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[2019] ZAECPEHC 73
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Viviers v Minister of Labour, Department of Labour and Another (2902/2018) [2019] ZAECPEHC 73 (12 November 2019)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case No.:
2902/2018
In
the matter between:
MARLENE
VIVIERS
Applicant
and
MINISTER OF LABOUR,
DEPARTMENT
OF LABOUR
First Respondent
DIRECTOR-GENERAL,
DEPARTMENT
OF LABOUR
Second Respondent
JUDGMENT
(Rescission of Order dated 22 October 2019)
NTSEPE
AJ:
1.
This matter came before me on 22 October 2019 as an unopposed motion
wherein
Ms I Bands appeared for the applicant and moved for an order
in terms of the Applicant’s Supplementary Notice of Motion
dated
25 April 2019.
2.
I was, however, not satisfied with some aspects of the prayers sought
in the
said Notice of Motion whereafter the matter stood down for Ms
Bands to prepare a draft order dealing with the Court’s
concerns.
3.
A Draft Order was prepared on behalf of the Applicant which was
thereafter made
an order of Court in the absence of the Respondents
(“the Order”).
4.
It later appeared to the Court that there were omissions and/or
issues that may
have required the variation of the Order. Ms Bands
was requested to approach the Court in Chambers. On or about 5
November 2019
Counsel appeared in Chambers and it was brought to her
attention that the Order does not stipulate a date on which the
respondents
are to appear. Ms Bands was required to prepare a further
draft order and to confirm whether the individuals named in the Order
were indeed the incumbent Minister and Director General. Counsel
confirmed that the persons named in the order were the correct
officials, however; whilst I was considering the further draft order
(which was emailed to this Court’s Registrar on or about
08
November 2019) it appeared to me that there remain issues with the
Order and/or that the Order was erroneously granted:
4.1
The applicant seeks an order that the respondents appear and/or
render a satisfactory explanation
for failing to comply with two
previous Court Orders granted by this Court; failing which the
respondents are to be held in Contempt
of Court. However, the
supplementary affidavit filed in support of this application does not
identify/name the individuals against
whom the Contempt of Court
relief is or will be sought. In the Supplementary Notice of Motion,
the respondents are identified as
Nelisiwe Mildred Oliphant and
Thobila Lamati respectively. As it turns out, the Minister of
Labour at the date of the order,
inter
alia
; 22 October 2019, was/is Thulas
Nxesi and not the Nelisiwe Mildred Oliphant referred to and against
who the order was granted;
and
4.2
Furthermore, the Order directs the respondents to appear before Court
however, the date
on which the respondents are required to appear is
not stated therein.
5.
At the time and date on which the order was granted, the Court was
not aware
of the omissions set out above and had the Court been aware
of these omissions it would not have granted the Order.
6.
In the circumstances, the Order is
mero
muto
rescinded in terms of Uniform Rule
42 (1) (a) for reason that same was erroneously granted.
7.
The Applicant is directed to serve a copy of this judgment to the
Office of the
State Attorney, 29 Western Road, Central, Port
Elizabeth for the attention of the designated Assistant State
Attorney and or/the
Acting State Attorney within three (3) calendar
days of this order.
8.
This application is
removed from the roll with no order as to costs.
______________________________________
N NTSEPE
Acting
Judge of the High Court, South Africa
Counsel
for the Applicant:
Adv I Bands, instructed by Randell &
Associates
Port Elizabeth
Date
Heard:
22 October 2019
Date Delivered:
12 November 2019