IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG			CASE NO. J656/97

In the matter between :

Speciality Metals CC						Applicant

and

Raymond Linda Ntshangane				Respondent

                                                                              
	
JUDGEMENT  

Mlambo J :

[1]	The application before me is for rescission of my order / judgement 	handed down on 5 May 1998.  On that day the Registrar had set down for hearing the Applicant’s application for leave to appeal. The Applicant and its attorneys failed to attend those proceedings and the Court dismissed the application after hearing representations from the Respondent’s representative.  In the present proceedings the Applicant seeks to rescind the order dismissing the application for leave to appeal on 5 May 1998.  

[2]	As Applicant seeks an indulgence from this Court for its default on 5 May 1998 it must show sufficient cause.  Applicant must therefore :-

(I)	present a reasonable and acceptable explanation for its default on 5 May 1998;
(ii)	on the merits, have a bona fide claim which, prima facie, carries some prospect of success.
See Chetty v Law Society of Transvaal 1985(2) 75A (A) 	and Terrace Auto Services Centre (Pty) Ltd and Others 
2
v First National Bank of South Africa Ltd 1996 (3) SA 			165 (W).   	

[3]	EXPLANATION FOR DEFAULT :

Applicant states that it and its attorneys were not aware that the application for leave to appeal was set down for hearing on 5 May 1998.  The Applicant states that : 

1.	The first occasion it became aware that the application had been set down on 5 May 1998 was when Respondent tendered his services on 19 May 1998.
2.	Applicant thereafter contacted its attorneys Snyman van der Heever Heyns Inc who were also surprised as they were unaware of the set down on 5 May 1998. 
3.	Applicant’s attorneys (to whom the notice of set down was  sent by telefax) had moved offices during the period when the notification was telefaxed i.e. the last week of April and first week of May 1998.  Such attorneys telefax machines 	were apparently disconnected on 29th April 1998 and became operative again on 5 May 1998.

[4]	The notice of set down in question though dated 8th April 1998 was 	sent by telefax to Applicant’s attorneys on 30 April 1998. The telefax transmission slip reflects the letters “O.K.” meaning that the document 	was successfully transmitted.  The slip also reflects the number 442 	3625 which is the telephone number of Applicant’s attorneys.  These 	attorneys telefax number is 442 3711 which is the number used by the 	Registrar when transmitting the notice.

[5]	The two numbers 442-3711 and 442-3625 are the Applicant’s attorneys 	telefax and telephone numbers respectively.  Mr Zibi, who appeared for the Respondent in the present proceedings and on 5 May 1998 argued that it is a normal occurrence that when transmitting documents by telefax the number appearing on the telefax transmission report is not 	always the telefax number of the recipient but its telephone number.  I cannot fault this submission.
3

[6]	Though Applicant does not say so but the impression created in its 	affidavit is that the notification was not received by its attorneys or that 	if it was received it was lost amongst other documents in the confusion 	created by moving offices.  The Applicant also appears to be saying that it relied on its attorneys to advise it of developments in the matter.  	As its attorneys were unaware of the set down so was it.

[7]	The reason why a telefax transmission report exists is either to inform the sender that the transmission was successful or not.  A transmission report also informs the sender of the total number of pages successfully transmitted. It also informs the sender if the transmission was unsuccessful. In this matter the transmission report reflects that 1 page was successfully transmitted.  If it is correct that the Applicants telefax 	machines were disconnected between 29 April 1998 and 5 May 1998 	then the Registrar would have been able to transmit the notice of 	set 	down on 30 April 1998.  The transmission report would reflect a failed 	transmission.  This is not the case.  It must therefore mean that the 	transmission was successful.  I must therefore find that the notice of set down was successfully transmitted to Applicant’s attorneys offices. Anyway there is no denial in Applicants affidavit that the notice of set down was received.  All that is said is that the attorneys were moving offices and the telefax machine was disconnected.

[8]	It is clear therefore that Applicant did not itself come to Court as it was not advised of the date by its attorneys.  Is this sufficient cause to grant  Applicant the indulgence sought.  The Applicant has not indicated what it did on its own to ensure that the matter was properly attended. It seems that the Applicant was content to sit back and expect its attorneys to attend to everything.

[9]	If one considers that the order sought to be overturned on appeal was 	granted on 28 November 1997 and the full reasons were handed down on 3 February 1998,  the application for leave to appeal was launched 	on 2 December 1997. With this background I find it strange that the Applicant through his attorneys attended Court on 12 March 1998 for 4 the purpose of arguing a review application whose prospects of success 	were found to be non-existent in the order of 28 November 1997. This was extensively dealt with in the reasons which followed on 3 February 1998. It boggles the mind that applicant and its attorneys could have expected the review application to be heard before the order of 28 November 1997 and subsequent judgement had been overturned on appeal. On the 12 March 1998 Tipp A.J. informed applicant’s representative that the review application could not be heard before the 	order of 28 November 1997 was set aside on appeal.

[10]	One would have expected applicant and its attorneys to have requested 	the Registrar to enrol the application for leave to appeal first.  No enquiry was initiated as to when such application was to be enrolled. This leads one to the conclusion that the applicant did nothing on its part to ensure that the matter is prosecuted diligently.  Anyway as long 	as nothing happened the Applicant’s interests were not compromised as it was undergoing no hardship.  The Respondent, on the other hand, was going through hardship as he is earning no income for himself and 	his family.  Testimony is the fact that in May 1998 he tendered his services after the application for leave to appeal was dismissed. The 	Applicant is therefore not entirely blameless.  See the comments of 	Nugent J in MM Steel Construction CC v Seawusa and Others 1994 (4) LLC 16 (LAC).

[11]	BONA FIDE CLAIM AND PROSPECTS OF SUCCESS :

The Applicant argues that its application for leave to appeal was bona 	fide. The Applicant further argued that its prospects of success were 	reasonably good in its appeal to the Labour Appeal Court.  This 	argument is premised on the assumption that the Labour Appeal Court could decide that it is open to this Court to review arbitration awards on any ground permissible in law in terms of section 158(1)(g).  The Labour Appeal Court has now ruled in the opposite direction.  I’m further of the view that my reasoning and findings on the merits will not be interfered with by the 	Labour Appeal Court.  In view of the aforegoing I do not agree that the Applicant has reasonable prospects 	of success in an appeal to the Labour Appeal Court.

[12]	A further consideration is that of fairness to both parties.  This also 	impacts on the claim by Applicant. While it suits the Applicant if this 	matter drags on this has dire consequences for Respondent.  He was 	dismissed on 9 January 1997 and to this day remains out of 	employment despite having been successful at the CCMA.  It becomes 	very clear that the Respondent is suffering an injustice if one further considers  that the Applicant threatened to launch a review application 	but didn’t do so without complying with the award.  It was after 	Respondent had come to this Court seeking relief in terms of section 	158(1)(c) that Applicant launched its review application.  This does not 	indicate any bona fides by Applicant.

[13]	I am satisfied therefore that no sufficient cause has been shown to 	rescind my order of 5 May 1998.  I therefore dismiss the application 	with costs.

MLAMBO J
JUDGE : LABOUR COURT OF SA

DATE OF HEARING :		29 JUNE 1998
DATE OF JUDGEMENT :	17 SEPTEMBER 1998
FOR THE APPLICANT :	MR MALAN of SNYMAN van der 					HEEVER HEYNS INC.
FOR THE RESPONDENT :	MR ZIBI of SOUTH AFRICAN 						COMMERCIAL CATERING AND 					ALLIED WORKERS UNION 

This judgement is available on the internet at www.law.wits.ac.za/labourcrt