Chemical, Energy, Paper, Printing, Wood and Allied Workers Union v Appolis and Others (JR 1174/03) [2007] ZALC 184; (2008) 29 ILJ 1469 (LC) (21 December 2007)

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

CASE NO: JR 1174/03

In the matter between:

CHEMICAL, ENERGY, PAPER, PRINTING,

WOOD AND ALLIED WORKERS UNIONS Applicant

and

JOHN APPOLIS First Respondent

THE TAXING MASTER Second Respondent

THE SHERIFF OF THE HIGH COURT Third Respondent

____________________________________________________________

JUDGMENT

VAN NIEKERK AJ

This is an application to rescind an order granted by this Court on 26 March 2004. The effect of that order, granted by default, was to require the Applicant in these proceedings to pay certain costs reserved by this Court on 13 June 2003 in relation to proceedings then initiated by the Applicant against the First Respondent.

The background to this application is the following. On 13 June 2003, the Applicant brought an urgent application in this Court seeking an order that the First Respondent be interdicted from attending at any of its offices. The First Respondent opposed the application. By agreement, Landman J granted an order in terms of which the dispute was referred to the CCMA for mediation, on condition that should a mediator be unable to resolve the dispute by 18 June 2003, that the matter would be argued on 19 June 2003. Landman J reserved the costs of the proceedings on 13 June 2003.

The mediation failed and the matter was argued on 19 June 2003. Landman J dismissed the application, and awarded costs in favour of the First Respondent. The parties did not argue the issue of the reserved costs of 13 June 2003, and the order made by Landman J accordingly did not address those costs.

On 24 July 2003, the First Respondent’s attorneys submitted a bill of costs for taxation. Included in the bill were the costs related to the proceedings on 13 June 2003.

On 16 October 2003, at the taxation, the Second Respondent taxed-off the costs relating to 13 June 2003 after an objection by the Applicant’s representatives to the effect that these costs had not been awarded.

On 29 October 2003, the First Respondent brought an application to review the taxation, and in particular the ruling by the Second Respondent that the items objected to by the Applicant’s representatives be disallowed.

On 18 November 2003, the Second Respondent advised the First Respondent that the application for review was defective in that it did not require the Second Respondent to put a stated case for a decision by a Judge. At some point after this date, the First Respondent abandoned the review application, and on 26 January 2004 filed a fresh application in this Court seeking an order that the reserved costs of 13 June 2003 be paid by the Applicant. This application was served on the offices of the Applicant’s attorneys on 26 January 2004.

The Applicant did not oppose the application. On 26 March 2004, as noted above, Tokota AJ ordered that the Applicant pay the reserved costs of 13 June 2003, as well as certain ancillary costs relating to those proceedings.

The Applicant now brings this application to rescind the order granted by Tokota AJ, on the following grounds:

9.1 the Court committed an error in granting the order in the absence of submissions and a report by the Taxing Master;

9.2 the order was granted erroneously in the absence of the Applicant;

9.3 the Court had not pronounced on the First Respondent’s application for review filed in October 2003; and

9.4 the application brought on 26 January 2004 was brought out of time.

The Applicant has also raised a point in limine to the effect that the First Respondent’s papers are not properly before this Court, having been filed 7 days late.

I deal first with the late filing of the First Respondent’s answering affidavit. The Applicant served this application on the First Respondent on 23 April 2004, calling on the First Respondent to deliver any notice of intention to oppose the application as well as an answering affidavit by 22 April 2004. The papers were filed on 26 April 2004. The First Respondent’s notice of intention to oppose was filed on 28 April 2004. An answering affidavit was served on 20 May 2004 and filed with the Registrar on the same day.

In terms of the Rules of this Court the answering affidavit should have been filed by 11 May 2004. Given the obvious defect in the Notice of Motion and the fact that the delay in filing the answering affidavit was not excessive (the affidavit was served 7 days late), the late filing of the affidavit is condoned.

Turning now to the Applicant’s submissions in relation to the rescission of the order made on 26 March 2004, Mr Phungo, who appeared for the Applicant, dealt at length in the Applicant’s Heads of Argument with the provision of Rule 48 of the Uniform Rules of Court and based his argument primarily on the assertion that the Taxing Master had not been notified of the intention to review the ruling made at the taxation, nor required to state a case for the decision of a Judge. As I understood his argument, it was on this basis that Mr Phungo contended that the order granted by default on 26 March 2003 was erroneous and irregular.

