Sneller Verbatim/MS
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J940/00
2003-05-02
In the matter between
CLUB MOTORS SELBY Applicant
and
M L MATLALA Respondent
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J U D G M E N T
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LANDMAN, J : On 12 August 1999 a Commissioner of the
CCMA delivered an award in favour of the Steel Mining and
Commercial Workers Union, acting on behalf of Mr Mazibuko
and Mr Zwane. The notice of set down was sent to the
employer Club Motors Selby by fax on 6 July 1999. Club
Motors did not attend the arbitration proceeding. When Club
Motors became aware of the award it launched an application
in the CCMA to rescind the award.
The first respondent, the CCMA Commissioner, heard the
application. Both parties were represented at the hearing.
The Commissioner refused to rescind the award. Club Motors
now applies to review and set aside the ruling.
Club Motors file a detailed affidavit in support of its
rescission application. The deponent to its affidavit, Mrs
Grobler, said the following about the receipt of the fax:
"Upon learning that a default judgment was taken against the
respondent various investigations were carried out and it was
established that the notice of set down was telefaxed to
telefax number 4938775. The aforementioned telefax number
is clearly not a business telefax number and does not appear
on the letterhead of the respondent. The telefax number to
which the notification was sent, belongs to a telefax machine
in the service department, which is only utilised for
communications between BMW SA and Club Motors. I attach
hereto Annexed PAG1, a letterhead of the respondent, clearly
indicating that the telefax number to which the notification
was sent, does not appear on the respondent's letterhead.
This is not the first occasion that a notification transmitted to
the abovementioned telefax number has not been received by
the respondent. During May 1998, a judgment by default was
also granted against the respondent in these same
proceedings, on account of the fact that the respondent did
not attend the arbitration set down for 15 May 1998, which
notification was also sent to telefax number 4938775. On that
occasion an application for rescission of judgment was also
launched by respondent's attorneys of record wherein it was
explained that the notification was not transmitted to a fax
number that is utilised by respondent."
The Commissioner recorded the following:
"The notice of the arbitration hearing and the award were
faxed to telefax number 4938775. In their founding affidavit,
the employer contended that the telefax number belonged to
a telefax machine in the service department, which is only
utilised for communications between BMW SA and Club Motors
and that telefax number did not appear on their letterheads.
The employer party further stated, that in another arbitration
hearing involving the same parties where a default award was
also made in favour of the employee party, the Commissioner
subsequently rescinded the award after the same submissions
were made to him."
The Commissioner concludes:
"In the present dispute an arbitration award was made in
default in favour of the employee party. The employer party
contended, that they did not receive the notice of the set
down, because the telefax number used belong to a service
department and is used for communication between BMW and
Club Motors and it does not appear on their letterheads.
I found it hard to accept that explanation by the employer
party. The telefax machine with that number is not situated
somewhere outside the employer's premises but is physically
present all the time on the employer's premises. The
employer party also did not dispute that the same telefax
number was used in all correspondence between Club Motors
and STEMCWU. The employer representative only relied on
the affidavit by Grobler and did not have any knowledge of
previous correspondence between STEMCWU and Club Motors.
Grobler did not attend the hearing."
In the result the Commissioner refused to rescind the
award. In my opinion, the Commissioner has committed a
gross irregularity by entertaining and relying upon facts, which
were submitted to him by the union at the hearing. These
facts were not submitted nor received under oath. Club
Motor's representative was clearly unable to deal with them.
This course of action prejudiced Club Motors. Moreover the
Commissioner took these facts into account, when he rejected
the employer's explanation. Had he not done so, then in all
likelihood, his ruling would have stood.
In the premises therefore:
1. The ruling of the first respondent, dated 17 December 1999, is
reviewed and set aside. As a proper case has been made out
for rescission, his ruling is replaced by the following ruling:
"The application for rescission is granted."
SIGNED AND DATED AT BRAAMFONTEIN ON 27 MAY
2003
__________________
A A LANDMAN
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA