IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO. J 4078/2002
In the matter between:
THE AGENCY Applicant/(Respondent
in the main application)
and
DIGBY WESSON First Respondent/(Applicant
in the main application)
EUGENE COETZEE N.O.
(THE DEPUTY SHERIFF, SANDTON) Second Respondent
______________________________________________________________________________________
____________________________
JUDGMENT
_______________________________________________________________
CORAM : A VAN NIEKERK AJ
[1] On 14 May 2003 I granted an order, with costs, rescinding the order made
by this Court on 22 April 2003 in terms of which an arbitration award in
favour of the First Respondent was made an order of court in terms of
section 158(1)(c) of the Labour Relations Act, 66 of 1995 (“the LRA”).
These are the reasons for the order made on 14 May 2003.
[2] The First Respondent was employed by the Applicant until his
resignation. He claimed that he had been constructively dismissed and
in the arbitration proceedings conducted under the auspices of the
Commission for Conciliation, Mediation and Arbitration (“the CCMA”),
the Commissioner ruled on 12 July 2002 that the Applicant was to pay
the Respondent the sum of R449 221.95.
[3] On 15 October 2002, the First Respondent applied in terms of
section 158(1)(c) to have the arbitration award made an order of this
Court. The Applicant filed a notice of opposition and an answering
affidavit, both of which were dated 15 October 2002 but filed in the
Labour Court on 18 October 2002. During the same month, the
Respondent in these proceedings filed a replying affidavit. In addition
to opposing the proceedings initiated in this Court, the Applicant applied
in the CCMA to have the arbitration award rescinded.
[4] On 28 January 2003, the Registrar of this Court addressed a notice
of set down to the First Respondent’s attorneys advising them that the matter
had been set down for hearing on the unopposed roll on 22 April 2003. There is
no explanation apparent from the court file as to the Registrar’s decision to
address the notice of set down only to the First Respondent’s attorneys although
it may be reasonably assumed that the Registrar considered that in the absence
of the notice of opposition and answering affidavit from the court file, the matter
was unopposed. The consequences of the Registrar’s actions are dealt with
hereunder.
[5] On 22 April 2003 the Applicant’s attorney, De Klerk, was
telephoned by M öhr, the attorney representing the First Respondent. M öhr
advised De Klerk that he was attending Court in the matter between the parties
that had been set down on the unopposed roll. There is a dispute as to whether
Möhr referred to a failure by the Applicant to file a “replying affidavit” but that
dispute is not material to this application. De Klerk avers that he was in
Pietersburg at the time that M öhr telephoned him, and that he had assumed that
Möhr was referring to proceedings in the CCMA in which the Applicant sought
the rescission of the arbitration award.
[6] On 24 April 2003, De Klerk was advised that the Deputy Sheriff, the
Second Respondent in these proceedings, was attaching the
Applicant’s bank account pursuant to an order of this Court in terms of
which the arbitration award had been made an order in terms of section
158(1)(c) .
[7] De Klerk uplifted the court file it became apparent that the Applicant’s
notice of opposition and answering affidavit were not in the court file. It is not
disputed that these documents were, for reasons that remain a mystery, missing
from the court file when the matter proceeded on 22 April 2003 on an unopposed
basis. There is also no dispute that the First Respondent was aware of the
Applicant’s opposition to this application. The First Respondent had received the
notice of opposition and answering affidavit that were transmitted by telefax to
the First Respondent’s attorney in October 2002. The First Respondent had filed
a replying affidavit on 22 October 2003. In the reply, the First Respondent took
the point that the Applicant had failed to comply with the rules of this Court in a
number of respects, and avers that for this reason, the application should be
dismissed. The replying affidavit further deals at length with each of the
allegations that were the subject of the Applicant’s answering affidavit.
allegations that were the subject of the Applicant’s answering affidavit.
[8] Möhr does not deny that the notice of opposition and answering
affidavit were faxed to his office on 15 October 2002. He contends however that
the opposing papers were not properly delivered since they were filed with the
Registrar of this court only on 18 October 2002, 3 days outside the time limit
prescribed by the rules of this Court. The reason for the late filing is apparent
from M öhr’s averments. He states that on 15 October 2002, the notice was
faxed to the CCMA and not to the Labour Court and that he was aware for this
reason that the Labour Court would not have received the notice on 15 October
2002.
[9] In respect of the hearing of the application on 22 April 2003 M öhr states
the following:
“14.1 I personally appeared before His Lordship Mr
Justice Coppin on 22 April 2003.
14.2 His Lordship enquired from me why it should be that the
First Respondent filed a replying affidavit in the s 158(1)
(c) application if there was no opposition. I pointed out to
the Court that the Applicant in fact opposed the
application but neglected to deliver its notice of opposition
and answering affidavit in accordance with Rule 5(3) and
7(4)(b) of the Rules of this Honourable Court. I further
pointed out to his Lordship that I had been in telephonic
contact with De Klerk and that I had advised him to attend
court to put the Applicant’s version.
14.3 His Lordship thereupon heard the matter on an
unopposed basis and granted the order sought by the
First Respondent.”
[10] On M öhr’s own version, he was at all times aware of the Applicant’s
intention to oppose the application. He was in possession of the
Applicant’s answering affidavit and the replying affidavit filed on his client’s
behalf. That notwithstanding, he was content to allow the matter to
proceed on an unopposed basis ostensibly for the reason that the Court
was obliged to disregard the fact of opposition to the application only by
virtue of the fact that the papers were filed 3 days late. The only courtesy
by M öhr to De Klerk was a telephone call earlier the same morning to
De Klerk to advise him that the matter was proceeding on an unopposed
basis.