While it is not clear from the papers whether the Applicant brings this application in terms of Rule 16A of the Rules of this Court or section 165 of the Labour Relations Act or the common law, it is trite that in all of these circumstances an applicant seeking rescission of an offer must show good cause for its absence by providing a reasonable explanation for its default, and establish that it has a bona fide case to present. The Labour Appeal Court had occasion recently to consider the general principles relating to applications for

rescission. In considering the requirement of good cause, the Court confirmed that in exercising its discretion, it was necessary to take into account at least two factors – the explanation for the default and whether the applicant has a prima facie defence. (See Shoprite Checkers (Pty) Ltd v CCMA & Others (2007) 28 ILJ 2246 (LAC).

Regrettably, the Applicant has elected to pursue this application by focusing on the requirements of Rule 48 of the Uniform Rules, rather than the twin hurdles that it is required to clear to obtain rescission. In this sense, as Mr Brown, who appeared for the First Respondent suggested, the Applicant has misconstrued the nature of this application. Be that as it may, the merits of this application must be determined by reference to the applicable test, and the factual averments that can be gleaned from the papers. In relation to an explanation for default, the Applicant addresses this issue in two paragraphs in its founding affidavit, deposed to by its attorney. In essence, after conceding that the application was served on 26 January 2004, the explanation provided is that the documentation did not reach the “referenced attorney” and that it “seems to

have been misfiled by our filing clerk”. Confirmatory affidavits are annexed by a Mr Vuso and Mr Mzima, the attorney

and filing clerk respectively. Both confirmatory affidavits simply confirm the contents of the founding affidavit, and provide no further information as to the circumstances in which this oversight occurred. In any event, it is not sufficient for a legal representative to depose to an affidavit recording what amounts to negligence on the part of a number of staff, and to seek exculpation on that basis. It is trite that a party in default may not always rely on the negligence of a representative to obtain rescission - there is no explanation before the Court by any representative of the Applicant as to its failure to be present in Court on 26 March 2004.

As I have noted, the bulk of the Applicant’s case relates to its contentions regarding what it alleged were irregular proceedings and an omission to serve papers on the Second Respondent. What the Applicant has overlooked in its submissions is the nature of the proceedings brought by the First Respondent in January 2004. It was only the issue of costs in relation to the proceedings on 13 June 2003 that was the subject of the application initiated by the First Respondent in January 2004, and which in turn was the subject of the order granted by Tokota AJ on 26 March 2004.

17. In the founding affidavit in the proceedings initiated in January 2006, the deponent (the First Respondent in these proceedings) concedes that the Taxing Master’s to disallow costs in respect of the proceedings on 13 June 2003 in the absence of an order by the Court was correct. The deponent requests the Court to consider the issue of the reserved costs, and to make an order that the Respondent (the Applicant in these proceedings) pay those costs as part of the costs awarded to the First Respondent on 20 June 2003.

18. It does not assist the Applicant in these proceedings to base a prima facie case, as it has done, on what it contends were prior irregular proceedings and an omission to serve papers on the Second Respondent. The First Respondent had clearly decided to abandon his application for the review of the Taxing Master’s decision to disallow the costs claimed by him, having come to the view that these costs had not been awarded by Landman J.

19. The prima facie case that the Applicant is required to establish for the purpose of these proceedings relates to the grounds on which costs were awarded against it on 13 June 2003, and not the merits of the review application initiated and later abandoned by the First Respondent. It is not necessary in these circumstances for the Taxing Master to submit either a report or a stated case in terms of Rule 48,

presuming for the moment in the Applicant’s favour that this Rule applies. (This is a matter that is open to some doubt (see

Sasbou v UFIWO & others [2003] 4 BLLR 395 (LC)). Having failed to appreciate that the proceedings initiated in January 2004 sought only an order for costs in relation to the proceedings on 13 June 2003, and having based its contentions solely on matters related to proceedings that had been abandoned, the Applicant has failed to make out a prima facie case in response to the claim that was the subject of the order in respect of which rescission is sought.

In MM Steel Construction CC v Steel Engineering & Allied Workers Union of SA & Others (1994) 15 ILJ 1310 (LAC), Nugent JA said:

“These two essential elements [a reasonable explanation for default and the existence of a prima facie case] ought nevertheless not to be assessed mechanistically and in isolation. While the absence of one of them would usually be fatal, where they are present they are to be weighed together with relevant factors in determining whether it should be fair and just to grant the indulgence.”

21. In short, the Applicant has failed to furnish the Court with a full and adequate explanation for its default. If the Applicant had wished to argue its case on why it should not be liable for the reserved costs of 13 June 2003, it ought to have availed itself of the opportunity to make out a prima facie case in these proceedings. It failed to do so. In these circumstances, it would be neither fair nor just to grant the Applicant the indulgence it seeks.

22. The application is dismissed, with costs.

_________________________

ANDRÉ VAN NIEKERK,

Acting Judge of the Labour Court

Date of judgment: 21 December 2007

Attorneys for Applicant: Ranamane Phungo Incorporated

Attorneys for Respondents: Krishnee Pillay Attorneys