IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
CASE NO: C323/04
In the matter between:
COLLIERS PROPERTIES Applicant
and
AMARALL CHRISTIAN Respondent
JUDGMENT
MURPHY, AJ
1. On 23 February 2005 the respondent was granted a default judgment
against the applicant by Oosthuizen AJ in terms whereof the applicant
was ordered to pay the respondent the sum of R 48 000.00 in terms of
section 194(3) of the Labour Relations Act being compensation
ordered in respect of the automatically unfair dismissal and the sum of
R10 000.00 in terms of section 50 of the Employment Equity Act being
compensation in respect of sexual harassment. The learned judge also
made an order that the amounts should attract interest and awarded
costs against the applicant.
2. On 26 May 2005 the applicant brought an application for the rescission
of the judgment handed down on the 23 rd February 2005. I shall refer
to this application as “ the first application ”.
3. A few days later, on 30 May 2005, Mr Ahmed Collier brought a second
application under the same case number, citing additional parties as
respondents. This application I shall refer to “ the second application ”.
In terms of it, the applicants sought urgent relief ordering that a writ of
execution issued under the relevant case number against “Ahmed
Collier trading as Collier Properties” be stayed and that also the
processes of execution of the same be suspended pending the return
day of a nisi calling upon the respondents to show cause why the
various processes of execution including the writ, a garnishee order
and a notice of attachment should not be set aside. The second
application was set down for hearing on 01 June 2005 to be heard as a
matter of urgency.
4. The respondent opposed the application and raised various points in
limine.
5. The second application came before Pillay J on 07 June 2005 and was
postponed by her in order to permit the applicant in the first application
to file supplementary affidavits and to allow the respondent to reply.
She ruled that both applications be heard simultaneously.
6. When the matter came before me counsel for the applicant, after some
argument, abandoned the second application and confined himself
ultimately to the application for rescission of the judgment. The second
application was problematic because it has been made under the same
case number as the application for rescission but in fact involved
different parties in respect of whom no application for joinder was
made.
7. The premise of the second application is that the execution process
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was brought against the wrong person, namely Mr Ahmed Collier,
when it should allegedly have been brought against Mr Ismail Collier,
his son. The respondent’s position in this regard is that the judgment
was handed down against Collier’s Properties, an estate agency, of
which the principal sole registered agent is Mr Ahmed Collier.
Accordingly, the respondent is of the view that she was indeed
employed by Ahmed Collier trading as Collier Properties. Her
submissions in this regard are borne out by documentation supplied by
the Estate Agents Board. However, as I have indicated, the applicant
eventually abandoned this application.
8. Because of this the only application before me is the first application
brought in the name of Colliers Properties for the rescission of the
judgment handed down by Oosthuizen AJ.
9. The respondent has raised a point in limine . With reference to rule 7(3)
(a) of the Rules of the Labour Court, she submits that the application is
not in accordance with the rules and should be dismissed on that
ground alone. Rule 7(3)(a) stipulates that any application to this court
must be supported by affidavit and that the affidavit must clearly and
concisely set out the names, descriptions and addresses of the parties.
Neither of the supporting affidavits deposed to by Mr Ahmed Collier or
Ismail Collier in respect of the first application cite and/or describe an
applicant, despite Pillay J having afforded the applicant an opportunity
to supplement its papers. I am in agreement with Mr van der Schyff,
who appeared on behalf of the respondent, that the rules are
peremptory and any noncompliance requires condonation to be
sought by way of application. Given the centrality of the dispute around
who the applicant in fact is in relation to the second application and the
who the applicant in fact is in relation to the second application and the
entire issue of execution, the defect in this regard cannot be seen to be
entirely of a technical nature. The papers do indeed reflect confusion
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as to whether Mr Ahmed Collier or Mr Ismail Collier was the
respondent’s employer and thus the applicant. The applicant’s failure to
properly identify itself or himself has resulted in a number of
ambiguities making it impossible for the respondent to deal properly
with the application. Accordingly, I agree that the application should be
dismissed on this ground alone.
