3. The arbitrator
granted default judgement against the Applicant on the 19th
October 2007 for payment
of the total sum of of E6,819-00 to the 1st
Respondent.
4. On the 27th
November 2007 the 1st
Respondent applied to
the Industrial Court for the default arbitration award to be made an
order of court. The 1st
Respondent filed an
affidavit attesting that the default award had been served on one
Futhi Fakudze, an employee of the Applicant above the age of 16
years.
5. The Applicant did not
appear to oppose the application, and the default award was entered
as an order of court. On 29th
November 2007 the 1st
Respondent's
representative issued a writ of execution.
6. The
Applicant has now applied to the court for an order:
6.1. Dispensing with
the usual forms and procedures relating to the institution of
proceedings and allowing this matter to be heard as a matter of
urgency.
6.2. Condoning any
non-compliance with the rules of Court.
6.3. Pending
finalization of the application for rescission of default judgement
for the above matter lodged at the CMAC Manzini under CMAC ref.
577/07 execution of the Warrant of execution pursuant to the default
be stayed.
6.3.1. That a rule
nisi do hereby issue calling upon the Respondents to show cause on
such date or time as may be determined by the above Honourable
Court, why prayers 6.3 should not be made final:
6.4. The Deputy
Sheriff be hereby ordered to return Applicant's goods in the event
attachment and removal has been effected.
6.5. Costs of suit
only in the event the application is opposed.
6.6. Further and/or
alternative relief.
87. In
his founding affidavit, the Applicant's director states that he only
became aware of the default arbitration award on the 21st
November 2007. After he
was served with the application to make the award an order of court,
he enquired from his staff and was told that the award had been
received and placed on his desk. He then searched his desk and found
the award. He immediately instructed his lawyers to apply for
rescission of the default award, and such application was served on
the Commission on the 27th
November 2007. His
lawyers however neglected to attend at court to oppose the award
being made an order of court.
8. The Applicant asks
the court to stay execution pending determination of the rescission
application by the Executive Director of the Commission.
9.
The 1st
Respondent's
counsel Mr. Mkoko opposes the application and argues forcefully that
the rescission application was filed out of time, since it was
delivered on 27th
November
2007, more than 14 days after the default award was served on the
Applicant. Since the Executive Director of the Commission has no
power to condone a late rescission application, no valid rescission
application is pending. Mr. Mkoko referred to the judgement of the
Industrial Court in the case of : VIP
Protection Services v Nkosinathi Dlamini (IC case No. 694/2006)
in support of his
argument, and he asked that the application be dismissed.
10. In
considering its ruling, the court has had occasion to closely peruse
the documents filed of record in the court file. Two important
issues came to our notice:
10.1. The Writ of
Execution dated 29th
November was issued out
by the 1st
Respondent's
representative and addressed to the Registrar of the Industrial
Court. It was not issued out and signed by the Registrar of the High
Court, as required by law. Prima facie, the writ is a complete
nullity.
10.2. The affidavit
filed by the 1s
Respondent as proof of
service of the default award is also prima facie defective. The
affidavit does not state that service was effected on the Applicant
or at the Applicant's premises. It does not state that Futhi
Fakudze, the employee of the Respondent upon whom service was
effected, was apparently in charge of the premises at the time. It
does not state that the original award was exhibited, or that the
nature and exigency thereof was explained to Futhi Fakudze.
11. The upshot of these
defects is that there is no proper proof before the court as to when
precisely the default award was served on the Applicant.
12. Section 81(9) of the
Industrial Relations Act 2000 (as amended) states that any party
against whom a default arbitration award has been entered in terms
of section 81 (7) may, "within
14 days from the date on which he had knowledge of such decision",
apply
for the award to be rescinded.
13. Due to the prima
facie defective nature of the 1st
Respondent's affidavit
of service, and the assertion of the Applicant's director that the
Applicant company (as distinct from its employee, Futhi Fakudze)
only had actual knowledge of the award on the 21st
November 2007, we are
not persuaded at this stage that it has been established that the
rescission application was made out of time. This is an issue that
will have to be determined by the Executive Director of the
Commission in due course when he considers the application for
rescission.
14. We are satisfied
that the Applicant has made out a prima facie case for a rule nisi
with interim relief.
15. A rule nisi issues,
returnable on Thursday 13th
December 2007 at 9.30
a.m., calling upon the Respondents to show cause why a final order
should not be granted:
15.1. Staying execution
of the court order granted on 27th
November
2007 under Case No. 524/07 pending final determination of the
rescission application lodged at CMAC Manzini under CMAC reference
No. 577/07.
15.2. Setting aside the
writ of execution issued on 29 November 2007 under Case no. 524/07.
15.3. Costs of suit.
16. Paragraph 15.1 shall
operate as an interim order with immediate effect pending
determination of the rule nisi.
17. The Deputy Sheriff
Bheki Mavuso is directed and ordered to restore all the goods which
he attached and removed under the writ of execution issued on the 29
November 2007 under case No. 524/07 to the possession of the
Applicant forthwith.
The members agree
PETER
R. DUNSETH
PRESIDENT
OF THE INDUSTRIAL COURT
