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[2018] ZALCJHB 241
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Rampersad v Byrne NO and Others (JR505/15) [2018] ZALCJHB 241 (6 July 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR 505/15
In
the matter between:
KAVITA
RAMPERSAD
Applicant
and
COMMISSIONER
RICHARD BYRNE
N.O.
First
Respondent
COMMISSION
FOR CONCILIATION,
MEDICATION
AND
ARBITRATION
Second
Respondent
FIRST
RAND STI ADMINISTRATION (PTY)
LTD
Third
Respondent
Heard:
21 February 2017
Delivered:
6 July 2018
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction
and background:
[1]
The applicant seeks a rescission of an order granted by this Court
(Per Van Niekerk J) at a pre-enrolment hearing held on 17
August
2016, in terms of which her application to review an award issued by
the first respondent under the auspices of the Comission
for
Conciliation, Mediation and Arbitration (CCMA) was dismissed in her
absence. The application for rescission is opposed.
[2]
In the founding (‘Explanatory’) affidavit deposed to by
Mr Khoza, a RAWU official and applicant’s representative
in
these proceedings, the following averments were made;
2.1 Khoza represented the applicant at
the arbitration proceedings before the CCMA. Upon the award being
issued, RAWU instructed
its erstwhile attorneys, Carrim Attorneys to
launch the review application, and this was done on 1 April 2015.
2.2 Upon the pleadings having closed
and the matter being set down, RAWU could however not afford further
legal costs for Counsel
to appear on the set-down date, and Carrim
Attorneys had withdrawn as attorneys of record. RAWU subsequently
handled the matter
on its own.
2.3 Subsequent to the withdrawal of
Carrim Attorneys, on 26 July 2016, RAWU got to know of the dismissal
of the review application
on 27 September 2016 only after it had made
enquiries about a set-down date. It is alleged that a set-down date
was not received.
2.4 The court file was perused and it
was discovered that the notice of set-down was sent on 4 August 2016
via telefax to a fax
number that appears to be of Carrim Attorneys’
rather than RAWU’s.
2.5 Khoza attributed the applicant’s
or RAWU’s non-appearance in court on 17 August 2016 mainly due
to not having been
served with a notice of set-down.
2.6 In regards to prospects of
success, it was submitted that these appeared to be ‘average as
summarised in the papers’,
and that the third respondent would
not suffer any prejudice should rescission be granted.
[3]
The rescission application is opposed on a variety of grounds
including that;
3.1 It was filed out of time by some
15 days as the third respondent only became aware of it on 31 January
2017, whilst Khoza became
aware of the order sought to be rescinded
on 27 September 2016. Despite the delay, condonation had not been
sought.
3.2 There is no live review
application that the applicant was entitled to revive by virtue of a
rescission application. This was
due to the reason that at the time
that the matter was dismissed even on 17 August 2016, it had been
deemed to have been withdrawn
on account of lack of timeous
prosecution.
3.3 The applicant failed to comply
with the provisions of the Practice Manual pertaining to the filing
of records in that the Rule
7A (3) Notice was filed on 10 April 2015,
and the record ought to have been filed by the applicant on or about
11 June 2015.
3.4 The applicant however filed her
Rule 7A (8) Notice on 27 January 2016, which was outside of the
prescribed 60-day time
period. To the extent that no consent and/or
extension was sought from the third respondent in view of the
non-compliance with
these time periods, it was contended that the
application ought to be deemed to have been withdrawn.
3.5 The Notice of withdrawal of Carrim
Attorneys and substitution by RAWU never reached the third
respondent.
3.6 In regards to the notice of set
down allegedly sent to RAWU’s erstwhile attorneys of record’s
fax number, it was
submitted that no proof in confirmation of these
allegations was furnished, and that the applicant should stand and
fall by her
choice of representatives.
3.7 The applicant has not established
any basis for prospects of success, which was fatal to this
application, and a perusal of
the award indicated that it was
reasonable and not reviewable.
The
legal principles and evaluation:
[4]
An
application for rescission of a court order may be brought in terms
of the provisions of Rule 16A(1)(a)(i)
[1]
of the Rules of this Court, read together with those of section 165
of the Labour Relations Act (LRA)
[2]
.
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.
[5]
Whether the court will grant a
rescission application under section 165 (a) of the LRA does not
depend upon the applicant showing
good or sufficient cause. The Court
in the exercise of its discretion may find that it was simply enough
if the order was erroneously
sought or granted in the absence of that
party
[3]
.
[6]
The difficulty however with the application before the Court is that
it is not clear under which provision it is brought, which
might
ultimately prove to be fatal. The applicant simply attempts to
explain the reasons for the default and makes scant reference
to
‘average prospects of success’. One can only assume that
the application is brought under section 165 (b) of the
LRA read with
Rule 16 (1) (a) (2) as the other grounds for rescission would clearly
not be applicable.
[7]
An order or judgment will be
deemed to be erroneously granted or sought 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. It is further accepted
that that a judgment is erroneously
granted if at the time, there
existed pertinent facts which the Court had not been aware of, and
that had it been aware of, it
would not have granted the judgment or
the order
[4]
.
[8]
The issue in this case is therefore whether the applicant has
demonstrated that the order dismissing her review application
was
erroneously sought or granted. In determining this issue, it is
significant to note that the Notice of Withdrawal as attorney
of
record and substitution was filed by Carrim Attorneys on 26 July
2016, wherein the details of RAWU were further furnished for
service
in these proceedings. The notice was also served on the third
respondent as appears from fax transmission confirmation
dated 25
July 2016 as attached to the notice of withdrawal.