10. Nevertheless, lest I be mistaken on this, there is some merit in dealing
with the application for rescission itself.
11. Applications for rescission can be brought either in terms of rule 16A of
the Labour Court Rules or in terms of section 165 of the Labour
Relations Act. The applicant has omitted to state whether the
application was brought in terms of the rules or in terms of section 165.
In the heads of argument filed on behalf of the applicant it is stated that
the application for rescission was brought under rule 16A(1)(b). Rule
16A(1)(b) provides that the court may in addition to any powers it may
have, on application of any party affected, rescind any order or
judgment granted in the absence of that party. However, in terms of
rule 16A(2)(b) any party desiring any relief under subrule (1)(b) must
make application showing good cause within 15 days after acquiring
knowledge of the order or judgment granted in the absence of that
party.
12. It is common cause that the applicant learnt of the judgment for the first
time on 16 March 2005 and that the application for rescission was
served on the respondent’s attorneys some two months late on 26 May
2005. Accordingly the applicant is out of time in respect of any
application made under Section 16A(1)(b). The applicant conceded this
and sought condonation in terms of rule 12 of the Rules of the Labour
Court.
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13. Rule 12 permits the court to extend or abridge any period prescribed by
the rules on application and also to condone noncompliance with any
period prescribed by the rules on good cause shown. In prayer 1 of the
notice of motion the applicant seeks an order that the applicant’s failure
to comply with rules of the court as regards the formal service, the
giving of notice and the applicable time periods be condoned and that
the time period with which to bring the application be extended. No
reference was made to rule 16A. Nevertheless I am prepared to accept
that the intention was to seek an extension or condonation of the 15
day time period referred to in that rule.
14. The only averment in the applicant’s supporting affidavits offering any
explanation for the delay of 2 ½ months in bringing the rescission
application is contained in the affidavit of Ismail Collier where he states
that after having received a faxed copy of the judgment on 16 March
2005, he approached a Mr Kumamdan, a colleague who previously
practised as an attorney and who claimed to have experience in
matters of this nature, to assist and advise him to resolve the matter as
he believed that the judgment had been obtained on incorrect
information. He averred that Mr. Kumandan had advised him that the
matter was under control, that he had nothing to worry about and that
he had no reason to believe otherwise until he recently discovered that
Kumandan had in fact spent a lot of time out of town. It was only when
his father informed him of the existence of the writ of execution dated
May 2005 that he became concerned that there may be a problem and
moved to instruct his present attorneys of record.
15. Mr Kumandan in his affidavit explained that he had not responded to
the judgment because he relied on an alleged undertaking by the
the judgment because he relied on an alleged undertaking by the
respondent’s attorney to engage in a round table conference to try and
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settle the matter. The respondent’s attorney denies having given such
an undertaking although admits that there was some discussion of a
round table conference. When he heard nothing further from
Kumandan he proceeded with the execution process.
16. The difficulty with the applicant’s version is that whatever arrangements
there may have been between Kumandan and the respondent’s
attorney, the sheriff of the court visited Colliers Properties on 7 April
2005 to effect the warrant of execution, which yielded a nulla bona
return. It is clear from the warrant and the return that the sheriff had
direct dealings with either Ahmed Collier or Ismail Collier who informed
him that there was no moveable property or disposable assets.
Accordingly it is highly improbable that either Mr Ahmed Collier or Mr
Ismail Collier could have assumed that Mr Kumandan had matters
under control. Rather, I agree with the respondent, Colliers Properties
preferred to neglect the matter in the hope that it would simply go
away.
17. Accordingly, I am not persuaded that the applicant has furnished a
reasonable explanation for its delay in bringing the application for
rescission in terms of rule 16A(1)(b). It has not provided sufficient
information to account for its inertia during the 2 ½ months after it
learned of the judgment. It follows that it has not shown good cause
and the application for condonation in terms of rule 12 must be
dismissed.
