IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO. J3707/98
In the matter between:
MICHAEL WITNESS CHADI Applicant
and
K O INTERIOR DESIGN Respondent
JUDGMENT
MARCUS A J:
1. This is an application for an arbitration award to
be made an order of court in terms of section 158(1)(c)
of the Labour Relations Act, 66 of 1995 ("the Act").
The application bears the Registrar's stamp of 11
December 1998, the notice of motion having been dated 4
December 1998.
2. The arbitration award was handed down on 14 October
1998. I propose to quote the award in full. It states
the following:
"Arbitration Award
The process itself was a noncomplex exercise in that
only the applicant attended and presented his side of
the matter. The respondent failed to attend.
Analysis of Evidence :
The information submitted by the applicant indicates
that he was dismissed because he was suspected of
having been involved in a robbery which took place in
the shop. During the said robbery the lady by the name
of Anna Motsepe was killed. According to the
applicant's testimony he was on leave when the robbery
took place. In fact, on that specific day he was
shopping in town. The applicant showed purchase slips
to the respondent to that effect. Apparently the
applicant was taken to Bryanston for a lie detector
test where he testified. The police put him behind
bars for three days and released him after realising
that nothing connected him to the robbery. After the
release he phoned the respondent and was told by Mr
Willy Creviano that he should not be seen at the
company any more. Labour legislation provides that a
dismissal can be considered to be fair if an employee
is dismissed on the basis of misconduct, incapacity and
operational requirements. In all the said
circumstances, however, there are certain requirements
with regard to procedure and substance which should be
complied with if the dismissal is to be regarded as
fair. In this case none of the above was proven to be
the case. I therefore make the following award:
Award:
1. The dismissal of Michael W Chadi was unfair
procedurally and substantively.
2. I hereby order the respondent to:
2.1 reinstate the applicant with immediate effect with
no lesser benefits and conditions than
the ones that were applicable at the time of the
dismissal;
2.2 pay the applicant compensation to the value of
four months at the rate of the applicant when he was
dismissed."
3. The respondent's notice of intention to oppose the
relief sought is dated 11 January 1999. The answering
affidavit, however, is only dated 24 May 1999. Mr Nel,
who appeared on behalf of the respondent, sought
condonation for the late filing of the answering
affidavit. In the result nothing turns on this and I
shall deal with the matter as if condonation has been
granted.
4. The respondent seeks a stay of the present
application on the grounds that it has launched a
separate application in terms of section 144 of the Act
for rescission of the arbitration award (‘the
rescission application’). The notice of motion in the
rescission application was signed on 13 January 1999,
i.e. two days after the filing of the notice of
intention to oppose the present application. It seems
that nothing has yet transpired in relation to the
rescission application. I was informed by Mr Nel that
the matter had not yet been resolved.
5. It appears to be common cause that the award was
received by the respondent in November 1998. The
affidavit of service states that the applicant
personally delivered the award to the respondent on 1
November 1998. By that date, therefore, it is clear
that the respondent was in possession of the award. As
indicated above the award required immediate
reinstatement of the applicant.
6. In considering whether I should grant a stay of the
present application, it is necessary for me to consider
the factual basis advanced for the stay. Two
contentions are advanced: first, that the award was
handed down in the absence of the respondent and
second, that there are good prospects that the
application for rescission will succeed.
7. Mr Nel accepted that the approach adopted by the
Appellate Division in Chetty v Law Society, Transvaal
1985 (2) SA 756 (A) ought to be followed. That case
concerned rescission at common law. Miller JA observed
at 764J765E:
"The appellant's claim for rescission of the judgment
confirming the rule nisi cannot be brought under Rule
31(2)(b) or Rule 42(1) but must be considered in terms
of the common law which empowers the court to rescind a
judgment obtained on default of appearance provided
sufficient cause therefor has been shown (See De Wet
and Others v Western Bank Ltd 1979 (2) SA 1031 (A) at
1042 and Childerly Estate Stores v Standard Bank of SA
Ltd 1924 OPD 163). The term 'sufficient cause' (or
‘good cause’) defies precise or comprehensive
definition for many and various factors are required to
be considered (see Cairn's Executors v Gaarn 1912 AD
181 at 186 per Innes JA) but it is clear that in
principle and in the long standing practice of our
courts two essential elements of 'sufficient cause' for
rescission of a judgment by default are:
(i) that the party seeking relief must present a
reasonable and acceptable explanation for his default;
and
(ii) that on the merits such party has a bona fide
defence which prima facie carries some prospect of
success ( De Wet 's case ( supra) at 1042; P E Bosman
Transport Works Committee and Others v Piet Bosman
Transport (Pty) Ltd 1980 (4) SA 794 (A); Smith NO v
Brummer NO and Another ; Smith NO v Brummer 1954 (3) SA
352 (O) at 3578).
