NDLELA vs TRANSNET
tt.08.08
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REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO. J1534/98
In the matter between –
JOSEPH MABAYO NDHLELA Applicant
and
TRANSNET LIMITED Respondent
JUDGMENT
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KENNEDY A J:
1] At the conclusion of argument of the rescission application in this matter, heard on 5
February 2004, I granted an order in the following terms :
a) The order granted by Revelas J on 1 September 2003 is rescinded.
b) There is no order as to costs.
My reasons for granting that order are as follows :
2] The applicant, Mr Joseph Ndhlela (“Ndhlela”), was formerly employed as an
executive director of the respondent, Transnet Limited (“Transnet”). He was
dismissed on 20 January 1998, after a lengthy disciplinary enquiry chaired by a
former judge of the Supreme Court of Appeal, John Trengove, who found Mr
Ndhlela guilty of a number of serious charges. Mr Ndhlela was subsequently
prosecuted and convicted on three charges of fraud, for which he was sentenced to
three years imprisonment. He lodged an appeal against the conviction and sentence
and apparently this appeal is still pending.
3] Mr Ndhlela challenged the fairness of his dismissal in a dispute which was
originally referred to the CCMA, but was then referred by the director of the CCMA
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to the Labour Court.
4] Pleadings were filed by both parties during July 1998. On 26 November 1998 an
order was granted by Seady A J that the matter was to be set down on a date suitable
to both parties and by arrangement with the Registrar. That order was made by
agreement of the parties, who concurred that having regard to the size and
importance of the matter, consensus should be reached on dates to suit the chosen
legal representatives of each side.
5] Thereafter, over a period exceeding four years, little progress was achieved in
bringing the matter to trial. On various occasions it was set down for trial, on some
occasions at the instance of Mr Ndhlela’s attorneys, on other occasions of
Transnet’s attorneys and on further occasions by the Registrar without reference to
the parties. On each occasion the matter did not proceed and was removed from the
roll, the usual reason being that it had been set down without agreement to the dates
by both parties’ representatives as required by the order of Seady A J.
6] During June 2003 the Registrar notified the parties that the matter was set down for
trial for five days, commencing on 1 September 2003. Again, this was a date which
had not been agreed to by either party and was accordingly not consistent with the
order of Seady A J.
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7] A pretrial conference was held on 22 August 2003 with a view to limiting the
issues for the trial which the parties hoped could proceed on the date on which it
was set down. However, no agreement was reached on proposals made for
shortening the proceedings by Transnet’s legal representatives.
8] On 26 August 2003 the attorney then representing Transnet, Mr Mazwai, wrote to
Mr Ndhlela’s attorney, Mr Moshoana, stating as follows –
“1 ...
2 In view of your client’s wish to proceed with his claim on the basis of a new
hearing of evidence on charges preferred and on which adverse findings
were finally made, our view, based on evidence led at the internal
disciplinary enquiry is that a minimum of ten consecutive court days will be
required for a trial of this nature. The present set down for trial is not for a
period of ten days on the assumption that it is a set down on continuous roll
ending at the latest on Friday, 5 September 2003. We also confirm having
advised you of our client’s new counsel (Mr A Redding) that he is not
available in the week commencing on 8 September 2003. We have also
ascertained that Mr Redding is not available for all of the days between 1
September 2003 to 5 September 2003.
3 We also confirm that the trial date of 1 September 2003 was not obtained at
the request of either your client or our client but was procured at the
instance of the Registrar without having regard to the order granted by
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Judge Seady in the above matter on 26 November 1998 and in particular
paragraph 3 thereof which states that ‘the matter shall be set down on a
date suitable to both parties and by arrangement with the Registrar.’
4 In the circumstances of firstly the insufficiency of the number of days
required for the trial hearing, the availability of our client’s new counsel
and the terms of paragraph 3 of Judge Seady’s order our instructions are to
request the Registrar of the Labour Court to remove the matter from the
trial roll of Monday, 1 September 2003. We according[ly] transmit
herewith a copy of our facsimile letter of even date.
5 ...”.
9] Mr Moshoana replied by letter addressed and dispatched to a facsimile number
which was not that applicable to Mr Mazwai, who therefore did not receive it. In
that letter Mr Moshoana indicated that his client did not consent to the removal of
the matter from the roll.
10] Mr Mazwai then wrote on 28 August 2003 to the Registrar stating as follows –
“ ...
(2) Having had the opportunity to engage with the applicant’s attorney and our client in relation to
the matter in which the trial is envisaged the abovementioned date is not suitable to the respondent as
Judge Seady’s order of 26 November 1998 in particular paragraph 3 which states that ‘the matter shall
be set down on a date suitable to both parties and by arrangement with the Registrar.’ We also note that
a period of five days is insufficient given the applicant’s desire to lead all of its evidence afresh in relation
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to the charges of misconduct which were prefer [sic] against the applicant in an internal disciplinary
enquiry (where the enquiry was heard in thirteen days and further to that our client’s new counsel (Mr A
Redding) is not available on this [sic] five days.
(3) We also note that no pretrial minute has been agreed or signed between applicant and
respondent. In our understanding it is not competent for a trial date to be sought and/or allocated in the
absence of a pretrial minute and in such circumstances it would be more appropriate for a pretrial to be
convened before a Judge.
(4) In the circumstances we request you to remove the above matter from the trial roll of Monday 1
September 2003 and advise us accordingly.”
11] Later the same day, Mr Mazwai’s Johannesburg correspondent, Mr Baloyi, filed
with the Registrar a notice stating –
“Kindly take notice that the applicant and the respondent have agreed to remove the above matter from
the trial roll on 1 September 2003 with no order as to costs.”
12] It is common cause that this notice misrepresents the true position and that in fact
there was no such agreement between the parties that the matter should be removed
from the trial roll on 1 September 2003.
13] The circumstances in which Mr Mazwai’s letter to the Registrar and the notice of
removal were forwarded to the Registrar have been explained in the founding
affidavit as follows –
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“26 Mazwai thereafter telephoned Baloyi who confirmed that he had received from Dladla [Mazwai’s
professional assistant, who was dealing with the matter while Mazwai was off ill] a copy of the letters
addressed to the Registrar and to the applicant’s attorneys. Mazwai requested Baloyi to not just deliver
the letter to the Registrar but to actually meet with the Registrar, Mr Phophi ... in order to ensure that the
Registrar either issued a notice of removal of the matter or gave an undertaking to remove the matter
from the trial roll. Mazwai informed Baloyi that the basis for the removal was the unsuitability of the
trial date (for the reasons set out in the letter addressed to the Registrar) and that the date had been
allocated without compliance with the order of Seady A J in that the date had not been arranged as being
suitable to both parties. Baloyi suggested to Mazwai that a notice of removal of the matter from the trial
roll could be filed. Mazwai, however, instructed Baloyi that a notice of removal could only be utilized if
he was unable to contact the Registrar and that any notice of removal must make reference to the order of
Seady A J and the letter addessed to the Registrar of 26 August 2003 which had both been attached to the
notice of removal. Mazwai enquired of Baloyi as to whether he had a copy of the order of the Seady A J
and when informed that he did not, Mazwai informed Baloyi that he should obtain a copy of the order of
Seady A J from Dladla. Later the same day, Mazwai again telephoned Baloyi who confirmed that he had
received a copy of the order of Seady A J and that he would attend to meet with the Registrar. Mazwai
requested that Baloyi inform him if he encountered any difficulties.
27 Mazwai was still off ill on Friday 29 August 2003. He, however, telephoned Baloyi who informed
him that he had been successful in removing the matter from the trial roll for 1 September 2003 but had to
file a notice of removal as Phophi was on leave and he had not been able to meet with him. Baloyi also
informed Mazwai that the person with whom he had spoken in the Registrar’s office had informed him
that on filing of the notice of removal, the matter would be removed from the trial roll and that the court
file had, in any event, not been indexed and paginated and that the matter would have been struck off the
court roll.
28 Mazwai telephoned me [the deponent Dr Madima, Transnet’s general counsel] on Friday 29
August 2003 and informed me that the matter had been removed from the trial roll. Mazwai also
informed Mr Redding that it would no longer be necessary for him to attend court on 1 September 2003 as
the matter had been removed from the trial roll.
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29 Mazwai informs me that he considered whether Redding should attend court on 1 September 2003
and believed it would not be necessary in that
29.1 he had been informed that the matter had been removed from the trial roll;
29.2 the matter was not ripe for trial as no pretrial minute had been filed
and that as the court file had apparently not been properly indexed and paginated the
matter would have been struck of the roll;
29.3 there had been no response from the applicant’s attorneys to the
telefax of 26 August 2003 addressed to them by Ledwaba Mazwai ... Mazwai was of
the view that the applicant’s attorneys could not, in any event, object to the removal by
the Registrar without seeking a variation of the order of Seady A J.”
14] In an affidavit furnished by attorney Mazwai (who has since been replaced as
Transnet’s attorney of record in this matter by attorneys Bowman Gilfillan) he
confirms what is stated by Dr Madima in the founding affidavit and states further –
“I apologize to the above honourable Court for the failure of the respondent to attend at Court on 1
September 2003 which was in no way attributable to any fault on the part of the respondent ...”.
15] Mr Baloyi, the author of the notice of removal which wrongly stated that the parties
had agreed to remove the matter from the roll, has also furnished an affidavit in
which he states –
“I apologize to the above honourable Court in relation to the filing of an incorrect notice of removal of
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the matter from the trial roll. I did so under the belief that the applicant’s attorneys were aware that the
matter had been incorrectly enrolled by the Registrar and did not object to the removal. I did not intend
to misrepresent any incorrect facts and I apologize for any inconvenience to the Court.”
16] On 1 September 2003 the matter was called before Justice Revelas. Mr Moshoana
appeared on behalf of Mr Ndhlela, but there was no appearance for Transnet. Judge
Revelas pointed out that the notice of removal indicated that there was an agreement
between the parties to remove the matter from the roll, but Mr Moshoana stated that
there had been no such agreement. He referred to a letter (presumably that of 26
August 2003) in which Transnet’s then attorney had indicated a desire to have the
matter removed from the roll but that this was unacceptable to Ndhlela. Mr
Moshoana handed up to the Judge his letter of reply in which he had indicated this,
but did not hand up the letter of Mr Mazwai in which the basis had been set out for
the request that the matter be removed from the Roll.
17] The Court then heard the evidence of Ndhlela who testified that there had been no
basis for the allegations against him, that Judge Trengove had been wrong in finding
him guilty of the relevant charges and that Judge Trengove had, despite being
required to make a recommendation, refrained from making any recommendation as
to the appropriate punishment to be imposed on Mr Ndhlela.
18] Justice Revelas delivered a brief judgment in which she stated inter alia –
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“The respondent did not oppose this matter. The notice of set down was sent to both parties which clearly
stated that the matter would be heard today, 1 September 2003. However, on 28 August 2003 (last week)
attorney Ledwaba Mazwai wrote to the Labour Court raising certain objections to the matter being set
down. They had also written to the applicant’s attorneys seeking to postpone the matter.
Mr G N Moshoana ... wrote to Ledwaba Mazwai Attorneys as follows –
‘Your letter of 26 August 2003 is hereby acknowledged. Unfortunately our view is to proceed with the
matter as the parties have been informed that the Registrar keeps a continuous roll [...].’
Then thereafter, on 28 August 2003, Ledwaba Mazwai Attorneys filed a ‘Notice of removal from the roll:
1 September 2003’. The notice advises as follows –
‘Kindly take note that the applicant and the respondent have agreed to remove the above matter from the
trial roll on 1 September 2003 with no order as to costs.’
It appears that it is signed by a person with the surname Baloyi of Ledwaba Mazwai Attorneys.
It is apparent from the facts before me that there was no agreement to have the matter removed from the
roll and it appears that the notice was a ploy by the respondent’s attorneys not to have the matter heard
today. This type of conduct will not be tolerated by the Labour Court.
The matter is treated as if unopposed and I therefore have to accept the applicant’s version of events in
the absence of the respondent, and more particularly that he committed no dismissable defence.
In the circumstances I make the following order:
1) The applicant be reinstated in the employ of the respondent.
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2) The reinstatement will be with retrospective effect but limited to 12 months’
remuneration.
3) The respondent is to pay the applicant’s costs of this application.
4) Ledwaba Mazwai Attorneys are to appear before the Labour Court on 15
September 2003 to give an explanation as to why the aforesaid costs should
not be paid de bonis propriis by that firm of attorneys.”
19] The last paragraph of the order of Revelas J, relating to a possible de bonis propriis
award of costs against Mazwai, was postponed and now forms part of the
proceedings before me. During argument, Mr Franklin indicated that Mr Mazwai
was present in Court and that all that he required to state in relation go the
possibility of a de bonis propriis costs order against him was that the explanation
had been fully set out in the affidavits referred to above and that there had been no
intention on his part to mislead the court.
20] At the outset of his argument, Mr Franklin readily conceded that the conduct of the
then attorneys for Transnet was inappropriate, in particular that they were not
entitled to –
• assume that they could simply remove the matter from the roll;
• state that such removal was by agreement of both parties; and
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• assume that there was no need to appear in court on 1 September 2003.
21] These concessions were wisely made. What is particularly serious – indeed,
deplorable – is the misrepresentation of the true state of affairs in the notice of
removal. This was issued and filed by an officer of the Court and misrepresented
not only to the Registrar but to the Court itself that agreement had been reached
between the parties whereas that simply was not the case. There was no
justification whatsoever for any such statement or any belief or assumption that
either Mr Ndhlela or his attorney would not be objecting to the removal from the
roll. This misrepresentation cannot be ascribed to mere carelessness: it was at the
very least reckless and subversive of the vital element of integrity required of all
legal practitioners in all their dealings, in particular with the Court. The Courts
view such misrepresentations in a very serious light and the seriousness of the
misrepresentation in the particular matter should not be underestimated.
22] What I am called upon to decide, however, is whether Transnet should be visited
with the consequences of such misrepresentation in the form of a default judgment
which requires inter alia the reinstatement of a former executive director dismissed
on a number of serious charges.
23] During argument three possible bases for rescission were identified being –
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• the common law;
• section 165 of the Labour Relations Act; and
• rule 16A of the Labour Court Rules.
24] In my view this matter can be resolved having regard to the requirements for
rescission of default judgments as recognized in the common law and in Rule 16A.
25] Under the common law an applicant for rescission is required to satisfy two
requirements :
• a reasonable and acceptable explanation for the default; and
• a bona fide defence which prima facie carries some prospect of success. 1
26] Rule 16A (1) provides –
“The court may in addition to any other powers it may have –
(a) of its own motion or on application of any affected party,
correct, rescind or vary any order or judgment –
1 Chetty v Law Society Transvaal 1985 (2) SA 756 (A) at 75 B – C; Athmaram v Singh 1989 (3) SA 953 (D) at 957 C – D.
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(i) erroneously sought or erroneously
granted in the absence of any party
affected by it;
(ii) in which there is an ambiguity or a patent
error or omission, but only to the extent of
such ambiguity, error or omission;
(iii) granted as the result of a mistake common
to the parties; or
(b) on application of any party affected, rescind any order or judgment granted in the absence of that
party.” (emphasis added).
27] Under Rule 16A(2)(b), “the Court may, upon good cause shown , set aside the order
or judgment on such terms as it deems fit.” (emphasis added).
28] The provisions of Rule 16A(2)(b) of the Labour Court Rules are similar to the
provisions of Rule 31(2)(b) of the Uniform Rules of the High Court. Accordingly
the principles developed in the case law relevant to Rule 31(2)(b) should inform the
interpretation and application of Labour Court rule 16A(2)(b).
29] In applying Rule 31(2)(b), the High Court has required that an applicant for
rescission must –
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• give a reasonable explanation for his or her default;
• make the application bona fide ; and
• show that he or she has a bona fide defence to the claim against him or her (or in
the case of a claimant, has some prospects of success). 2
30] An ingredient of the requirement that good cause be shown is that the element of
wilfulness must be absent. 3 The reasons for an applicant’s absence or default must
be set out because they are relevant to the question of whether or not the default was
wilful.4 Before an applicant can be said to be in wilful default the following
elements must be shown :
• knowledge that the action is being brought against him or her;
• a deliberate refraining from entering an appearance or appearing, though free to
do so; and
2 HDS Construction (Pty) Ltd v Wait 1979 (2) SA 798 (E) at 200 F – 301 C; De Witts Autobody Repairers (Pty) Ltd v Fedgen
Insurance Co Ltd 1994 (4) SA 705 (E); Carolus & Ano v Saambou Bank Ltd 2002 (6) SA 346 (SECLD).
3 Maugan t/a Audio Video Agencies v Standard Bank of SA Ltd 1994 (3) SA 801 (C) at 803 J.
4 Brown v Chapman 1928 TPD 320 at 328.
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• a certain mental attitude towards the consequences of default. 5
31] In the present matter, Transnet and its then attorneys were clearly aware of the
action which had been brought against it and that the matter had been set down for
trial on 1 September 2003. However, having regard to the facts as summarized
above, neither Transnet nor its attorneys can be regarded as having deliberately
refrained from appearing at Court on that day. They were clearly under the
(mistaken) impression that the matter would not be called at roll call, acting under
the genuine belief that the notice of removal sufficed to ensure that the matter had in
fact been removed from the roll, accordingly dispensing with the need for any
appearance on the day. At no stage was there anything to suggest that Transnet was
abandoning its defence, was content to allow the matter to proceed to trial and for a
default judgment to be given and thereby to preclude it from leading evidence,
crossexamining Mr Ndhlela and his witnesses and presenting argument in its
defence. On the contrary, the matter was vigorously contested from the outset and
throughout the stages of pleading and pretrial processes. Neither Mr Ndhlela nor
his attorney could have been under any illusion in that regard.