18. Although there is no express application in terms of section 165 of the
LRA before me, in the interests of justice I am prepared to consider
whether such an application has any merit. Section 165 provides that
the Labour Court, acting on its own accord or on the application of any
the Labour Court, acting on its own accord or on the application of any
affected may vary or rescind a decision, judgment or order that is
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erroneously sought or erroneously granted in the absence of any party
affected by that judgment or order. (The other grounds for granting
rescission or variation identified in section 165 have no relevance in
this matter). In order to succeed under this head the applicant would
have to show that the order was granted as a result of an erroneous
assumption on the part of Oosthuizen AJ. The section provides a
procedural step designed to correct expeditiously an obviously wrong
judgment or order.
19. A case could be made out that the judgment of Oosthuizen AJ was
erroneously granted were it to be found that the applicant never
received the respondent’s statement of case. The respondent has
averred that on 27 July 2004 she faxed a copy of the statement of case
to Collier’s Properties in Lansdowne, which was then diverted
automatically to Ahmed Collier’s residence. She provides proof of the
onward transmission in one of her affidavits. Mr Ahmed Collier in his
supporting affidavit admits that the fax number to which the statement
of case was sent was his home fax number. In this regard he states:
This is my home telephone number, and although the fax facility still exists on the
line, I have not had a fax machine in my house since 2001 and it is possible that the
fax was received on my computer, which I seldom check, however I have never had
sight of the documents allegedly faxed to me.
This, to my mind, amounts to an admission that the fax was probably
received but that Mr Collier simply failed to check his mail. It means that
service was indeed effected in accordance with rule 4(1)(a)(iv) of the
Rules of the Labour Court. In any event the respondent in her opposing
affidavit further averred that after receiving the statement of case, Mr
affidavit further averred that after receiving the statement of case, Mr
Ismail Collier telephoned her on her cellular telephone from his private
number. According to her, he stated that he noted that she had taken the
matter to the Labour Court, but laughingly told her that she would never
succeed as he had not employed her in the first place. This averment has
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not been denied in reply and hence, in accordance with the principles in
PlasconEvans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA
623 (A), I am obliged to conclude that the statement of case was indeed
properly served. Accordingly, it follows that I am unable to conclude that
the order of Oosthuizen AJ was erroneously granted on the grounds that
the applicants never received the statement of case.
20. To sum up, I am unable to grant the application for rescission brought
in terms of rule 16(1)(b) because it was brought outside of the time
limits stipulated in rule 16(2)(b) and no proper case for condonation
has been made out in respect of the delay; and secondly I am unable
to grant rescission in terms of section 165 of the Labour Relations Act
(in respect of which no time limit is stipulated) on the grounds that the
applicant has not shown that the order was erroneously sought or
granted in its absence.
21. Some suggestion was made from the bar that the order of Oosthuizen
AJ was erroneously granted in respect of the R 10 000.00 awarded
under the Employment Equity Act because the jurisdictional
preconditions of section 60 of the Employment Equity Act have not
been fulfilled. Section 60 provides for vicarious liability on the part of
employers only where the employer fails to take necessary steps to
eliminate the alleged sexual harassment. There is no express
reference to section 60 in the judgment of Oosthuizen AJ, which means
there may indeed be some merit in the point. The point however has
not been pleaded or raised in the supporting affidavits and was made
as a last ditch effort from the bar, without the respondent having had an
opportunity to present evidence on the point or to deal with it in
argument. Hence, a proper case has not been made out in that regard
either.
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22. The applicant’s approach in this entire matter appears to have been
somewhat cavalier and as such should attach an order of costs.
23. In the premises I make the following orders:
23.1The applicant’s applications under case number C323/2004 are
dismissed.
22.2 The applicant is to pay the respondent’s costs on a partyparty
basis.
MURPHY, AJ
Date of hearing: 14 June 2005
Date of judgement: 28 July 2005
Applicant’s legal representative: Adv G Elliot instructed by RP Totos
Attorneys
Respondent’s legal representative: Adv J van der Schyff instructed by N
Allen Attorneys
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