JR254/01-HVDM
Sneller Verbatim/HVDM
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J3498/00
2001-10-18
In the matter between
GOMBO SECURITY SERVICES (PTY) LTD Applicant
and
SECURITIES COMBINED CIVIL WORKERS
UNION AND 36 OTHERS Respondents
___________________________________________________________
J U D G M E N T
___________________________________________________________
LANDMAN J : This is an application for the rescission of a judgment. The
applicant is Gombo Security Services (Pty) Ltd. The respondents are the
Securities Combined Civil Workers Union and 36 members who were formally
employed by the company.
On 21 November 2000 the respondents obtained a judgment by default in
terms of section 158(1)(c) of the Labour Relations Act 66 of 1995. The court
ordered:
"1. The arbitration award issued on 26 June 2000 by Commissioner B Moyo of the
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JUDGMENT1
Commission for Conciliation and Mediation under case no. GA65087 is made an
order of court in terms of section 158(1)(c) of the Labour Relations Act 66 of 1995.
2. The respondent is to pay the applicants' costs.
3. The respondent is ordered to pay compensation of R523 740 to the 35 applicants
and the amount of R24 000 to the 36th applicant."
Thereafter the union sought to enforce the award. This resulted in the
company applying for the rescission of the judgment. The application for
rescission was slightly out of time. There is no reason why it should not be
condoned, and it is condoned.
The application for rescission of the judgment must, in my view, be
approached on two legs. The first relates to paragraph 1 and 2 of the order, that
is those parts of the order making the arbitration award an order of court and
ordering the company to pay the union's costs. The second leg relates to the
order of compensation. This is set out in paragraph 3.
In so far as paragraph 3 is concerned this appears to be an order which was
erroneously granted. First, there was no application to quantify the award before
the court. Essential information, such as the date of dismissal, the length of the
respective contracts of employment of the individual applicants, and the wages
was lacking.
In my opinion this part of the award therefore falls to be rescinded on this
ground alone. The company would have had no notice whatsoever that this kind
of relief was being sought.
As regards the remainder of the order it is incumbent on the company to
show that it was not in wilful default and that it has a bona fide defence. The
company says that it did not receive notice of the fax sent by the CCMA informing
it of the date of set down of the arbitration proceedings. This is merely a bald
JR254/01-HVDM
statement. The company has apparently not investigated whether or not it
received that notice as it has done in respect of other faxes. The inference to be
drawn is that this matter has not been properly investigated. The company
admits that it received a copy of the award. This copy was filed away by an
administrative assistant and nothing was done about it. The company also admits
it received a copy of the application to make the award an order of court, but it
does not know what was done about it. Apparently no employee can be traced
who did anything about it, but it is admitted that the document was received.
The company has been grossly negligent (negligence which is bordering on
recklessness), in regard to process emanating from the CCMA and this court. The
company was aware that there had been a failed conciliation and that therefore
there was a dispute pending in the CCMA. It knew where it could obtain
information as regards the progress of that matter, but it failed to do so.
In my opinion the company was in wilful default, both as regards the
proceedings in the CCMA and in this court.
I turn to the question whether the company has a bona fide defence. The
company admits that it owed leave pay to the 35 individuals. It says however it
could not pay them. It goes on to say that a strike took place and that the
employees were dismissed for striking. This may be its perception, and the
commissioner points it out, but employees are not obliged to work if they are not
paid. There must be some doubt as to whether or not they were dismissed for
striking. What points against them being dismissed for striking is the fact that the
employer dismissed them on one month's notice. This is not something which is
usually done in a strike situation. I am of the opinion that the company has not
shown that it has a bona fide defence. The company has not shown that it has the
shown that it has a bona fide defence. The company has not shown that it has the
prospects of succeeding in an application to rescind the CCMA's award nor has it
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JUDGMENT3
shown grounds for this court to rescind paragraphs 1 and 2 of the order of this
court made on 21 November 2000.
In the result therefore the application in so far as it relates to paragraphs 1
and 2 of the order 21 November 2000 is dismissed. Paragraph 3 of that order is
rescinded. No order is made as to costs.
___________________
A A Landman
Judge of the Labour Court of South Africa
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