Masilela T.P v Exxaro Coal (Pty) Ltd Leeuwpan Coal and Others (JR 2158/19) [2024] ZALCJHB 382 (8 October 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 2158/19

In the matter between:

MASILELA T.P Applicant and EXXARO COAL (Pty) LTD LEEUWPAN COAL First Respondent THE COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION Second Respondent BALOYI F, N.O. Third Respondent

Heard: 1 August 2024

Delivered: 8 October 2024 (This judgment was handed down electronically by emailing a copy to the parties. The 8th of October 2024 is deemed to be the date of delivery of this judgment).

JUDGMENT

NHLAPO, AJ

Introduction

[1] This is an application for the rescission of a judgment by Phehane J that reviewed and set aside an arbitration award. The rescission application is supported by a condonation application to the extent that it is late.

[2] I therefore deal with each application in the respective order.

Condonation

[3] The applicant’s assertion is that he became aware of the judgment and order of Phehane J on 28 June 2021 when he visited the Labour Court to peruse the Court file, and to his dismay he discovered that the matter had already been heard and decided on 8 June 2021. I will not deal with the merits or demerits of this contention as I do so when considering the rescission application. In any event, the issue for determination for now is the application for condonation.

[4] The rescission application is twenty-two (22) days late. The applicant contends that he was not aware of the notice of set down hence he did not attend court on 8 June 2021.

[5] Furthermore, upon attending court on 28 June 2021 he sought assistance from two different attorneys from 29 June 2021. Unfortunately, he could not be assisted for various reasons that I deem not necessary to mention in this judgment as they are challenged by the first respondent.

[6] Due to time constraints and financial challenges, the applicant then sought assistance from the SASLAW Pro Bono office, which was closed from the week of 16 June 2021 due to COVID-19. After COVID-19 it was the July 2021 unrest that impacted the Pro Bono office functionality. He was eventually assisted by the Pro Bono office on 17 August 2021, and he managed to serve the rescission papers on the first respondent on 17 August 2021.

[7] The first respondent in the opposing affidavit mentions that it has no knowledge of the explanation provided by the applicant. Importantly, the first respondent concedes that the explanation for the delay is adequate. However, the condonation application be refused for lack of prospects of success.

[8] I have considered the period of delay and the reasons thereof. The delay is not excessive. Furthermore, the reasons for the delay, as conceded by the first respondent, are adequate, and in my view acceptable.

[9] I therefore grant the application for condonation.

Rescission application

[10] At the outset, I must state that I am not convinced by the applicant’s assertion that he never sought assistance from his union – the National Union of Mineworkers (NUM) – to assist in the review application lodged by the first respondent.

Background facts

[11] The applicant was dismissed on 6 June 2019 pursuant to being found guilty of unauthorized possession or consumption of drugs/alcohol whilst on duty.

[12] The applicant referred the dismissal to the Commission for Conciliation, Mediation and Arbitration (CCMA) for determination of the substantive fairness of his dismissal.

[13] On 25 August 2019, the CCMA found his dismissal to be substantively unfair and awarded compensation in the amount of R100 877.00.

[14] Unhappy with the arbitration award, the first respondent lodged a review application. A notice of intention to oppose was filed by the NUM. However, no opposing affidavit was filed despite the Rule 7A(8)[1] notice.

[15] On 8 June 2021, the review application was still without any opposing papers. NUM had appointed attorneys who were present at the hearing. The legal representatives appointed by the NUM confirmed to the Court that the review application was unopposed.

[16] The applicant disputes that he instructed the NUM (who in turn appointed Mohale Attorneys) to assist him with the review application. His contention is that the record of the arbitration proceedings (Rule 7A(6) notice) and Rule 7A(8) were not served upon him hence he did not file opposing papers. Further, the notice of set down was not served upon him, hence he was not present in Court on 8 June 2021.

[17] In support of the contention that he did not approach the NUM, he asserts that in his referral to the CCMA, he provided his own address and further represented himself. An impression is created in the founding affidavit that he represented himself during the internal disciplinary hearing. However, in the reply, he states that he was represented by a shop steward, Archiebald Phakathi.

[18] The applicant’s contention is resisted by the first respondent who in essence mentions that the NUM acted on the instructions received from the applicant.

[19] To decide, I am thus called upon to ruminate the chain of events on the service of processes, and the appearance of Mohale Attorneys instructed by the NUM at the Labour Court.

Service of processes

[20] Upon receipt of the arbitration award, the first respondent instructed Deirdre Venter (Venter) of Shepstone and Wylie Attorneys to institute a review application.

[21] Venter prepared the review application and attended to service thereof using registered mail to the address reflected in the Labour Relations Act[2] (LRA) 7.11 referral form, which form was completed by the applicant when referring the dismissal dispute to the CCMA for conciliation and arbitration. It being common cause that the applicant personally attended the arbitration proceedings.

