---

VIC & DUP/JOHANNESBURG/LKS

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

CASE NO. J 727/98

In the matter between:

DATA DELTA Applicant

and

DE BRUIN, M M Respondent

J U D G M E N T

BASSON,J

[1] The applicable principles in rescission proceedings such as the present were set out in the judgment of the Labour Court in the matter of Construction and Allied Workers Union and Another v Federale Stene (1998) 19 ILJ 642 (LC) per Pretorius AJ:

"An order or judgment is erroneously granted if there existed at the time of its issue a fact of which the Judge was unaware and which would have precluded the granting of the judgment and which would have induced the Judge, if he had been aware of it, not to grant the judgment."

[2] On 5 May 1998 a notice of set-down was sent to the applicant in these proceedings. This was a notice of set-down for an application in terms of section 158(1)(c) of the Labour Relations Act, 66 of 1995 ("the Act"), in terms of which the respondent in these proceedings sought to make an arbitration award an order of court.

[3] On 13 May 1998 the applicant instituted rescission proceedings to rescind the said arbitration award in the Commission for Conciliation, Mediation and Arbitration ("the CCMA") in terms of section 144 of the Act.

[4] On 12 June 1998 Landman J granted the said section 158(1)(c) application brought by the respondent and made the said arbitration award an order of court.

[5] However, it was unknown to Landman J, at the time, (there is no indication on the papers that he knew) that the said rescission application had been instituted by the applicant (in these proceedings) in the CCMA.

[6] This was a fact which clearly would have influenced the Judge to come to a different conclusion and to not make the award an order of court on 12 June 1998.

[7] These present proceedings are lodged in terms of section 165(a) of the Act, that is, that the Labour Court “acting of its own accord or on the application of any affected party may... rescind a decision, judgment or order - erroneously sought or erroneously granted in the absence of any party affected by that judgment or order.”

[8] Applying the principles as set out in the Labour Court judgment referred to above, (at paragraph [1]) the application for rescission in terms of section 165(a) of the Act must therefore succeed.

[9] It is also clear from the facts that the applicant in these proceedings lodged rescission proceedings in the CCMA and thus intended to oppose the section 158(1)(c) application.

[10] This does not mean, of course, that this Court would not frown upon a litigant who did not appear at the 158(1)(c) proceedings based purely on the mistaken belief that the rescission proceedings would be preferable.

[11] It was argued on behalf of the respondent in these proceedings that, even though the normal principle that costs follow the result is a sound principle, it should not be applied in the present matter, especially taking into account the manner in which the applicant in this matter has sought to deal with this dispute.

[12] The applicant did not appear at the conciliation proceeding. The applicant also did not appear at the arbitration proceedings, although it stated that it did not receive the fast mail notification.

[13] There is no proof of service in regard to the arbitration proceedings. Most importantly however, the applicant did not appear as was required by the notice of set-down before this Court on 12 June 1998.

[14] Taking all these factors into account, I regard it as fair, exercising my wide discretion in terms of section 162(1) of the Act, to make an order as to costs against the applicant.

[15] In the event, the application succeeds and the order given by Landman J on 12 June 1998 is rescinded and set aside. The applicant is to pay the respondent's costs.

_________________

BASSON J

JUDGE OF THE LABOUR COURT OF SOUTH AFRICA

SINGED AND DATED AT JOHANNESBURG THIS 2ND DAY OF FEBRUARY 1999

DATE OF PROCEEDINGS: 9 NOVEMBER 1998

DATE OF JUDGMENT: EX TEMPORE

ON BEHALF OF APPLICANT: MR D J LINDEMANN

Instructed by: Erasmus Jooste Inc. Klerksdorp

ON BEHALF OF RESPONDENT: MR M UPTON

Instructed by: Ed Meintjies & Van Zyl

---