---

LOM Business Solutions t/a Set LK Transcribers

IN THE LABOUR COURT OF SOUTH AFRICA

BRAAMFONTEIN CASE NO: J1057/06

2007-09-14

REPORTABLE

In the matter between:

CARAVAN & PLEASURE RESORT Applicant

and

SAHCTU obo YOLANDA BRONKHORST MURRAY PARK Respondent

J U D G M E N T

_________________________________________________________

PILLAY D, J:

1. When a party alleges that it did not have notice of proceedings, the court usually accepts that evidence unless, from all the circumstances, the probabilities are that the party must have received notice or did not take reasonable measures to ensure that it was informed of the proceedings.

2. The applicant employer applied to rescind the judgment of this court making an award an order of the court on 5 October 2006. Mr John Law, its director, alleged that the employer did not receive notice of the proceedings either before the Commission for Conciliation, Mediation and Arbitration (the CCMA) or before the Labour Court until 23 January 2007 when the sheriff attached its property. Either the first respondent, the Union, did not send the notices; or if they did send the notices, the employer did not receive them because, as Law explained, he was overseas.

3. The court tracks the processes that had to be delivered before the writ was issued, and the manner in which they were served to assess whether the employer’s default was wilful.

4. The dispute had to be referred for conciliation and arbitration. Neither party has offered any evidence as to how, according to the CCMA records, the referral documents were served. The CCMA would have had to have satisfied itself that the documents were served when it convened these processes.

5. As the employer sought an indulgence from the court, it was its obligation to investigate these matters by perusing the CCMA file and disclosing its contents to the court. It has not done so in either its founding or replying affidavits. Instead, it fobbed off this responsibility onto the Union.

6. The CCMA sent Notice of the Set-Down of the con-arb by fax on 29 March 2006 to the fax number which Law admitted belonged to the employer. After the Union produced proof of faxing of the set-down of the con-arb, the employer spuriously contested the validity of the fax transmission on the basis that the content of two of the pages that were faxed, was not disclosed. It is manifest from the first page of the notice of the set-down that that was not the only page to the Notice of Set-Down. The last paragraph of the first page begins with “Firstly”, which anticipates that there would be a paragraph following that begins with “secondly” on the next page.

7. Furthermore, the page is numbered in the footer as “Page1”. To genuinely contest the validity of the Notice of Set-Down the applicant had to produce the contents of the CCMA file. The CCMA served the Notice of Set-Down, not the Union. Any explanation for apparent deficiencies in the service must come from the CCMA. As the employer failed to examine and report on the contents of the CCMA file, it cannot validly contest the authenticity of the fax transmission of the Notice of Set-Down.

8. After the con-arb on 21 April 2006, a commissioner issued a default award on 24 April 2006. The CCMA posted the award to the employer to its post office box by registered mail on 8 May 2006. The post office where the employer had his box received the award on 13 May 2006. As the employer did not collect the award from the post office, it was returned to the CCMA as the sender on 13 June 2006. The employer did not explain why he did not collect the award from his post office box between 13 May and 18 May 2006 before he allegedly went abroad.

9. On 6 June 2006 the Union faxed a letter giving notice of its intention to make the award an order of the court if the employer did not comply with the award, a copy of which was also faxed. The employer contested the validity of the fax transmission which reflected that eight (8) pages had been faxed. The award was five (5) pages and the covering letter was one page. If a fax as large as eight pages had been sent, any secretarial assistant of the employer would have noted it, so it was submitted for the employer

10. A copy of the award which has been paginated into the bundle at pages 62 to 68, shows that pages 2 and 3 of the award were triplicated so that altogether the award consisted of seven pages. The probabilities are that the Union telefaxed triplicates of the award to the employer.

11. On 15 June 2006 the Union telefaxed another reminder urging the employer to comply with the award. The fax transmission shows that one page was sent. The employer denied receiving it.

