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[2020] ZALCJHB 23
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National Union of Mineworkers and Others v Maake NO and Others (JR2438/16) [2020] ZALCJHB 23 (4 February 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
JR2438/16
In
the matter between:
NATIONAL
UNION OF MINEWORKERS
First
Applicant
FRIDAY
KUMBIRAI MADAMOMBE
Second Applicant
SURPRISE
MATHEBULA Third
Applicant
THULANI
DUGUNYE Fourth
Applicant
and
JOSIAS
SELLO MAAKE
N.O
First
Respondent
THE COMMISSION FOR
CONCILIATION,
MEDIATION
AND ARBITRATION Second
Respondent
EQSTRA NH EQUIPMENT
(PTY) LTD t/a
EQSTRA
CONSTRUCTION EQUIPMENT Third
Respondent
Heard
:
26
FEBRUARY 2019
Delivered
:
04 FEBRUARY 2020
Summary:
Labour Relations Act, 66 of 1995
and Rules of Court: Rescission of
default order in terms of
section 165(a)
and Rules of Court 16A
JUDGMENT
RAPHULU, AJ
Introduction
[1]
This in an application for the rescission and setting aside of the
default
Court Order granted by Snyman, AJ dated 20 June 2017. The
application is opposed.
Background
[2]
The Third Respondent launched an application to review and set aside
an
award made against it by the First Respondent.
[3]
The Registrar of this Court sent a notice of set down enrolling the
application
for hearing on the unopposed motion roll on 20 June 2017
at 10:00. The Notice of Set down appears to have been faxed to the
First
Applicant and the Third Respondent’s attorneys, Kramer
Villion Norris Incorporated.
[4]
On 20 June 2017, the matter proceeded before the court in the absence
of the Applicants and the following order was issued in default
against the Applicants:
1.
“The applicant’s review application is granted;
2.
The arbitration award of the first respondent, arbitrator JS Maake,
dated 27 September
2016 and issued under case number LP3152-15, is
reviewed and set aside;
3.
The arbitration award of the first respondent is substituted with an
award that the
dismissal of the third, fourth and fifth respondents
was substantively fair;
4.
There is no order as to costs.”
[5]
The Applicants’ attorneys aver that on or about March 2017, the
Third Respondent served a notice in terms of Rule 7A (6) of the Rules
of the Labour Court on the attorneys of record for the First
Applicant and its members. The Third Respondent alleges that on 9
March 2017, it obtained an acknowledgment of receipt of the notice
in
terms of rule 7A (8) (a) and its supplementary affidavit from the
Applicants’ attorneys of record. The Applicants deny
that they
received copies of the aforementioned documents. It is the
Applicants’ version that the attorneys of the Third
Respondent
failed to leave a copy of the documents with the Applicants’
attorneys when these documents were delivered and
that the Third
Respondent’s attorneys took all of the copies with them after
obtaining an acknowledgment of receipt.
[6]
Further, it is the Applicants’ case that the person who signed
the
acknowledgment of receipt, namely, Ms. Mary Mphepya (Ms Mphepya),
is no longer in the employ of the attorneys for the Applicants
and
therefore the First Applicant and its members were not in possession
of the documents in question and that these papers were
“incorrectly
delivered” by the attorneys of the Third Respondent. The
Applicants therefore deny that the First Applicant
and its members
were in wilful default of opposing the review application and that at
all relevant times, the First Applicant and
its members intended to
oppose the application.
[7]
The Applicants’ contend further that they did not receive the
notice
of set down and that upon their perusal of the court file, the
Registrar had sent the notice of set down on 17 May 2017 to an
“unknown”
fax number, being that of (011) 403 2071,
despite the fact that the Applicants’ filed their notice of
appointment as attorneys
of record, which stated that their fax
number was 086 726 5217.
[8]
It is the Third Respondent’s case that the aforementioned
notice
was served on the Applicants’ attorneys by hand and that
they acknowledged receipt thereof by completing the receipt block
and
affixing their stamp thereto. The Applicants were therefore in wilful
default in opposing the review application and the judgment
was not
erroneously granted in their absence. The Third Respondent avers
further that the Applicants also contend that they did
not receive a
notice of set down and on this aspect contend that the Applicants did
not file a notice of intention to defend the
review application,
therefore indicating their intention not to oppose the application.
This, combined with their conduct in failing
to file an answering
affidavit after they had been properly served with a notice in terms
of 7A(8)(a) of the Rules of the Labour
Court with the supplementary
affidavit cemented the Applicants’ intent not to oppose the
review application and the notice
of set down therefore did not have
to be served on them.
