Portapa (Pty) Ltd t/a Subabets Sports Betting v Takalo (J1505/13) [2016] ZALCJHB 317 (25 August 2016)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: J 1505/13

PORTAPA (PTY) LTD T/A SUPABETS SPORTS BETTING

Applicant

(Applicant in the application for leave to appeal)

and

MOIPONE TAKALO Respondent

(Respondent in the application for leave to appeal)

Heard: In Chambers

Delivered: 25 August 2016

JUDGMENT – APPLICATION FOR LEAVE TO APPEAL

VENTER, AJ

Introduction

[1] This is an application for leave to appeal against an order of this Court handed down on 7 January 2016 in terms of which, I dismissed the Applicant's application to rescind the order of Honourable Justice Nkutha-Nkontwana AJ handed down on 10 November 2014.

Test for leave to appeal

[2] In deciding whether to grant leave to appeal to the Labour Appeal Court, it is trite that the test applicable is whether there is a reasonable prospect that another court may come to a different conclusion.[1] Furthermore, the possibility that the Labour Appeal Court may come to a different conclusion must be assessed with reference to the facts and applicable law. This assessment will involve a consideration of whether the applicant has satisfied the Court that there are reasonable prospects of success, as well as a consideration of whether the matter is of substantial importance for the parties.[2]

Background

[3] On 4 November 2014, the Court issued a default judgment to the effect that the respondent's dismissal was found to be automatically unfair in terms of section 186(1)(d) of the Labour Relations Act, 66 of 1995 as amended and the respondent was awarded 24 months compensation with costs. The reasons for this order are dealt with in the default judgment and will therefore not be repeated herein. In its application for rescission, the applicant contended that it never received the respondent's statement of claim, application for default judgment or notice of set down of the application for default judgment.

[4] The applicant did not dispute the fact that the statement of claim and notice of set down of the default judgment were served on its offices by via telefax but stated that these documents did not come to the attention of its Chief Executive Officer ("CEO"), who was also the deponent to the affidavits in the application for rescission. Similarly, the applicant did not dispute the fact that the application for default judgment was served by registered mail but stated that it did not receive same.

[5] In seeking to prove the applicant's knowledge of the statement of claim as well as the application for default judgment, the respondent in its answering affidavit averred that on 30 July 2013, the CEO represented by Mike Werner ("Werner") (later described as an attorney who occasionally represents the applicant) called the respondent's attorney of record and spoke to Nishlan Moodley. It is alleged that during this telephone call, Werner indicated that he only received the statement of claim on that day and enquired as to the time period allowed to oppose the application and the prospects of settlement.

[6] In the replying affidavit, the applicant submits that Werner said he did recall seeing a document received by fax at the applicant's offices relating to a labour matter and a telephone conversation, however, he did not recall the matter or the name of the attorney he spoke to.

[7] Based on the above, the applicant contended in its written submissions that the above documents “got lost in company bureaucracy” and, as a result, the statement of claim and default judgment remained unopposed by the applicant.

[8] In light of the above facts, I found the applicant's explanation for its default to be insufficient and I was not persuaded on its prospects of success. This ultimately led to the dismissal of the applicant's application for rescission, which decision the applicant now seeks to appeal.

The merits of the application for leave to appeal

[9] The applicant submits that this Court should grant the applicant leave to appeal on the grounds that the Court erred in the following respects:

1. in finding that there was no explanation at all for the applicant's default;

2. in finding that the applicant failed to take the court into its confidence because the affidavits filed were "scant", "lacking in detail" and "absurd";

3. in finding that because the statement of claim was received by the applicant, it had come to the attention of the applicant;

4. in applying the test for "good cause" required for rescission applications; and

5. the finding of a bona fide defence by the applicant should have compensated for the poor explanation for the default.

[10] According to the respondent:

1. the suggestion by the applicant that the processes were swallowed up in the inefficiencies of the applicant's office is not corroborated by the applicant's own facts and is in fact contradicted by the applicant's own facts; and

2. the applicant ignores that one of the applicant's employees who was in possession of the relevant processes is an attorney and therefore a person who would have and did appreciate the import of the documents.

[11] Before I turn to the brief reasons for refusing the application for leave to appeal, I must point out that I have considered the submissions filed on behalf of both parties before coming to a conclusion. I will, however, not necessarily refer to each submission made in this brief judgment. I do, however, state that I agree with the respondent's argument.

[12] In respect of the applicant's contention that the statement of claim, application for default judgment and the notice of set down did not come to its attention and therefore remained unopposed, I find the applicant's explanation to be wholly inadequate and I do not believe another court will come to a different conclusion. In the applicant's written submissions, the applicant argued that these documents “got lost in company bureaucracy” and the respondent is “unable to demonstrate that the document ever came to the attention of the directing mind of the applicant”. On the applicant's own version the statement of case was served on its and the statement of case was handed to its attorney, Werner. Under these circumstances, the fact that the statement of case did not come to the attention of the CEO or as the applicant puts it "the directing mind" is irrelevant.

[13] The applicant does not dispute the fact that the documents were served via fax and registered mail. The fact that the statement of claim and notice of set down of the application for default judgment were received by telefax by the offices of the applicant would have been sufficient notice to the applicant to enable it to oppose the statement of claim and thereby resist a default judgment. On the applicant's own version, it took such steps by instructing Werner. The respondent cannot be prejudiced by the inaction of Werner or the "company bureaucracy".

[14] I am disinclined to defer from my finding that the applicant's explanation for its default is insufficient and absurd.

[15] I have also not been persuaded by the applicant that it has prospects of success in defending the statement of claim. Even if I were to find that the applicant has a bona fide defence that alone, in light of the fact that the explanation for the default is wholly insufficient and lacking, are not grounds enough for me to grant the applicant leave to appeal. Both elements must be present.

[16] I have not been persuaded that there are reasonable prospects that the Labour Appeal Court in this matter is likely when considering the facts as they were before me, to come to a different conclusion than the one reached by me.

Costs

[17] In opposing the application for leave to appeal, the respondent requested the court to order punitive costs on an attorney and own client scale. I do not believe that exceptional circumstances have been demonstrated and in my view, an order for punitive costs is not justified.

Order:

[18] I accordingly find that the applicant's application for leave to appeal should fail and, accordingly, I make the following order:

1. The applicant's application for leave to appeal is dismissed with costs.

_________________

Venter AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES:

FOR THE APPLICANT: VARKADOS ATTORNEYS

FOR THE RESPONDENT: NISHLAN MOODLEY ATTORNEYS

[1] See Karbochem Sasolburg (a division of Sentrachem) Ltd v Kriel and Others (1999) 20 ILJ 2889 (LC).

[2] See S v Smith 2012 (1) SACR 567 (SCA); Dince and Others v Department of Education, North West and Others [2010] 6 BLLR 631 (LC) and GA Motor Winders (Eastern Cape) cc v CCMA (1999) 20 ILJ 1802 (LC).