[9]
A perusal of the court’s file indicates that notwithstanding
the notice of withdrawal, the office of the Registrar of
this Court
caused the notice of set-down of the pre-enrolment hearing to be
served on the Carrim Attorneys on 5 August 2016.
In my view, it
is clear that there was an error on the part of the office of the
Registrar of this Court, as the notice of set-down
was sent to
attorneys that were no longer acting for the applicant or RAWU. As to
what obligation the erstwhile attorneys had upon
receipt of the
set-down date is an issue the court was not seized with.
[10]
It follows from the above that had Van Niekerk J been aware of the
fact that the notice of set-down was not properly served
on RAWU, he
would not in all likelihood have dismissed the matter, even more
specifically since it was set-down as a pre-enrolment
hearing, rather
than the hearing of the merits. Flowing from the authorities referred
to above, it would not be necessary for the
court to enquire into
whether the applicant has establish good cause, and the enquiry ends
at the point where the court is satisfied
that the order was
erroneously obtained.
[11]
To the extent that it was argued on behalf of the third respondent
that the matter was deemed to have been withdrawn in any
event at the
time it was before Van Niekerk J, if that was an issue that was
raised before Van Niekerk J, he would in all probability
have
determined that the matter was deemed to be withdrawn, even in the
absence of the applicant, which is a separate order from
that of a
dismissal of the application. Be that as it may, a claim that a
matter is deemed to be withdrawn cannot be raised within
the context
of an opposition to a rescission application, especially in the light
of the grounds upon which that rescission is
determined as in this
case. Even if it could be argued that nothing prevents the third
respondent from raising that defence, Khoza
on behalf of the
applicant has adequately in his replying affidavit, outlined the
circumstances that led to the delay in the filing
of the record, and
attached supporting affidavits to that affidavit. I accept that a
case cannot be made out in the replying affidavit.
The issue of the
matter being deemed withdrawn was however raised in the answering
affidavit. The replying affidavit in my view
disposes of the argument
whether the review application should be deemed to be withdrawn or
not.
[12]
In regards to the issue whether the rescission application was filed
some fifteen days outside of the time periods, it has
already been
concluded that the notice of the pre-enrolment hearing was not
properly served on RAWU. In his founding affidavit,
Khoza averred
that he only became aware of the dismissal of the matter on 27
September 2016 upon having enquired about the set-down
matter from
the court. The rescission application was filed on 3 October 2016,
and was according to the affidavit in respect of
proof of service,
served on the third respondent on 30 September 2016. In the
circumstances, I did not understand the third respondent’s
case
to be that the order came to the attention of the applicant/RAWU
earlier than 27 September 2016, and it follows that the rescission
application was filed on time, and there was therefore no need to
seek condonation in respect of the rescission application.
[13]
I have had regard to the requirements of law and fairness, and even
if the applicant is successful in this application, she
is not
entitled to an order of costs.
Order:
1. The order granted by this Court on
17 August 2016 in terms of which the applicant’s review
application was dismissed in
her absence is rescinded.
2. The Registrar of the Court is
directed to set the matter down for the hearing of the review
application.
3. There is no order as to costs
____________________
E Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances
:
For
the Applicant: Mr W. Khoza, RAWU Official
For
the Third Respondent: Advocate. RC Jansen Van Vuuren
Instructed
by: Van Breda & Herbst Inc
[1]
Rule 16 A
(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 …
[2]
Which Section 165 reads:
“
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;
(b) in which there is an ambiguity,
or an obvious error or omission, but only to the extent of that
ambiguity, error or omission;
or
(c) granted as a result of a mistake
common to the parties to the proceedings.”
[3]
See
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;
Mutebwa
v Mutebwa and Another
2001(2) SA
193 at page 194 E-G
[4]
Erasmus in
the Superior Court Practice at Page D1-568 (Second Edition). See
also
Lodhi 2
Properties Investment CC v Bondev Development (Pty) Ltd
2007
(6) SA 87
(SCA)
at
para 24, where it was
held
that:
‘
I agree that Erasmus J in
Bakoven
adopted too narrow an interpretation of the words
‘erroneously granted’. Where notice of proceedings to a
party is
required and judgment is granted against such party in his
absence without notice of the proceedings having been given to him
such judgment is granted erroneously.
That is so not only if the absence of
proper notice appears from the record of the proceedings as it
exists when judgment is granted
but also if, contrary to what
appears from such record, proper notice of the proceedings has in
fact not been given. That would
be the case if the sheriff’s
return of service wrongly indicates that the relevant document has
been served as required
by the rules whereas there has for some or
other reason not been service of the document. In such a case, the
party in whose
favour the judgment is given is not entitled to
judgment because of an error in the proceedings. If, in these
circumstances,
judgment is granted in the absence of the party
concerned the judgment is granted erroneously.14 See in this regard
Fraind v Nothmann
1991 (3) SA 837
(W) where judgment by
default was granted on the strength of a return of service which
indicated that the summons had been served
at the defendant’s
residential address. In an application for rescission the defendant
alleged that the summons had not
been served on him as the address
at which service had been effected had no longer been his
residential address at the relevant
time. The default judgment was
rescinded on the basis that it had been granted erroneously.’