[22] The security bond provided by the first respondent on 17 October 2019, in compliance with section 145(8) of the LRA, was served upon the applicant using the same address used at the CCMA proceedings.

[23] Importantly, on 23 October 2019 the NUM served a notice of intention to defend. The notice stated that the applicant has appointed the NUM as his representatives, and the NUM provided its own address for service of any further processes and/or documents in the matter. An email address was also provided by the NUM in the said notice of intention to oppose.

[24] In the founding affidavit, the applicant refutes having appointed the NUM to represent him in the review proceedings. As such he finds it strange why the first respondent’s legal representatives served him with the notice of motion and security bond, but thereafter served all other documents and pleadings to the NUM.

[25] On 24 January 2020, the record was served upon the NUM in compliance with Rule 7A(6) of the LRA. The record of the proceedings was also emailed to Kabelo Lekalakala using the email address provided in the notice of intention to oppose.

[26] On 7 February 2020, the NUM was served with the supplementary affidavit in compliance with Rule 7A(8) of the LRA.

[27] The NUM did not serve and file any opposing affidavit. As such Venter approached the Labour Court to set the matter down on the unopposed motion roll. On 5 May 2021, the Registrar of this Court issued a notice of set down on the unopposed roll for 8 June 2021. The notice of set down was addressed to both parties.

[28] On 1 June 2021, the first respondent’s legal representatives emailed the heads of argument, and the practice note to Mr Maidi of the NUM. Importantly, the practice note mentions that the review application is set down on the unopposed roll for 8 June 2021.

[29] On 7 June 2021, the first respondent’s legal representatives telephoned Mr Maidi of the NUM to confirm if he was aware of the set down, and further whether the review application was still unopposed. Maidi confirmed that the NUM was aware of the set down date, and further that the NUM forwarded the first respondent’s heads of argument and practice note to its attorneys – Mohale Attorneys.

[30] On 8 June 2021, Venter appeared in Court and submitted that the review application was still unopposed. Mohale Attorneys, who were also present in Court, confirmed that the review application was unopposed.

[31] After hearing the first respondent’s legal representative’s submissions, the Court accordingly reviewed and set aside the arbitration award.

Analysis

[32] It is common cause that the review application and security bond were both served at the address provided by the applicant in the LRA 7.11 referral form.

[33] Notwithstanding the above, the NUM got wind of the review application and thereafter took it upon itself to serve a notice of intention to oppose, and further provided its own address for service of further processes; this is what the applicant wants this Court to accept as the version of events hence the rescission application. I am not convinced that the NUM got involved without the applicant approaching the NUM to assist with the review application once he received the notice of motion and founding affidavit.

[34] I am unable to agree with the applicant that the first respondent, after serving the applicant with the review application and the security bond at the address provided in the LRA 7.11 referral form, would thereafter deliberately not serve the applicant at his nominated address, but prefer the NUM address.

[35] I find that if the first respondent did not want the applicant to be aware of the review, it would have done so by serving the notice of motion to the NUM even though the applicant was not represented by the NUM in the arbitration proceedings.

[36] Of further importance is that the NUM went to the extent of instructing Mohale Attorneys to assist in the matter, hence on the day of the hearing of the review application Ms Magaret Magongoa of Mohale Attorneys appeared on behalf of the applicant. It is improbable that the NUM would incur an expenditure without having been approached by the applicant as their member requesting for assistance with the review application.

[37] To the extent that the NUM might have acted without instructions from the applicant, the applicant must pursue its legal remedies against the NUM. The first respondent cannot be expected to be inconvenienced by a circumstance between a member and his trade union.

[38] Furthermore, I am perturbed by the suggestion that the first respondent dishonestly set down the matter on the unopposed motion roll. In making this assertion, the applicant ignores the fact that Mohale Attorneys were present in Court on 8 June 2021 and the Attorneys confirmed that the review application remained unopposed. In fact, this Court ordinarily removes matters from the unopposed roll once they become opposed.

[39] Further to the above, the first respondent’s attorneys contacted the NUM offices on 7 June 2021 to enquire whether the review application was still unopposed. The NUM confirmed that the matter was unopposed. In my view, this confirms the good faith on the part of the first respondent. If the first respondent wanted to ambush the applicant, the first respondent’s attorneys would not have bothered to call the offices of the NUM on 7 June 2021 to enquire if it was aware of the set down and whether the review remained unopposed.

[40] For the reasons alluded to herein above, I am unable to find in favour of the applicant in so far as the rescission application is concerned.

[41] In the results, the following order is made:

Order

1. The condonation application is granted.

2. The rescission application is dismissed.

3. No order as to costs.

S.B. Nhlapo

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant: Instructed by: S. L. Attorneys For the Respondent: Instructed by: M.G. Maeso of Shepstone and Wylie Attorneys

[1] GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court, repealed with effect from July 2024.

[2] Act 66 of 1995, as amended.