It is not sufficient if only one of these two
requirements is met; for obvious reasons a party
showing no prospect of success on the merits will fail
in an application for rescission of a default judgment
against him, no matter how reasonable and convincing
the explanation of his default. And ordered judicial
process would be negated if, on the other hand, a party
who could offer no explanation of his default other
than his disdain of the rules, was nevertheless
permitted to have a judgment against him rescinded on
the ground that he had reasonable prospects of success
on the merits."
8. As to the explanation for the absence from the
arbitration hearing, Ms Criveano, who describes herself
as the owner of the respondent, states the following:
"6.1 I submit that the employer party is not in default
in this matter and has a good and reasonable
explanation for not attending at the CCMA hearing of
the matter of which hearing date the employer at the
time and even to date still has no knowledge. It
appears from the arbitration award that the hearing was
held on 7 October 1998.
6.2 I state that after a complete and thorough
investigation by me I could find no documentation
setting this matter down for arbitration. The employer
party had no knowledge that this matter had been set
down for hearing on 7 October 1998.
6.3 Had the employer party known of this matter we
would most certainly have attended at the hearing to
oppose this matter. According to the employer party,
as will be addressed below, the employee absconded
without valid reason thus terminating his own
services."
9. No information is furnished as to what the
investigation comprised. Mr Nel submitted that the
respondent had done as much as could be expected to
explain the default. However, I do not know what steps
were taken, when they were taken or by whom they were
taken. I do not know if any effort was made to contact
the CCMA or whether the file presumably kept at the
CCMA was inspected. I do not know whether employees of
the company, assuming there to be employees, were
questioned as to whether they had perhaps received
service on behalf of the respondent. In short, I am in
no position to assess the claims made by Ms Criveano.
I am of the view that the explanation is inadequate.
10. In Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA
345 (A), a matter dealing with the rescission of a
default judgment in the Magistrate's Court, Schreiner
JA stated at 353A:
"It is enough for present purposes to say that the
defendant must at least furnish an explanation of his
default sufficiently full to enable the court to
understand how it really came about and to assess his
conduct and motives."
Applying this standard it seems to me that Ms Criveano
has simply not furnished an explanation sufficient to
explain the default in such manner as to enable me to
understand how it really came about and to place me in
a position to assess her conduct and motives. Mr Nel
argued that this observation by Schreiner JA must be
understood in the context of the methods of service
which pertained at the time that that judgment was
given. In my view, however, this submission is of no
real assistance. This is particularly so because the
rules of the Labour Court have attempted to keep pace
with modern developments. Thus it seems that the
obligation to furnish an explanation is perhaps even
greater today than it was at the time that Silber's
case ( supra) was decided. In my view, therefore, the
requisite standard to explain the default has not been
met.
11. As to the existence of the prospects of success,
Ms Criveano states the following in the affidavit:
"7.2.2 The employee party took leave for the period
21 December 1997 to 4 January 1998 and was due to
return to work on 5 January 1998. The employee only
returned to work on 8 January 1998 and at about midday
he was arrested by the South African Police.
7.2.3 The employer party receive (sic) no word from
the employee party on his absence from work. The
employer then wrote a letter dated 19 January 1998
marked Annexure MWC2 requesting information why
employee party did not return to work."
The letter in question dated 19 January 1998 reads as
follows:
"Michael
You took your Christmas leave as agreed from 21/12/97
until 4/1/98. You were expected back at work on Monday
5/1/98, 08.30 a.m. You only returned on Wednesday
7/1/98. On Thursday, 8/1/98 at midday you were taken
to the Linden Police by Inspector Opperman for
interrogation (Inspector Opperman waited for you on
Monday 5/1/98 08/30 a.m. but you failed to arrive).
The police told me that you were released during the
weekend and you were expected to be back at work on
Monday 12/1/98. After I did not hear from you till
today I understood it to be an act of resignation which
I have to accept since I do not have much of a choice."
12. Mr Nel conceded that no enquiry was made as to the
reasons for the absence of the applicant. The reasons
for such absence could be many and varied ranging from
a genuine explanation like sickness or family tragedy
to a spurious explanation. It is idle to speculate on
what that reason might have been. Some enquiry,
however elementary, was required by the employer.
13. Ms Criveano states further in her affidavit the
following:
"7.2.4 On 22 January 1998 the employee party
contacted the employer by phone and said the following
words: 'What is happening?' and the employer party
replied by asking 'you tell me what is happening' and
the employee party said he cannot come back to work as
he was beaten by the police. I understood from the
conversation that the employee party's intention was
not to return. I heard nothing further from employee
party and only after I received documentation that a
dispute was referred to the commission, I wrote the
following letter to the employee party marked MWC3
stating that the employee was not dismissed but
absconded."
The letter annexed to the affidavit as MWC3 reads as
follows
"Michael
With reference to your dispute which you have posted to
me I would like to point out the following: I have
sent you a letter dated 19/1/98 (see copy attached). I
have not seen you or spoken to you from 9/1/98 till
22/1/98. On 22/1/98 you phoned and asked 'what is
happening', instead of telling me what is happening. I
wish to point out that there was never an act of
dismissal from my side, you dismissed yourself by
disappearing without notice. I therefore do not accept
your argument of an unfair dismissal dispute when the
fact was a resignation without notice from your side."
