Not reportable

THE LABOUR COURT OF SOUTH AFRICA, HELD AT CAPE TOWN

Case no: C 472/2016

In the matter between:

NATIONAL GLASS DISTRIBUTORS (PTY) LTD	Applicant

And

NATIONAL UNION OF METALWORKERS OF

SOUTH AFRICA	First Respondent

SANDILE TUPANA AND OTHERS	Second and Further Respondent
Date of Hearing: 6 August 2020 (In chambers)

Date of Judgment: This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing down judgment is deemed to be 10h00 on 12 August 2020.

Summary: (Rescission application – condonation for late referral not sought nor condoned by court in default judgment – default order made in error in absence of a party)

JUDGMENT

LAGRANGE J

Introduction

[1]	This is an opposed application to rescind a default judgement handed down on 18 October 2018. The respondents applied for default judgment on 14 August 2018.
[2]	The default judgment found that the second to further respondents’ dismissals on 19 February 2016 were substantively and procedurally unfair and ordered their retrospective reinstatement to the date of the dismissals.
[3]	The parties agreed in the light of measures to curb the spread of the COVID- 19 virus that the application could be dealt with on the papers without the need for a hearing.

The rescission application

[4]	The company raises a number of reasons why the default judgment should be rescinded:
4.1	There was no proper service of the statement of case for a variety of reasons.
4.2	Insofar as there was a proper service of the referral it was more than 90 days after the issue of a certificate of outcome and therefore the court had no jurisdiction in the absence of the late referral being condoned.
4.3	The company was incorrectly cited.

[5]	Dealing with the last issue, the applicant claims that it was erroneously cited as National Glass Distributors (Pty) Ltd, whereas it’s correct designation is Natglass Distributors (Pty) Ltd. However, in the letters confirming the employment of the individual respondents, it is specifically stated that they were employed by ‘National Glass Distributors at Eagle Door Cape Town’. However, contrary to the description of itself in the record of service letters, the applicant still claims that the second to further respondents were in fact employed by Natglass Processing and Manufacturing [Pty] Ltd. The respondents also note that no objection was made at the conciliation of the dispute when the certificate of outcome was issued describing the applicant as National Glass (Pty) Ltd.
[6]	Whether the applicant was correctly cited, I am satisfied that whether it’s correct identity is National Glass Distributors [Pty] Ltd or Natglass Distributors (Pty) Ltd or Natglass Processing and Manufacturing [Pty] Ltd as it  now seems to claim, that there was no confusion on its part that it was being sued by the second and further respondents, who were its former employees and that it suffered no prejudice thereby, which could not be amended by an application to amend the citation.
[7]	It is clear that the union made a number of attempts to serve the statement of case on the applicant. The union attempted to do this by way of faxing the referral, attempting to serve it physically on a member of management and by registered mail. The union also served a copy electronically on the applicant, which the applicant does not dispute receiving but claims correctly that this does not amount to a permissible form of service in terms of rule.
[8]	The service on Mr Vosloo on 4 August 2016 was unsuccessful as he refused to receive it and no copy was left at the premises according to the affidavit of the official who attempted to serve it, as required by Rule 4(b)(i).  The service by telefax was on 28 July 2016 and appears to have been successfully transmitted. The applicant does not deny receiving it but merely states that the service affidavit did not confirm that the sender made contact with it to confirm that it was received. The applicant does not claim the fax number was incorrect nor offer any explanation why it might not have been
received despite the successful transmission slip. In circumstances where the applicant does not deny receiving the faxed document there is no reason to assume merely because the directive was not complied with in terms of confirming delivery with someone, that it was not received on 28 July 2016.
[9]	The union also emailed the statement of case to the applicant on 19 July 2016, but as mentioned, the applicant was entitled to refuse to accept this as proper service.
[10]	The question remains is whether the referral was served in time when it was faxed on 28 July 2016. The certificate of outcome was issued on 20 April 2016. Accordingly, the referral should have been properly made by 19 July 2016. I understand the respondents’ complaint that in fact it had been emailed and received on that date, but the fact remains that this did not amount to proper service and accordingly, the first service in compliance with Rule 4 was on 28 July 2016. That was not materially late and there is a strong likelihood of such a delay being condoned, but no condonation was sought and in the absence of the late referral being condoned by the court, the court regrettably had no jurisdiction to hear the matter as the provisions  of s 191(11)(a) of the Labour Relations Act, 66 of 1995 (‘the LRA’), are peremptory. There is no doubt that had the court been aware that the referral was out of time it would have required the respondents to bring a condonation application.
[11]	In the circumstances, it is not necessary to consider if the applicant has a bona fide defence or has shown good cause. Default judgment was clearly granted without the court having satisfied itself that it had jurisdiction and stands to be set aside under s 165(a) of the LRA.

Order

[1]	The default judgment handed down on 18 October 2018 is rescinded.

[2]	No order is made as to costs.

Lagrange J Judge of the Labour Court of South Africa

Representatives -		
For the Applicant:	L Voultsos instructed by Deon van der Merwe Attorneys	

For the Third Respondent:	
A Motane of NUMSA