IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN)
CASE NO: C894/2000
In the matter between:
LOUISE ANNE VAN SCHALKWYK Applicant
and
McCARTHY'S ARMED RESPONSE (PTY) LTD t/a
MILNERTON ARMED RESPONSE Respondent
J U D G M E N T
Date of hearing : 2 May 2002
On behalf of Applicant: Mr D Dykman, Dykman Attorneys
On behalf of Respondent: Mr R de Lange, De Lange Attorneys
MacROBERT, AJ:
1. An arbitration was conducted by CCMA Commissioner Rubin and
an award was issued on 14 August 2000.
2. The parties to the arbitration were Ms LA van Schalkwyk
(Respondent in this matter) and Milnerton Armed Response (no
details of incorporation specified), but referred to for convenience
as the employer party where appropriate in this judgment.
3. I have not had sight of the requisite form 7.11, nor have I had sight
of the record of the arbitration itself.
4. The arbitration was conducted in the absence of the employer
party. The arbitration award states that notification of the
proceedings was served on the employer party by registered post.
5. After hearing the evidence of Ms van Schalkwyk, together with the
supporting evidence of her husband and having had sight of
certain documentary evidence including a purported letter of
dismissal (see below), Commissioner Rubin held that Ms van
Schalkwyk's dismissal was procedurally unfair and that in the
absence of the employer and based on certain other grounds, the
Respondent employer had been unable to demonstrate the
substantive fairness of her dismissal, her dismissal was thus also
substantively unfair.
6. Compensation of R10 2000 equivalent to six months remuneration
was ordered in respect of the substantive unfairness of the
dismissal and R10 200 in respect of the procedural unfairness of
the dismissal, six months having elapsed from the date of
dismissal to the date of the award. The compensation thus totalled
R20 400 which was ordered to be paid "forthwith".
7. Ms van Schalkwyk then completed the requisite Form 1 referring
the matter to the Labour Court, on 6 December 2000, pursuant to
having the arbitration award made an order of court, in which she
cited Respondent as Mr GM McCarthy – Milnerton Armed Response.
8. A Notice of Motion was then apparently drawn by Ms van
Schalkwyk's attorneys, De Lange attorneys, on 26 March 2001, in
which Respondent was cited as McCarthy's Armed Response (Pty)
Ltd t/a Milnerton Armed Response. The Notice of Motion together
with supporting affidavits was served by Mr AR Smit, candidate
attorney of De Lange attorneys, on Mr Gary McCarthy personally,
at Unit 5, Milnerton Centre, Milnerton on 18 May 2001.
9. The Notice of Motion was supported by an affidavit of Ms van
Schalkwyk and the arbitration award, and called upon Respondent,
if it intended opposing the application, to, within ten days of
service of the application, deliver a Notice of Opposition and
Answering Affidavit, failing which the matter may be heard in
Respondent's absence.
10. It is common cause that Respondent did not enter a formal entry of
appearance opposing the matter. Mrs Wanda McCarthy, on the
letterhead of "Milnerton Armed Response" sent a telefax to the
Registrar of the Labour Court on 28 May advising that:
• Ms van Schalkwyk had never worked for McCarthy's Armed Response
(Pty) Ltd, but had rather been employed as a training control room
operator for Milnerton Armed Response CC;
• That she had been employed from 1 November 1999 to 8 January
2000 as training control room operator for Milnerton Armed Response
CC;
• That she had not completed her three months probationary period
successfully and that she was not permanently employed by the
company (sic).
• The facts further state that a telefax had been despatched to
Commissioner Rubin on 4 December 2000 (to which I will revert
below) giving the background to Ms van Schalkwyk's dismissal and
that Commissioner Rubin had "committed himself to call up the above
case again for arbitration";
• That Commissioner Rubin was out of the country and they had
awaited a new date of arbitration from him.
• The telefax conclude with the following: "Please remove the above
matter off the name of McCarthy's Armed Response (Pty) Ltd as she
was employed by Milnerton Armed Response CC".
It does not appear as if this telefax was responded to by the
Registrar.
11. In the absence of a formal notification of intention to oppose, and
in the absence of the employer party filing answering papers as
required by the rules and as invited by the Notice of Motion, the
Registrar set the matter down for default judgment on 30 August
2001. As is customary there was no notification to the employer
party, in the absence of formal entry of appearance.