[9]
The Third Respondent contends that the Applicants have failed to
indicate
under which provision(s) of the Rules of the Labour Court
and/or the LRA that they have instituted this rescission application.
Their averments support both an application in accordance with Rule
16(1)(a)(i) of the Rules of the Labour Court, as read with
section
165(a) of the LRA (rescission of a judgment / order that was
erroneously sought or granted in the absence of a party) as
well as
Rule 16A(1)(b) of the Rules of the Labour Court (where the court may
on application by any party affected, rescind any
order or judgment
granted in the absence of that party).
Application
for rescission
[10]
I agree with the contention by the Third Respondent that the
Applicants did not clearly set out in their
application whether they
were relying on 16(1)(a)(i) of the Rules of the Labour Court, as read
with section 165(a) of the LRA or
Rule 16A(1)(b) of the Rules of the
Labour Court. It seems that the application has been brought in
respect of both the aforementioned
sections.
[11]
As further demonstrated below, there is a distinction between an
application brought in terms of Rule 16A(1)(a)(i)
and Rule16A(1)(b).
The requirements for the two sub-sections are also different.
The
applicable legal principles
[12]
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.
[13]
The above
principle was applied in the case of
Bayete
Security Holdings v Mokgadi and Others
[1]
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
limits. This was quoted in approval in the case
of
Mphahlele
v Muswede
[2]
.
[14]
In the case
of
Sizabantu
Electrical Construction v Gama and Others
[3]
,
the court held that good cause is not required to be shown if the
judgment or order was erroneously granted in the absence of
a party.
However, in terms of Rule 16A(1)(b), it is similar to rule 31(2)(b)
of the Uniform Rules of the High Court. The requirements
of good
cause as contemplated by Rule 31(2)(b) have been stated as follows:
the applicant must give a reasonable explanation for
his default. If
it appears that his default was wilful or that it was due to gross
negligence, the court should not come to his
assistance; the
application must be
bona
fide
and not made with the intention of merely delaying the plaintiff’s
claim; and the applicant must show that he has a
bona
fide
defence to plaintiff’s claim. It is sufficient if it makes out
a
prima
facie
defence in the sense of setting out averments which, if established
at the trial, would entitle him to the relief asked for. He
need not
deal fully with the merits of the case and produce evidence that the
probabilities are actually in his favour.
[15]
Below, I deal with the Applicants’ application for rescission
both in terms of Rule
16A(1)(a)(i) and Rule 16A(1)(b)
The
rescission in terms of Rule 16A(1)(a)(i) of the Rules of the Labour
Court.
[16]
It is the Applicants’ contention that firstly, they did not
receive the Third Respondent’s
notice in terms of Rule 7A(8)(a)
with the supplementary affidavit and secondly, that they did not
receive the notice of set down
from the Labour Court due to the fact
that it was sent to an incorrect fax number.
[17]
The crisp questions that arise for adjudication are whether or not
there was incomplete
service of the Rule 7A(8)(a) notice and if so,
whether this incomplete services constitutes an irregularity, and
whether or not
the judge’s ignorance of that incomplete service
constitutes a fact which, had he been aware of, would not have
granted the
order.
[18]
It seems to be common cause between the parties that the attorneys of
the First Applicant,
being Mothobi attorneys, signed an
acknowledgment of receipt of the Rule 7A(8)(a) notice with the
supplementary affidavit on 9
March 2017 and that same was signed by a
former employee of Mathobi attorneys, Ms. Mphepya and that the stamp
of Mathobi attorneys
is affixed to the Rule 7A(8)(a) notice. I have
also perused the Rule 7A(8)(a) notice and have seen that the stamp of
the attorneys
of the Applicants has indeed been affixed to the notice
and is dated 9 March 2017.
[19]
It is the Applicants’ version that their attorneys of record
did not receive a copy
of the Rule 7A (8)(a) notice and that it was
likely because the attorneys of the Third Respondent failed to leave
a copy with the
Applicants’ attorneys after it received the
acknowledgment of receipt. The Third Respondent denies this
proposition and submits
that the acknowledgment of receipt block was
completed by Ms. Mphepya on 9 March 2017 and that she affixed the
stamp of the attorneys
to the aforementioned notice, which is a clear
acknowledgment of receipt of a copy of the notice with the
supplementary affidavit.