[11] As I have noted above, the notice of set down in response to the
application in terms of section 158(1)(c) was addressed by the Registrar to
the First Respondent’s attorneys. The notice of set down was not sent to
the Applicant.
[12] In terms of Rules 7(6)(b) and 16(1), a respondent who fails to deliver a
response to a document initiating any proceedings in this Court is generally not
entitled to notice of the set down of those proceedings. The two rules, read as
follows:
Rule 6
“(6)(b) The Registrar must notify the parties of the date, time and place
for the hearing of the application but need not notify a
respondent who has not delivered an answering affidavit in
support of its opposition of the application.”
Rule 16
“16 (1) If no response has been delivered within the prescribed time
period or any extended period granted by the court within which
to deliver a response, the registrar must, on notice to the
applicants(s), enrol a matter for judgment by default.”
[13] There are obvious differences between the two rules. First, the provisions
of section 16(1) entitle the Registrar to enrol a matter for judgment by
default if no response has been delivered within any prescribed time
period or any extended period granted by the Court within which to deliver
a response . Rule 7(6)(b) simply refers to a “respondent who has not
delivered an answering affidavit” and makes no reference to a notice of
intention to oppose nor to any prescribed time limits. Rule 7 specifically
regulates applications and in particular, applications such as that brought
by the First Respondent in terms of section 158(1)(c). (See footnote 2 to
Rule 7). In the face of the specific regulation of applications brought in
terms of section 158(1)(c) by Rule 7, I do not consider that the more
general provisions of Rule 16 is of any relevance in that regard.
[14] In terms of Rule 7(6)(b), the fact that the notice of opposition and
answering affidavit had not been timeously filed did not on the face of it
disentitle the Applicant from receiving notice of the set down of the
proceedings. The Rule refers to a party “who has not delivered an
answering affidavit”. It is not qualified, as Rule 16 is, by a reference to a
response filed within the prescribed time periods. In argument, the Court
was referred to B D O Spencer Stuart (Johannesburg) Incorporated v Otto
(2002) 23 ILJ 1374 (LC). In that matter, Sutherland AJ lamented the
Byzantine regime under which practitioners in this Court are required to
subject themselves and in particular, made reference to the provisions of
Rule 7(6)(b) and Rule 16(1). The Court held that no obligation existed in
terms of Rule 7 upon the Registrar to give notice of set down to an
applicant that had failed to file an answering affidavit within the prescribed
time limits. The Court stated further that “Rule 16(1) seems to suggest
that the Registrar is directed to ignore an uncondoned late notice of
opposition”.
[15] If the ratio of B D O Spencer Stuart (Johannesburg) v Otto is that
Rule 7(6)(b) entitles the Registrar to ignore the fact of any opposition
noted prior to the date on which the notice of opposition is despatched,
then I respectfully disagree with that conclusion. The submission on behalf
of the First Respondent that this matter was properly set down and heard
on an unopposed basis overlooks the fact that the First Respondent was
aware that a notice of opposition and answering affidavit had been served
and filed, but that for reasons not apparent to the parties, these
documents do not appear ever to have been placed in the Court file.
Reliance on the fact that the notice and affidavit were filed 3 days late is
misplaced. The Applicant could have sought condonation for the late filing
of the affidavit at the hearing or prior to it and given the circumstances,
that condonation would in all probability have been granted. To the extent
that it is submitted that the Registrar is entitled to adopt the view that in
the event of any notice of intention to oppose and/or answering affidavit or
other response being filed outside of the prescribed time limits, there is no
obligation to advise a respondent of the set down of the proceedings, that
submission is equally misconceived. It often happens that parties who
conduct their litigation in a more collegiate fashion than in the current
proceedings agree to extensions of time within which to file papers. The
Registrar may not be aware of such arrangements. But it is for this Court
ultimately to condone the late filing of any papers and to decide on the
consequences. It is not for the Registrar effectively to refuse to condone
late filing by withholding a notice of set down to a respondent who has
clearly indicated opposition to the proceedings by filing an answering
affidavit before the notice of set down is sent. Even less is it for a party’s
legal representative to rely on late filing as a basis to contend that a matter
is unopposed, and proceed on that basis particularly when that
representative is in possession of both a notice of opposition and
answering affidavit.
[16] In summary, in the face of the Applicant’s clear opposition to the
application in terms of section 158(1) c), evidenced by the notice of
opposition and answering affidavit filed 3 days late but well before the
despatch of the notice of set down, the Applicant was entitled to notice of
the set down of the proceedings and the matter ought to have proceeded
on an opposed basis. To the extent that the matter was set down on the
unopposed roll simply by virtue of the notice of opposition and answering
affidavit never having found their way into the Court file, the Applicant
should not be prejudiced by being denied notice of the date on which the
proceedings have been set down. To the extent that the application was
dealt with on an unopposed basis, the order granted by this Court on
22 April 2003 was erroneously granted. In my view, this is sufficient basis
on which the Court was entitled to exercise the discretion conferred on it
by section 165(a) and to rescind that order. For these reasons, the Court
made the order it did on 14 May 2003.
________________________________
ANDRE VAN NIEKERK,
Acting Judge of the Labour
Date of hearing: 13 May 2003
Date of order : 14 May 2003
Date of reasons for judgment: 26 May 2003
Applicant’s Counsel: Advocate M Van As
Applicant’s Attorneys: H J P de Klerk Mandelstam
First Respondent’s Counsel: Advocate H M Viljoen
First Respondent’s Attorneys: De Villiers M öhr
Second Respondent: No appearance