12. On 30 August 2001 my brother Cheadle AJ made the order of
Commissioner Rubin an order of Court and ordered Respondent to
pay her costs. It then appears that Ms van Schalkwyk, through her
attorneys, sought to execute against Respondent in terms of the
order, on 16 October 2001.
13. This prompted the employer party (the Applicant in this matter)
and which describes itself in these proceedings as "McCarthy's
Armed Response (Pty) Ltd t/a Milnerton Armed Response" to apply
to rescind the judgment and order of Cheadle AJ made on 30
August 2001 and to stay the removal of goods which had been
attached, as also the execution of the judgment, pending this
hearing and the determination of the Labour Court.
14. In his founding affidavit, Mr Gary McCarthy states that he is the
Managing Director of Applicant, which conducts business at No 5
and No 6 Milnerton Centre, Koeberg Road, Milnerton.
15. He strangely makes no mention in his founding affidavit of the
telefax from Mrs Wanda McCarthy to the Registrar of the Labour
Court on 28 May although a fax in almost identical form was sent
to Ms van Schalkwyk's attorneys, to which he does refer.
16. In his affidavit he concedes that Ms van Schalkwyk was employed
by the employer party (i.e. the Applicant in this matter). (It is also
apparent from the documentation before me that Milnerton Armed
Response is a trading entity of Respondent).
17. The issue of the failure on the part of the employer party to appear
at the CCMA arbitration is a matter in respect of which there is
insufficient material before me to pronounce upon. It is however
clear that after receiving notification of the CCMA award (and in
this regard Ms van Schalkwyk attests that she personally advised
Mr McCarthy of the award and handed him a copy shortly after she
had received it) no application for rescission was made and
Respondent did not comply either with the provisions of the Labour
Relations Act or the Rules of the Labour Court. It appears that the
telefax of 4 December 2000 despatched by Applicant (the
employer party) to Commissioner Rubin was prompted by Ms van
Schalkwyk's notification to Respondent of the award.
18.1 The employer party (Applicant in these proceedings) contends that
had it received notification of the default judgment hearing in the
Labour Court, it would have briefed attorneys to act on its behalf
and protect its interests. I cannot agree with this contention.
Applicant received notification of the award from Ms van
Schalkwyk and did nothing save to pen a fax to Commissioner
Rubin.
18.2 Applicant subsequently received the Notice of Motion in which it is
quite clearly required of it, that should it wish to oppose the
proceedings, it should enter an appearance, an answering affidavit
etc,
18.3 The Notice of Motion also makes it quite clear that Ms van
Schalkwyk intended having the arbitration award made an order of
the Labour Court.
18.4 Once again Applicant did nothing save to draft a fax to the
Registrar of the Labour Court which I have alluded to above and a
similar fax to Ms van Schalkwyk's attorneys. There is a dispute of
fact on the papers as to whether Ms van Schalkwyk's legal
representative advised Mr McCarthy personally that he was under
obligation to comply with the Rules of Court. This dispute is not
material to my findings and order.
19. Applicant's papers in this application also disclose the
extraordinary averment that the letter of dismissal which Ms van
Schalkwyk contends was issued to her and which she in turn
presented to Commissioner Rubin at the CCMA arbitration, is a
forged document. Mr McCarthy denies that Ms van Schalkwyk was
dismissed at all. However, this runs completely contrary to
admitted correspondence in the papers issued by Ms Wanda
McCarthy, as appears from the aforegoing and from the papers.
20. It is glaring when one considers the Applicant's papers, that at
each and every step it has sought to "duck and dive" from the
inevitable consequences of the award in Ms van Schalkwyk's
favour, and along the way issues, contradictory correspondence
and versions. The following are but a few examples:
20.1 Mrs McCarthy pens a telefax to the Registrar of the Labour Court
indicating that Ms van Schalkwyk was never employed by the
Applicant company, whereas in the substantive application before
this court, Mr McCarthy makes it quite clear that she was indeed
employed by the company under the trading entity Milnerton
Armed Response.
