KBC Health and Safety (Pty) Ltd v Solidarity obo Smith; In re: Solidarity obo Smith v KBC Health and Safety (Pty) Ltd (JS251/14) [2016] ZALCJHB 214 (21 June 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case No: JS251/14

In the matter between:

KBC HEALTH & SAFETY (PTY) LTD

Applicant

and

SOLIDARITY obo S. SMITH

Respondent

In re:

SOLIDARITY obo S. SMITH

Applicant

KBC HEALTH & SAFETY (PTY) LTD

Respondent

Heard: 14 December 2015

Delivered: 21 June 2016

Summary: A mere denial by the applicant that it received a statement of claim as well as a subsequent application for default judgment is not enough to warrant an order for rescission of judgment to be granted, in circumstances where the respondent’s proof of service was supported by the applicant’s service affidavit as well as proof of fax transmission report.

Although a fax transmission report only serves as prima facie proof of service, where it is corroborated by an affidavit of service that constitutes sufficient proof of service.

CHAANE AJ.

[1] This is an application for rescission of judgment launched by KBC Health and Safety (Pty) Ltd, (“the applicant”) against a default judgement (“the judgement or order”) dated 28 October 2014 under case number JS251/14.

[2] The respondent is Solidarity, a trade union registered in terms of the provisions of the Labour Relation Act, 66 of 1995 (“the LRA” ) and acts on behalf of its member, one Ms. Suzette Smith (“Ms Smith”).

[3] The applicant contends that the order sought to be rescinded was granted in its absence by the Honourable Justice Sono, AJ on 28 October 2014. The applicant‘s application is brought in terms of the provisions of section 165 (a) of the Labour Relations Act 66 of 1995 (“the LRA”) read with Rule 16 (1) (A) (b) of the Rules of Conduct of Proceedings before this Court (“the Rules”).

[4] The applicant also seeks an award for costs against the respondent in the event of opposition. This application is opposed by the respondent.

[5] In this application, the applicant contends that the order sought to be rescinded came to its attention on 05 November 2015. The applicant further submits that it only became aware of the order when the respondent directed a correspondence to it advising of the order.

The basis of the applicant’s application

[6] The applicant avers that:

6.1 It was not aware of matter or claim (the claim which gave rise to the order);

6.2 one Mr Simelane (“Mr Simelane”), a person responsible for its employment related disputes and litigation matters did not receive the pleadings and that all its employees including Ms Smith knew that the facsimile to be used is ( 011) 675 3721 and that documents should be marked for the attention of Mr Simelane;

6.3 had the documents (the statement of claim being received), the claim would have been defended;

6.4 in any event, the retrenchment of Ms Smith and related employees was both procedurally and substantively fair; and

6.5 the court erred in granting Ms Smith an amount of R124 688.00 as compensation for her monthly salary was R 8 890.00 as opposed to R10.389.00.

The basis of the respondent’s opposition

[7] On the other hand, the respondent contends that:

7.1 the statement of claim was properly served upon applicant on 01 April 2014;

7.2 on 01 April 2014, one Luzzette Viljoen (“Ms Viljoen”) from its offices made enquiries from one Ms. Vashini from applicant offices regarding the functionality of fax no (011) 675- 3721 and was informed to use the fax no: 086 5529985. It appears that the reason for the enquiry was informed by the fact that, the statement of claim could not go through when using fax no (011) 675- 3721;

7.3 the statement of claim was transmitted to fax no 0865529985[1] as well as to fax no: 011(403) 9727, and that these are the fax numbers of the applicant as provided to it by Ms Vashini. The service

affidavit[2] by Ms Viljoen is appended to the respondent’s answering affidavit, in which affidavit she confirms service of the statement of claim upon the applicant. Interestingly, in the said affidavit she proceed to state that ‘I further state that I telephonically confirmed with Vashini Ramnarian from the respondent’s offices who confirmed that she did receive a full 9 page applicant’s statement and schedule of documents’;

7.4 on 13 May 2014, it transmitted its application for default judgement to the applicant using fax no 086 644 2569. This being the fax number provided to it by one Octavia Seleka (“Ms Seleka”) from the applicant’s offices. The service affidavit deposed to by one Gwenodene Slater (“Ms Slater”) from the respondent’s offices is appended to the answering affidavit, in which affidavit Ms. Slater confirms service of the default judgment application upon

the applicant. In the service affidavit, Ms Slater further states ‘I further state that I telephonically confirmed with Octavia Seleka from the respondent’s offices who confirmed that she did receive full 24 page applicant’s statement and attachments’;

and

7.5 its application for default judgment was accompanied by an affidavit by Ms Smith setting out the basis for the default judgment to be granted.

