IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO.: J1934/98
In the matter between
PROFESSIONAL SECURITY
ENFORCEMENT Applicant
and
J NAMUSI Respondent
[1] This is an application for leave to appeal against an order
granted by this Court on 17 December 1998, in terms of which a
CCMA arbitration award in favour of the respondent was made an
order of court.
[2] The events preceding the respondent’s application in terms of
section 158(1)(c) were as follows. The respondent initially filed the
application on 3 August 1998. It was set down on the unopposed roll
on 22 September 1998. The respondent did not appear when the case
was called on that day, and the application was struck off the roll with
the instruction that it was not to be re-enrolled unless the respondent
satisfied a judge to the contrary. The respondent succeeded in so
doing, after he had explained
that he was at Court on 22 September 1998 but could not gain
access as the court room was crowded and he had not been
informed that the case had been called. The application was re-
enrolled on 12 November 1998. On that day, Basson J issued an
order that the applicant (then respondent) serve and file a
proper review application within two weeks, and pay the wasted
costs of the respondent (then applicant).
[3] The reason for this order was apparently that on 3 November
1998 the applicant had filed a notice of motion seeking an order that
the respondent’s application to have the arbitration award made an
order of court be “set aside” (sic) together with the award itself.
Accompanying the application was an affidavit by one Joubert, general
manager of the applicant, who explained that the reason for the
applicant’s non-appearance at the arbitration hearing was that they
had been called to attend to a robbery at the time. He said that the
CCMA had been informed of this immediately, but had nevertheless
continued with the arbitration.
[4] There is nothing in the file to indicate that the applicant made
any attempt to comply with the order of 12 November 1998. However,
in an affidavit filed on 15 December 1998 in support of the notice of
intention to oppose the renewed application under section 158(1)(c),
the applicant’s attorney, one Lubbe, filed an affidavit to which copies
of letters to the CCMA dated 17 November and 9 December 1998,
respectively, were annexed. The first letter, which had already been
filed with the Court on 24 November 1998, refers to several alleged
defects in the award, and requests a date for “the proper hearing of
the application to have the award rescinded”. The second requests a
response to the first letter. Lubbe states further that an application
for review of the award was set down for 24 November 1998, but had
been withdrawn for reasons unbeknown to him. A document in the
Court file dated 20 November 1998 inexplicably gives notice of
removal of the application from the roll because the matter had
“already been heard”. That notice was apparently not served on the
respondent, who promptly filed a letter stating that he attended Court
on 24 November 1998, only to find that the review application had not
been enrolled, and advising that he accordingly wished to re-enroll his
application. Also on the file is a letter from one Ms Hoosen, dated 7
application. Also on the file is a letter from one Ms Hoosen, dated 7
December 1998, stating that to date she had received no copy of an
application for rescission of the award in question.
[5] This was the state of affairs when on 17 December 1998 the
Court heard the respondent’s application to have the award made an
order of court. Had the application been heard on 22 September 1998,
when it was initially set down, there would have been no basis for the
Court to decline to make the award an order of court. The applicant
had taken no steps at that stage to launch a review application, and
the six-week time-limit set by section 145 of the Labour Relations Act
66 of 1995 (“the Act”) had already passed. Due to purely fortuitous
circumstances, the respondent’s application was postponed. The Court
then granted the applicant the indulgence of permitting it to file an
application for review within two weeks. No such application was filed.
Instead, the applicant’s attorneys appear to have realised that the
better alternative was to seek rescission of the award in terms of
section 144 of the Act.
[6] Lubbe states in his affidavit that he was merely handling the
matter in the absence of his partner. It is therefore clear that he did
not have personal knowledge of how or whether the letter of 17
November was served on the CCMA. Attached to the copies thereof
annexed to his affidavit is a telefacsimile transmission slip dated 10
December 1998, indicating that three pages had been successfully
transmitted to the CCMA on 10 December 1998. There is no proof that
the letter dated 17 November 1998 had been faxed earlier. Nor was
any proof provided that the letter had been served on the CCMA when
it was faxed to the Court on 24 November 1998. There is accordingly
nothing on the file to contradict Ms Hoosen’s statement (albeit not
made under oath) that by 7 December 1998 no application for
rescission had been received by the CCMA.
[7] At best for the applicant, therefore, an application for rescission
of the award was received by the CCMA on 10 December 1998 –
some six weeks after the deadline set for filing of a proper review
application by Basson J, and five months after the award was
issued.
[8] The applicant now seeks leave to appeal against the order
making the award an order of court on the basis that the Court erred
“in finding that no proper application for rescission of the arbitration
proceedings is pending before the CCMA or has been applied for”, and
because the Court failed to find that “the steps taken by the Applicant
to have the arbitration award rescinded, complied with the Labour
Relations Act No 66 of 1995, as no proper procedures or prescribed
forms exist as to the manner in which such an application should be
launched”.
[9] No reasons were requested for the order made by this Court on
17 December 1998. The applicant therefore merely assumes that the
17 December 1998. The applicant therefore merely assumes that the
findings in respect of which the Court is alleged to have erred were the
main or only reasons for the order. Whether or not the alleged findings
influenced the Court’s decisions is, however, immaterial. The fact is
that the Court has a discretion, to be exercised in a judicial manner, to
grant applications brought under section 158(1)(c). Even were the
Labour Appeal Court to find that the applicant had properly lodged an
application for rescission, it would not follow that the order appealed
against would have to be set aside. On this basis alone, I would be
disposed to refuse leave to appeal.
