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[2022] ZALMPPHC 57
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Chairperson of the CCMA Governing Body and Others v Phoshoko (6029/2019) [2022] ZALMPPHC 57 (28 October 2022)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
REPORTABLE:
NO
OF
INTEREST TO THE JUDGES: /NO
REVISED
CASE NO: 6029/2019
In the matter between:
CHAIRPERSON OF THE
CCMA GOVERNING BODY
1
st
APPLICANT
THE CCMA GOVERNING
BODY
2
nd
APPLICANT
COMMISSION FOR
CONCILLIATION, MEDIATION
AND ARBITRATION
(CCMA)
3
rd
RESPONDENT
NATIONAL DIRECTOR OF
THE CCMA
4
th
RESPONDENT
and
LLALA PETER PHOSHOKO
RESPONDENT
JUDGMENT
MASHABA AJ
[1]
The Applicants in this matter have initiated an application for
rescission of judgment
of the Honourable Justice Semenya which was
granted on 20 May 2021. The recission application is brought in terms
of Rule 42 (1)
(a) and (b) of the Superior Court Practice.
[2]
The Applicants seek to rescind a review application judgment which
was brought in
terms of Rule 53 of the Superior Court Practice by the
Respondent. Some issues leading to the granting of the review
application
judgment on 20 May 2021 are common cause and I will
accordingly not divulge much into the historical background leading
to the
granting of the judgment save to mention a few salient issues.
[3]
On 10 May 2021 the Respondent served a Notice of Set Down for the
review application
on the Applicants by hand-delivering the said
notice which was acknowledged by one Ms Petunia Soni. The said Notice
of Set Down
notified the Applicants that the matter would be heard in
the Polokwane High Court on 20 May 2021 on an unopposed basis.
[4]
it is worth noting that this Notice of Set Down is one of the many
Notices of Set
Down which were served on the Applicants but the
Applicants did not file opposing papers against the review
application. On 20
May 2021 the Honourable Justice Semenya made an
order in terms of the Respondent’s Notice of Motion. According
to the Respondent
the Honourable Justice Madam Semenya made an order
in terms of the Respondent’s Notice of Motion because the
Respondent had
not prepared a draft order to be made an order of
Court. I will revert to this issue later in my judgment as it goes
into the nub
of this recission application.
[5]
It is the Applicants’ argument that it is in the interest of
justice that the
order granted on 20 May 2021 be rescinded because
the review application was prematurely set down and disposed of on
unopposed
basis contrary to the requirements of Rule 53 (5) (a) which
constitute an error in terms of Rule 42 (1) (a) of the Superior Court
Practice. The Applicants further argue that the High Court had no
jurisdiction to grant the relief sought in paragraphs 1 –
4 of
the order. The Applicants’ argument is that the said paragraphs
of the order (paragraphs 1–4) amounted to a review
of the CCMA
proceedings which fell within the exclusive jurisdiction of the
Labour Court. The Applicants further argued that there
was a patent
error, in terms of Rule 42(1)(b) of the Rules, when the order was
granted.
[6]
It is common cause that when the Court granted the order in favour of
the Respondent
a record of the CCMA proceedings had not yet been
filed. These are the very proceedings which the Court reviewed. This
is one of
the arguments by the Applicants to indicate the error in
the order. How could a Court reviewing the findings of the CCMA make
an
order to review when a record of the proceedings (to be reviewed)
had not been presented to the court granting the review application?
[7]
The Applicants submitted that the order was granted on unopposed
basis, despite the
fact that Rule 53 (5) (a) required a party who
decides to oppose the application for review to deliver its Notice of
Intent to
Oppose within 15 days after receipt of an amendment of the
Notice of Motion and supplementary grounds of review, if any pursuant
to applicant consideration of the report delivered in terms of Rule
53(1)(b).
