Sneller Verbatim/JduP
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JS866/01
2002.05.31
In the matter between
CONSTANCE MOKHACHANE Applicant
and
SEVEN ELEVEN Respondent
__________________________________________________________
J U D G M E N T
__________________________________________________________
NGCAMU, A.J: This is an application to rescind the judgment of
this court granted in favour of the respondent on 3 October
2001. The respondent was employed by the applicant until her
dismissal on 14 June 2001. As a result of her dismissal the
respondent referred her dispute to the CCMA for conciliation.
Conciliation failed to resolve the dispute. The respondent
referred the dispute to this court for adjudication.
The statement of claim was faxed to the applicant on 19
July 2001. The applicant received the statement but did not file
the statement of response. On 23 August a notice of set down
for the hearing on 3 October 2001 was sent to the applicant by
fax. On 24 August the applicant filed an affidavit, signed by
Vincent Alexander. In paragraph 3 of the affidavit he testified
that:
"The statement of claim is unclear, unreadable in parts, some
errors, and is very indecisive. It was not done in the correct
manner. We cannot respond to this claim. As the letter that
was faxed to us is unreadable due to poor quality, the
respondent cannot respond properly to this. Time and effort
were taken to read the whole document. For example, we
cannot make out the applicant's address. Copy attached."
The applicant did not attend court on 3 October 2001,
and a default judgment was granted in favour of the
respondent. In terms of the judgment the dismissal of the
respondent was found to have been substantively and
procedurally unfair. The applicant was ordered to pay the
respondent compensation in the amount equal to 12 months'
salary. The applicant seeks to rescind this judgment on the
basis that the judgment was erroneously sought and
erroneously granted.
This court is empowered to rescind its own judgments in
terms of rule 16A(1)(a) of the Labour Court Rules, read with
section 165 of the Labour Relations Act, 66 of 1995. The rule
provides that the Labour Court may vary or rescind a decision,
judgment or order, erroneously sought or granted in the
absence of a party affected by that judgment or order.
In order for the application for rescission to succeed the
applicant has to show that the judgment was erroneously
granted in its absence. As an alternative to this, applicant has
to show good cause. (See Sizabantu Electrical Construction v
Guma and Others (1999) 20 ILJ 673 (LC), at para.6:
Construction and Allied Workers' Union and Another v Federale
Stene (1991) (Pty) Ltd (1998) 19 ILJ 642 (LC) (5)).
In order for the applicant to show good cause it has to
give a reasonable explanation for its default. The applicant
must demonstrate that the application is bona fide and not
made for the purposes of delay. The applicant must show a
bona fide defence to the claim.
The applicant has submitted that by sending the affidavit
it believed that the court will take the affidavit into account.
He believed that the judgment would be stayed. It was
therefore submitted that the judgment was erroneously
granted.
The applicant has also submitted that if the court was
aware of the replying affidavit it would not have granted the
default judgment. The applicant has referred to the case of
Construction and Allied Workers' Union and Another v Federale
Stene, supra for the proposition that where a defaulting party
was unaware of the date of set down, the granting of the
default judgment would be erroneous.
This case does not assist the applicant in that the
statement of claim was served properly as well as the notice of
set down. The applicant was aware that the matter was set
down for default judgment on 3 October 2001. The date of set
down was well-known to the applicant. The applicant's
response was outside of the period allowed by the rules. He
elected not to attend court on 3 October 2001. The court was
aware of the applicant's affidavit, but it was not properly
before court, if it was a proper response to the statement of
claim. By not attending court the applicant took a risk for
which it has to pay the price. As the notice of set down was
served on the applicant, and the applicant acknowledges
receipt thereof, it cannot be said that the judgment was
erroneously granted. The court was aware of the contents of
the affidavit. The applicant fails to explain why it did not
appear in court on 3 October 2001.
The applicant's complaint is that the statement of claim
was not legible. It however fails to explain why no efforts were
made to check the original in the court file immediately after it
had been faxed. It was only after receipt of the date of set
down that the applicant reacted by sending an affidavit with
its complaint. The applicant has submitted that it could not
read the service address of the applicant. This may well be
true, but the matter does not end there. The applicant fails to
explain why it did not contact the registrar to obtain the
correct address and/or telephone number of the respondent.
In the light of this the applicant was the author of its own
misfortune, the court cannot come to the assistance of the
applicant as the judgment was not erroneously sought or
granted. The applicant has failed to show that the reasons for
its default was for good cause. The applicant deliberately did
not attend court. No good cause appears from the affidavit. I
find it difficult to accept that the mere filing of an affidavit,
stating that the statement of case is not clear, entitles the
applicant to come to the conclusion that the case would be
postponed.
In Newman (Pvt) Ltd v Marks 1960 (2) SA 170 (SR) the
court refused to grant a rescission where the applicant was
aware of the date but chose to take a trip overseas.
The applicant has to submit facts before the court which
may give the court an indication that it has a bona fide
defence. It does not mean that it must show the probability of
success. The applicant states that there were economic
reasons for the reduction of staff. It further states that there
was a discussion with the respondent on 14 June 2001. It
however fails to set out facts to indicate that there was a
proper consultation with the applicant, or that there was
compliance with section 189 of the Labour Relations Act. No
facts have been set out. The grounds of defence must be set
out in sufficient detail to enable the court to conclude that
there is a bona fide defence, and that the application is not
made merely for the purposes of delay. (See Erasmus -
Supreme Court Practice B1-204).
The applicant has failed to raise an issue which, if raised
at the trial, may indicate its prospects of success. If there are
no prospects of success, the court is entitled to refuse the
rescission. (Cf Tekwini Security Services CC v Mavana (1999)
20 ILJ 2721 (LC).
After considering the information contained in the
applicant's affidavit and submissions made I have come to the
conclusion that the applicant has failed to make out a case for
the review of the default judgment that was granted.
In the circumstances the application for rescission is
dismissed with costs.
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