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[2018] ZALCJHB 137
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Peermont Global (Pty) Ltd t/a Koroni Hotel Casino Convention Resort v Commission for Conciliation, Mediation and Arbitration and Others (JR2355/15) [2018] ZALCJHB 137 (29 March 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, POLOKWANE
Not
Reportable
CASE
NO: JR 2355/15
In
the matter between:
PEERMONT
GLOBAL (PTY) LTD t/a KORONI
HOTEL
CASINO CONVENTION RESORT
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
First Respondent
DANIEL
PHEEHA SEOPELA N.O
Second
Respondent
NDIVHALENI
GLORIA NEMAVHOLA
Third Respondent
Heard:
14 September 2017
Delivered:
29 March 2018
Summary:
A commissioner’s ruling refusing rescission because of the
untruthfulness of the explanation for the default and
the applicant’s
failure to show serious intention to proceed with the arbitration,
falls within bounds of reasonableness.
It may not be reviewed and set
aside.
JUDGMENT
LALLIE,
J
[1]
The third respondent was employed by the applicant until her
dismissal for misconduct. She challenged the fairness of the
dismissal
at the first respondent, the Commission for Conciliation,
Mediation and Arbitration (the CCMA) where the second respondent (the
commissioner), having arbitrated the dispute in the applicant’s
absence, issued an award in the third respondent’s
favour. The
applicant filed an application for the rescission of the award. The
commissioner refused rescission. In this application
the applicant
seeks an order reviewing and setting aside the rescission ruling. The
application is opposed by the third respondent.
[2]
The commissioner gave a number of reasons for refusing rescission. He
found that the applicant was in wilful default because
it was aware
that the matter was scheduled to commence at 09h00 on 20 August 2015.
He noted that Ms Emmenis (Emmenis) an employee
of the applicant
submitted that Mr Malope (Malope), the applicant’s
representative, arrived at Khoroni Hotel at 09h05 on
20 August 2015.
Malope submitted that he arrived at 08h00 and was delayed by the
consultation he held with the financial manager
and the whistle
blower who were going to be witnesses at the arbitration. He
concluded that they misled the CCMA. He held a dim
view of the
applicant’s failure to send someone from Khoroni Hotel (the
hotel) to the Thohoyandou Labour Centre, where the
arbitration was
held, to request that the arbitration should commence later than
scheduled. The hotel is situated less than a kilometre
from the
arbitration venue. The commissioner further found Malope’s
explanation that he was delayed in traffic and that he
was not an
ambulance and could therefore not activate a siren for other road
users to give him the right of way, was a sign of
lack of remorse.
The commissioner also found that the third respondent should not
suffer because the applicant’s representative
failed to prepare
his witnesses on time and decided to sleep at Burgersfort, a distance
from Thohoyandou. He concluded that the
applicant was in wilful
default.
[3]
The commissioner considered the submissions on prospects of success.
He took into account the applicant’s failure to seize
the
opportunity to present its case and prospects of success. He
concluded that the applicant had no prospects of success. He further
found that granting rescission would prejudice the third respondent
and constitute a miscarriage of justice as the applicant was
in
wilful default.
[4]
The applicant sought to rely on a number of grounds to have the
rescission ruling reviewed and set aside. The grounds include
the
submission that the commissioner committed gross misconduct in
wrongly concluding that it was in wilful default. He took into
account irrelevant submissions of the contradiction in the
applicant’s explanation of its default when the relevant
consideration
in rescission applications is that the applicant party
was absent when the default award was obtained. A further attack on
the
award is based on the commissioner’s alleged improper
conclusion that the applicant waived its right to be heard. He
unreasonably
concluded that granting rescission would constitute
miscarriage of justice. He reached wrong findings that the applicant
would
not suffer prejudice as a result of the refusal of the
rescission application. He incorrectly took into account prospects of
success
in circumstances where the applicant was not present when the
default award was obtained. The applicant further submitted that the
commissioner reached an unreasonable decision. The third respondent’s
basis for opposing the application was that the rescission
ruling is
correct and reasonable. She submitted that the applicant had not
established grounds to have the rescission ruling reviewed.
[5]
When this application was argued counsel for the applicant sought to
raise arguments which are not foreshadowed in the papers
to the
objection of the third respondent’s counsel. The applicant’s
pleaded case is in essence that the rescission
ruling is unreasonable
because the commissioner incorrectly considered whether it was in
wilful default when the correct consideration
was that the applicant
was absent when the award was obtained. The commissioner cannot be
faulted for enquiring whether the applicant
was in wilful default.
The following test for default judgment enunciated in
Shoprite
Checkers (Pty) Ltd v Commission for Conciliation Mediation and
Arbitration and others
[1]
has not changed:
“
[35]
The test for good cause in an application for rescission normally
involves the consideration of at
least two factors. Firstly, the
explanation for the default and secondly whether the applicant has a
prima facie
defence. In
Northern
Province Local Government Association v CCMA & others
[2001]
5 BLLR 539
(LC) at para 545, paragraph [16], it was stated:
“
An
application for the rescission of a default judgment must show good
cause and prove that he at no time denounced his defence,
and that he
has a serious intention of proceeding with the case. In order to show
good cause an applicant must give a reasonable
explanation for his
default, his explanation must be made bona fide and he must show that
he has a bona fide defence to the plaintiff’s
claims”
[36]
In
MM Steel Construction CC v Steel Engineering & Allied
Workers Union of SA & others
(1994) 15 ILJ 1310 (LAC) at
1311J-1312A, Nugent J had this to say:
“
Those two essential elements
ought nevertheless not to be assessed mechanistically and in
isolation. While the absence of one of
them would usually be fatal,
where they are present they are to be weighed together with relevant
factors in determining whether
it should be fair and just to grant
the indulgence.”
[6]
An award or ruling of a commissioner of the CCMA may be reviewed and
set aside when the commissioner has misconceived the enquiry
before
him or her or when the commissioner has reached a decision that a
reasonable decision-maker could not reach on the evidentiary
material
before him or her. The totality of the evidentiary material before
the commissioner supports the third respondent’s
case that the
commissioner cannot be faulted. In applying the test for rescission
the commissioner correctly and reasonably enquired
whether the
applicant was in wilful default. He based his decision on the
evidence before him that the explanation for the default
was neither
reasonable nor
bona fide
because Emmenis and Malope gave
contradictory explanations and the commissioner found that it was an
attempt to mislead the commission.
The gravity of attempting to
obtain rescission by misleading the CCMA constitutes valid grounds to
refuse rescission. It falls
in the category of cases in which the
absence of one essential element is fatal to the application.
[7]
It was also argued on behalf of the applicant that the ruling should
be set aside on the basis that the applicant was not in
default but
its representative arrived late. It was correctly argued on behalf of
the third respondent that the applicant’s
argument overlooks
some reasons the commissioner gave for his decision. The commissioner
recorded that the arbitration was postponed
on 14 July 2015, on the
basis that the representative of the respondent was booked off sick
as he was involved in an accident.
He requested Emmenis who was sent
to request the postponement to provide a medical certificate
supporting the request. When she
could not find Malope, the
commissioner postponed the arbitration hearing and told Emmenis to
tell Malope to bring the medical
certificate and the accident report
when the matter was next scheduled for arbitration. It is common
cause that Malope did not
bring the accident report. It is also not
in dispute that the applicant was aware that the arbitration was
scheduled to commence
at 09h00 on 20 August 2015. Malope’s
version is that he arrived in Thohoyandou at 08h00 on the morning of
the arbitration.
He had not obtained the accident report. He
consulted with the applicant’s witnesses and without attempting
to seek permission
from the CCMA arrived at the arbitration venue 45
minutes late when the third respondent was about to leave. As Malope
was the
applicant’s representative and the applicant conducted
the arbitration through him, the commissioner reasonably expressed
his disapproval of his conduct which did not show serious intention
to proceed with the case.
[8]
The applicant’s attack on the commissioner’s finding that
granting rescission would prejudice the third respondent
and
constitute miscarriage of justice is invalid. The finding is based on
the evidentiary material before the commissioner and
consistent with
the test for rescission which required the commissioner to determine
if it would be fair and just to grant the
indulgence. The applicant
did not establish valid grounds to have the rescission ruling
reviewed and set aside.
[9]
The third respondent sought a costs order against the applicant.
Granting the costs order will be fair and just as the third
respondent should not be out of pocket for reasonably opposing the
review application.
[10] In the premises, the
following order is made:
Order
1
The application is dismissed with costs.
_____________________
Z Lallie
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Advocate Botha
Instructed
by Mohlaba & Moshoana Inc
For
the Third Respondent: Advocate Mosholane
Instructed
by:
Radzilani Attorney
[1]
[2007] 10 BLLR 917
(LAC) para 35 and
36
.