[8]
The Applicants’ argument is that, in terms of Rule 53(5)(b), a
party desirous
in opposing the review application must deliver an
answering affidavit within 15 days after expiry of the timeframes
referred to
in Rule 53 (4) opposing the review application and such
party is allowed to amend, and to vary the terms of his or her Notice
of
Motion and supplement the supporting affidavit, after receipt of a
record. The Respondent does not dispute that when an order to
review
the CCMA findings was granted the Court was not in possession of the
record of the CCMA proceedings. It is only after the
party has
complied with the provisions of Rule 53 (1) (b), that the other party
may decide to oppose the review applications. Such
party is then
required to deliver Notice of Intention to Oppose and an answering
affidavit.
[9]
The Applicants further argued that the Court committed a patent error
in terms of
R 42 (1) (b) in that when granting the order, the order
itself was couched as if the Court had heard argument and submissions
from
both Counsel for the Applicants and Counsel for the Respondent.
It is common cause that there was no appearance on behalf of the
Applicants. Furthermore, despite the fact that a final order was
granted, the order directs the Applicants to deliver their Notice
of
Intention to Oppose, to dispatch the record, to deliver answering
affidavits, within the timeframes stated therein.
[10]
The Applicants’ Counsel submitted that the order should
therefore be rescinded or varied,
to the extent of the ambiguity and
the error. During submissions of this matter the Respondent, who
appeared in person, conceded
that there was indeed a patent error on
the court order. The Respondent submitted that the error occurred
because after making
submissions (during the review application
hearing) he did not have a draft order prepared for it to be made an
order of court.
As a result the Presiding Judge made an order in
terms of the Notice of Motion. According to the Respondent this error
was not
Court’s error but the Registrar’s error who typed
the court order in its current state.
[11]
Rule 42 of the Superior Court Practice provides as follows:
(1)
The court may, in addition to any other powers it may have, mero motu
or upon the application of any
party affected, rescind or vary:
(a)
An order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby;
(b)
an order or judgment in which there is an ambiguity, or a patent
error or omission, but only to the
extent of such ambiguity, or
omission;
(c)
an order or judgment granted as a result of a mistake common to the
parties.
(2)
Any party desiring any relief under this rule shall make application
therefore upon notice to all parties
whose interests may be affected
by any variations sought.
(3)
The court shall not make any order rescinding or
vary any order or judgment unless satisfied that all parties
whose
interests may be affected have notice of the order proposed.
[12]
The court has a discretion whether or not to grant an application for
rescission under this subrule.
[1]
The purpose of the rule is to correct expeditiously and obviously
wrong judgment or order.
[2]
Once
one of the grounds in R 42(1)(a)-(c) has been established the
rescission of the judgment should be granted. Once the court
holds
that an order or judgment was erroneously sought or granted, it
should without further rescind or vary the order
[3]
and it’s not necessary for a party to show good cause for the
subrule to apply.
[4]
[13]
It is accepted that in many cases an order erroneously granted may be
apparent in the record
of the proceedings. However in deciding
whether a judgment was errorneously granted a court is not confined
to the record of the
proceedings.
[5]
[14]
It is clear from the facts of this case that the order sought to be
rescinded was erroneously
granted. This point the Respondent also
conceded to. However, the argument of the Respondent, as I understood
him, was that the
judgment or order of the Honourable Justice Semenya
should not be set aside or rescinded in totality. But only those
paragraphs
in the court order which are ambiguous should be
rescinded.
[15]
What the Respondent seeks to achieve is that those parts of Madam
Justice Semenya’s court
order (which are not ambiguous) should
still be declared valid and operational, and only those portions of
the judgment which are
found to be ambiguous should be rescinded.
Deleting half of the paragraphs in the court order does not address
the ambiguities
in the order. On the contrary I will be deleting and
changing the true meaning of Madam Justice Semenya’s court
order and
substituting it with my new order and meaning.
[16]
Subrule 42(1)(b) is primarily intended to address those cases where a
court has pronounced a
final judgment or order and as a result has no
authority to correct, alter or implement it by virtue of it being
functus officio.