[7] I note that Ms Viljoen’s gallant averment to the effect that she was provided with fax number 086 5529985 by Ms Vashini from applicant offices and that Ms Vashini also telephonically confirmed receipt of the statement of claim. I must mention that this submission stands unconverted.

[8] I further note that the respondent avers that Ms Seleka from the applicant’s offices confirmed receipt of the applicant’s application for default judgment and to this end, all the applicant says in reply to this is simply that ‘I have tried to telephonically discuss the contents of this paragraph with and paragraph 9.3 with Octavia Seleka who is currently on maternity leave, however, she is not available on the phone. I wish to state that as a person responsible for all employment related disputes and legal litigation I again repeat that I did not receive the statement of case and application for default judgment’. This submission again stands unconverted.

[9] On proper analysis of the above submissions, I am persuaded to come to a conclusion that there was proper service of the statement of claim upon the applicant; secondly, it is not disputed by applicant that the default judgment application was actually received, all Mr Semelane says, is simply that both applications ought to have been brought to his attention, ostensibly due to the fact that he is the person responsible for all employment related disputes and legal litigation matters and that Ms. Smith knows this.

[10] I must say, both the statement of claim and the application for default judgment are supported by service affidavits deposed to by employees of the respondents, all of whom confirms that service had been effected. This is clear confirmation that both Ms Vashini and Ms Seleka indeed received the documents.

[11] Outlandishly, the applicant on the other hand just makes bald denials which are not substantiated by affidavits of both Ms Seleka and Ms Vashini, both of whom are still in its employ. I am constrained to come to this conclusion because all which is being said about Ms Seleka is that she was on maternity leave and could not be reached telephonically. I expect a reasonable employer in the like of the applicant to have sufficient details of its employees, like their physical addresses and details of their next of kin to be used in the event they cannot get hold of the employees. In fact, the applicant does not indicate endeavours made to get in touch with Ms Seleka except that ‘she is currently on maternity leave, however, she is not available on the phone’.

The law on rescission of judgment or order

[12] It should be pointed out that an application for rescission of a judgment or order of Court can be made in terms of Rule 16A of the Rules of the Labour Court, which reads 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 or vary 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.

[13] In Beveral Investment T/A KFC v Fraser and Another,[3] Molahlehi, J held that:

‘[6] It is apparent from the above that the requirements of Rule 16A (1)(a) are different to those of 16A(1)(b). In terms of Rule 16A (1) (a) an applicant in a rescission application has to show that the judgment or order was granted in error in his or her absence. Rule 16A (1) (b) on the other hand requires that the applicant has to show good cause that the judgment or order sought, in order to succeed;

[7] The provisions of Rule 16A (1) (a) of the Rules replicates the provisions of section 165 (a) of the Labour Relations Act of 195 and are also similar to those of rule 42(1) (a) of the Rules of the High Court;

[8] The Court in dealing with the application for rescission under Rule 42(1) of the Rules of the High Court. In Transport and General Workers Union and Others v Kempton City Syndicate and Another (2001) 22 ILJ 104 (W) at paragraph 108C held that:

‘If a court holds that an order or judgment was erroneously granted in the absence of any party affected thereby it should, in terms of rule 42(1)(a), without further enquiry, rescind or vary the order.’

[9] In Superb Meat Supplies CC v Maritz, (2004) 25 ILJ 96 (LAC) at paragraph 15, the Court held that:

‘When the court considers whether a judgment has been granted erroneously, it does not investigate whether good cause has been established or whether there has been wilful default.’

[10] This Court confirmed the above in Gay Transport (Pty) Ltd v SA Transport and Allied Workers Union and Others (2011) 32 ILJ 1917 (LC) at paragraphs 11–12 and in SA Democratic Teachers Union v CCMA and Others (2007) 28 ILJ 1124 (LC) at paragraph 17. The enquiry which the Court has to conduct in determining whether the order or judgment which is the

subject of the rescission application was erroneously made, essentially entails investigating whether there existed a fact, at

the time the order or judgment was made, which the Court was not aware of and that had it been aware it would not have made the order as it did;

[11] The error which the applicant relies on in the present matter has to do with the issue of service of the application of the first respondent in terms of section 158(1) (c) of the LRA. The issue of service by fax received attention in Northern Province Local Government Association v CCMA (2001) 22 ILJ 1173 (LC) at para 46, where the Court in dealing with the issue of service by fax had the following to say:

‘Axiomatically, in deciding whether or not a fax transmission was received, proof that the fax was indeed sent creates a probability in favour of receipt, but does not logically constitute conclusive evidence of receipt… there has to be] a fair-minded enquiry into whether or not as a fact the notice did not come to the attention of the party.’

[14] In the Northern Province Local Government Association v CCMA and Others,[4] the Court went further and stated that ‘an application for the rescission of a default judgment must show good cause and prove that he at no time renounced his defence, and that he has a serious intention of proceeding with the case. In order to show good cause an applicant must give a reasonable explanation for his default, his explanation must be made bona fide and he must show that he has a bone fide defence to the plaintiff’s claims’.

Conclusion

[15] In this case, the respondent’s service of its statement of claim is not only supported or evidenced by fax transmission report, the respondent has also filed an affidavit of service in which affidavit the deponent confirms that an employee of the applicant confirmed receipt of the application and again the service of the default application is also supported by a confirmation of service by way of a service affidavit deposed to a different employee of the respondent

[16] I reinstate what I have already stated that Ms Seleka has put evidence forward disputing what both Ms Viljoen and Ms Slater are saying. I find this to be critical and in absence of anything contrary, I am inclined to accept that both the statement of claim and the default judgment application were properly served upon the applicant; in other words, the applicant was aware of the matter.

[17] If regard is had to all the stubborn facts and tenacious evidence before me, it can hardly be said that the order sought to be rescinded was erroneously granted in the absence of this applicant.

[18] I am persuaded to come to a realistic conclusion that the applicant did not only receive the statement of claim but also the received application for default judgment and just espoused a remiss and conceited attitude in dealing with the entire matter. I must add that the statement of claim was delivered to the applicant on 01 April 2014 and the default judgment application was delivered to the applicant on 13 May 2014, a period of over a month apart and confirmation of receipt of both court processes is confirmed by two of the applicant’s employees.

[19] In the absence of any other facts to the contrary, I accept that proper service was effected upon the applicant in respect both the statement of claim and the application for default judgment. I cannot cast-off the fact that nothing contradicts the evidence of the applicant to the effect that there was proper service upon the applicant

[20] I must emphasise that in an application of this nature it is incumbent upon the applicant to provide this Court with adequate and reasonable explanation to explain its failure to oppose the action and/or application as the case maybe giving rise to the order that it seeks to rescind. The applicant has failed to do so. In the absence of sufficient explanation, I am unable to come to the succour of the applicant by granting it an order sought.

[21] In fact, I am inhibited to look adversely at the conduct of the applicant. This applicant does not take this Court in confidence and also approaches this Court with enormously dirty hands. The Court is bothered by litigants displaying this kind of conduct.

Costs

[22] I see no reason why costs should not follow the results in this matter, in the circumstances, I order the applicant to pay the costs of this application.

Order

[23] In the event, the following order is made:

1. The applicant’s application for rescission of the order granted by this Court on 28 October 204 is dismissed.

2. The applicant is ordered to pay the costs of the respondent.

______________

Hope Chaane

Acting Judge of the Labour Court

Appearances:

For the applicant: Mr. S. Mabaso from Mabaso Attorneys.

For the respondent: Mr. N Greeff from Solidarity Trade Union.

[1] Pages 88 and 89 of the papers.

[2] Pages 85 and 86 of the papers.

[3] (J1421/13) [2015] ZALCJHB 17 (28 January 2015) at paras 6-11.

[4] (2001) 22 ILJ 1173 (LC) at para 16.