---

IN THE LABOUR COURT OF SOUTH AFRICA

HELD IN JOHANNESBURG

J4648/99

In the matter between:

VORSTER T P Applicant

And

E. E. T SA (PROPRIETARY) LIMITED Respondent

J U D G M E N T

___________________________________________________________________

MOKGOATLHENG AJ:

[1] This is an application in terms of Rule 16A (1) (b) of the Labour Relations Act 66 of 1995 for the rescission of the judgment granted by Revelas J on the 24^th of May 2004.

[2] The respondent a boiler-maker formerly employed by the applicant was dismissed on the 11^th of August 1998.

[3] He contended that his dismissal was unfair in that he was constructively dismissed. He referred the dispute to the CCMA.

[4] On the 20^th of September 1999 commissioner Kamdar issued an arbitration award. In terms of this award, he found that the applicant had constructively dismissed the respondent and awarded the respondent compensation in the amount of R99.000.00.

[5] The respondent instituted an application in terms of section 158 (1) (c) of the LRA, seeking to make an arbitration award dated the 20^th of September 1999 an order of this court. This application was granted on the 24^th May 2004.

[6] On the 23^rd of November 1999, the applicant launched a review application seeking to set aside the arbitration award. The applicant in that review application did not apply for an order staying the execution of the aforestated award pending the finalisation of the review proceedings.

[7] In fact the applicant has not prosecuted the review proceedings any further save that on the 19^th of November 1999 the CCMA advised the applicant that it had in terms of Rule 7A (3) delivered the contents of the CCMA file, and the tape recordings of the arbitration hearing to the Registrar of this court, that the applicant should in terms of Rule 7A (6) arrange to make copies of the record for purposes of the review application and furnish a copy to all parties.

[8] On the 15^th of July 2004 the respondent launched an application in terms of section 158(1) (c) of the LRA. On the 5^TH of August 2004, the applicant entered a notice to oppose through its attorney G.L Lindique.

[9] On the 6^th of August 2004 the respondent’s attorney, J.P Nel advised applicant’s attorney GL Lindique that he was representing the respondent in the review application.

THE APPLICANT’S REASONS FOR RESCISION

[1] The applicant has advanced the following reasons in support of the application for rescission, that,

(a) subsequent to the award of the 20^th of September 1999, he instructed attorney Paul Shapiro to institute a review application to set aside the award,

(b) the applicant does not recall ever hearing from attorney Shapiro again, that applicant was unaware as a lay person whether any further steps were taken in prosecuting the review,

(c) during July 2004, he received the respondent’s application in terms of section 158(1) (c) of the LRA, he and thereafter instructed attorney G. Lindique to represent him, that Attorney Lindique filed a notice of intention to oppose, the section 158(1)(c) application.

(d) on the his instruction, attorney Lindique wrote a letter dated the 5^th of August 2004 to the respondent’s attorney advising him that, he had instructions to oppose the section 158(1)(c) application, that opposing papers would be filed not later than the 13^th of August 2004,

(e) he thereafter ascertained that attorney Shapiro had deceased, but does not know when. He has not received a notice from the Law Society of the Northern Provinces under whose jurisdiction attorney Shapiro practiced, advising him where his file is, or whether his matter was being handled by another attorney,

(g) attorney Lindique’s office’s has contacted all known transcribers to ascertain whether the record of the arbitration proceedings has been transcribed. He has not being able to locate the record. He was advised that transcribers do not keep records for that long, and

(h) attorney Lindique has observed a notice in the court file indicating that the tapes filed by the CCMA were uplifted on or about 21^st of January 2000, he assumes that attorney Shapiro uplifted the tapes.

(i) on the 8^th of June 2005 he received a notice that judgment that had been granted against him, that because of the effluxion of time he was uncertain as to what the judgment was in relation to,

(j) on or about the 22^nd of June 2005 the sheriff attended at the his offices and spoke to a director, B Tlhongwabe, the sheriff did not serve any documents,

(k) on the 30^th of June 2005 the sheriff attached the his property, attorney Lindique advised the him that the award made on the 20 September 1999 had prescribed, that counsel would be instructed for an opinion.

(l) on the 23^rd of June 2005, he and attorney Lindique consulted with counsel, the opinion was furnished on the 6^th of July 2005,

(m) his attorney was of the view that the award had prescribed, this was evident from the respondent’s papers, his counsel could have argued the matter without filling an answering affidavit.

(n) his attorney was served with a copy of the index in respect of the section 158(1) (c) application on or about the 29^th of March 2005, by virtue of this service his attorney anticipated to be served with the notice of set down for the 24^th of May 2005, and

(o) he believes that he was entitled to be notified of the date of set down of the section 158(1) (c) application as he could have been able to oppose same on the respondent’s papers.

[12] On the 6^th of August 2004, the respondent’s attorney addressed a letter to the applicant’s attorneys advising them that he is not proceeding to place the section 158(1) (c) on the roll.

[13] On the 19^th of November 2004, the respondent’s attorneys advised the applicant’s attorneys that in the event the applicant failed to deliver his answering papers in regard to the section 158(1)(c) application, within the following few days, he would enrol the application on an unopposed basis, as same was three months out of time.

[14] On or about the 24^th of May 2005, the applicant’s attorney on enquiring from the respondent’s attorney, what had become of this matter, was advised that default judgment was granted on an unopposed basis. The applicant’s attorney advised the respondent’s attorney Nel that he was of the view that the award had prescribed, on enquiring why a notice of set down was not served, attorney Nel responded that he had a headache and would revert to him. This did not happen.

THE RELIEF SOUGHT

[1] The applicant contends that by virtue of the award being an order of this court, the review cannot be proceeded with before the section 158(1) (c) order is rescinded, even if the transcribed record is located.

[2] The applicant contends that he has an absolute defence to the section 158(1) (c) application, this being so because the award was made on the 20^th of September 1999. The respondent had until the 19^th of September 2000 to apply to this court that the award be made an order of court in terms of section 158(1) (c) failing this, the award had become prescribed.

[3] The applicant argues that a debt is claimable within three years from the date it became due. The respondent filed his application in terms of section 158(1) (c) nearly five years after the award was issued.

[4] The applicant contends that its defence is predicated on the respondent’s papers, the information being the date on which the award was made, and the date on which the section 158(1) (c) application was launched, and argues that had attorney Lindique received the notice of set down, the applicant would have raised the issue of prescription, and in that regard no answering affidavit would have been necessary.

[5] The applicant concedes that no answering affidavit was filed in respect of the section 158(1) (c) application, that he only filed a notice of intention to oppose.

[6] The applicant avers that he was unaware of the fact that the section 158(1) (c) application was enrolled on an unopposed basis, he says that he only became aware of the default judgment on the 26^th of May 2005. He launched the application for rescission 20 days out of time and asks for condonation. The applicant argues that the delay is not excessive and has prospects of success in that he has an absolute bona fide defence to the respondents section 158 (1) (c) application.

[7] The applicant says he was not aware of the date of the hearing and is not in wilful default, that the delay in lodging the application for rescission of judgment is not excessive; that he has proffered a reasonable explanation. He argues that the prospects of success are in his favour because his absolute defence has been conceded by the respondent.

[8] The respondent opposes the application on the following basis;

1. there is no legal obligation on the respondent’s attorney to advice, or notify the applicant’s attorneys of the date of set down,

2. the Registrar set the matter down on unopposed basis in terms of Rule 7 (6) (b).

Rule 7(6) (b) of this court provides as follows,

“The registrar must notify the parties of the date, time and place for the hearing of the application but need not notify a respondent who has not delivered an answering affidavit in support of its opposition of the application,”

(c) the applicant was advised that its answering affidavit was three months overdue, that if it was not delivered within the next few days, the matter would be set down on the unopposed roll,

(d) the applicant’s attorney knew a hearing was pending yet still no answering affidavit was filed, on the 19^th of November 2004 he was advised that if an answering affidavit was not filed the matter would be set down, this notification was four months overdue, still the applicant did not file an answering affidavit, and

(e) attorney Lindique must have anticipated that a hearing would ensue due to the fact that an index of the respondent’s paginated bundle of documents was served on him, despite this no answering affidavit was drafted because he was of the opinion that the award become prescribed, that argument could be presented without filing an answering affidavit.

Rule 16 A (1) (b) Application

[1] I turn now to consider the Rule 16A (1) (b) application. An applicant in order to succeed in an application for the rescission of a judgment in terms of Rule16A (1) (b) is obliged to show “good cause”. The applicant must also show that it has a bona fide defence on the merits of the case with some prospects of success.

[2] In considering whether the applicant was grossly negligent in not delivering its answering affidavit timeously, or whether there is no reasonable acceptable explanation for the applicant’s failure to deliver its answering affidavit, I am enjoined to have recourse to the reasons proffered by the applicant.

[3] The applicant is obliged to disclose the reasons for his default because it is relevant to the question whether the applicant’s default was wilful or not. Before a person can be said to be in wilful default the following must be shown;

1. knowledge that the action is being brought against him,

2. a deliberate refraining from entering appearance though free to do so, and

3. a certain mental attitude towards the consequences of the default.

[4] In Grant v Plumbers (Pty) Ltd 1949 92) SA 470 (0) Brink J held that the following requirements should be complied with in order to show “good cause”,

“(a) An applicant must give a reasonable explanation of his default. If it appears that his default was wilful or that it was due to gross negligence the court should not come to his assistance,

1. The application must be bona fide and not made with the intention of merely delaying plaintiff’s claim, and

2. The applicant must show that he has a bona fide defence to the plaintiff’s claim. It is sufficient if he makes out a prime facie defence in the sense of setting out averments which, if established at the trial, would entitle him to the relief asked for. He need not deal fully with the merits of the case and produce evidence that the probabilities are actually in his favour.”

[5] In relation to the element of wilfulness, King J. held – Maunjean t/a Audio Video Agencies v Standard Bank of SA Ltd 1994(3) SA 801 (C) that;

“(a) Wilful connotes deliberateness in the sense of knowledge or the action or consequences and a conscious and freely taken decision to refrain from giving notice of intention to defend (or file a plea), whatever the motivation for his conduct might be.”

[6] Smallberger J in HDS Construction (Pty) Ltd v Wait 1979 (2) SA 298 (E) at 300H – 301A stated that;

“When dealing with words such as “good cause” and “sufficient cause”.

In other Rules and enactments the Appellate Division has refrained from attempting an exhaustive definition of their meaning in order not to abridge or fetter in any way the wide discretion implied by these words (Cairn’s Executors v Gaarn 1912 AD 181 at 186; Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at 352 – 3)

“The Court’s discretion must be exercised after a proper consideration of all the relevant circumstances”

[7] A court will not come to the assistance of a defendant whose default was wilful or due to gross negligence. In Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) at page 765 A-E Miller J A had occasion to deal with the expression “sufficient cause” or “good cause”, and stated that:

“these concepts defy precise or comprehensive definition, for many and various factors require to be considered.”

[8] The learned Judge stated that it is clear that in principle the two essential elements of “sufficient cause” for rescission of a judgment by default are:

“(i) that the party seeking relief must present a reasonable and acceptable explanation for his default; and

2. that on the merits such party has a bona fide defence which, prima facie, carries some prospect of success.

It is not sufficient if only one of these two requirements is met; for obvious reasons a party showing no prospects of success on the merits will fail in an application for rescission of a default judgement against him, no matter how reasonable and convincing the explanation of his default. An orderly judicial process would be negated if, on the other hand, a party who could offer no explanation of his default other than his disdain of the Rules was nevertheless permitted to have a judgement against him rescinded on the ground that he had reasonable prospects of success on the merits.”

