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[2002] ZALAC 34
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Feuilherade and Others v Mthimkhulu (DA7/2002; DA8/2002) [2002] ZALAC 34; (2003) 24 ILJ 362 (LAC); [2003] 3 BLLR 213 (LAC) (20 December 2002)
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD AT
JOHANNESBURG
Case No:
DA7/2002
In the matter
between:
ANTHONY
FEUILHERADE First Appellant
FRANCOIS
DAVIDTZ Second Appellant
ENFORCE
SECURITY GROUP (PTY) LIMITED Third Appellant
and
DUMISANI
MANDLENKOSI MTHIMKHULU Respondent
AND:
Case
No: DA8/2002
In
the matter between:
ENFORCE
SECURITY GROUP (PTY) Limited First Appellant
ENFORCE
SECURITY GUARDING (PTY) LTD Second Appellant
ANTHONY
FEUILHERADE Third Appellant
FRANCOIS
DAVIDTZ Fourth Appellant
and
DUMISANI
MANDLENKOSI MTHIMKHULU Respondent
_____________________________________________________________________
J
U D G M E N T
___________________________________________________________________
GOLDSTEIN
AJA:
[1] There are
two appeals before us numbered DA7 and DA8 of 2002. The three
appellants in case DA7 are Anthony Feuilherade, Francois
Davidtz, and
Enforce Security Group (Pty) Limited
and the respondent is
Dumisani Mandlenkosi Mthimkhulu. I shall refer to them respectively
as "Feuilherade", "Davidtz",
"Enforce
Security Ltd", and "Mthimkhulu" or the respondent.
The appellants in case DA8 are Enforce Security
Ltd, Enforce Security
Guarding (Pty) Ltd, Feuilherade and Davidtz, and the respondent is
Mthimkhulu. I shall refer to the second
appellant as "Enforce
Guarding". Mthimkhulu worked as a security guard for an
entity called Enforce Security. On 15
May 2000 a written agreement
of settlement was entered into in a document which describes the
"employee party" as "D
Mthimkhulu" and the
"employer party" as "Enforce Security" and the
body of which reads:
"The respondent (Enforce Security)
undertakes to resolve this matter by reinstating the applicant (
Mthimkhulu) with full back-pay
and in accordance with the original
contract of employment. The applicant (Mthimkhulu) undertakes to
report for duty at 8.00 am
at Enforce Security. The applicant
(Mthimkhulu) will see Mr Razani upon reporting for duty who will sort
out this matter.
This writing is in full and final settlement of
the said dispute. No variation of the Agreement will be legal and
binding unless
reduced to writing." (9 and heads par 11 p 4 -
5)
Davidtz says
that during December 1999, when the dispute arose which led to the
agreement, Mthimkhulu was employed by Enforce Security
Ltd. This
amounts to saying that Enforce Security was Enforce Security Ltd at
that time. Davidtz also says that on 26 February 2000
the business
of Enforce Security Ltd including "all its employees" was
transferred to Enforce Guarding.
[2] On
14 November 2000 Mthimkhulu launched an application served on that
day on Enforce Security, in which he gave notice that he
would seek
an order in the Labour Court at Durban in the following terms (there
are grammatical errors in the prayers and I omit
the word "sic"
in this regard):
"1. That the Settlement Agreement dated
the 15
th
May 2000 ... be made an order of court in terms
of Section 158 (1) (c) of the Act, in that â
The
Respondent (Enforce Security) is ordered to pay the Applicant
(Mthimkhulu)
the back for the
period between 24
th
November 1999 to the 15
th
May 2000 on the sum pf R9 336.60.
Payment
of interest on the sum of R 9 336.60 at the rate of 15.5% per annum
from the 15
th
May 2000 to the date of payment.
Payment
of the monies due to the Applicant as a result of the Respondent's
failure to re-instate the Applicant at a rate of R1 333.80
per month
payable at the end of each and every month for the period starting
from the 15
th
May 2000 to the date of final
re-instatement.