Once again the employer merely inferred the worst
without so much as an elementary enquiry. This much,
Mr Nel conceded.
14. The arbitrator's award draws specific attention to
the procedural requirements which must attend upon a
fair dismissal. It appears to be common cause that no
proper hearing occurred prior to the termination of the
applicant's services. Given the standpoint adopted by
the respondent in this case and particularly the
somewhat curious concept that the applicant dismissed
himself, it is appropriate that I reiterate what today
ought to be regarded as elementary principles of labour
law. In Administrator Transvaal and Others v Zenzile
and Others 1991 (1) SA 21 (A) Hoexter JA stated at 37C
F:
"It is trite furthermore that the fact that an errant
employee may have little or nothing to urge in his own
defence, is a factor alien to the enquiry whether he is
entitled to a prior hearing. Wade, Administrative Law ,
6th ed. puts the matter thus at 5334:
'Procedural objections are often raised by
unmeritorious parties. Judges may then be tempted to
refuse relief on the ground that a fair hearing could
have made no difference to the result. But in
principle it is vital that the procedure and the merits
should be kept strictly apart since otherwise the
merits may be prejudiced unfairly '.
The learned author goes on to cite the wellknown
dictum of Megarry J in John v Rees [1970] Ch 345 at
402:
'As everybody who has anything to do with the law well
knows, the path of the law is strewn with examples of
open and shut cases which somehow were not; of
unanswerable charges which in the event were completely
answered; of inexplicable conduct which was fully
explained; of fixed and unalterable determinations
that by discussion suffered a change.'
In my view, therefore, there are no reasonable
prospects of successfully having the arbitration award
rescinded.
15.It remains for me to consider certain points in
limine which were advanced by the respondent. Under
the heading "Preliminary Objection", the respondent
states the following:
"2.1 The application of the applicant is not supported
by an affidavit which complies with the regulations
contained in the Government Gazette R1258 dated 21 July
1997, as amended by Government Notice No. 1648 dated 19
August 1997 in the following manner:
2.1.1 Every page of the affidavit is not initialled
by the commissioner of oaths;
2.1.2 the commissioner does not certify that the
affidavit was signed and sworn to before him;
2.2 The applicant failed to attach a copy of the
arbitration award to its application despite referring
to it and it forming the basis of his application.
2.3 The applicant failed to specify a schedule of
documentation relevant to the application as required
by Labour Court Rule 7(2)(f) despite the fact that the
award made is indeed a relevant document to the
dispute."
15. It is appropriate that I say something about
technical objections of this sort. While not for one
moment decrying the importance of the observance of
procedural requirements which are after all necessary
for the orderly resolution of litigation, it seems to
me that an overly technical approach scarcely serves
the ends of expeditious and effective dispute
resolution. The objections taken in the present matter
are of a highly technical sort and are ones which
ordinarily one would hope would not find their way into
litigation. Ironically the reliance by the respondent
on the Gazettes referred to above is itself an error.
This much was conceded by Mr Nel. While the Gazette
numbers are correct, they find no application
whatsoever in relation to the dates. In fact, the
correct Gazette numbers are Government Notice R1258 in
Government Gazette Extraordinary of 21 July 1972 and
Government Notice R1648 in Government Gazette
Extraordinary of 19 August 1977. It has been held in
Lohrman v Vaal Ontwikkelingsmaatskappy (Edms) Bpk 1979
(3) SA 391 (T) that provided it appears with reasonable
clarity how a declaration was stated to be the truth,
namely either on oath or by affirmation, the relevant
part of the regulations governing the attestation of
affidavits is thereby complied with. It is further
stated that the court enjoys a discretion in this
regard.
16. In the present matter the affidavit to which
objection has been taken is essentially a standard form
which has been designed to assist lay people with the
relevant court procedures. Mr Nel did not suggest
that any prejudice was occasioned by the noncompliance
with some of the procedural formalities which are laid
down.
17. With regard to the second preliminary objection
concerning the failure to attach a copy of the
arbitration award, again Mr Nel, quite correctly, in my
view, did not urge upon me that this was a serious
objection. Indeed, a copy of the arbitration award was
in the respondent's possession and once again this is
not a matter which ought to detain the court. Likewise
the third objection was not pressed by Mr Nel.
1.
19. In the circumstances I make the following order:
1. The arbitration award dated 14 October 1998 and
issued by Commissioner A R Mudau is made an order of
court in terms of section 158(1)(c) of the Act.
2. The application for a stay of the application to
make the award an order of court is dismissed.
3. The respondent is ordered to pay the applicant's
costs.
___________________
G J MARCUS
ACTING JUDGE OF THE LABOUR COURT OF SOUTH AFRICA .
DATE OF HEARING: 1 JUNE 1999
DATE OF JUDGMENT: 1 JUNE 1999