IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: J2414/98
CASE NO: J3884/98
In the matter between
ENZO PANELBEATERS CC First Applicant
and
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
E MYHILL Second Respondent
SHEREEN CECILIA NAIR Third Respondent
JUDGMENT
de VILLIERS AJ
1. This is the combination of two applications. In the first, under J2414/98,
the Applicant seeks to have the order made by Grogan AJ on 17
December 1998 (under that case number making the award of the Second
Respondent dated 6 October 1998 an order of court) and the Warrant of
Execution issued pursuant to that order, rescinded and set aside. In the
second, under J3884/98, the Applicant seeks to have the said award set
aside on review.
2. In both applications a Vincenzo Fernandes is cited as a party. However
he was not a party to the arbitration proceedings (which are the subject
matter of the application under J3884/98) nor was he a party to the
application which resulted in the award pursuant to those proceedings
being made an order of Court. If the Applicant wished to join or substitute
him as a party it ought to have made an application or laid a foundation for
the Court to exercise its discretion in terms of rule 22 (2) (a). It failed to do
this and therefore he has no locus standi in these proceedings.
3. Also, I noted that the application under J2414/98 is signed by a Daniel
Francois du Toit who, in the Applicant’s Founding Affidavit, purports to
represent the Applicant in the Application to rescind the order. It is
common cause that Mr du Toit is a labour consultant and hence does not
have right of appearance in this Court.
4. However, because the Applicant was represented at the hearing by an
Advocate, properly instructed, and because both the Applicant and the
Third Respondent urged for the matter to be finalized, I agreed to hear the
submissions of the parties relative to the applications and to rule on them.
5. It is appropriate to deal with the application under J2414/98 first since it is
only necessary to entertain the second application if the first succeeds.
6. The history of this matter, to the extent that it is material to my findings,
appears (from the papers in the Court file) to be as follows:
6.1. On 6 October 1998 the Second Respondent (“the Commissioner”)
made an award in terms of which the Applicant was ordered to pay
the Third Respondent the sum of R30 000,00.
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6.2. On or about 21 October 1998, the Third Respondent applied (under
case number J2414/98) to have the award made an order of Court
in terms of section 158 (1) (c) of the Labour Relations Act of 1995
(“the Act”). According to her affidavit of service, the application was
served on the Applicant on 21 October 1998
6.3. On or about 20 November 1998, the Applicant claims to have filed
and served (per fax) an application to have the award reviewed and
set aside in terms of section 145 of the Act. (There is some
confusion on this issue. According to the documentation in the file,
the case number for this application appears to have been applied
for and issued on 3 December 1998. However, according to the
affidavit of labour consultant and other documentation in the file, it
appears as if there was an earlier application for a case number
which did not materialize. The Third Respondent, at the hearing
confirmed receiving the notice but not the affidavit. According to the
record of the proceedings on 17 December 1998, only the notice
made its way into that file under case number J2414/98. The
original notice and affidavit are not stamped by the Court and the
only indication of service is a facsimile transmission slip which
indicates that on 20 November 1998, 17 pages were telefaxed to
the Third Respondent and 28 pages were telefaxed to the Labour
Court.) However, because, for the reasons given below, I do not
have to consider the application for review, I have accepted the
Applicant’s submissions in this regard.)
6.4. The Applicant, in its founding affidavit, confirms that on or about 11
December 1998 it received a notification from this Court advising
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that the Third Respondent’s application under case number
J2414/98 had been set down for hearing on the unopposed roll on
17 December 1998.
6.5. In the Founding Affidavit, the Applicant’s labour consultant goes on
to say the following (at paragraphs 4.4 to 4.7)::
I received the fax [ie the notification referred to in paragraph 6.4 above] on the
14th December 1998 and immediately phoned Mr Haasbroek, the
Registrar of the Labour Court, and told him that the case was
definitely not unopposed. I further informed him of the fact that we
applied for a review of the Arbitration award which was granted to
Mrs Nair. Mr Haasbroek then said that he would get hold of the file
and phone me back, and that I should send him a letter in the
meantime confirming the fact that it was an opposed case. He
would then see to it that the case be removed from the roll.