Payment
of interest on the said sums due to the Applicant resulting from the
Respondent's failure to re-instate the Applicant at
of 15.5% per
annum as from the date of each and every amount becomes due and
payable to the date of payment.
That
the costs of this application be paid by the respondent (Enforce
Security).
Further
and or alternative relief."
The application
was unopposed and on 26 February 2001
Pillay J
gave an order
"in terms of paragraphs 1 and 2 of the Notice of Motion",
no notice of the hearing having been given to Enforce
Security.
[3] The
appeal with case number DA8/2002 relates to case number D1549/2000,
which is the case number under which the order of 26 February
2001
was sought and obtained.
[4] By
notice of application dated 4 July 2001, under case no D1549/2000,
and served on the respondent's attorney on 5 July the four
appellants
in DA8/2002 gave notice of an application in the Labour Court at
Durban in which inter alia the rescission of the order
of 26 February
2001 was sought. The answering affidavit in this application is
dated 19 July 2001 and the reply 26 July 2001.
[5] Meanwhile
and on 28 March 2001 Mthimkhulu's attorneys signed a document headed
"Notice of Application for Contempt of Court"
under case no
D1549/2000 directed against Enforce Security, Davidtz and Feuilherade
in which an order was sought that the three were
in contempt of the
order of
Pillay
J
1
,
that Enforce Security be sentenced to a fine, that Davidtz "as
the Operations Director of (Enforce Security) in his personal
capacity be committed to detention in prison for a period of .. 15
days .. by reason of his failure to secure compliance by (Enforce
Security) with (the) order of ... Judge Pillay ....., in terms
whereof (Enforce Security) was ordered to re-instate (Mthimkhulu)
on
the same terms and conditions that existed prior to dismissal".
A similar order was sought against Feuilherade "as
the Manager"
of Enforce Security for the same reason as that sought against
Davitdz. The remaining prayers read as follows:
"5. That at the expiry of the
above-mentioned ... 15 days .....(Davidtz) be brought before the
Court again to show cause why
a further period of committal should
not be imposed.
That
at the expiry of the above-mentioned ...15 days .....
(Feuilherade) be brought before the Court again to show cause why
a further period of committal should not be imposed.
That
in the event of the Respondents complying with the Order of Court
or tendering to comply therewith, (Davidtz) and (Feuilherade)
may
at their instance, be brought before the Court at an earlier date
than the expiration of the said period of .....15 .....
days.
That
(Enforce Security, Davidtz and Feuilherade) are ordered to pay to
the Applicant a sum of R9 336.60 for the period between
24
th
November 1999 and the 15
th
May 2000.
That
(Enforce Security, Davidtz and Feuilherade) are ordered to make
payment of interest on the said sum of R9 336.60 at a
rate of
15.5% per annum ex tempora morae to the date of payment.
That
(Enforce Security, Davidtz and Feuilherade) are ordered to make
payment of the monies due to (Mthimkhulu) as result of
(their)
failure to re-instate Mthimkhulu at a rate of R1 333.80 per month.
That
(Enforce Security, Davidtz and Feuihlerade) are ordered to make
payment of interest on the said sums due to (Mthimkhulu)
resulting
from (their) failure to re-instate (Mthimkhulu) at a rate of 15.5%
per annum as
from the date each and every month becomes due
and payable to the date of payment.
That
(Enforce Security, Davidtz and Feuilherade), jointly and
severally, the one paying the other to be absolved, be ordered
to
pay the costs of this Application on the scale of attorney and
client.
That
(Mthimkhulu) be granted further and/or alternative relief."
Feuilherade says
that the contempt application was served on Enforce Security Ltd on
29 March 2001. On 9 July 2001 Enforce Security
Ltd, Davidtz and
Feuilherade served a document headed "Notice of Application"
under case no D1549/2000 on Mthimkhulu's
attorneys in which they gave
notice that at the hearing of the contempt application they would
make application for the condonation
of their "failure to
deliver a Notice to Oppose and Answering Affidavit within the time
limits prescribed in Rule 7(4)(b) of
the Rules" of the Labour
Court. Attached to the notice was an answering affidavit by
Feuilherade supported by an affidavit
of a woman who described
herself as a secretary of Enforce Security Ltd. Thereafter Mthimkhulu
filed an affidavit dated 20 July 2001
opposing the condonation and
this was followed by a replying affidavit of Davidtz dated 30 July
2001.
