About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2018
>>
[2018] ZALCJHB 297
|
|
Electprops 97 (Pty) Ltd t/a Manhour and Another v UCIMESHAWU obo Khosa and Others; In re: ICUMESHAWU obo Khosa and Others v Roots Butchery CC and Another (JS836/14) [2018] ZALCJHB 297 (20 September 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JS836/14
In
the matter between:
ELECTPROPS
97 (PTY) LTD t/a
MANHOUR
First
Applicant
ROOTS
BUTCHERY PROTEA
GARDENS
Second
Applicant
and
UCIMESHAWU
obo ROBERT
KHOSA
AND 13
OTHERS
First
to Further Respondents
In
re:
ICUMESHAWU
obo ROBERT
KHOSA
AND 13
OTHERS
Applicants
and
ROOTS
BUTCHERY CC AND
ELECT
PROPS (PTY) LTD /
MANHOUR
Respondent
Heard:
19 July 2018
Delivered:
27 September 2018
Summary:
Application brought in terms of the provisions of
Section 165(a)
of
the
Labour Relations Act, No 66 of 1995
as amended, read with Rule
16A(1)(a)(i) of the Labour Court Rules granted by Steenkamp J, on 23
August 2016
[1]
Judgment granted erroneously and is rescinded and set aside.
JUDGMENT
SEDILE,
AJ
Background
Facts
[1]
The First Applicant, Manhour is
in the business that is providing staff to a variety of clients. It
may be termed a temporary employment
service (TES) as envisaged in
section 198 of the Labour Relations Act
[2]
(LRA).
[2]
One of Manhour’s clients is the Second Applicant, Roots
Butchery.
[3]
The Roots Butchery situated at Protea Gardens, Soweto, expressed an
interest for Manhour to provide it with individuals that
would render
a service at its business.
[4]
An unprotected strike took place during December 2013 and all the
employees that participated therein were dismissed for such
participation and also for the misconduct perpetrated during the
strike action.
[5]
A dispute was then referred by the union and employees to the
Commission for Conciliation, Mediation and Arbitration (CCMA).
Manhour attended the conciliation hearing. The matter remained
unresolved and was then referred for arbitration which was set down
for hearing on 21 May 2014 at the offices of the CCMA in
Johannesburg.
[6]
Manhour was also present at the arbitration proceedings where the
Commissioner issued a ruling indicating that the Labour Court
has
jurisdiction to entertain the claim.
[7]
It appears from the pleadings before Court that the union and
employees filed their statement of claim on 26 September 2014,
if
regard is had to the court stamp appearing thereon. In this statement
of claim it was averred that the matter wasn’t resolved
at
conciliation and that a ruling was issued on 5 June 2014 by
Commissioner Thee.
[8]
The First and Second Applicants never received the statement of claim
as the address and telephone numbers entered thereon are
those of
Manhour and not the Second Applicant and no proof of service is
contained in the court file pertaining to the service
of the
statement of claim.
[9]
The default judgment application was also not received by the
Applicants as no proof thereof was filed.
[10]
According to the facsimile report, 26 pages were faxed to fascimile
number 086 425 8210 containing the application for default
judgment.
This facsimile number is only used by Manhour when the main facsimile
number 011 391 5676 is out of order whenever there
are technical
difficulties experienced by Telkom.
[11]
The Applicants were not aware of the default judgment application
that was set down for hearing on 23 August 2016 as it appears
from
the facsimile transmission report of the Registrar of this office
that an attempt to fax to set down notice to Manhour facsimile
number
011 391 5676 was not successful.
Analysis
[12]
It is clear that when granting the order, the court, per Steenkamp, J
was was not aware of the true facts that existed at the
time, which
could have precluded the court from granting the default order if the
court had been aware of those facts.
[13]
Certainly the facsimile transmission report is no more than
prima
facie
proof that the transmission has been sent and thus it has
been rebutted by evidence showing that the transmission was not
received
by the Applicants.
[14]
The court was unaware of the fact that the Applicant had the
intention to oppose the relief sought by the Respondents.
Conclusion
[15]
The Applicants have made out a case for rescission of the judgment in
that they never received any notification of the application
from the
Respondents and notice of set down from the Registrar’s office.
That the order was erroneously granted within the
meaning of section
165(a) of the LRA read with Rule 16A(1)(a)(i).
[16]
In the premises, I make the following order:
Order
1. The judgment of Steenkamp J dated
23 August 2016 is rescinded and set aside.
2. There is no order as to costs
P.
Sedile
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicants: Advocate WP Bekker
Instructed
by: Nothagel Attorneys
For
the respondents: No appearance
[1]
Wherein it is stated that the court may, in addition to other powers
it may have, of its own motion or on application of any
party
affected, rescind or vary any order or judgment erroneously sought
or erroneously granted in the absence of any party affected
by it.
[2]
Act
66 of 1995 as amended.