[9] Section 17 of the Prescription Act 68 of 1969 provides as follows:

“(1) A court shall not of its own motion take notice of prescription.

(2) A party to litigation who invokes prescription, shall do so in the relevant documents filed of record in the proceedings; Provided that a court may allow prescription to be raised at any stage of the proceedings.”

[10] In Rand Staple v I. C. I SA Ltd 1977 (3) 1977 (W) at 201H – 202 A Viljoen J held that;

“The litigant who invokes prescription is invariably the defendant or the defendant in reconvention in trial proceedings or the respondent in motion proceedings and the document to be filed by him of record in the trial proceedings is his plea or plea in reconvention or his opposing affidavit in the motion proceedings. The proceedings envisaged are in my view, the main proceedings and not intermediate or interlocutory proceedings”

[11] In this matter, the main proceedings are the section 158 (1) (c) proceedings as envisaged by section 17 (2) of the Prescription Act 68 of 1969.

[12] The applicant sought reliance on in the case of Mpanzama v Fidelity Guards Holdings (Pty) Ltd (2000) 12 BLLR 1459 (LC) for the proposition that the award had prescribed, correspondingly that the judgment of Revelas J on the 24 May 2004 was impeachable because, the learned Judge granted an order in respect of an award that had prescribed. In my view the contention that the applicant has an absolute defence to the respondents section 158 (1) (c) application is academic.

[13] In National Coalition for Gay and Lesbian Equality and others v Minister of Home affairs and others [1999] ZACC 17; 2000 (2) SA 1 (CC) 2000 (1) BCLR 39 in para (21) fn 18, Ackerman J held that:

“A case is moot and therefore not justiciable if it no longer presents an existing or live controversy which should exist if the Court is to avoid giving advisory opinions on abstract propositions of law”

[14] The judgment of Pillay J in the Mpanzama matter is distinguishable from the present matter. In the Mpanzama case, the section 158 (1) (c) application was opposed; the respondent resisted the application by invoking prescription in the answering affidavit.

[15] In this matter, there was no justus error or irregularity patent in the proceedings which precluded Revelas J from issuing the order; See Colyn v Tiger Food Industries ltd t/a Meadow Food Mills (Cape) 2003 (6) SA 1 (SCA) at page 8G-H.

[16] In this matter, Revelas J was precluded by section 17 (1) of the Prescription Act 68 of 1969 to mero muto invoke prescription. Section 17 (1) provides that; “A court shall not of its own motion take notice of prescription.”

See Saner “Prescription” in Joubert (Ed); The Law of South Africa vol 21 (1^st Re-Issue) para 149, p 41.

[17] In my view, the explanation proffered by the applicant for his failure to file an answering affidavit is not reasonable, the applicant’s conduct was grossly negligent, and manifests a flagrant disregard for the rules of this court, as evidenced by the fact that since he launched the review application on the 23^rd November 1999, the applicant has not prosecuted the said application.

[16] The applicant has not invoked prescription in an answering affidavit to the section 158 (1) (c) proceedings, logically it follows that the applicant has no bona fide defence and no prospects of success.

[17] The applicant knew of the judgment on the 2nd of May 2006 yet it only applied for rescission on the 15^th of July 2005, 22 days overdue.

[17] The applicant has not furnished a reasonable and acceptable explanation regarding the late institution of the application for rescission.

[18] In the premises the applicant has not shown “good cause,” the application is dismissed with costs.

_________________________

MOKGOATLHENG AJ

ACTING JUDGE OF THE LABOUR COURT

OF SOUTH AFRICA

APPEARANCES

FOR THE APPLICANT : Adv D L WILLIAMS

Instructed by : Gerrie Lindique Attorneys

FOR THE RESPONDENT : Attorney J P NEL

Instructed by : Jack P Nel Attorneys

DATE OF HEARING : 09 MARCH 2006

DATE OF JUDGMENT : 19 JULY 2006

---