NOT REPORTABLE

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

CASE NO: JR 250/05
In the matter between:

ELMANDI ROAD MAINTENANCE CC 	Applicant

and

CCMA	First Respondent

WYNAND STAPELBERG NO    			          Second Respondent

J M SILINDA 						  Third Respondent
____________________________________________________________

JUDGMENT

VAN NIEKERK AJ

1.	The Applicant seeks an order reviewing and setting aside issued by the Second Respondent (“the Commissioner”) alternatively, seeking that the ruling be reviewed and referred back to the First Respondent  (“the CCMA”) for hearing de novo.

2.	On 28 August 2004, the Commissioner issued a ruling in respect of an application for rescission made by the Applicant in terms of section 144 of the Labour Relations Act. The applicant for rescission was made consequent on a default award made by the CCMA after the Applicant had failed to attend an arbitration hearing.  In the affidavit filed in support of the application for rescission, the Applicant, represented by a so-called “representative party” averred that the Applicant (presumably the proprietor of the Applicant) could not attend the arbitration hearing set down for 27 May 2004 since the proprietor was unable to attend “due to the work load experienced”. The affidavit avers further - “the Applicant (sic) could not send someone in his place, as he is the only person who is able to represent the Applicant. At the time of the con/arb the Applicant was not a member of any employers (sic) organization. A letter to this effect was addressed to the CCMA on 25 May 2004.”

3.	The Commissioner (in the application for rescission) records that the Applicant had simply alleged that it was unable to attend the arbitration.  The Commissioner noted further that the letter addressed to the CCMA by the Applicant had neither expressly nor impliedly requested postponement of the matter and that in these circumstances, it appeared that the sole purpose of the letter was to advise the CCMA that the Applicant would not be able to attend the hearing.  In these circumstances, the Commissioner held that the Applciant was in wilful default, and refused the application for rescission.

4.	The Labour Appeal Court has recently affirmed that in an application for rescission of a CCMA arbitration award, section 144 of the LRA should be interpreted so as to include good cause as a ground for rescission.   (See Shoprite Checkers (Pty) Ltd v Commissioner for Conciliation, Mediation and Arbitration & others (2007) 28 ILJ 2246 (LAC)). The Court held further that the test for good cause in an application for rescission normally involves the consideration of at least two elements.  The first is the explanation for the default; the second is whether the Applicant has a prima facie defence. These two elements should not be assessed in isolation, but the absence of one of them is usually fatal (see MM Steel Construction CC v Steel Engineering & Allied Workers Union of SA & others (1994) 15 ILJ 1310 (LAC), referred to in the Shoprite Checkers decision.) 

5.	In this matter, the Applicant does not contend that the failure to attend the arbitration hearing was due to an understandable mistake. The Applicant relies only on an allegation that the proprietor of the business could not attend on account of his workload, and that nobody else was available to represent the Applicant.  In the affidavit filed in support of the application for rescission, the Applicant lays no factual basis for any of these averments.  There is no information as to the management structure of the Applicant, how many persons are engage din management or supervisory positions, and the like. The letter is dismissive in tone, and effectively advises the Court that its activities and processes take second place to the Applicant’s other activities.

6.	In so far as a prima facie defence is concerned, the Applicant had in its letter addressed to the CCMA on 25 May 2004, set out the reasons for the Third Respondent’s dismissal.  These included, inter alia, allegations to the effect that the Third respondent had caused five accidents in two years, that he had killed a pedestrian without reporting the matter either to the Applicant or the South African Police Services, that he had refused to sign written warnings, and that he had been drunk. Curiously, the application filed in support of the application for rescission makes no reference to the nature and extent of the Applicant’s defence to the Third Respondent’s claim of unfair dismissal.  All that is stated is the following:

“9
The Further Respondent submission during the arbitration proceedings is questionable and it is fabricated. The Applicant had two witnesses who confirmed that the Further Respondent had an accident with a person on a bicycle (Annexure D) and that a bystander who witnessed the accident called the police and paramedics.

10
Only the paramedics arrived on the seen (sic).  The further Respondent then took the bicycle of the person who he had an accident with home and he never opened a case at the police (Annexure D).”

7.	In isolation, as they were reviewed by the Commissioner, these averments are incomprehensible. There is no reason proffered for the Third Respondent’s dismissal nor any suggestion that any semblance of fair procedure may have been followed. Given that the material before him in effect failed to establish a defence even on a prima facie basis, the Commissioner cannot be faulted for making no reference to this matter in the course of his ruling. In any event, as I have noted above, the absence of either one of the two elements necessary to obtain rescission is ordinarily fatal. 

8.	In so far as the Applicant avers that the Commissioner’s ruling is not rationally justifiable, the test to be applied is whether the decision reached by the Commissioner is a decision that a reasonable decision-maker could not reach (see Sidumo v Rustenburg Platinum Mines Limited (2007) 28 ILJ 2405 (CC).  

9.	What the Commissioner had before him, as I have noted above, was a sparse and inadequate basis on which to satisfy the necessary elements to succeed in the application. Whilst certain of these have been supplemented in the papers subsequently filed in these proceedings, the reasonableness of the Commissioner’s decision must be determined in relation to the rational before him. It does not assist the Applicant to build up a prima facie defence in the papers filed in this Court in the application for review. On this basis, I am unable to fault the Commissioner’s ruling.

10.	The application is dismissed, with costs.

_________________________
ANDRÉ VAN NIEKERK
Acting Judge of the Labour Court

Date of judgment:	24 December 2007