Kangra Coal (Pty) Ltd v Commission For Conciliation, Mediation and Arbitration and Others (JR2011/21) [2024] ZALCJHB 404 (14 October 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR2011/21

In the matter between:

KANGRA COAL (PTY) LTD Applicant and COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION First Respondent COMMISSIONER SIFISO NGALA Second Respondent KHULEKANI VINCENTN VILAKAZI Third Respondent

Heard: 10 October 2024

Delivered: 14 October 2024

Summary: Application for rescission. Application granted, no costs.

JUDGMENT

DANIELS J

Introduction

[1] The applicant, the former employer of the third respondent, dismissed the third respondent for misconduct. The third respondent challenged the fairness of his dismissal at the CCMA, but failed. Thereafter, he launched review proceedings. The applicant failed to oppose the review application and, on 2 November 2022, an order was granted against it by default.

[2] The applicant now seeks to rescind the order, granted by default. The rescission application was launched on 30 November 2022 and is governed by the Rules of the Labour Court applicable at that time.[1]

[3] The rescission application was served on 24 November 2022 but only filed on 30 November 2022. The application should have been delivered (served and filed) by 23 November. The application is therefore no more than 6 days late. The reasons for the delay were set out in the review application itself and were reasonable. The delay was negligible, and there was no prejudice. It is in the interests of justice to grant condonation. The third respondent set out no basis to oppose the condonation application save to state that he wished to do so. Condonation was granted prior to the rescission application being argued.

Material facts

[4] The third respondent was dismissed by the applicant for failing to carry out an instruction to report for duty on 12 November 2019 at 06h00.

[5] The third respondent challenged the fairness of his dismissal by referring a dispute to the CCMA. At arbitration, the third respondent was represented by an employer organisation, the Guardian Employers Organisation (“GEO”). According to the commissioner, the applicant provided different reasons for his failure to report for duty. He alleged that he was bitten by a spider the night before and had to attend a clinic in the morning. He also alleged that he was not given any instruction to report for duty at 06h00. On 17 August 2021, the commissioner issued an arbitration award in which he found that the third respondent’s dismissal was procedurally and substantively fair.

[6] The third respondent launched an application to review and set aside the arbitration award. As indicated by the service affidavit he filed, the review application was served on 5 October 2021, by registered post. The application was posted to the address of the GEO, but addressed to Kangra Mine Coal (Pty) Ltd. The GEO disputed ever receiving it.

Legal principles and analysis

[7] Section 165(a) of the Labour Relations Act No. 66 of 1995 (the “LRA”) provides as follows:

“The Labour Court acting of its own accord or on application of any affected party may vary or rescind a decision, judgment or order – (a) erroneously sought or granted in the absence of any party affected by that judgment or order”

[8] Rule 16A of the Rules of Court, applicable at the relevant time, provided as follows:

“(1) The court may, in addition to any other powers it may have-

(a) of its own motion or on application of any party affected, rescind or vary any order or judgment-

(i) erroneously sought or erroneously granted in the absence of any party affected by it;

(ii) in which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission;

(iii) granted as the result of a mistake common to the parties, or

(b) on application of any party affected, rescind any order or judgment granted in the absence of that party.

(2) Any party desiring any relief under-

(a) subrule 1(a) must apply for it on notice to all parties whose interests may be affected by the relief sought.

(b) subrule 1(b) may within 15 days after acquiring knowledge of an order or judgment granted in the absence of that party apply on notice to all interested parties to set aside the order or judgment and the court may, upon good cause shown, set aside the order or judgment on such terms as it deems fit.”