[6] On 5
September 2001 under case number D1549/2000
Ngcamu AJ
delivered a judgment which concluded with the following order:
"1. The application is dismissed with
costs.
An
order for Contempt of Court is granted as prayed but suspended for
30 days to enable the respondents to comply with the court
order.
Should
the respondents fail to comply with the order, the applicant is
granted leave to approach the Registrar for the issue of
the
warrant of arrest."
Clearly
paragraph 1 of the order deals with the application to rescind the
order of
Pillay
J
and
paragraphs 2 and 3 deal with the contempt application referred to in
para [5] above. I turn to deal first with the appeal against
paragraph 1 of the order of 5 September 2001.
[7] Section
165 of the Labour Relations Act 66 of 1995 (the LRA) reads as follows
in so far as it is relevant:
"The Labour Court, acting of its own
accord or on the application of any affected party may vary or
rescind a decision, judgment
or order-
erroneously
sought or erroneously granted in the absence of any party affected
by that judgment or order;..."
The relevant
portion of rule 16A of the Rules of the Labour Court reads as
follows:
"(1) The court may, in addition to any
other powers it may have â
of
its own motion or on application of any party affected, rescind or
vary any order or judgment â
erroneously
sought or erroneously granted in the absence of any party
affected by it;
....;
....;
or
on
application of any party affected, rescind any order or judgment
granted in the absence of that party.
Any
party desiring any relief under â
subrule
1
(a)
must apply for it on notice to all parties whose
interests may be affected by the relief sought.
subrule
1
(b)
may within 15 days after acquiring knowledge of an
order or judgment granted in the absence of that party apply on
notice to
all interested parties to set aside the order or
judgment and the court may, upon good cause shown, set aside the
order or
judgment on such terms as it deems fit."
Section 165 of
the LRA and rule 16A (1)(a) are in substantially the same terms as
rule 42 of the Uniform Rules of Court. The question
is whether the
order of
Pillay J
ought to have been set aside on the basis of
these provisions.
[8] Mr
Van Niekerk, who appeared for the appellants, referred us in this
regard to Rule 7(6A) of the Rules of the Labour Court which
read as
follows at the relevant time:
"An application to make a settlement
agreement ... an order of court which is unopposed must be enrolled
by the registrar on
notice to both parties. The court may make any
competent order in the absence of the parties."
This sub-rule
must be contrasted with rule 7(2)(e) which provides that a notice of
application must advise the respondent
"that if it intends opposing the matter,
(it) must deliver an answering affidavit within ten days after the
application has been
served, failing which the matter may be heard in
(its) absence ..."
There is also a
practice direction issued by the then acting Judge President of the
Labour Court on 24 November 1999 which reads as
follows:
"
1. In
the light of the uncertainty created by the provisions of rule
7(2)(e) read with those of rule 7(6A) with regard to whether
or not
it is necessary to serve a notice of set down of an application on a
respondent who has not filed any answering affidavit
as required by
rule 7(2)(e) of the rules of the Labour Court, it is deemed necessary
to issue the practice direction in paragraph
2 below.
With
immediate effect, no notice of set down is required to be served on
a respondent who has not filed an answering affidavit in
application
matters."
[9] Counsel
argues that a practice direction cannot override a rule. He relies
in this regard on
Western Bank Limited v Packery
1977 (3) SA
137
(T) at 141B. In this case
Coetzee J
(as he then was) was
concerned with the problem whether he should allow a defendant in
provisional sentence proceedings to file a
second affidavit in
accordance with a practice in conflict with the applicable rule.
At 141A-B the learned Judge said:
"This practice developed under the
umbrella of the Supreme Court's inherent power and is a typical
example of its application.
