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IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: J2414/98
CASE NO: J3884/98
In the matter between
ENZO PANELBEATERS CC First Applicant
and
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
E MYHILL Second Respondent
SHEREEN CECILIA NAIR Third Respondent
JUDGMENT
de VILLIERS AJ
This is the combination of two applications. In the first, under J2414/98, the Applicant seeks to have the order made by Grogan AJ on 17 December 1998 (under that case number making the award of the Second Respondent dated 6 October 1998 an order of court) and the Warrant of Execution issued pursuant to that order, rescinded and set aside. In the second, under J3884/98, the Applicant seeks to have the said award set aside on review.
In both applications a Vincenzo Fernandes is cited as a party. However he was not a party to the arbitration proceedings (which are the subject matter of the application under J3884/98) nor was he a party to the application which resulted in the award pursuant to those proceedings being made an order of Court. If the Applicant wished to join or substitute him as a party it ought to have made an application or laid a foundation for the Court to exercise its discretion in terms of rule 22 (2) (a). It failed to do this and therefore he has no locus standi in these proceedings.
Also, I noted that the application under J2414/98 is signed by a Daniel Francois du Toit who, in the Applicant’s Founding Affidavit, purports to represent the Applicant in the Application to rescind the order. It is common cause that Mr du Toit is a labour consultant and hence does not have right of appearance in this Court.
However, because the Applicant was represented at the hearing by an Advocate, properly instructed, and because both the Applicant and the Third Respondent urged for the matter to be finalized, I agreed to hear the submissions of the parties relative to the applications and to rule on them.
It is appropriate to deal with the application under J2414/98 first since it is only necessary to entertain the second application if the first succeeds.
The history of this matter, to the extent that it is material to my findings, appears (from the papers in the Court file) to be as follows:
On 6 October 1998 the Second Respondent (“the Commissioner”) made an award in terms of which the Applicant was ordered to pay the Third Respondent the sum of R30 000,00.
On or about 21 October 1998, the Third Respondent applied (under case number J2414/98) to have the award made an order of Court in terms of section 158 (1) (c) of the Labour Relations Act of 1995 (“the Act”). According to her affidavit of service, the application was served on the Applicant on 21 October 1998
On or about 20 November 1998, the Applicant claims to have filed and served (per fax) an application to have the award reviewed and set aside in terms of section 145 of the Act. (There is some confusion on this issue. According to the documentation in the file, the case number for this application appears to have been applied for and issued on 3 December 1998. However, according to the affidavit of labour consultant and other documentation in the file, it appears as if there was an earlier application for a case number which did not materialize. The Third Respondent, at the hearing confirmed receiving the notice but not the affidavit. According to the record of the proceedings on 17 December 1998, only the notice made its way into that file under case number J2414/98. The original notice and affidavit are not stamped by the Court and the only indication of service is a facsimile transmission slip which indicates that on 20 November 1998, 17 pages were telefaxed to the Third Respondent and 28 pages were telefaxed to the Labour Court.) However, because, for the reasons given below, I do not have to consider the application for review, I have accepted the Applicant’s submissions in this regard.)
The Applicant, in its founding affidavit, confirms that on or about 11 December 1998 it received a notification from this Court advising that the Third Respondent’s application under case number J2414/98 had been set down for hearing on the unopposed roll on 17 December 1998.
In the Founding Affidavit, the Applicant’s labour consultant goes on to say the following (at paragraphs 4.4 to 4.7)::
I received the fax [ie the notification referred to in paragraph 6.4 above] on the 14th December 1998 and immediately phoned Mr Haasbroek, the Registrar of the Labour Court, and told him that the case was definitely not unopposed. I further informed him of the fact that we applied for a review of the Arbitration award which was granted to Mrs Nair. Mr Haasbroek then said that he would get hold of the file and phone me back, and that I should send him a letter in the meantime confirming the fact that it was an opposed case. He would then see to it that the case be removed from the roll.
I faxed a letter through to Mr Haasbroek at 011-4039327 containing all the relevant facts and information, with annexures attached thereto as proof of all the facts.
The Wednesday, 16 December, was a public holiday. The next day, the day on which the case was originally placed on the roll for hearing, I phoned Mr Haasbroek several times, but could not get hold of him. Later, during the same day, in the afternoon I eventually spoke to Mr Haasbroek, regarding this matter. He determined what the situation was, and informed me that the case had been heard and that the Arbitration Award had been made an order of the Court.
I asked Mr Haasbroek what had happened to my letter that I faxed through to him, to inform the Court that it was an opposed case. Mr Haasbroek’s reply was that the file hadn’t contained any cross references to our application, but that he had put my letter together with all the annexures in the file, and did not know what went wrong in Court. He speculated that the Judge perhaps did not see the documents.
In determining the test to be applied where an application to rescind is brought in terms of section 165 (on the facts of this case only section 165 (a) has application), this Court has accepted that, because the wording of that provision is similar to rule 42 (1) (a) of the Uniform Rules of the High Court, the following comments of Erasmus Superior Court Practice Juta at B1-308 a (original service 1994) are applicable (See CAWU & Another v Federale Stene (1991) (Pty) Limited [1998] 4 BLLR 374 (LC): Sizabantu Electrical Construction v Guma & Others [1999] 4 BLLR 387; Police and Prisons Civil Rights Union v Sekhu J1653/98 unreported; Marathon Earthmovers v Commission for Conciliation Mediation and Arbitration & Others J3077/98 unreported):
“An order or judgment is erroneously granted if there was an irregularity in the proceedings, or if it was not legally competent for the court to have made such an order, or if there existed at the time of its issue a fact of which the judge was unaware, which would have precluded the granting of the judgment and which would have induced the judge, if he had been aware of it, not to grant the judgment” (My emphasis)
The Court may also rescind an order or judgment where good cause is shown in terms of rule 16A and in terms of the common law if the party seeking relief presents a reasonable and acceptable explanation for his or her default and shows that he or she have a bona fide defence which, prima facie, carries some prospect of success. (See Police and Prisons Civil Rights Union v Sekhu (supra) and Sizabantu Electrical Construction v Guma & Others (supra)
According to the record of the proceedings, the judge was aware of the pending review application. This was confirmed at the hearing of this matter by the Third Respondent. The transcript of the record is instructive. It reads as follows:
Court: There is just one matter that I want to read on the file, Mrs Nairi (sic), just quickly. I see the respondent has indicated that it intends to take this matter on review, are you aware of that?
MRS NAIRI: I have received notice, yes.
COURT: And that it has actually been set down, if they were here they would probably be saying because it is on review this order should not be granted, what is your feeling about that?
MRS NAIRI: This case has been heard four times already.
COURT: Which case?
MRS NAIRI: It was rescinded already, Mr Myhill reheard the case again. He issued an award again, this is the second time I got an award.
COURT: This is the second award in your favour?
MRS NAIRI: Yes, I had to withdraw the other one because he made an error on it, so he has issued another one, he heard the case again. I have no idea why they want to review the case.
COURT: Nor do I quite frankly because there is, all I have before me is a notice of motion but there is no affidavit annexed to that notice of motion which they are required to do in terms of the Act, so I do not know why they want to set it aside either.
MRS NAIRI: I have no idea why they want to do that.
If the Applicant’s case was that the judge was unaware of the review application and that the Applicant did not have an opportunity to draw this to his attention prior to him making the order (for example, if it had not received notification of the hearing), its application for rescission of the order may have had some merit.
But, in the circumstances of this case, the application was properly before the judge on the unopposed roll (there being no formal opposition to it within the prescribed time limits) and the Applicant had received notification of time and date of the hearing. In addition, the judge knew that the Applicant had served and filed a notice of its intention to review the award and he nevertheless exercised his discretion in favour of making the award an order of Court. The Applicant has thus not made out a case which satisfies the test outlined by Erasmus (supra) for a rescission in terms of section165 (a).
