Sneller Verbatim/idm
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JS58/01
2002-06-27
In the matter between
SHABANGU INVESTIGATIVE SERVICES Applicant
and
UNITED INTERNATIONAL Respondent
__________________________________________________________
J U D G M E N T
___________________________________________________________
NTSEBEZA AJ: This is an application in terms of rule 16(a) of
the Labour Relations Act, where the applicant seeks to rescind
a default judgment that was granted in favour of the
respondents on 30 October 2001, as well as that this court
should condone the late filing of the rescission application.
The application is governed by rule 16(a) of the rules of this
court.
Rule 16(a) reads as follows:
"The court may, in addition to any other powers it may have
(a) of its own motion or on application of any party affected
rescind or vary any order or judgment
(i) erroneously sought or erroneously granted in the absence of
any party affected by it;
(ii) in which there is ambiguity or a patent error or omission, but
only to the extent of such ambiguity, error or omission;
(iii)granted as a result of a mistake common to the parties;
or
(b) on application of any party affected rescind any order or
judgment granted in the absence of that party."
The rule goes on to state that any party that seeks this relief
must, on notice to all the parties whose interests may be
affected, upon good cause shown, seek to have the order or
judgment set aside, and this court would then determine
whether there is a case that has been made.
The applicant contends that it seeks this relief by way of
application in terms of section 165 of the Labour Relations Act
66 of 1995 (the Act). Section 165 merely states that variations
in decisions of orders of the Labour Court are possible,
because the Labour Court, acting of its own accord or on the
application of any other affected party, may vary or rescind a
decision, judgment or order which was erroneously sought or
erroneously granted in the absence of any party affected by
that judgment or order. In fact, section 165 of the Act is a
rehash of the rule 16(a) which I have referred to hereinabove,
in terms of which this application is brought. That much
seems to be in any event common cause between the parties.
There is also the application for condonation, which I
need to deal with first. It is common cause that this
application was never opposed on affidavit by the respondent
in these proceedings. Some opposition has been raised in the
heads, the heads being a proper motivation for why the
condonation application should be granted. It has been
argued that the period for which condonation is sought is not
excessive. Mr Malan submitted that, even taken at its worst,
namely 25 days, it should not be regarded as being excessive.
Indeed he submits that the period to be taken into account is
10 days, that being the period during which it could be said
the attorneys acting for the applicant were remiss to the
degree that they could be held to have been remiss. He
submits, however, that even the attorneys cannot be held
liable, given the circumstances that he has described in the
background to the application for condonation.
I do not propose to deal with the evidence that gives the
background, save only to say where it is uncontested and
where the representative of the respondent in these
proceedings, Mr Hlongwa, has indicated that he leaves it to the
court to determine whether there has been a compliance with
the requirements condonation, I am persuaded by Mr Malan's
submission that in the circumstances the application for
condonation should be dealt with on the only evidence and on
the averments of the applicant.
I, however, have to, in the exercise of my discretion,
satisfy myself that good cause exists, and where I have to
decide whether good cause exists, I have to take into account
the degree of lateness, the explanation given for the lateness,
the prospects of success, prejudice, and the importance of the
case. Indeed, it is so, and reference has been made to these
considerations by Mr Malan in his heads of argument as well as
in his address, that our courts have taken these into account
when they have to determine whether condonation ought or
ought not to be granted. See Melane v Santam Insurance
Company Ltd 1962 4 SA 531 (A). See also Rustenburg
Platinum Mines Ltd (Rustenburg Section) v CCMA and Others
1997 11 BLLR 1475 (LC).
I am satisfied on the evidence before me that there is an
adequate explanation, a explanation that is not controverted
by the respondent. It is true that the condonation application
did not accompany the application for rescission. Nothing
really should turn on that, because as was submitted by Mr
Malan, I am not persuaded that a condonation application is
subject to any time limits as such, as far as that goes.
In the circumstances, and in the exercise of my
discretion, I am satisfied that a case has been made for the
granting of condonation for the late filing of the application for
rescission, and I so order.