[9] In Diplopoint (Pty) Ltd v Twala[2] the Labour Appeal Court held that:

“It is generally essential that the party against whom legal proceedings are instituted must be given notice of the process in accordance with the law, or applicable practice or rules. A judgment or order may be ‘erroneously sought or erroneously granted’ in the absence of a party affected thereby, if, for example, the process concerned (such as a summons, or a statement of claim, as is in this case) had not been served on the party. In such instances, it only has to be shown that the process concerned was not served on the affected party and that would be sufficient to oblige the court to grant the rescission . It was not necessary for the appellant to show any further good cause.” (Own emphasis)

[10] An application brought in terms of Rule 16A(1)(a) on the basis that the judgment or order was erroneously granted in the absence of an affected party does not require good cause. Non service of the application constitutes sufficient good cause.

[11] Rule 4 provides for different forms of service on persons and corporate or other entities:

11.1 Rule 4(1)(a)(vii) provides that a document may be served on any person by sending the document “by registered post to the last known address of the party concerned and unless the contrary is proved, it will be presumed that service was effected on the seventh day following the day on which the document was posted” (own emphasis). This form of service relates only to individuals.

11.2 Rule 4(1)(b)(i) provides that “if the person is a company or other body corporate, by serving a copy of the document on a responsible employee of the company or body corporate at its registered office or its principal place of business within the Republic, or its main place of business within the magisterial district in which the dispute first arose or, if there is no employee willing to accept service, by affixing a copy of the document to the main door of the office or place of business”. This rule relates to service on companies, but does not permit service by registered post.

[12] Here, the applicant alleges that the review application was not served on it. The third respondent denies this and points out that the review application was served by registered post. However, the rules do not permit service on companies by registered post.

[13] Even if I am incorrect (and the rules do permit service on companies by registered post) the review application was sent to the address of the applicant’s representatives (at arbitration) and incorrectly addressed to the applicant. In these circumstances, it is likely that the document would not have come to the attention of the applicant or its representatives. Any individual attending at the address used would have searched for the applicant, not its representative.

[14] In addition, even if I am wrong and the rules do permit service on companies by registered post, the court is not obliged to treat the document as having been properly served. Rule 4(1)(a)(vii) states that, where service is made by registered post “unless the contrary is proved” service is presumed to be affected on the seventh day after it has been posted. In the present instance, the applicant states under oath that the document was not received. The third respondent disputes this but can say no more than that it was posted. In the circumstances, I do not accept that service by registered post was effective and the application came to the attention of the applicant or its representatives.

[15] Service on a representative of a party may be made “by handing a copy of the document to any representative authorised in writing to accept service on behalf of the person”.[3] Service on an authorised representative may be proved in court “by a signed acknowledgment or receipt” by the representative. Service on a representative is not permitted by registered post. Service on a representative must be proved by a signed acknowledgement. None of this is applicable.

[16] In the circumstances, the review application was not served on the applicant or its representative. The court granting the order by default erroneously believed that the application had been served on the applicant. The order was therefore erroneously granted in the absence of the applicant and falls to be rescinded.

[17] The applicant conceded at court that the third respondent had genuinely believed that he had properly served the review application on the applicant. The applicant indicated, quite generously, that it was unlikely to oppose condonation for the late delivery of the review application should it be necessary. Having rescinded the default order, the applicant is required to file its opposing papers in the review application. The third respondent is required to file its application for the late delivery of the review application, although this is likely to be a formality. I do not believe that costs is appropriate. The third respondent was entitled to defend the order it secured by default. Law and equity militate against a cost order.

Conclusion

[18] For the reasons set out above, I make the following order:

18.1 The application is granted and the order of this court issued on 2 November 2022 is rescinded,

18.2 The applicant is directed to file its answering affidavit in response to the review application,

18.3 The third respondent is directed to file its application for condonation for the late delivery of the review application.

18.4 There is no order as to costs.

RN Daniels

Judge of the Labour Court of South Africa

Appearances

For the Applicant:

Mr Berry, GEO Employer Organisation

For the Third Respondent:

Self-represented

[1] Published in GN R766, GG 22587 on 20 August 2001

[2] (2022) 43 ILJ 1990 (LAC) at para 21

[3] in terms of Rule 4(1)(a)(v)