HELD AT JOHANNESBURG CASE NO: C77/2006. SPANJAARD LIMITED Applicant JUDGMENT. 2. The applicant has raised the following grounds for leave to appeal:

Transcription

1 IN THE LABOUR COURT OF SOUTH AFRICA HELD AT JOHANNESBURG CASE NO: C77/2006 In the matter between: SPANJAARD LIMITED Applicant and RETIEF OLIVIER NATIONAL BARGAINING COUNCIL FOR THE CHEMICAL INDUSTRY DAPHNE GESTETNER First Respondent Second Respondent Third Respondent JUDGMENT FRANCIS J 1. This is an application by the applicant for leave to appeal against the whole of my judgment handed down on 3 November This was after I had dismissed the applicant s review application with costs. 2. The applicant has raised the following grounds for leave to appeal: 1. The Learned Judge erred in holding that because there was Labour Court authority that supported the approach adopted by the First Respondent in not examining the reason for Applicant s non-attendance once it was established that the Applicant had received notice of the arbitration, his (First Respondent s) conclusion that the rescission application was to be dismissed, was the correct one; 2. The Learned Judge should have considered the correctness of the said authority

2 2 in the light of his own judgment in Foschini Group (Pty) Ltd v CCMA & Others 2002 (23) ILJ 1048 (LC) and that of an acting judge in Northern Province Local Government Association v CCMA & Others (2001) 22 ILJ 1173 (LC) and determined which of the two approaches is the correct one. Since the approach adopted would be decisive of the fate of the review application the Learned Judge s failure to consider the two approaches an omission which renders his judgment capable of being overturned on appeal; 3. There is a reasonable prospect that the Labour Appeal Court will rule that the Learned Judge approach in the Foschini matter referred to above was the correct one and reverse the order he has made. 4. The Learned Judge erred in holding that examples of default award erroneously made did not cover the situation, jurisdictional objection and explanations presented by the Applicant for it s absence in it s rescission application. 5. The Learned Judge erred in holding that the Applicant had failed to attend where a correct fax number was used and due to inefficiencies within the Applicant s administration. 6. The learned Judge erred in holding that the commissioner (First Respondent) was not obliged to decide and deal with the issue in his rescission ruling as to whether it had jurisdiction to entertain the referral based on the Applicant s position as set out in it s rescission application that it was not covered by the Second Respondent s scope of jurisdiction. 3. In terms of section 166(1) of the Labour Relations Act 66 of 1995 (the Act), an appeal lies from a judgment of the Labour Court to the Labour Appeal Court with leave of the Labour Court. The traditional test in deciding whether leave to appeal should be granted

3 3 is whether there is a reasonable prospect that another court may come to a different conclusion to that reached by me. 4. The crisp issue in this application for leave to appeal is whether the commissioner s reliance on a Labour Court judgment is reviewable. The commissioner in dismissing the applicant s rescission application had relied on Shoprite Checkers (Pty) Ltd v CCMA & others (2005) 26 ILJ 1119 (LC). The court had found that in an application for rescission brought under section 144 of the Act, an applicant is not required to show good cause. 5. I agree that there are Labour Court judgments dealing with rescission applications brought in terms of section 144 of the Act stating that good cause is a requirement in a rescission application. The first judgment that the applicant had referred me to is Foschini Group (Pty) Ltd v CCMA & Others 2002 (23) ILJ 1048 (LC) which was an application to review a commissioner s ruling on several grounds. I had found in that judgment that an applicant in a rescission application brought under section 144 of the Act had to show that he has a bona fide defence. I had followed the decision of Northern Province Local Government Association v CCMA & Others (2001) 22 ILJ 1173 (LC) where Sutherland AJ dealt with the review of a rescission ruling made by a commissioner. In dealing with the requirements for a rescission application he had placed reliance on the practice of civil courts. He relied on a passage in the fourth edition of Herbstein & Van Winsen where it is stated that good cause is a requirement. Rule 42 of the High Court Rules deals with Variation and Rescission orders. Rule 42 states that the court may, in addition to any other powers it may have, rescind an order or judgment granted erroneously etc. The reference to in addition to any other powers it may have

4 4 is a reference to the court s common law powers. There is no reference in either sections 165 or 144 of the Act to in addition to any other powers it may have. The requirement of good cause was introduced in Rule 16A(2)(d) of the Rules of the Labour Court. The CCMA does not have such an equivalent rule. Commissioner s of the CCMA are creatures of Statute and derive their powers from the Act. They do not have common law powers. The two judgments that the applicant is clearly seeking to rely on wrongly proceeded on the basis that good cause was a requirement in a rescission application brought in terms of section 144 of the Act. 6. The issue of good cause was pertinently dealt with in the Shoprite Checkers (Pty) Ltd where the court correctly, in my view, found that good cause is not a requirement in section 144 applications. I have in subsequent judgments found that good cause is not a requirement in section 144 applications. 7. In Superb Meat Supplies CC v Maritz (2004) 25 ILJ 96 (LAC) the court said at paragraph 15 that the court accepted that when the court considers whether a judgment has been granted erroneously, it does not investigate whether good cause has been established or whether there has been wilful default. See also Lumka & Associates v Maqubela (2004) 25 ILJ 2326 (LAC). 8. I have carefully considered the grounds for leave to appeal, the parties submissions and my judgment and am not persuaded that another court may come to a different conclusion to that reached by me in my judgment.

5 9. In the circumstances I make the following order: 5 1. The application for leave to appeal is dismissed with costs. FRANCIS J JUDGE OF THE LABOUR COURT OF SOUTH AFRICA FOR THE APPLICANT : R BEATON INSTRUCTED BY DE JONGH ATTORNEYS FOR RESPONDENT : RGL STELZNER INSTRUCTED MAURICE PHILLIPS WISENBERG ATTORNEYS DATE OF HEARING : 25 JUNE 2007 DATE OF JUDGMENT : 27 JUNE 2007