32] Viewed in this light, it is difficult to understand how it came about that when the
matter was called at the trial roll and then allocated to Revelas J for hearing, and
5 Erasmus: Superior Court Practice B1 – 202 to 203.
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there was no appearance by any representative on behalf of Transnet, no effort was
made by Mr Ndhlela’s attorney to make contact with Transnet’s attorney, or to ask
the presiding Judge for an opportunity to stand the matter down to make a telephone
call to Mr Mazwai or his counsel. That would have been a simple and quick process
(particularly in the age of the cellphone). It was appropriate not only having regard
to collegiality between legal practitioners but also because it was abundantly clear
that Transnet intended to defend the claim. Mr Ndhlela’s attorney was justified in
his unhappiness at the misrepresentation contained in the notice of set down and he
had sent off a fax objecting to it. But that fax was sent to the wrong fax number and
had not reached the attorney acting for Transnet. A telephone call to Mr Mazwai
would have established that. Mr Ndhlela’s attorney must have suspected that Mr
Mazwai, his counsel or client had not arrived at Court probably because of the
misleading notice of removal or possibly for some other reason of mishap or the
like. However offended he may (justifiably) have felt about the misleading notice,
it was nonetheless still appropriate for an attempt to be made to contact Mr Mazwai
by phone.
33] Be that as it may, the default cannot be regarded as having been wilful. Mr
Moshoana argued that both the inhouse general counsel of Transnet, Dr Madima,
and his then legal team, were mala fide in deliberately misinterpreting the order of
Seady A J. In my view this criticism is unjustified. That order, which was granted
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by agreement of both sides, required that dates be found for the setting down of the
trial which were suitable to both parties and their legal teams. The Registrar had set
down the trial for 1 September 2003 without reference to the parties or their legal
teams. Initially there was an attempt by both sides to proceed with the trial on 1
September, but this proved to be impractical due to the unavailability of Transnet’s
counsel. In my view there is nothing on the papers to show any basis for inferring a
lack of good faith on the part of any of the parties or their legal representatives.
34] Turning to the requirement that an applicant for rescission must show a reasonable
prospect of defending the claim, I am satisfied on the papers that Transnet shows a
defence which is both bona fide and one which has a reasonable prospect of
succeeding. Of particular significance in this regard are –
• the findings of Judge Trengove, in which he found Mr Ndhlela guilty of serious acts
of misconduct which have a serious impact on the relationship of trust between an
employer and its employee, particularly an executive director of a large parastatal;
and
• the conviction and sentencing of Mr Ndhlela on charges of fraud which have a
direct relationship with the disciplinary charges.
35] Neither the findings of Judge Trengove nor the conviction and sentence by the
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Regional Court in the criminal matter will be decisive when this Court deals with
the merits of the trial action. It will have to come to its own conclusions in that
regard. However, the outcome of both the disciplinary process and the criminal
prosecution lends support at least prima facie for Transnet’s defence which in my
view must be regarded as having substance and a realistic prospect of success.
36] For these reasons I conclude that Transnet satisfies the requisites for rescission of
the default judgment.
37] In relation to costs, Mr Franklin submitted that costs should follow the result and
that Mr Ndhlela’s opposition to the rescission application was unreasonable. Mr
Moshoana on the other hand contended that even if rescission were granted, the
Court should grant his client costs to mark its disapproval of the conduct of Transnet
and its legal representatives.
38] In my view, the requirement of fairness would be well served if each party were to
bear its own costs of this application. Each of the parties or their then legal
representatives must bear some of the blame for the judgment having been granted
by default, to the extent indicated above.
39] I have decided against making a special costs order against Mr Mazwai de bonis
propriis. One of the relevant factors in this regard is that the misrepresentation in
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the notice of removal seems to have emanated not from Mr Mazwai but from Mr
Baloyi, who was not given an opportunity to make submissions in this regard.
However, my refraining from making an order for costs de bonis propriis should not
be construed as detracting from the seriousness of the misrepresentation and the dim
view that Courts take of such conduct by officers of the Court.
40] In the result I confirm making the order as follows :
(a) The order granted by Revelas J on 1 September 2003 is rescinded;
(b) There is no order as to costs.
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P M Kennedy
Acting Judge of the Labour Court
Date of hearing: 5 February 2004
Date of delivering reasons
for judgment: 13 February 2004
Transnet’s counsel: A E Franklin SC with A I S Redding
Instructed by: Mr Robin Carr of Bowman Gilfillan
Mr Ndhlela’s Attorney: Mr G Moshoana of Mohlaba Moshoana Incorporated
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