12. On 28 June 2006 the Union launched an application in terms of section 158(1)(c) of the Labour Relations Act no. 66 of 1995 (the LRA) to make the award an order of court. It previously served the application on the employer by registered post on 28 June 2006 and served the application on the employer by telefax on 22 September 2006.

13. The employer contested the validity of this service, firstly on the basis that the registered mail was received by the post office but returned to the sender on 30 July 2006; secondly, annexure 10 to the employee’s opposing affidavit merely showed that nine pages were faxed and annexure 11, the service affidavit, did not specify what documents were faxed. The submission was that there was no proof of service of the section 158(1)(c) application before the court.

14. The fax transmission correctly reflects that nine pages were sent. This was made up of the Notice of Set-Down – three pages, affidavit – three pages, and the award – three pages.

15. The Union’s omission to delete “statement of claim and annexures” from the standard service affidavit, is not material. There was prima facie proof of service of the section 158(1)(c) application before the court when it granted the order unopposed on 5 October 2006. On 20 October 2006 the Union faxed a letter, enclosing the order and alerting the employer to the issuing of a writ of execution if it failed to comply. The employer denied receiving service of the order. The fax transmission correctly showed that two pages were sent.

16. Regarding the employer’s defence that Law was abroad between 18 May 2006 and 15 August 2006 and therefore did not collect any registered mail, the court observes firstly, that copies of extracts of Law’s passport attached to his founding affidavit are illegible. The dates are handwritten alongside the custom’s official’s rubberstamp. The original passport was not tendered for the court to verify the handwritten dates. As Law’s credibility was in issue, the failure to produce the original passport, is a material omission.

17. Assuming nevertheless that Law was abroad as he alleged, it is improbable that he would be the only person to have access to the post office box of the employer. The employer is a registered company that operates as a holiday resort. As the Union points out, it must have an efficient communication system to receive and confirm bookings. It is most unlikely that the employer would allow its post to remain uncollected for as long as three months. Assuming further that Law was the only person to have access to the post office box, such an arrangement is so unreasonable, that the only probable inference to be drawn is that the employer wilfully avoided service of the processes by registered mail.

18. With regard to the faxes not being sent or received, Mr van der Walt submitted for the employer from the bar that the Union must have faxed blank pages which would explain why the employer did not receive the processes by fax. That case was not made out on affidavit. It is pure speculation. It is also improbable because if the Union’s intention was to obtain a writ without forewarning the employer of the processes that preceded it, the Union would not have served documents by registered post. Mr Van Der Walt did not contend that the employer received empty envelopes sent by registered post.

19. In the circumstances the court is satisfied that the employer is in wilful default. As regards the substantive merits of the dismissal dispute, the employer has not made out any case to show that prima facie it has prospects of success in proving the dismissal to have been fair.

20. The Application for rescission is dismissed with costs.

___________________

PILLAY D, J

Date of Hearing: 14 September 2007

Date of Judgment: 14 September 2007

Date Edited: 02 November 2007

APPEARANCES:

For the Applicant: Len Dekker & Associates

For the First Respondent: South African Health & Care Trade Union

For the Second Respondent: No opposition

CERTIFICATE OF VERACITY

I, the undersigned, hereby certify that as far as it is audible, the aforegoing is a true and correct transcript of the digitally recorded proceedings in the matter of:

SAHCTU obo YOLANDA BRONKHORST Applicant

and

MURRAY PARK CARAVAN & PLEASURE RESORT Respondent

____________________________________________________________

CASE NUMBER : J1057/06

DATE HELD : 14 September 2007

COURT OF ORIGIN : Labour Court, Jhb

TRANSCRIBER : MS C.E. JOUBERT

DATE COMPLETED : 2007-10-31

NUMBER OF TAPES : 1 x CD (15 mins)

NUMBER OF PAGES : 7

JUDGMENT only

---o0o---

LOM BUSINESS SOLUTIONS (PTY) LTD t/a SET - LK CONSORTIUM HIGH COURT BUILDING, PRITCHARD STREET 9TH FLOOR, JOHANNESBURG, 2001 TEL: (011)333-6730 / FAX (011)336-2403

---