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[2018] ZALCJHB 323
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City of Tshwane Metropolitan Municipality v IMATU obo Botha and Others (J801/12) [2018] ZALCJHB 323 (3 October 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Case
no: J 801-12
Not
Reportable
In
the matter between:
CITY
OF TSHWANE METROPOLITAN
MUNICIPALITY
Applicant
and
IMATU
obo NJ BOTHA, Z MATLAILA
AND
K KGOMO and 2
others
Respondent
Heard:
20 March 2018
Delivered:
3 October 2018
JUDGMENT
WHITCHER
J
[1]
The applicant seeks, in terms of
section 165
of the
Labour Relations
Act, 1995
read with
Rule 16A
of Rules of this Court, to rescind and
set aside a Court Order issued by this Court on 23 August 2013.
[2]
In terms of
the said Order the arbitration award granted by the SALGBC in favour
of the respondent on behalf of K Kgomo and 2 others
[Amos K Kgomo,
S.Z. Nkadimeng and N.M. Hlalethoa] was made an Order of Court in
terms of
section 158(1)(c)
of the
Labour Relations Act, 1995
. It was
further ordered that a related Court Order issued on 27 March 2012
does not prevent any execution proceedings instituted
by the
respondent on behalf of K Kgomo and 2 others.
[1]
[3]
The applicant also prays for condonation of the late filing of the
rescission application, which was filed 5 days late.
[4]
The matter has a long history.
[5]
Nokeng Tsa Taermane Local Municipality was incorporated in the
applicant in terms of the
Local Government: Municipal Structures Act,
1998
. The applicant became the successor-in-law of Nokeng with effect
from
19 May 2011.
[6]
In the case of Kgomo and 2 others an arbitration award was issued by
the SALGBC under case number GPD 050708 on
12 January 2009
in
which it was held that the 3 employees had been dismissed by Nokeng
and that their dismissals were substantively and procedurally
unfair.
Nokeng, who did not attend the arbitration, was ordered to reinstate
the 3 employees and to pay to each seven month’s
remuneration
[approximately R32 578.00 each] within 14 days of receipt of the
award.
[7]
In or about
October 2011
, the applicant instructed a firm of
attorneys, Moima & Associates, to file for the rescission of the
award.
[8]
It would appear that such an application was drafted in or about
8
November 2011
but there is nothing in the papers before me
which demonstrate that the application was served and filed.
[9]
The respondents claim they never received such an application and in
any event the purported application was brought in the
wrong forum
(CCMA).
[10]
I note that the deponent to the founding affidavit, Mr Ngolele, is
also the deponent to the rescission application before me
and in both
he is cited as the Chief Legal Administration Officer of the
respective municipalities.
[11]
I further note the following from both founding affidavits:
(i) Despite having
received proper notice of the conciliation and arbitration sittings,
Nokeng failed to attend both sittings. Ngolele
provides no real
explanation for same, despite the fact that he was the Legal Officer
of Nokeng at the time.
(ii)
In theory
Nokeng had a compelling and effortless case of fraudulent conduct
[2]
against the 3 employees so Nokeng had had a duty to take the matter
seriously and attend the arbitration.
(iii)
Soon after
the award was issued
and
before it was certified, the award was brought to the attention of
Ngolele and the Municipal Manager of Nokeng.
[3]
In other words, at least 1 to 2 years prior to the first aborted
rescission application in November 2011.
(iv) It appears that this
rescission application was drafted
only after
the applicant
was served with writs of execution in
October 2011.
[12]
On the day of the sale in execution, the applicant brought an urgent
application to suspend the sale in execution. On
27 March 2012
Bhoola J suspended the sale in execution
pending the finalisation
of the rescission application at the CCMA.
[13]
On
23 August 2013
IMATU on behalf of Kgomo and 2 others
obtained Court Orders to the effect that: (i) the Court Order made on
27 March 2012 does
not prohibit any execution proceedings
as no
rescission application was brought by the applicant
; (ii) the
arbitration award in the case of Kgomo and 2 others issued by the
SALGBC under case number GPD 050708 on
12 January 2009
is made
an Order of Court; and (3) the applicant is liable to pay interest on
the legally prescribed rate from due date of payment
as prescribed in
the arbitration award until date of actual payment/agreement.
