
However,
if I were to accept that that fax number was at some stage provided
by the party or one of the parties in earlier proceedings,
the
determining factor is whether the applicants or JJ Kruger and Others
were aware of the hearing date and also whether if the
court that
issued the order at the time was aware of the fact that they did not
receive, as they now allege, the notice of set-down,
would the court
have proceeded to issue the order.
Mr
Choeu conceded that as a matter of law, if that fact was brought to
the attention of the presiding judge at the time, the presiding
judge
would not have proceeded to issue the order as he did. Now, the
applicants before me in their founding papers at paragraphs
27 and 28
stated the following:
“
The court
order made by Honourable Justice Tlhotlhalemaje was made in absence
of the applicants and their legal representatives
as they were not
served with the notice of set-down.
28. The applicants are not in
wilful default and they did not know the court date.”
In response to the allegations, the
college stated the following:
“
I admit that
the court order was made in the
applicants’
absence
, but deny that they were not
served with the notice of set-down. In relation to paragraph 28, the
contents hereof are denied.”
Now,
out of the papers that are before me, it is apparent and very clear
to me that JJ Kruger and Others were not aware of the set-down
notice
on the day. And if this fact was brought to the attention of the
presiding judge, the order would not have been issued.
Accordingly, I
believe that there is a basis for this court to rescind the order
that was made to enable JJ Kruger and Others to
appear and vindicate
whatever rights they have.
Before
I conclude, I return to the points in
limine
.
In relation to the joinder, it ought to be understood that the
applicants or Maluti College itself in the review application cited
the applicants, the Education Labour Relations as the first
respondent and Advocate Raynold Bracks as the second respondent. Now,
what is being sought to be rescinded is an order that was made
whereat these parties were cited.
Now,
Mr Thateng correctly pointed out that the fact that the court would
issue an order, rescinding the order that was made on the
17
th
of May 2016 would not affect the parties that are mentioned. In fact,
the parties themselves have filed a notice to abide, as it
appears on
page 67 of the paginated papers, wherein the second respondent and
the first respondent, being the Education Labour
Relations Council
and Advocate Raynold Bracks are saying that they will not oppose the
application and they will abide by the decision
of the court. Clearly
they have taken themselves out of the matter completely. And
accordingly, the point in relation to non-joinder
is not upheld.
The
issue about the Rule 21 notice and the issue of membership and
locus
standi
– Section 200 of the
Labour Relations Act is very clear. A Union can act in its own
capacity or in the interest and on behalf
of its members. Now, once
it is established, which may be an issue that can still be raised at
the review application that they
are members of the union,
cadit
quaesto.
Accordingly, I do not uphold
the second point.
The
third point relates to the affidavit. All of those points are really
technical points. And this court on a number of occasions
has said
that it is a court of equity and all these technicalities would not
be upheld by the court, because the guiding principle
is fairness. On
those bases, I would not uphold this point as well. In conclusion,
the order I make is the following:
-
- - - - - - - - - - - - -
ORDER
The
order made by this court on the 17
th
of May 2016 is hereby
rescinded. I make no order as to costs.
___________________________
MOSHOANA
J
JUDGE
OF THE LABOUR COURT OF SOUTH AFRICA
Counsel
for Applicant
:
Adv. Choeu
Counsel
for Respondent
: Mr Thateng
Date
of Judgment
:
2017-08-16
-
- - - - - - - - - - - - -
DIGITAL
AUDIO
RECORDING TRANSCRIPTIONS
No:
86 Cnr Juta & Melle Street, Arbour Square, 6th Floor
Braamfontein, JHB
TEL
/ FAX 011 339 4362 FAX: 086 726 6628
TRANSCRIBER’S
CERTIFICATE
This
is to certify that,
insofar as it is audible
, the aforegoing
is a true and correct transcript of the proceedings recorded by means
of a mechanical recorder in the matter of:
MALUTI
FET COLLEGE
v
JJ
KRUGER AND OTHERS
CASE
NUMBER:
JR571/15
RECORDED
AT:
Labour Court
DATE
HELD:
2017-08-16
ORDER
TO TRANSCRIBE:
Judgment
TRANSCRIBER:
Ms M Brits
DATE
COMPLETED:
2017-11-30
NUMBER
OF CD/AUDIO FILES: 1
NUMBER
OF PAGES:
6
REPORT
ON RECORDING
1.
Court digital recording equipment not utilised to its full
potential:
Specify
:
Judge’s microphone inaudible and led to indistinct words
and phrases.
2.
Where no annotations provided, names are transcribed
phonetically.
DIGITAL AUDIO
RECORDING TRANSCRIPTIONS
No:
86 Cnr Juta & Melle Street, Arbour Square, 6th Floor
Braamfontein, JHB
TEL
/ FAX 011 339 4362 FAX: 086 726 6628