Fourie v Commission for Conciliation, Mediation and Arbitration and Others (JR1757/14) [2017] ZALCJHB 30 (20 January 2017)

Fourie v Commission for Conciliation, Mediation and Arbitration and Others (JR1757/14) [2017] ZALCJHB 30 (20 January 2017)

The court found that although the applicant's explanation for the delay in filing the rescission application was poor, it was not unacceptable, and the delay was lengthy but not excessive. The commissioner erred by refusing to consider the prospects of success, which is a relevant factor in determining whether rescission should be granted. The applicant demonstrated good prospects of success, particularly if it could be proven that the employee was employed by the close corporation and not personally by the applicant. The interests of justice required that rescission be granted, as the prospects of success outweighed the poor explanation and delay. Accordingly, the rescission ruling was...

Citation
[2017] ZALCJHB 30
Parties
Applicant: Stephanus Jacobus Fourie; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Bernard van Eck N.O; Respondent: Cuthbert Evans Mavuso
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
20 January 2017
Case Number
JR1757/14
Procedural Posture
Review Application / Judgment on Review of Rescission Ruling
Outcome
Rescission ruling reviewed and set aside; rescission granted; dispute remitted for arbitration; no order as to costs.
Judges
Cook AJ
Legal Topics
Rescission of Default Award, Condonation, Prospects of Success, Interests of Justice
Labour Law Civil Procedure Rescission of Default Award Condonation Prospects of Success Interests of Justice

Case Brief

Summary, issues, holding and outcome

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Parties

Stephanus Jacobus Fourie

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Bernard van Eck N.O

Respondent

Cuthbert Evans Mavuso

Respondent

Procedural Posture

Review Application / Judgment on Review of Rescission Ruling

Legal Issues

  1. 1 Whether the commissioner erred by refusing to consider the merits and prospects of success in the rescission application.
  2. 2 Whether the explanation for the delay in filing the rescission application was reasonable.
  3. 3 Whether the interests of justice required that rescission be granted.

Ratio Decidendi

The court found that although the applicant's explanation for the delay in filing the rescission application was poor, it was not unacceptable, and the delay was lengthy but not excessive. The commissioner erred by refusing to consider the prospects of success, which is a relevant factor in determining whether rescission should be granted. The applicant demonstrated good prospects of success, particularly if it could be proven that the employee was employed by the close corporation and not personally by the applicant. The interests of justice required that rescission be granted, as the prospects of success outweighed the poor explanation and delay. Accordingly, the rescission ruling was...

Court Disposition

Rescission ruling reviewed and set aside; rescission granted; dispute remitted for arbitration; no order as to costs.

Orders

  • The rescission ruling dated 9 June 2014 under case number GAEK2126-13 is reviewed and set aside and replaced with the ruling that rescission is granted.
  • The dispute between the applicant and the third respondent under case number GAEK2126-13 is remitted to the second respondent for arbitration.