This subrule has created an exception to this
general principle. This subrule clothes the court with discretionary
power to correct
errors in its judgment or order but this power is to
be exercised sparingly.
[6]
[17]
The Appellate Division in the case of Firestone SA (Pty) Ltd v
Gentiruco AG
1977 (4) SA 298
(A) at 306 – 7 recognised a number
of exceptions to the general rule that once a court has duly
pronounced a final judgment
or order, it itself has no authority to
correct, alter or supplement it. These are the exceptions which the
Appellate Court indicated:
-
[a]
The principal judgment or order may be supplemented in respect of
accessory or consequential matters,
for example, costs or interest on
the judgment that which the court overlooked inadvertently and to
grant.
[b]
The court may clarify its judgment or order if, on the proper
interpretation, the meaning thereof
remains obscure, ambiguous or
otherwise uncertain, so as to give effect to its true intention,
provided it does not thereby alter
the sense and substance of the
judgment or order.
[c]
The court may correct a clerical, arithmetic or other error in its
judgment or order so as to
give effect to its true intention.
[d]
Where counsel has argued the merits and not the cost of the case, but
the court has made an order
regarding the costs, it may thereafter
correct, alter or supplement that order.
[18]
The matter in
casu
is in contrast to the exceptions that I have highlighted above. The
facts of this case are clearly distinguishable from the exceptions
in
the
Firestone
case.
Setting aside half of Madam Justice
Semenya’s order would not be clarifying the order or correcting
some type of clerical
or arithmetical errors in such judgment. By
amending it would definitely be giving a new meaning and
interpretation to the said
order. The appropriate person who is in
the proper position to give a proper interpretation and meaning to
the judgment is not
me but the judge who handed down the order (Madam
Justice Semenya).
[19]
In the circumstances I am satisfied that the Applicants have proven
that the order has been erroneously
granted and stands to be
rescinded.
[20]
I accordingly grant an order for the rescission of the judgment of
Semenya J granted on 20 May
2021.
MG Mashaba
Acting Judge of the
High Court
Limpopo Division,
Polokwane
APPEARANCES:
HEARD ON: 15/09/2022
FOR THE APPLICANTS:
ADVOCATE RB MPHELA
INSTRUCTED BY: DIALE
MOGASHOA ATTORNEYS, PRETORIA
C/O: PMK TLADI
ATTORNEYS, POLOKWANE
FOR THE RESPONDENT: IN
PERSON
DELIVERED: 28 OCTOBER
2022
[1]
Tshivhase
Cabral Council v Tshivhase
[1992] ZASCA 185
;
1992 (4) SA 852
(A) at 862J – 863
A; First National Bank of Southern Africa Ltd v Van Rensberg NO
1994
(1) SA 677
(T) at 681 F.
[2]
Bakoven
Ltd v GJ Howes (Pty) Ltd
1992 (2) SA 466
(E) at 471E–F.
[3]
Tshabalala
v Peer
1979 (4) SA 27
(T) at 30 D; Bakoven Ltd v GJ Howes (Pty) Ltd
1992 (2) SA 467
(E) at 471 G
[4]
Topol
v LS Group Management Services (Pty) Ltd
1988 (1) SA 639
(W) at 650
D – J; Promedia Drukkers & Uitgewers (Edmns)Bpk v
Kaaimowitz
1996 (4) SA 411
(C) at 417 I; Zuma v Secretary of the
Judicial Commission of Inquiry into the Allegations of State
Capture, Corruption and Fruad
in the Public Sector Including Organs
of State and Others (CCT 52/21) [2021] ZACC 28 andMutebwa v Mutebwa
and Another
2001 (2) SA 193
(TkH) at 199F-G par 15.
[5]
Mutebwa
v Mutebwa 2001(2) SA 193(Tk) at 201 A-B.
[6]
Ex Parte Barclays Bank
1936 A.D 481
at 485; Firestone SA (Pty) Ltd v
Gentiruco AG
1797 (4) SA 298
(A) at 308.