20.2 There is a denial on the part of Applicant that correspondence
directed to Unit 4 Milnerton Centre, Milnerton was received or that
Respondent operated from those premises, whereas it is clear that
certainly at least one of Respondent's trading entities did operate
from these premises.
20.3 There is then the allegation that there was no dismissal of Ms van
Schalkwyk whereas it is conceded elsewhere by Applicant that
there was indeed a dismissal.
21. A careful perusal of Applicant's papers indicates an abuse of the
Labour Relations Act and the Labour Court rules and process. It
was only when the Sheriff came knocking at the door armed with a
writ of execution that Applicant for the first time commenced an
attempt at some degree of compliance with court process and the
rules.
22. Under the circumstances and with the weight of material before
me, I am satisfied that should Applicant seek now to apply to have
the award of Commissioner Rubin rescinded, that such application
would be refused (bearing in mind that this is one of the
alternative remedies that the Applicants are seeking from this
court).
23. Turning to the Heads of Argument and the substance of the
argument delivered in this matter, I note the following:
23.1 Rule 16A(1)(b) provides that recession may take place " on
application of any party affected, (the Court may) rescind any
award or judgment granted in the absence of that party".
23.2 The test involved is essentially one of sufficient cause entailing:
• A reasonable and acceptable explanation for the Applicant's default
must be presented;
• On the merits, the Applicant must have a bona fide case which prima
facie carries some prospect of success (see Speciality Metals CC v
Mtshangane (1998) 9 (3) SALLR 122 (LC)).
23.3 Rule 31(2)(b) of the High Court Rules is the mirror provision which
can supply some guidance (see Erasmus – Superior Court Practice
1994 (B1 – 202) :
• The Applicant must give a reasonable explanation for his default. If
the default was wilful or due to gross negligence, the Court should not
come to the Applicant's assistance;
• The application must be bona fide; and
• The Applicant must show that it has a bona fide defence to the claim.
23.4 Respondent contends that a case has been made out that the
Applicant was indeed in wilful default and refers to Erasmus (op.cit)
which requires the following elements to be present:
• "Knowledge that the action is being brought against him;
• A deliberate refraining from entering appearance, though free to do
so; and
• A certain mental attitude towards the consequences of the default/"
23.5 Respondent also referred me to the decision in Grant v Plumbers
(Pty) Ltd (1949) 2 SA470 (O) @ 467 where the requirements are
summarised as follows:
• The Applicant must give a reasonable explanation for his failure to
enter appearance. If it appears that his default was wilful or that it
was due to gross negligence, the Court should not come to his
assistance;
• He must show a bona fide intention to defend, and his application
should not be merely to delay Plaintiff's claim; and
• He must make out a prima facie defence on the merits (he must set
out the averments which, if established at trial, would entitle him to
the relief asked for).
• In that decision it was found that the Defendant was "neglectful in not
paying proper attention to the summons which was served upon him.
…". In other decisions the requirements for prima facie defence has
been described as the Applicant having "prospects of success".
• I was also referred to the decision in Wincolette v Calvert 1974 (4) SA
275 (E) @ 276H in which the Court held: "His attitude, in effect, is that
he was free to treat the summons which was served upon him light
heartedly. Indeed, on his own showing, the Respondent's attorney
clearly advised him to consult his own attorney in view of the
situation which has arisen. He chose to disregard that advice and he
allowed the matter to develop to the stage where judgment was
entered against him by default."
24. Against the analysis of the facts given above, measured against
the legal test for recission contained in the rules and decided cases
referred to, I am satisfied that Applicant has not made out a case
for recission. The Applicant has displayed a cavalier and evasive
attitude to the arbitration award issued by Commissioner Rubin. It
was neglectful and grossly negligent in not complying with the
provisions of the Labour Relations Act after receiving notice of the
award, and was similarly neglectful and negligent with regard to
the rules of the Labour Court after receiving the Notice of Motion.
Moreover, the Applicant has not established a bona fide defence to
the claim, or that it has any prospects of success should the matter
be reheard.
25. In the premises, the following order is made:
25.1 The application for recission is refused;
25.2 The arbitration award of Commissioner Rubin issued on 14 August
2000 which was made an order of Court by Cheadle AJ on 30
August 2001 stands.
25.3 The Applicant is to pay the respondent's party and party costs.
MacROBERT, AJ
Date: