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IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR235/02
20050318 REPORTABLE
In the matter between
MMOLEDI, THABISO RALEBEKO Applicant
and
MOTSEPE, HAZEL 1st Respondent
CCMA 2nd Respondent
CORMACK, GLEN A 3rd Respondent
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EX TEMPORE J U D G M E N T
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REVELAS, J : The applicant seeks an order to rescind a judgment handed
down by Pillemer, AJ which was handed down on 22 July 2003. An order was
made in the following terms:
"1. The main review application is dismissed and the crossreview is
upheld.
2. The arbitrator's award is varied to read:
(1) rescission application is dismissed with costs.
(2) The applicant is to pay the costs of the review application."
This rescission application before me is opposed. It is an application brought
in terms of rule 16(a) of the Labour Court Rules. The matter has a very long
history and the material facts which I believe are pertinent to this application
are the following.
Ms Hazel Motsepe (Motsepe) was employed by the applicant (a medical
practitioner) as a staff nurse during May 1997 and her services were terminated
by him during August 1998, which is almost seven years ago. The alleged
reason for her dismissal was that she misrepresented her qualifications to the
applicant. Without going into the details of that offence, I must just mention
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that there was also criminal proceedings brought against Motsepe and she was
acquitted.
Motsepe then referred an unfair dismissal dispute to the Commission for
Conciliation, Medication and Arbitration (“The CCMA”). When conciliation
failed the matter was arbitrated by Commissioner Zondi. The arbitration
hearing became part heard when it was heard in February and subsequently
finalised on 5 March 2001. The applicant did not appear on the latter date,
and even though evidence was led by the applicant on the previous occassion.
The arbitrator subsequently issued a default award on 7 March 2001, in which
she found that the dismissal of Motsepe was both procedurally unsubstantively
unfair and awarded the respondent compensation in an amount of R15 600,00.
In April 2001 the applicant unsuccessfully applied to have the award of the
arbitrator rescinded. The applicant then brought a review application to set
aside Mr Cormack's (the second arbitrator) refusal to rescind the first
arbitrator's award, which was made in favour of Motsepe. The respondent
filed a cross review due to commissioner Cormack's failure to deal with the
issue of costs. Both parties filed heads of argument in respect of the review
application and the matter was set down for hearing on 14 November 2002, 24
June 2003 and finally 22 July 2003.
On 22 July 2003 Pillemer, J noted that there was no appearance on behalf of
the applicant. He then requested Mr Friedman who appeared on behalf of
Motsepe, to make enquiries from the applicant’s attormey’s firm as to whether
there would be any appearance and waited. It is also noted in the learned
judge's judgment, that Mr Friedman was told by someone from the firm that
there was no intention to brief anyone to appear.
In the founding affidavit of the applicant's former attorney, Mr Mbha, it is
apparent that he could not attend court due to the fact that he attended to an
apparent that he could not attend court due to the fact that he attended to an
interview with the Judicial Services Commission, which were held in Cape
Town.
The attorney in question set out several explanations as to why he could not be
in court. However, it is on record and that appears from a letter (page 22 of the
record) that counsel Mr Mokoena was on brief to appear on behalf of the
applicant and he was not available to come to court on 22 July 2003.
Courts do not hear matters when it is convenient for counsel. Pillemer, J made
attempts to obtain the presence of the applicant at court. There was no co
operation in this regard. Furthermore there is a history in this matter showing
that the applicant absented himself on several occasions. Pillemer, J very
clearly found that there was no merit in the application to review Mr
Cormack's ruling. It is of course not open to me to revisit the merits of the
review application. The observations made by Pillemer, J are for my purposes,
relevant because in granting a rescission of an order, the court is obliged to
consider the prospects of success. They have been pronounced upon by
Pillemer, J . Furthermore it is a shocking state of affairs that poor Ms Motsepe
had an award made in her favour in 1998 and she has still not found justice.
She had to contend for almost seven years with the applicants’ delaying tactics.
All matters should ideally be dealt with as much expedition as possible. That
does not happen. But there is a more pressing obligation on Labour Court
judges to see to it that labour disputes are resolved expeditiously or as
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expeditiously as possible. When employees have to wait seven years for the
final conclusion of their matter that is indeed very unfair. The delays were
caused by none other than the applicant, who like many employers in this
court, delay proceedings to escape payment of compensation. There is no
reason why the judgment in question should be rescinded and there is no
reason why the applicant should not pay the costs of this matter.
In the circumstances I make the following order.
The application for rescission is dismissed with costs.
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E.REVELAS
DATE OF HEARING: 18 MARCH 2005
DATE OF JUDGMENT: 18 MARCH 2005
ON BEHALF OF THE APPLICANT: Adv. TL Dikolomela
INSTRUCTED BY: Mbha & Obose Inc.
ON BEHALF OF THE RESPONDENT: Earle Friedman & Associates