[10] However, I will deal further with the possibility that the Court
might have erred in exercising its discretion to make the award an
order of court. Neither the Act nor the common law lays down a hard-
and-fast rule that an application to have an award (or any judicial
order) made an order of court must be dismissed or conditionally
postponed if the person against whom it is to be made has applied for
its rescission or review. This Court has, however, adopted the practice
of postponing applications brought under section 158(1)(c) if the
respondent has filed an application for review. This was, I believe, the
basis for the indulgence granted by Basson J in this matter. However,
there is no proof on the papers that the respondent did anything to
defend its interests until the applicant had sought twice to exercise his
rights in terms of section 158(1)(c). The first extension arose because
of the respondent’s misfortune in not having heard his case called.
The second extension was granted as an indulgence by the Court. On
the papers before me, there is no proof that the applicant took any
practical steps for about six months after learning of the award.
[11] While it is so that section 144 provides no time limit or formal
procedure for the lodging of applications for rescission of CCMA
arbitration awards, it does not follow that such applications can
be delayed indefinitely. In Pep Stores v Laka NO & others (1998)
19 ILJ 1534 (LC) Mlambo J, discussing the remedies available to
those dissatisfied with CCMA arbitration awards, observed that
the structure of the Act relating to arbitrations conducted by the
CCMA
“… culminates in ss 144 and 145. These two sections
provide for the rescission and review of awards produced
provide for the rescission and review of awards produced
by arbitrators under the Act. Viewed holistically the
arbitration regime ousts any other role by any other
section of the Act within this regime. The provision for a
time frame in s 145 is important confirmation of the
legislature’s objective of finality in dispute resolution. Any
legal challenge by way of rescission (s 144) or review (s
145) must be brought within this period. If there is no such
challenge the award remains final and binding in terms of s
143.”
[12] While I do not agree with this passage if it is intended to suggest
that section 144 has an implicit time limit of six weeks (for,
unlike section 145 it contains no such express time limit), I am
nevertheless in agreement that the legislature must be taken to
have intended that applications for rescission must be brought
within a reasonable time. What is reasonable in this context
must be determined in relation to the purposes of the Act and
the circumstances of each case. One of the purposes of the Act
is the effective resolution of labour disputes: see section 1(d)(iv).
This objective is served by the provisions relating to arbitration in
general and, in particular, by section 144, which provides that
arbitration awards are final and binding. Section 158(1)(c) is
merely a method of ensuring enforcement of such awards. An
award is still “final and binding” even though it has not yet been
made an order of court. Sections 144 and 145 are the only
methods open to persons against whom awards have been made
to obtain relief. The time limit in section 145 indicates that if
review proceedings have not been launched within six weeks,
there can be no bar to an application to have an award made an
order of court at any time thereafter, save perhaps for a manifest
jurisdictional defect or, perhaps, the existence of compelling
reasons to condone a late application for review. The same
considerations, it seems to me, apply to applications for
rescission in terms of section 144. The object of expeditiously
resolving labour disputes would certainly be compromised were
employers to be permitted with impunity to ignore awards
indefinitely without taking action under sections 144 or 145, and
then block the employee when he ultimately seeks to have the
award enforced under section 158(1)(c). I do not say that there
may not be circumstances in which an employer should be
permitted to do so. But that question must be decided in
relation to the circumstances of each case.
[13] In my view, this was not a case in which the section 158(1)(c)
application should have been dismissed or postponed because the
applicant had requested the CCMA to rescind the award. The applicant
did nothing to protect its interests for some six months. It did not
utilise the opportunity extended to it by the Court to launch the review
application that it professed to be contemplating in November. It
apparently sought a court date for such an application, but withdrew it
without affording the respondent the courtesy of telling him that it had
done so, or that it had apparently decided to bring an application for
rescission instead. Only on hearing that the respondent had decided
to pursue his action under section 158(1)(c) did the applicant take
steps to seek confirmation that the CCMA had in fact received the
application that it had purportedly made. Even then, the applicant
and/or its representative had a further ten days before the hearing of
the respondent’s application to take further steps. These could have
included a personal visit to the CCMA to ascertain the status of the
rescission application and to ensure that a date had been allocated for
the hearing thereof, or at least to acquire official confirmation that the
Commission had not as yet been able to allocate a date. In the event,
all the applicant has presented to this Court is a letter that was faxed
to the CCMA seeking confirmation of receipt of an earlier application
for rescission that had purportedly preceded it.
[14] In my opinion, the applicant’s conduct was so tardy that it did
not warrant further frustrating the respondent’s bona fide
attempts to have the award made an order of court.
[15] The sole question at issue in the present application is whether
there is a reasonable possibility that another Court might reach a
different conclusion. In my opinion there is not.
[16] Leave to appeal is accordingly refused.
_______________
GROGAN A J
ACTING JUDGE OF THE LABOUR COURT
Judgment date: .