J2251/00-mc
Sneller Verbatim/mc
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J2251/00
2001-10-22
In the matter between
NEVILLE SMIT Applicant
and
WAP SA (PTY) LIMITED Respondent
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J U D G M E N T
___________________________________________________________
LANDMAN J: On 19 April 1999, WAP SA (Pty) Limited, dismissed Mr Neville Smit
from his employment with them. A dispute arose and this was referred for
conciliation to the Bargaining Council of the Steel and Metal Engineering Industry.
The dispute was unresolved and a certificate of non-resolution was issued.
The matter was thereafter referred to the CCMA for arbitration. The
arbitration hearing was set down for 29 March 2000. It is common cause that both
parties received notice of this. Due to reasons beyond the control of the
representative of Wap SA, he failed to attend the hearing. This was because he
had been involved in a hi-jacking. The commissioner was clearly unaware of this
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JUDGMENT1
and granted an award in the absence of the company. The arbitrator ruled that Mr
Smit had been constructively dismissed. He awarded Mr Smit compensation.
Some time later that day the company's representative attended at the
hearing and explained his reasons for not being at the arbitration hearing. The
commissioner informed him that he could apply for the rescission of the award.
An application for rescission was launched on 19 April 2000.
During the course of June 2000 Mr Smit lodged an application in terms of
section 158(1)(c) of the Labour Relations Act 66 of 1995 to make the award an
order of court. On 12 June the company sent a fax to this court and to Mr Smit's
attorney, that an application for rescission of the award had been filed with the
CCMA. The Labour Court made the award an order of court on 12 September
2000. On 19 September 2000 the CCMA forward a notice of the hearing of the
rescission application. On 29 March 2001 the CCMA rescinded the award.
The application which is currently before me is an application for the
rescission of the court order which was granted on 12 September 2000. When
Mr Smit applied for default judgment on 12 September 2000, his attorney, Mr
Verster, very properly filed an affidavit in which he drew attention of the court to
the following matters:
"To date hereof neither the applicant nor its legal representative has received any
notice or copy of such alleged application for rescission.
6. The applicant's legal representative advised respondent by fax letter that its
application for rescission as well as its reply in this matter was defective and not
in accordance with the rules of the CCMA and/or Labour Court.
Applicant encloses copies of the correspondence referred to herein marked JDV1
and JDV2 respectively.
7. Until date hereof no response or reply has been received from respondent.
J2251/00-mc
8. On 1 August 2000 the registrar of this court directed the respondent to file an
answering affidavit together with proof that the rescission application was served
on the applicant and filed with the CCMA within 10 days.
9. The respondent has to date hereof not complied with such direction.
10. In the circumstances the applicant has no option but to proceed with the
application to the above honourable court."
The failure of the company to heed the warnings of Mr Verster and the
request of the registrar justifies the inference that the employer was in wilful
default of pressing its case in this court. The circumstances which I have outlined
in the passage quoted above, served before the judge hearing the matter and it
was, I assume, clear to that judge that the company had not properly opposed the
application.
The employer may have had the good cause for rescission, taking into
account the reason why its representative was unable to attend the arbitration
hearing. I do not know what the company's case was as regards the merits set
out in the application for rescission. The commissioner remarked that there was a
bona fide defence. However, I do not know what that defence was and I am not
able to subordinate my judgment to that of the commissioner, particularly where I
do not know facts or basis on which he arrived at his decision.
The employer, by its refusal to comply with the rules and processes of this
court and by ignoring the warnings sent to it by Mr Verster and the registrar, is
unfortunately the author of its own misfortune.
In the circumstances therefore the application for rescission is dismissed
with costs.
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JUDGMENT3
__________________
A A Landman
Judge of the Labour Court of South Africa
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