There are, however, clear and definite
limits to this power, and the Court is not, merely in the interests
of justice, at large
to do or undo as it wishes in the field of
adjectival law. The Rules of Court are delegated legislation, have
statutory force and
are binding on the Court."
I find it
unnecessary to decide whether counsel is correct in contending that
the practice direction ought to have been regarded by
Pillay J
as overriden by Rule 7(6A). In my view the following apt remarks
made in respect of Rule 42(1) of the Uniform Rules of Court in
Harms:
Civil Procedure in the Supreme Court
at B-299 are
applicable:
"In applying this provision it should
always be borne in mind that the court cannot sit as a court of
appeal on its own judgment
and that it cannot review it. The
sub-rule applies typically to
ex parte
applications or others
cases where an affected party is absent, to bring the true facts to
the court's attention ..."
If
Pillay J
's
attention had been drawn to the dictum in
Western Bank Ltd
it
is by no means certain that she would have refused to follow the
practice direction. If
Ngcamu AJ
had taken account of
counsel's argument in the rescission application, this would have
been tantamount to him sitting as a court
of appeal.
[10] In his
affidavit in support of the rescission, Davidtz says that when the
application to have the agreement of 15 May 2000 made
an order of
Court was served on Enforce Security Ltd on 14 November 2000, he
immediately prepared a letter to Mthimkhulu's attorney
"setting
out the background to the matter in some detail and advising that the
application to the Labour Court would be opposed".
The letter
dated 14 November was despatched on 16 November. On 20 November, he
says, he received from Mthimkhulu's attorney a letter
dated 17
November 2000. The latter letter, directed to Enforce Security,
acknowledges receipt of the letter of 14 November, refers
to the fact
that it has 10 court days to file an answering affidavit and ends by
saying that, if it wishes to oppose the application,
the Rules of the
Labour Court must be followed, failing which the matter would "be
heard in your absence without further notice
to you". Mr van
Niekerk submits that Mthimkhulu's representative was obliged, at the
hearing before
Pillay J
, to inform her of the letter of 14
November. I disagree. In any event, counsel concedes that, if
Pillay J
were informed of the letter of 14 November, she also
ought to have been apprised of that of 17 November. If this had
happened, she
may well have continued to dispose of the application
without further ado. It follows that the rescission ought not to
have succeeded
on the basis of either section 165 of the LRA or of
rule 16A(1)(a).
[11] The next
question which arises is whether the requirements of rule 16A(1)(b)
read with sub-rule (2)(b) were complied with. One
of these is that
the applicant has to show âgood causeâ. In
Chetty v Law
Society Transvaal
1985(2) SA 756 (A)
Miller JA
dealt at
765A-C with the expression "sufficient cause" of the common
law. The learned Judge equated it with that of "good
cause",
and stated that it had two essential elements, the first of which was
that the party seeking relief must present a reasonable
and
acceptable explanation for his default and the second, that such
party had to show on the merits that it had a bona fide defence
which
prima facie carried some prospect of success. At 765D-E the learned
Judge went on to say:
"It is not sufficient if only one of these
two requirements is met; for obvious reasons a party showing no
prospect of success
on the merits will fail in an application for
rescission of a default judgment against him, no matter how
reasonable and convincing
the explanation of his default. And ordered
judicial process would be negated if, on the other hand, a party who
could offer no explanation
of his default other than his disdain of
the Rules was nevertheless permitted to have a judgment against him
rescinded on the ground
that he had reasonable prospects of success
on the merits."
