IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN CASE NO.
J3263/99
In the matter between:
FULLER, LESLEY APPLICANT
And
Megacor Holdings RESPONDENT
JUDGMENT
ZILWA AJ
INTRODUCTION
1. This is an application for the rescission of judgment granted in
the absence of the applicant by this court on the 27 th August
2001. This application is brought in terms of section 165 (a) of
the Labour Relations Act no. 66 of 1995 as amended (“the
Act”), and alternatively in terms of the common law powers
vested in this court.
2. The respondent opposes the application.
BACKGROUND FACTS
3. The applicant’s application in the main case was dismissed by
this court on the 27 th August 2001. The main application was
based on an alleged the unfair retrenchment of the applicant
resulting in the termination of his services with the respondent
with effect from the 1 st October 1999. The respondent denies
this and contend that the applicant was dismissed on the 10 th
December 1999 due to misconduct after a disciplinary enquiry. I
will deal with this issue later in this judgment.
4. Neither the applicant nor his attorney were present in court at
the appointed date and time and it was on this basis that the
main application was dismissed.
5. The applicant’s explanation for his failure to appear in court is
simply that he had not received the notice of setdown and he
had no idea that the matter had been setdown for hearing on
that date. He places the blame entirely on the negligence of his
attorney by not informing him of the said setdown date. He
found out later, in September 2001 that his attorney had been
suspended from practice by the Law Society. When he
subsequently contacted his attorney, she stated that the matter
was not yet ripe for hearing. He further obtained his file from
this attorney in September 2001.
According to applicant he had received a letter from his attorney
dated the 8 th February 2001 informing him that the trial date
could be anticipated in May or June 2001 and that applicant
would in any event be advised by his attorney immediately a
trial date was received.
On the 18 th April 2001 the applicant addressed a letter to his
attorney asking whether a trial date had been obtained for the
matter. Subsequently to this letter the applicant made several
attempts, which have not been detailed by the applicant, to
contact his attorney without success. The applicant had earlier
noticed that her attorney was dragging her heels in this matter.
8. The applicant only came to know about the dismissal of his
application on the 3 rd September 2001, by chance in a
conversation between him and Peter Barable. Upon gaining
such knowledge he immediately contacted his present
attorneys of record in order to establish how to deal with the
matter which has resulted in the launching of these proceedings
on the 19 th September 2001.
PROVISIONS OF SECTION 165 (a) OF THE ACT
9. Section 165 (a) of the Act provides as follows :
“ The Labour Court, acting of its own accord or on the
application of any affected party may vary or rescind a
decision, judgement or order –
(a) erroneously sought or erroneously granted in the absence
of party affected by that judgement or order;……….”
10. It is apparent from the reading of the section that its provisions
relate to instances where these has been an apparent error in
the granting of the relevant judgement or order by the Court. It
is not a catalyst for the rescission of all judgements or order
that may be granted in the absence of an affected by party.
11. Rule 16 A (1) (b) of the Rules of this Court has been devised
specifically to deal with situations where a judgement or order
has been granted in the absence of an affected party, then that
party may within 15 days after acquiring knowledge of such
judgement or order apply on notice to all the interested parties
to set it aside, as it deems fit. The Court when takes into
consideration the principles of common law to determine good
cause which is an essential ingredient of the application.
12. The applicant has not canvassed any facts to demonstrate an
apparent error in the granting of the order of this Court on the
27th August 2001.
13. Although the applicant has not referred to the requisite Rule 16
A (1) of the Rules of this Court I will now deal with this application in
terms of that Rule on the basis that it was made within the time limit
of 15 days from the date of gaining knowledge of its existence and
the common law referred to in the application.
COMMON LAW RESCISSION CONSIDERATIONS
14.It is settled law that in application for rescission of a
court judgement or order the applicant is required to show good
cause, including reasonable prospects of success. See
KOLOBE V. PROXEWOS (SOPHIA’S RESTAURANT) (2000)
11 BLLR 1118 (LC) ; ENZO PANEL BEATERS CC V CCMA &
OTHERS (1999) 11 BLLR 1147 (LC) ; SA EAGLE INSURANCE
LTD V SEREBO 1985 (4) SA 50 (W) ; PROMEDIA DRUKKERS
& UITGEWERS (EDMS) BPK V KAIMOWITZ 1996 (4) SA 411
(C); CHETTY V LAW SOCIETY OF TRANSVAAL 1985 (2) SA
756 (A)
15. The court exercises its discretionary powers when determining
whether to grant a rescission or not. The court’s discretionary
power is influenced by the considerations of fairness and justice
having due regard to all the facts and circumstances of that
particular case. The onus of showing the existence of sufficient
cause is on the applicant in each case, and he has to satisfy the
court, inter alia, that there was some reasonable satisfactory
explanation why the judgment was allowed to be granted by
default, see DE WET & OTHERS V WESTERN BANK LTD 1979
(2) SA 1031 (A) at 1042 F 1043 A .
EXPLANATION FOR ABSENCE
16. The applicant contends that his absence in court on the 27 th
August 2001 was caused solely by the negligence of his attorney
and he considers it to be a sufficient explanation in the
circumstances.
17. Our courts have pronounced on numerous occasions that the
negligence of the applicant’s attorney or representative per se is
not sufficient to discharge the onus resting on the applicant to
show good cause, see KOLOBE and ELECTROCOM P cases
supra. See also SALOOJEE & ANOTHER NNO V MINISTER OF
COMMUNITY DEVELOPMENT 1965 (2) SA 135 at 140 and
ATHMARAM V SINGH 1989 (3) SA (D) .
18.In circumstances where the applicant’s representative is said to be
negligent, the applicant must demonstrate the reasonable steps
that he has taken to ensure that the default does not occur, and
these would depend upon the circumstances of each case. A
jurisprudence has evolved from the abovementioned cases that
the applicant:
a. Should not show disinterest in the conduct of his own
case;
b. Must maintain close contact with his attorneys;
c. Must have no reason to distrust his attorneys’
competence to look after his affairs.
These factors weigh more heavily on an applicant or plaintiff in a
matter.
19. Other than the letter which the applicant addressed to his attorney
on the 18 th April 2001 there is no other elaborate conduct
displayed by the applicant to show that he had an interest in the
conduct of his case and that he maintained close contact with his
attorney. He merely avers that he made several attempts to
contact his attorney without success, a mere ipse dexit. It seems
to me that the applicant had a reason to distrust his attorneys’
competence to look after his affairs as he avers that he had felt
that his attorney was dragging her heels in this matter. This state
of affairs must have required the applicant to be more proactive in
contacting his attorney or otherwise to withdraw his mandate from
her and seek the services of a competent attorney. The applicant
has failed to mention the steps that he took in the conduct of his
case between April 2001 and September 2001. Surprising he
seemed not to find much difficulty in communicating with his
attorney after the 3 rd September 2001.
PROSPECTS OF SUCCESS
20. The applicant contend that he was summarily dismissed by the
respondent without any proper procedure being followed with
effect from the 1 st October 2001 as per letter by the respondent
dated 1 st October 2001. He further contends that subsequent to
his dismissal “trumped up” disciplinary charges were brought
against him by the respondent in an attempt to legitimise his unfair
dismissal. He was found guilty in a disciplinary enquiry and
dismissed for misconduct on the 10 th December 1999 in his
absence. He did not attend the said disciplinary as he was, in his
view, already dismissed on the 1 st October 1999.
21. The respondent, however, contends that it merely gave the
applicant a three months’ notice, in terms of his contract of
employment, to terminated his services with effect from 1 st
October 1999 expiring on the 31 st December 1999. It further
informed the applicant that his services were not needed by the
respondent and that he was not to attend work. The notice was
delivered to the applicant on the 5 th October 1999.
22. It seems to me that the crux of the matter in the main application
hinges on the interpretation of the contents of the aforesaid letter
dated 1 st October 1999.
The letter reads as follows:
“RE: NOTICE OF TERMINATION OF SERVICE
I refer to the verbal discussion between yourself and
Stephan Nieuwoudt regarding the termination of your
services.
With reference to your service agreement with “Megacor
Holdings Limited” signed on 11 th November 1998, as
referred to by yourself, we herewith give you written
notice of the termination of your services effective the 1 st
October 1999.
The reasons for your termination have been explained to
you.
The details of the benefits due to you will be discussed in
due course.
Kind Regards
Signed
S, NIEUWOUDT 10 October 1999
Signed
L. FULLER 10 October 1999”
23. This letter was received and signed by the applicant on the 5 th
October 1999 at 7H30.
24. The relevant clause in the applicant’s service agreement signed by
the applicant on the 11 th November 1998 reads:
“TERMINATION OF EMPLOYMENT
This agreement may be terminated by either party on three calendar
months written notice on the first working day of any month.
On termination of service for whatever reason, you will return to your
immediate superior all company property issued to you whilst in
service of Megafurn. All documents in respect of the company
systems, plans, clients, lists etc must also be returned to the
company.”
25. On the 25 th October 1999 the respondent wrote the following
letter to the applicant:
“RE: TERMINATION OF SERVICE
As per our telephonic discussion I confirm the following:
q You will not have to render your services to the
company at this stage.
q Due to an investigation in claims etc. made by you
retrenchment negotiations have been suspended.
q As soon as the investigation is completed I will
refer back as to the course of action that the
company will be taking.
Kind Regards
Signed
S. NIEUWOUDT
26. I hasten to mention that only on receipt of this letter, the applicant
lodged a dispute of his unfair retrenchment on the 26 th October
1999 to the CCMA referring to the 1 st October 1999 as the date of
dispute.
27.It is common cause that the applicant received his normal salary
for October and November 1999.
28.Paragraphs 17 and 18 of the Applicant’s Statement of case in the
main application read as follows:
“17 On or about the 6 th October 1999 the Applicant discussed
the issue of the notice period with Nieuwoudt, who
confirmed that he did not have to work his notice period
and that he would have an answer on the settlement
negotiations on Monday the 11 th October 1999.
18 By the 15 th October 1999, the Applicant had heard
nothing further from the respondent and once again
contacted Nieuwoudt who advised him that he could not
make an offer to the applicant, as the applicant was under
investigation.”
29. The applicant was subsequently summoned to attend a
disciplinary enquiry on the 24 th November 1999 to face charges
of:
a. Dishonesty during the course of employment claiming
more than paying on insurance premium.
b. Dishonesty during course of employment claiming tracker
device for car under false pretences.
30. The applicant did not attend the said disciplinary enquiry and he
was found guilty and dismissed on the 10 th December 1999.
31. In my view all the above facts, in the applicant’s own case,
demonstrate that the applicant’s services were not terminated by
respondent forthwith on the 1 st October 1999 but he was given a
three months notice, in terms of his contract of employment, to
terminate his services on the expiry of the said three months
period with effect from the 1 st October 1999. It is clear that up to at
least the 16 th October 1999 the applicant had not considered
himself to have been dismissed. He considered himself as the
employee of the respondent who was willing to negotiate
settlement proposals by the respondent for the termination of his
services in due course. It is trite that an employee who is serving a
notice period remains an employee and is subject to be disciplined
by the employer.
32. In my view the applicant was still an employee of the respondent
until he was dismissed on the 10 th December 1999. In view of the
aforegoing the applicant has not shown that he has a prima facie
good case against the respondent.
33.In view of my above findings I make the following order:
1. The application is dismissed
2. The applicant is ordered to pay costs
ZILWA A J
DATE OF JUDGMENT : 28 MAY 2003
FOR APPLICANT : A. N. SNIDER instructed by
BRIAN KAHN INC.
FOR RESPONDENT : D. WOODHOUSE of
PERROT, VAN NIEKERK &
WOODHOUSE INC.