25-JUL-07
Edgars Consolidated Stores (Pty) Ltd v
Kalanda & others
Case No. C 726 /
05
Judgment Date: 15 March 2007
Jurisdiction: Labour Court, Cape Town
Judge: Nel AJ
Subject: Appeal and Review
Issues:
Whether a fax transmission slip is sufficient evidence to conclude that a party has been notified of the setting-down of a hearing.
Summary of Facts:
A CCMA Commissioner made an arbitration award in the absence of the applicant company. The applicant applied for a recession of the award, alleging that it had not received notification of the proceedings. The Commissioner, in rejecting the application that the applicant had not been notified, relied solely on the telefax transmission slip in the CCMA file as proof of service.
The applicant claimed that the Commissioner’s reliance on the document amounted to a fundamental misdirection and that the finding he reached was not rational or justifiable in relation to the matter before him.
Summary of Judgment:
The Court agreed with the applicant. It found that there was no evidence as to who the author of the transmission slip was; there was no affidavit from the author to say what it was that was transmitted. The Court found that that “on the face of the document, the reader cannot without more establish what it is that was forwarded…”.
In finding that a facsimile transmission slip does not amount to proof of service, the Court:
• ruled that the recession
award is reviewed and set aside;
• directed that the claim be re-enrolled for arbitration;
and
• ordered the first respondent to pay the applicant’s costs.