The conversation which the Applicant’s labour consultant had with the Registrar on 14 December 1998 and his mistaken belief that that would be sufficient to stay the application does not take the matter any further or assist the Applicant in making a case for rescission in terms of Rule 16A (1) (b) or the common law.
I am of the view that the Applicant’s labour consultant’s conduct in this regard was negligent in the extreme. By advertising his services as a labour consultant, he purports to have the knowledge and expertise required to assist his clients with their labour disputes properly in terms of the rules and practice of this Court. The rules and practice required him, when knowledge of the application came to his attention, to instruct attorneys to formally oppose the review and apply for a stay of the proceedings pending the outcome of the review application. This would have ensured that the matter was placed on the opposed roll. If there was insufficient time for him to do so (and clearly there was ample time), at the very least, he should have ensured that either his client or a proper representative on behalf of his client appeared in court on 17 December 1998 to ask for a postponement pending the filing and service of that application. Instead, on his version in the Founding Affidavit (which, incidentally, is not supported by a confirmatory affidavit by the Registrar), he relied on the Registrar of this Court to deal with the matter following a telephone discussion and a letter which he faxed through at 2.24pm on the day before the hearing (the following day was a public holiday) and a day after the telephone discussion with the Registrar.
Had he been a lay person I could understand how he might reasonably have believed that the Registrar had the necessary authority to deal with the matter. But he holds himself out as an expert in the practice of labour law. Leaving the matter in the hands of the Registrar in the hope that the Registrar would have the matter removed from the roll and then failing to ensure, timeously, that this had, in fact, happened by going to the court himself or instructing someone else to go for him (when the Registrar failed to call him back as promised and when he failed to make contact with the Registrar) shows complete ignorance of and disregard for the rules and procedures of this Court and negligence on his part.
Fairness and the adherence to the rules of this Court demand that this conduct should not be condoned. If this Court came to the rescue of the Applicant in these circumstances it would be tantamount to allowing opposition to the Third Respondent’s substantive application, which was properly before the Court at the time it was adjudicated, in through the back door by way of a telephone call and letter to the Registrar which, being faxed at 2.24 pm before a public holiday and effectively the day before the hearing, had very little chance of finding its way into the Court file.
The Courts have consistently refused to grant rescission where attorney’s negligence is responsible for the default. (See Erasmus op.cit.). I see no reason why this Court should adopt the same approach to labour consultants who purport to be experts in the field of labour law.
The Applicant has not made out a case for the rescission of the order in terms of section 165 (a) nor has it shown good cause to rescind the order in terms of Rule 16A (1) (b) nor has it presented a reasonable and acceptable explanation for its default for relief in terms of the common law.
The application for rescission of the order making the award an order of court fails and with it, the application to stay the execution of the writ issued by the Registrar pursuant to that order and the application for the review of the award.
I therefore make the following order:
The application for rescission of the order made by Grogan AJ on 17 December 1998 in which he made the arbitration award issued on 6 October 1998 by the Second Respondent under Case No. GA 27726 and Order of Court is dismissed with costs.
The application to have the Writ of Execution issued pursuant to the aforesaid order by the Registrar on 22 December 1998 is dismissed with costs.
The application to review the arbitration award is dismissed with costs.
The Applicant is ordered to pay the Third Respondent the sum of R30 000,00 plus interest at the rate of 15.5 percent per annum from 6 October 1998 to date of payment within seven days of this order, failing which the Writ of Execution issued on 22 December 1998 will be reinstated and may be executed against the Applicant.
……………………………………..
I de VILLIERS A J
Acting Judge of the Labour Court
Date of Hearing : 22 April 1999
Date of Judgment : 6 July 1999
For the Applicant : Advocate R Venter
instructed by G Joynt
For the Third Respondent : In person
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