IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: J6019/00
In the matter between:
NATIONAL UNION OF METALWORKERS
OF SOUTH AFRICA First Applicant
T.S. MAKHOKE Second Applicant
and
VIRGINIA TOYOTA Respondent
J U D G M E N T
CORAM FARBER AJ:
The second applicant seeks a judgment by default against
the respondent for compensation and ancillary relief arising
from his unfair dismissal by the respondent on 5 August
2000. The statement of claim initiating the proceedings was
purportedly served on the respondent by way of
telefacsimile transmission. Plainly, service in this form is
sanctioned by rule 4(1)(a)(iv) of the Rules for the conduct of
proceedings in the Labour Court. It provides that a
document that is required to be served on any person may
be served "by faxing a copy of the document to the person if
the person has a fax number ....". This rule must be read
with rule 4(2)(b), which provides as follows:-
"(2) Service is proved in court in any one of the following ways -
(a) ..........
(b) If service was effected by fax, by an affidavit of the person who
effected service, which must provide proof of the correct fax
number and confirmation that the whole of the transmission was
completed;
(c) ..........
(d) ..........
(e) .........."
The body of the affidavit in support of proof of service in
casu reads as follows:-
"I the undersigned T S Ngcana do hereby make oath and say
that:
I served the Notice of Motion, Affidavits and Annexures /
Statement of Claim with Annexures in this matter on the
Respondent by way of telefaxing it to number (057)212 5163 on
the 14 day of December 2000 at 9:45 (Time).
I further state that this fax number is indeed the fax number used
by the Respondent, and that the whole transmission was
successfully completed. I confirm that the attached fax
transmission report relates to this transmission."
In my judgment, it is manifest that the affidavit in question
does not comply with the provisions of rule 4(2)(b). The
statement therein that "this fax number is indeed the fax
number used by the Respondent" amounts to little more
than a bald and conclusory allegation of fact. It does not
serve to provide proof that the number used was in fact
correct.
Proof to that end may be facilitated in a number of ways. As
an example, very frequently, telefacsimile numbers are
recorded in telephone directories under the name of the
user thereof. Reference in the affidavit to a suitably
identified extract from the relevant directory would in my
judgment satisfy the requirements of the rule. Similarly,
reference in the affidavit to a letterhead of the respondent
recording its telefacsimile number would equally serve the
purpose. Subsequent confirmation by the respondent,
whether by letter or otherwise, that it has received the
process in question will also suffice. Plainly, there are many
ways in which the proof required under the rule may be
facilitated. Dependent on the nature of the proof relied
upon, documents or extracts therefrom may have to be
referred to in the affidavit and annexed thereto.
When the matter was moved before me in the Motion Court
by Mr Ngcana, an official of the first applicant, I indicated to
him that I was not satisfied that the affidavit in support of
proof of service complied with the provisions of the rule.
His response was two-fold. Firstly, he contended that the
wording of the affidavit was in standard form, based as it
was on a pro forma document which had been issued by the
registrar's office. The short answer is that a pro forma
document which does not accord with the requirements of
the rule cannot serve to render such requirements pro non
scripto.
Secondly, Mr Ngcana made reference to the fact that other
judges of the court had, without hesitation, accepted
affidavits of service in identical format. I am not aware
whether this is in fact so. Be that as it may, the need for
any individual judge to satisfy himself that service has been
proved adequately in a particular case cannot be fettered by
what other judges may or may not have done in the past.
It merits mention that Mr Ngcana sought leave to adduce
viva voce evidence to supplement the affidavit in question.
I declined to accede thereto. The unopposed motion roll in
Johannesburg is particularly lengthy and it would be
disruptive of its orderly flow if the indulgence sought was
readily acceded to. The inconvenience which would be
occasioned thereby, both to the court and the litigants who
anxiously await the disposal of their matters, is manifest.
An indulgence of the type sought would moreover serve to
discourage fidelity to the rules. They, after all, are designed
to ensure that the court functions efficiently and
expeditiously.
One further aspect merits mention. During the course of the
debate with Mr Ngcana, I invited him to supplement the
affidavit of service in a further affidavit. I indicated to him
that, once this had been done and provided that there was
compliance with the rule, I would entertain the application
on its merits. Mr Ngcana has availed himself of that
opportunity. This affidavit cures the deficiency to which I
have referred and the applicant is entitled to relief, albeit in
a form slightly different to what had been originally sought.
Finally, I invite attention to the remarks of Sutherland AJ in
MTN SA v Van Jaarsveld & Others (2002) 10 BLLR 990 (LC)
at 994C-E:-
"[13] It is plain from anyone who attends the hearings of the Labour
Court, that the enormous growth in the number of applications
for rescission in circumstances where the respondent party
claims that albeit on the face of it a telefax transmission was
sent, it was not received or did not reach the person responsible
for giving it attention, leads to the conclusion that the provisions
of the Act in this regard require reconsideration. In my view, it is
appropriate that the statute be reappraised in this regard and
that the Rules Board for the Labour Courts gives its attention to
this matter of procedure. As aptly illustrated on the facts of this
case, the arrival of a document in the midst of a deluge of others,
handled by staff not inducted to divine, in the absence of some
clue, who should be given the document nor how rapidly that
should happen, may predictably lead to delay or misplacement or
outright loss of the document."
I share those sentiments.
I make the following orders:-
1. Subject to paragraph 2 hereof, an order is granted in terms
of prayers 4(i), (iii) and (iv) of the application for default
judgment dated 14 August 2001.
2. (a) The compensation referred to in paragraph 4(iii) of the
application for default judgment shall be limited to a period
of twelve months, reckoned from 5 August 2000, being the
date of the second applicant's dismissal.
(b) The costs associated with the hearing on 13 November 2002
are disallowed.
G FARBER
ACTING JUDGE OF THE
LABOUR COURT
DATE OF HEARING:
13 NOVEMBER 2002
DATE OF JUDGMENT:
25 NOVEMBER 2002
MR T S NGCANA
Representative of Applicants
NUMSA - Western Transvaal Region
24 F W Beyer
Santrust Building
VANDERBIJLPARK
Tel: (016)981 0225/6/7/8
Fax: (016)933 4512