The next consideration is whether a case has been made
for the rescission application. As I have indicated, both in
terms of the Act, and in terms of the rules promulgated in
terms thereof, rule 16(a), I have to be satisfied that the court
that granted the judgment or order in the absence of any of
the parties affected by the judgment or order, erroneously did
so, and in order for me to be satisfied that this is so, I have to
evaluate all the facts. One of the principal considerations that I
must take into account is whether the default by the applicant
was wilful or negligent, or as was submitted by Mr Hlongwa,
whether it shows a complete disregard of the rules of this
court, and amounts to the adoption of a cavalier attitude by
the applicant as to its fate with regard to the judgment or
order that was given against it. Not really much was said
about whether the applicant needs to show good cause on the
basis of the order that was granted erroneously, although Mr
Malan referred me in his heads to a number of authorities in
this regard. He particularly referred me to the case of Topple
and Others v Ellis Group Management Services (Pty) Ltd 1988
1 SA 639 (W), and he quoted copiously from that judgment.
I do not consider that it is necessary for me to determine
whether good cause has been shown here. I need only to
apply my mind as to whether, on a balance of probabilities, a
case has been made as to why the applicant in these
proceedings was in default on 31 October 2001 when Landman
J gave his purported judgment. The explanation has been
given, not very strongly controverted on the papers, that the
applicant became aware for the first time after the judgment
had been given that in fact on 31 October the respondent was
in court seeking to make the award of the CCMA commissioner
an order of this court.
Mr Hlongwa strongly argued that proof of service was
indicated for the judge sitting on 31 October by the fact that a
registered slip did indicate that service had been effected
thereby on the applicant in these proceedings. I do not
necessarily take the view that that is not so. However, I have
to take into account that that service by its very nature is
contestable; contestable in the sense that it is not one of the
best forms of service, though it is a most efficacious way of
service and has been accepted by the rules of this court to be
proper service. However, I take judicial notice of the fact that
sometimes it is so that that service does not in fact indicate in
sufficient and conclusive terms that service was effected, as is
proved by the slips that show that a registered item was sent.
Where, as now, under oath you have a litigant who swears
both in his founding affidavit as well as in his reply that he was
not in wilful default, it is a difficult situation for me, sitting to
consider the issues only on the papers to arrive at the
conclusion that because there is an averment that a registered
slip was sent or is proof of the fact that service was effected,
that necessarily that service was indeed effected. It seems to
me that it would not be in accordance with fairness to all the
parties if I were to take an attitude that there is no basis for
me to accept evidence on oath which says that the applicant
in these proceedings was not aware that on the day on which
judgment was taken against it, the proceedings in this court
were on.
It has been submitted by Mr Hlongwa that the whole
purpose of this court is to try and resolve issues, as speedily
as possible, and with the minimum of delay. I agree. I,
however, want to qualify that and say, these courts ought to
be placed in a position where they can be satisfied that justice
has been done to all the parties that seek relief from it. The
applicant here has stated that had it been aware on 31
October 2001 that the respondent was in court seeking to
have the award made an order of court, it would have been at
court as well to oppose that. Everything else that it has done
since then seems to me to indicate that it is seeking to be put
on an equal footing, so that it can have this matter determined
in circumstances where it also has been able to put its side of
the story.
In any event, that my main consideration should be
whether it was in wilful default. I am not able to hold that it
was, given what the applicant has said in its affidavit which, as
I indicated, remains largely uncontradicted.
In order for me also to be able to exercise my discretion,
I have been urged to view submissions that have been made
that the applicant has a bona fide defence against
respondent's claim, and that it has excellent prospects of
success in reviewing the application award and in defending
the claim. I do not intend to go that route, save only to say, on
the face of it, it does appear that there is an arguable case,
sufficient for me to be persuaded to grant the applicant the
relief that he seeks today.
What remains for me to deal with is the question of
costs. Mr Malan has made the submission that this application
is of a vexatious nature, or rather the opposition thereto is of a
vexatious nature, the nature of which I should saddle the
respondent with an appropriate order as to costs. Mr Hlongwa,
on the other hand, has urged me to grant costs in favour of the
respondent. That would be in the event that the application
for rescission is dismissed. In the view that I take of this
matter, I am not necessarily persuaded that the opposition
was vexatious. It may have been couched in inelegant terms,
which speaks not so much to the vexatious character of the
opposition, but to the less than sophisticated manner of
presenting the case. Given that we deal, on the one hand,
with an admitted attorney, and on the other hand with a union
official, I do not consider that I would have to saddle the
respondent with an order of costs on the basis only that the
opposition to the application for rescission was allegedly
vexatious.
In the circumstances I make the order as follows: The
order granted by this honourable court on or about 30 October
2001 is hereby rescinded. There will be no order as to costs.
___________________
DB NTSEBEZA
Acting Judge of the Labour Court of South Africa
Appearance:
For the Applicants: Mr G.F. Malan
Instructed by: Webber Wentzel Bowens
For the Respondents: Mr N. Hlongwa (Union Official)
Instructed by: The Professional Transport Workers Union of South Africa
Date of Hearing: 27 June 2002
Date of Judgment: