IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN)
CASE NO: C468/01
1322002
In the matter between:
SIYAKHA CLEANING SERVICES CC Applicant
and
G N NDLANGA Respondent
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J U D G M E N T
______________________________________________________
LANDMAN J:
1. Siyakha Cleaning Service CC applies to rescind an order granted by
Cheadle AJ on 11 September 2001 making an order of the
Commission for Conciliation, Mediation and Arbitration ("the CCMA")
an order of this Court. The application is opposed.
2. Siyhaka did not receive notice of the referral of the dispute for
arbitration by the CCMA and consequently did not attend the
hearing. Had Siyhaka attended the hearing it would have had, on
the facts set out in the founding affidavit, a reasonable prospect of
success. Siyhaka had earlier received notification of the conciliation
process but only after it had transpired. The notice had been sent to
Siyhaka's previous address. Siyhaka learnt of the arbitration award
when payment of the amount stipulated in the award was demanded
by Ms Ndlanga's attorneys. Siyhaka immediately attempted to have
the award rescinded.
3. The application for rescission was lodged with the CCMA on 15
March 2001. A copy of that application, which was in fact a letter,
was not served on the employee Ms Ndlanga. The application itself
did not comply with the CCMA's rules. The CCMA was aware of
these deficiencies, as appears from email correspondence, but did
not inform Siyhaka about them until 22 October; some 10 days
before the rescission hearing was scheduled. Siyhaka received the
notice of application to make the award an order of this Court,
however, the secretary who received it and who has since left the
employment of Siyhaka, merely filed the papers away. This, of
course, is not satisfactory but it does explain why Siyhaka did not
apply to Court for a stay of the award pending the rescission
application.
4. Siyhaka seeks to rescind the order of this Court in terms of Rule
16A(1)(a)(i) on the grounds that the order had been granted
erroneously. I am of the opinion that the order was not granted
erroneously as an application to the CCMA to rescind an award does
not constitute lis pendens . Siyhaka was obliged to apply to Court to
stay the execution of the award. Ms Ndlanga's attorneys had not
received a copy of the application for rescission and therefore they
were not at fault in not informing the Court about any possible
rescission. They clearly could not do this as they were not aware of
it. However, the order was granted in the absence of Siyhaka, who
was not in wilful default, who has prospects of success and it would
be in the interests of justice that the dispute be properly ventilated. I
propose to rescind the order. Ms Ndlanga's opposition to the
application was not unreasonable, having regard to the manner in
which Siyhaka dealt with the application for rescission and the way in
which it dealt with the notice of motion.
5. In the result:
1. The order of this Court dated 14 September 2001 is rescinded.
2. The applicant in this application, Siyhaka Cleaning Services CC, is
ordered to file its original application for rescission on the
respondent in this application, Ms G N Ndlanga, together with an
affidavit. This is to be done within 10 days. If this is not done Ms
Ndlanga, the respondent in this matter, may re-enrol the
application to make the award an order of Court.
3. The applicant in this application, Siyhaka Cleaning Services CC, is
ordered to pay Ms Ndlanga’s costs of opposition.
Signed and dated at BRAAMFONTEIN this 26 th day of February
2002.
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AA Landman
Judge of the Labour Court of South Africa