I faxed a letter through to Mr Haasbroek at 0114039327 containing all the
relevant facts and information, with annexures attached thereto as
proof of all the facts.
The Wednesday, 16 December, was a public holiday. The next day, the day
on which the case was originally placed on the roll for hearing, I
phoned Mr Haasbroek several times, but could not get hold of him.
Later, during the same day, in the afternoon I eventually spoke to Mr
Haasbroek, regarding this matter. He determined what the situation
was, and informed me that the case had been heard and that the
Arbitration Award had been made an order of the Court.
I asked Mr Haasbroek what had happened to my letter that I faxed through
to him, to inform the Court that it was an opposed case. Mr
Haasbroek’s reply was that the file hadn’t contained any cross
references to our application, but that he had put my letter together
with all the annexures in the file, and did not know what went wrong
in Court. He speculated that the Judge perhaps did not see the
documents.
7. In determining the test to be applied where an application to rescind is
documents.
7. In determining the test to be applied where an application to rescind is
brought in terms of section 165 (on the facts of this case only section 165
(a) has application), this Court has accepted that, because the wording of
that provision is similar to rule 42 (1) (a) of the Uniform Rules of the High
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Court, the following comments of Erasmus Superior Court Practice Juta at
B1308 a (original service 1994) are applicable (See CAWU & Another v
Federale Stene (1991) (Pty) Limited [1998] 4 BLLR 374 (LC): Sizabantu
Electrical Construction v Guma & Others [1999] 4 BLLR 387; Police
and Prisons Civil Rights Union v Sekhu J1653/98 unreported ;
Marathon Earthmovers v Commission for Conciliation Mediation and
Arbitration & Others J3077/98 unreported):
“An order or judgment is erroneously granted if there was an irregularity in the
proceedings, or if it was not legally competent for the court to have made
such an order, or if there existed at the time of its issue a fact of which the
judge was unaware, which would have precluded the granting of the
judgment and which would have induced the judge, if he had been aware of
it, not to grant the judgment ” (My emphasis)
8. The Court may also rescind an order or judgment where good cause is
shown in terms of rule 16A and in terms of the common law if the party
seeking relief presents a reasonable and acceptable explanation for his or
her default and shows that he or she have a bona fide defence which,
prima facie , carries some prospect of success. (See Police and Prisons
Civil Rights Union v Sekhu (supra) and Sizabantu Electrical
Construction v Guma & Others (supra)
9. According to the record of the proceedings, the judge was aware of the
pending review application. This was confirmed at the hearing of this
matter by the Third Respondent. The transcript of the record is instructive.
It reads as follows:
COURT: There is just one matter that I want to read on the file, Mrs Nairi (sic), just
quickly. I see the respondent has indicated that it intends to take this
matter on review, are you aware of that?
MRS NAIRI: I have received notice, yes.
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COURT: And that it has actually been set down, if they were here they would
probably be saying because it is on review this order should not be
granted, what is your feeling about that?
MRS NAIRI: This case has been heard four times already.
COURT: Which case?
MRS NAIRI: It was rescinded already, Mr Myhill reheard the case again. He issued
an award again, this is the second time I got an award.
COURT: This is the second award in your favour?
MRS NAIRI: Yes, I had to withdraw the other one because he made an error on it,
so he has issued another one, he heard the case again. I have no idea why
they want to review the case.
COURT: Nor do I quite frankly because there is, all I have before me is a notice of
motion but there is no affidavit annexed to that notice of motion which they
are required to do in terms of the Act, so I do not know why they want to set
it aside either.
MRS NAIRI: I have no idea why they want to do that.
10. If the Applicant’s case was that the judge was unaware of the review
application and that the Applicant did not have an opportunity to draw this
to his attention prior to him making the order (for example, if it had not
received notification of the hearing), its application for rescission of the
order may have had some merit.
11. But, in the circumstances of this case, the application was properly before
the judge on the unopposed roll (there being no formal opposition to it
within the prescribed time limits) and the Applicant had received
notification of time and date of the hearing. In addition, the judge knew
that the Applicant had served and filed a notice of its intention to review
the award and he nevertheless exercised his discretion in favour of
making the award an order of Court. The Applicant has thus not made out
a case which satisfies the test outlined by Erasmus (supra) for a rescission
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in terms of section165 (a).