The Third Respondent contends that the stamp
is
prima facie
proof that the notice together with the
supplementary affidavit was properly served on the Applicants’
attorney, that they
kept a copy of it and received it. The Third
Respondent has also submitted a confirmatory affidavit deposed to by
their messenger
who was tasked with delivery of the pleading and who
confirmed that he did in fact leave a copy of the notice together
with the
supplementary affidavit at the offices of the Applicants’
attorneys on 9 March 2017.
[20]
In the absence of sufficient evidence submitted by the Applicants to
the contrary and based
on the probabilities, I have no choice but to
accept the Third Respondent’s version.
[21]
I now
consider whether this default on part of the Applicants was wilful.
In
Checkburn
v Barkett
[4]
the Court followed this suggestion and the test adopted was whether
the person alleged to be in wilful default knows what he is
doing,
intends what he is doing and is a free agent and is indifferent to
what the consequences of his default may be. This latter
test has
been followed in a number of later cases but it has been suggested
that this test too is not conclusive and that the true
test is
whether the default is a deliberate one, that is, whether the
defendant with full knowledge of the circumstances and the
risks
attendant on his default freely takes the decision to refrain from
taking action.
[22]
All three elements must be established before the party can be said
to be in wilful default.
The onus of proof rests ultimately on the
respondent. In some cases, he will be able to show these elements by
direct evidence
but if he cannot do so, they can be shown by
inference. An applicant will therefore be held not to be in wilful
default if he acted
in the
bona fide
but mistaken belief, or
where his default is due to a mistake or non-compliance with the
Rules on his own part or of his attorney,
or where the summons has
not been properly served.
[23]
In considering the above principles, based on the evidence submitted
by the Third Respondent,
I find that a copy of the Rule 7A notice
with supplementary was properly served on the attorneys of the
Applicants on 9 March 2017
and that the Applicants’ attorney’s
stamp affixed to the notice is sufficient proof of this service and
that the Applicants
were accordingly in wilful default in opposing
the review application.
[24]
In respect of the Applicants’ contention that they did not
receive a notice of set
down of the review application from this
Court, I agree with the Third Respondent that the Applicants’
failure to file a
notice of intention to oppose the review
application despite proper service with a notice in terms of Rule
7A(8)(a) with supplementary
affidavit is enough to conclude that the
Applicants had no intention to oppose the review. In any event, the
matter was placed
on the unopposed roll and there was no obligation
on the Registrar to serve a notice of set down on the Applicants. In
Proclamation
R766 in Government Regulation Gazette No 22587 (Vol 438,
17 August 2001) the Rules were amended to require the Registrar not
to
deliver a notice to the party in default. The relevant portions
read as follows:
“
Rule 7(6)(b)
The Registrar must notify
the parties of the date, time and place for the hearing of the
application, but need not notify a respondent
who has not delivered
an answering affidavit in support of its opposition of the
application.”
“
Rule 16(1)
If no response has been
delivered within the prescribed time period or any extended period
granted by the court within which to
deliver a response, the
registrar must, on notice to the applicant(s), enrol a matter for
judgement by default.”
[25]
However, despite this, the Registrar did send a copy of the notice to
the Applicants via
fax. Although the Applicants contend that the fax
number was “unknown” to them, this was the same fax
number of NUM
as set out in the notice of motion to the review
application which was not contended as “unknown” by the
Applicants
at the time. As such, the Applicants’ argument has
no merit, and I find that the notice of set down was served on them
via
a fax number known to them.
[26]
Accordingly, the Applicants’ application for rescission in
terms of Rule 16A(1)(a)(i)
must fail.
The
rescission in terms of Rule 16A(b) of the Rules of the Labour Court
[27]
As mentioned above, Rule 16A(b) states that the court may on
application by any party affected,
rescind any order or judgment
granted in the absence of that party. This Rule requires of the
applicant to show that it had good
cause. However, if it appears that
his default was wilful or that it was due to gross negligence, the
court should not come to
his assistance. As I have already found the
Applicants to be in wilful default in opposing the review
application, I find no reason
to consider the other requirements for
good cause, such as whether the Applicant had a
bona fide
defence to the review application.
[28]
Accordingly, I make the following order:
Order
1. The
application for rescission is dismissed.
2.
There is no order as to costs.
_______________________
L. Raphulu
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the First Applicant: Mothobi
Attorneys
For
the Third Respondent: Advocate Sumayya Tilly
Instructed
by:
Kramer Villion Norris Incorporated
[1]
[2000] 9
BLLR
1020 (LC).
[2]
(JS 173/14(2017) ZALCJHB 20 (25 January 2017).
[3]
[1999] 4
BLLR
387
(LC)
.
[4]
[1932] CPD 423.