Sneller Verbatim/ASS
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR1197/02
2003-03-01
In the matter between
SATELLITE DATA NETWORK Applicant
and
C MOLLENTZE Respondent
___________________________________________________________
J U D G M E N T
___________________________________________________________
LANDMAN J : This application has been brought by Satellite
Data Network (Pty) Limited against three respondents,
including a former employee, Ms Mollentze, to review and set
aside a recission ruling handed down by the 2nd respondent,
the Commissioner, on 2 June 2002.
Two issues were raised regarding this matter. The first
one related to whether or not Satellite Data was in wilful
default. It was conceded, for purposes of this application, that
Satellite Data was not in wilful default. This then gives rise
then to consideration of the second issue.
It is alleged that the recission ruling is reviewable
because the Commissioner failed to apply the correct legal
tests in determining whether or not Satellite Data had
reasonable prospects of success on the merits of the matter.
The Commissioner in his ruling devoted most of his time
to a consideration of whether or not Satellite Data was in wilful
default and then, in a paragraph, he deals with the question of
whether Satellite Data showed that it had a bona fide defence.
He says the following:
"The submissions of both the applicant and the respondent in
so far as prospects of success is concerned, without getting
into detail, there is a lot of dispute of facts which makes it
difficult to say in whose favour the prospects are. However,
since the onus are on the applicants in this regard it is my
view that the benefit of doubt should favour the respondent
(employee). In M M Steel Construction CC v Steel Engineering
and Allied Worker's Union of SA and others (1994) 15 ILJ 1310
(LAC) the court held that the door will not be closed for a
litigant who can show that he has a defence of some merit
which he genuinely wishes to pursue. I am not satisfied that
the applicant has shown this defence."
Thereafter the Commissioner ruled that Satellite Data has
failed to show good cause and he dismissed the application.
This is followed by the following paragraph:
"Notice be further taken that the quantum of the
compensation on the award rendered on 26 th March 2002 is
hereby amended and/or corrected to R220 400,00 (Two
hundred and twenty thousand four hundred rand) in stead of
R24 600,00 (Twenty four thousand six hundred rand)."
In my opinion the ruling constitutes a gross irregularity and is
reviewable. First, if the Commissioner was unable to
determine what the facts were then he was obliged to apply
the well-known test in Plascon Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (AD). Had he applied
this test, he would have come to the conclusion that he must
decide whether there is a bona fide defence on the facts as
set out by the respondent together with the facts that the
respondent could not deny. Had he done so he would have
concluded that there was a bona fide defence.
Alternatively he could have referred the matter to oral
evidence. Thirdly, he could have concluded that the disputes
of fact indicate that there is a bona fide defence.
In so far as the Commissioner decided that the quantum
awarded was incorrect and mero motu decided to amend the
original award this too is indicative that there was a bona fide
defence at least as regards the quantum of compensation.
Furthermore on the basis of the concession that there was no
wilful default, this is clearly a case where Satellite Data should
be afforded the opportunity of stating its case fully as it could
have done, had it had proper notice to attend the arbitration
proceedings.
In the circumstances, therefore, I am of the view that the
ruling should be reviewed and set aside. I make the following
order:
1. The recission ruling handed down by the 2nd respondent on
17 July 2002 is reviewed and set aside.
2. The CCMA is directed to convene an arbitration hearing to
consider the merits of the matter.
3. The 3rd respondent is ordered to pay the costs of this
application.
SIGNED AND DATED AT BRAAMFONTEIN ON 14 APRIL
2003
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A A LANDMAN
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
Date of hearing: 20 February 2003
Date of judgment: 20 February 2003
For applicant: Celeste Allan Attorneys
For respondent: R C Christie Inc