[14]
The rescission application before me [to rescind the Court Order of
23 August 2013] was filed on
8 October 2013.
[15]
On the same day,
8 October 2013
, the applicant filed a
rescission application, this time in the SALGBC, against the
arbitration award in the case of Kgomo and
2 others issued by the
SALGBC under case number GPD 050708 on
12 January 2009.
[16]
It follows that the rescission application filed in the SALGBC was
brought more than 4 years out of time.
[17]
I turn now to the rescission application before me [to rescind the
Court Order of 23 August 2013]. It is common cause that
the Order was
granted in the applicant’s absence.
[18]
In their application, the applicant contended that the Order was
erroneously granted in its absence; alternatively it has good
cause
why the Order should be rescinded.
[19]
When the matter was argued before me, counsel for the applicant
contended that the applicant is not required to show good cause
because, he further submitted, the applicant did not receive the
application and set down notice which gave rise to the Court Order.
Accordingly, the Order was granted
in error.
I gathered from
this submission that the applicant is relying on Rule 16A(1)(a)(i),
and not Rule 16A(1)(b) of the Rules of the Labour
Court.
[20]
The respondents contended otherwise, particularly that the issue of
good cause is applicable since, in their submission, there
is no
averment or evidence from the applicant that both notices were not
correctly sent out and served.
[21]
As correctly set out in
Washington
v AMT Placement Services
:
[4]
There
is a distinction between an application brought in terms of Rule
16A(1)(a)(i) and Rule16A(1)(b) of the Labour Court Rules.
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.
The
above principle was applied in the case of
Bayete
Security Holdings v Mokgadi and Others
[5]
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
[6]
.
Where
an applicant launces their application in terms of Rule 16A(1)(a)(i)
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
[7]
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”.
This
enquiry was further also supported in the
Department
of Correctional Services v Abel Montgomery Baloy
i
[8]
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”.
[22]
The applicant’s excuse for not attending court on 23 August
2013 may be summarised as follows.
[23]
After they instructed attorneys Moima & Associates in
November
2011
to file the rescission application against the arbitration
award and in
March 2012
to secure the Order of
27 March
2012
, “nothing further was heard on the matters” from
Mr Moima and it was only on
5 September 2013
that the
applicant received a letter from the Law Society of the Northern
Provinces indicating that Mr Moima had been struck from
the roll of
attorneys in 2012 and that they must collect their files from the
offices of the Law Society.
[24]
IMATU’s application which resulted in the Court Order of 23
August 2013 was served on the offices of Moima and Associates
on 17
August 2012 but he did not inform the applicant about the
application. I however note that in terms of a service affidavit
and
the fax transmission slips attached thereto that the respondent also
faxed the application to the office of the applicant’s
Municipal Manager. The deponent to the service affidavit states
therein that she followed this up with a call to his office and
a
clerk confirmed receipt of the application.
[25]
Significantly, the applicant in the founding affidavit did not
directly address the issue of the notice of set down from the
Court
Registrar in respect of the Court hearing on 23 August 2013. There is
no averment that the Registrar did not send out a proper
notice to
the addresses placed on record by both parties as the addresses for
service of processes.
[26]
If one examines the pertinent dates in the case before me [November
2011, March 2012 and 5 September 2013], what the applicant
is
essentially indicating in its explanation for not being at court on
23 August 2013 is that for more than two years, alternatively
one and
half years, they failed to communicate with their attorney to follow
up on the status and progress of the matters he was
handling for
them.
[27]
To my mind, it would not be unreasonable to infer that if they had
not acted in such a grossly negligent manner, they would
have come
timeously to know about the application and hearing that led to the
Court Order issued on 23 August 2013.
[28]
There is also evidence that the applicant directly received the
application which led to the Order of 23 August 2013 and received
same one year in advance. In that year nothing with regard to
instructions on the matter and contact with their legal
representative
is offered.
[29]
There is a history of negligent conduct on the part of the applicant.
Only when the sale in execution was imminent did the
applicant act,
despite having knowledge of the award for over three years and
clearly they did not keep abreast of matters to ensure
the rescission
application against the arbitration award was duly done.
[30]
They have thus failed to demonstrate that their non-attendance at
court on 23 August 2013 was not due to their own gross negligence
in
not communicating with and following up with their legal
representatives.
[31]
This is not a case where there was no set down notice served or a
case that it was incorrectly served on the wrong entity or
service
address. Accordingly, there was no irregularity in the proceedings of
23 August 2013.
[32]
The principle that a litigant cannot be absolved from the negligence,
ineptness and tardiness of his or her chosen legal representative
is
also applicable to this case
[9]
.
The Labour Appeal Court stated in
Superb
Meat Supplies cc v Maritz
[10]
It has never been the
law that invariably a litigant will be excused if the blame lies with
the attorney. To hold otherwise would
have a disastrous effect on the
observance of the rules of this court and set a dangerous precedent.
It would invite or encourage
laxity on the part of practitioners."
[33]
Significantly, considering the terms of the Court Order of 12 March
2012, there is no evidence before me that a proper rescission
application against the arbitration award had been served and filed
by the time the Court Order of 23 August 2013 was made. One
appears
to have been filed on 8 October 2013, more than a month after the
Order of 23 August 2013.
[34]
It was moreover filed 4 years after the arbitration award was issued
and the excuse therefor mirrors that set out in the application
before me. Clearly, in light thereof, the prospects of success in
that rescission application are weak.
[35]
In all these circumstances it cannot be said that there existed a
fact, at the time the Order was made on 23 August 2013, which
the
Court was not aware of and that had it been aware, it would not have
made the Order as it did. The Order made on 23 August
2013 was thus
not erroneously made.
[36]
While this finding is lamentable, considering my observations
regarding the circumstances in which the 3 employees were dismissed,
it is the only appropriate finding considering the long history of
the matter and the applicant’s negligent conduct throughout.
Order
[37]
I make the following orders:
(1) The rescission
application is dismissed.
(2) The condonation
application thereto is dismissed.
(3) There is no order as
to costs.
________________________________
B
Whitcher
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the applicant:
Adv X Mofokeng, instructed by Gildenhuys Malatji Attorneys
For
the Respondents
IMATU official – L Burns - Coetzee
[1]
The Court was informed that the matters in respect of NJ Botha and Z
Matlaila and the applicant are withdrawn as they have been
settled
by the parties.
[2]
On the applicant’s averments they fraudulently secured
employment with Nokeng.
[3]
See
in particular paragraphs 8.1 and 8.7.
[4]
JR
1395/15 dated 25/10/17
[5]
(2000) 9 BLLR 1020
(LC)
[6]
(JS 173/14(2017) ZALCJHB 20 (25 January 2017).
[7]
(2015)
ZALCJHB 17 at para. 10.
[8]
(2016) 37 ILJ 22852 (LC) at para. 13.
[9]
See Saloojee v Minister of Community Development
1964 (2) SA 135
(AD) at 141 B-H, where it was held that;
"In Regal v
African Superslate (Pty) Ltd
1962 (3) SA 18
(AD) ... this court came
to the conclusion that the delay was due entirely to neglect of the
applicant’s attorney, and
held that the attorney’s
neglect should not, in the circumstances of the case, debar the
applicant, who was himself in
no way to blame, from relief. I should
point out, however, that it has not at any time been held that
condonation will not in
any circumstances be withheld if the blame
lies with the attorney. There is a limit beyond which a litigant
cannot escape the
result is of his attorney’s lack of
diligence or the insufficiency of the explanation tendered. To hold
otherwise might
have a disastrous effect upon the observance of the
rules of this court. Considerations ad misericordiam should not be
allowed
to become an invitation to laxity. In fact this court has
lately been burdened with an undue and increasing number of
applications
for condonation in which the failure to comply with the
rules of this court was due to neglect on the part of the attorney.
The
attorney, after all, is the representative the litigant has
chosen for himself, and there is little reason why, in regard to
condonation of a failure to comply with a rule of court, the
litigant should be absolved from the normal consequences of such a
relationship, no matter what the circumstances of the failure are.…
A litigant, moreover, who knows, as the applicants
did, that the
prescribed period has elapsed and that an application for
condonation is necessary, is not entitled to hand over
the matter to
his attorney and then wash his hands of it. If, as here, the stage
is reached where it must become obvious also
to a layman that there
is a protracted delay, he cannot sit passively by, without so much
as directing any reminder or enquiry
to his attorney… and
expect to be exonerated of all blame; and if, as here, the
explanation offered to this court is patently
insufficient, he
cannot be heard to claim that the insufficiency should be overlooked
merely because he has left the matter entirely
in the hands of his
attorney. If he relies upon the ineptitude or remissness of his
attorney, he should at least explain that
none of it is to be
imputed to himself. That has not been done in this case. In these
circumstances I would find it difficult
to justify condonation
unless there are strong prospects of success.”
[10]
(2004) 25 ILJ 96 (LAC)