12. The conversation which the Applicant’s labour consultant had with the
Registrar on 14 December 1998 and his mistaken belief that that would be
sufficient to stay the application does not take the matter any further or
assist the Applicant in making a case for rescission in terms of Rule 16A
(1) (b) or the common law.
13. I am of the view that the Applicant’s labour consultant’s conduct in this
regard was negligent in the extreme. By advertising his services as a
labour consultant, he purports to have the knowledge and expertise
required to assist his clients with their labour disputes properly in terms of
the rules and practice of this Court. The rules and practice required him,
when knowledge of the application came to his attention, to instruct
attorneys to formally oppose the review and apply for a stay of the
proceedings pending the outcome of the review application. This would
have ensured that the matter was placed on the opposed roll. If there
was insufficient time for him to do so (and clearly there was ample time),
at the very least, he should have ensured that either his client or a proper
representative on behalf of his client appeared in court on 17 December
1998 to ask for a postponement pending the filing and service of that
application. Instead, on his version in the Founding Affidavit (which,
incidentally, is not supported by a confirmatory affidavit by the Registrar),
he relied on the Registrar of this Court to deal with the matter following a
telephone discussion and a letter which he faxed through at 2.24pm on the
day before the hearing (the following day was a public holiday) and a day
after the telephone discussion with the Registrar.
14. Had he been a lay person I could understand how he might reasonably
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have believed that the Registrar had the necessary authority to deal with
the matter. But he holds himself out as an expert in the practice of labour
law. Leaving the matter in the hands of the Registrar in the hope that the
Registrar would have the matter removed from the roll and then failing to
ensure, timeously, that this had, in fact, happened by going to the court
himself or instructing someone else to go for him (when the Registrar
failed to call him back as promised and when he failed to make contact
with the Registrar) shows complete ignorance of and disregard for the
rules and procedures of this Court and negligence on his part.
15. Fairness and the adherence to the rules of this Court demand that this
conduct should not be condoned. If this Court came to the rescue of the
Applicant in these circumstances it would be tantamount to allowing
opposition to the Third Respondent’s substantive application, which was
properly before the Court at the time it was adjudicated, in through the
back door by way of a telephone call and letter to the Registrar which,
being faxed at 2.24 pm before a public holiday and effectively the day
before the hearing, had very little chance of finding its way into the Court
file.
16. The Courts have consistently refused to grant rescission where attorney’s
negligence is responsible for the default. (See Erasmus op.cit.). I see no
reason why this Court should adopt the same approach to labour
consultants who purport to be experts in the field of labour law.
17. The Applicant has not made out a case for the rescission of the order in
terms of section 165 (a) nor has it shown good cause to rescind the order
in terms of Rule 16A (1) (b) nor has it presented a reasonable and
acceptable explanation for its default for relief in terms of the common law.
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18. The application for rescission of the order making the award an order of
court fails and with it, the application to stay the execution of the writ
issued by the Registrar pursuant to that order and the application for the
review of the award.
19. I therefore make the following order:
19.1. The application for rescission of the order made by Grogan AJ on
17 December 1998 in which he made the arbitration award issued
on 6 October 1998 by the Second Respondent under Case No. GA
27726 and Order of Court is dismissed with costs.
19.2. The application to have the Writ of Execution issued pursuant to the
aforesaid order by the Registrar on 22 December 1998 is dismissed
with costs.
19.3. The application to review the arbitration award is dismissed with
costs.
19.4. The Applicant is ordered to pay the Third Respondent the sum of
R30 000,00 plus interest at the rate of 15.5 percent per annum from
6 October 1998 to date of payment within seven days of this order,
failing which the Writ of Execution issued on 22 December 1998 will
be reinstated and may be executed against the Applicant.
……………………………………..
I de VILLIERS A J
Acting Judge of the Labour Court
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Date of Hearing : 22 April 1999
Date of Judgment : 6 July 1999
For the Applicant : Advocate R Venter
instructed by G Joynt
For the Third Respondent : In person
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