Davidtz says
that in view of the circumstances reflected in his letter of 14
November 2000 he "did not believe that (Mthimkhulu)
would pursue
his application and (he) resolved that (he) would await receipt of a
Notice of Set Down of the matter for hearing before
instructing
attorneys to oppose the matter". This explanation is not
credible or acceptable. The letter of 17 November clearly
states
that the matter will proceed in the event of there being no
opposition and that it would be heard
in the absence
of
Enforce Security and without further notice to it. The Court a quo
described the failure to give notice of intention to oppose
and file
an answering affidavit as clearly reckless. The learned Judge went
on to say that there was no explanation why the attorneys
were to be
instructed only on receipt on the date of hearing and that Davidtz
does not say that he did not understand the consequences
of ignoring
the papers served. In these circumstances the Court a quo, correctly
in my judgment, refused to rescind the order of
26 February 2001.
[12] I
turn now to the appeal against paragraphs 2 and 3 of the Order of 5
September 2001 referred to in para [6] above. Essentially
the
contempt arose from Enforce Security's failure to re-employ
Mthimkhulu. The order to re-employ is one ad factum praestandum
and
therefore enforceable by contempt proceedings, whilst the rest of the
order, apparently granted and involving the payment of
money, is not
enforceable in this way.
[13] In
his answering affidavit Feuilherade says the following:
"19. I am advised by (Davidtz) that on the
16
th
May 2000 (Mthimkhulu) reported to him but refused to
commence work until all monies owing to him in terms of the
settlement agreement
had been paid. I am further informed by
(Davidtz) that at that time he explained to (Mthimkhulu) that the
processing of that payment
would take some time but that he advanced
to him an amount of R300.00 to tide him over and instructed
(Mthimkhulu) to report for
duty on the following day.
Subsequently
(Mthimkhulu) has failed to tender his service.
On
the 18
th
May 2000 a further letter was dispatched to
(Mthimkhulu) by registered post, informing him that unless he
tendered his services
on or before the 25
th
May 2000 he
would be presumed to have deserted and his contract of employment
would be terminated.
By
reason of the Applicant's failure to subsequently tender his
services, his contract of employment was terminated."
[14] Paragraph
19 contains hearsay evidence but the version reflected therein is
deposed to by Davidtz in his affidavit in the application
to rescind
the order of 26 February 2001. Mthimkhulu has a different version .
He says he did tender his services, but, in effect,
that such tender
was refused. In the event of the facts deposed to by Davidtz being
correct, Enforce Security Ltd, Feuilherade and
Davidtz are not in
contempt of the order since Mthimkhulu is clearly required to tender
his services before he can be re-employed.
Thus, at the very least
Enforce Security Ltd, Feuilherade and Davidtz â if Davidtz'
version is true â did not have necessary
intention
to commit contempt of court.
2
[15] In
paragraph 27.1 of Feuilherade's affidavit at page 151 of the record
he says that as a result of Enforce Security Ltd selling
its business
to Enforce Guarding Mthimkhulu's claim is against the latter company.
No reason is given why the agreement of settlement
of 15 May 2000
was concluded with the wrong entity, and the question why the
settlement of 15 May 2000 was entered into under the
name of Enforce
Security is not addressed at all. I suspect that Enforce Security
may well be the name under which Enforce Guarding
trades and under
which Enforce Security Ltd traded. Be that as it may, the defence
raised here is one which cannot be determined
on the papers. During
argument before us Mr Van Niekerk said that he was not taking the
point that the agreement of 15 May 2000
was with the wrong entity.
However, it seems to me that the point may be relevant to disprove
the intention to commit contempt of
court, since Feuilherade seems to
be saying that once Enforce Security Ltd was no longer employing any
of the employees of its erstwhile
business it could not employ
Mthimkhulu.
[16] In
my view the defences referred to in paras [13] and [15] above ought
to have resulted in the contempt application being dismissed
or
referred to oral evidence in terms of Rule 7(7)(b) of the Rules of
the Labour Court.
[17] It does not
follow, however, for reasons which will become apparent, that the
appeal against paragraphs 2 and 3 of the order
of 5 September 2001
3
must succeed. Thusfar I have dealt with the appeal under Case No
DA8/2002, and I turn to deal with the appeal under Case No DA7/2002.
[18] This appeal
arises in the following way. On 1 October 2001 Feuilherade, Davidtz
and Enforce Security Ltd brought an application
for inter alia the
rescission of paragraphs 2 and 3 of the order of 5 September 2001.
This application to which I shall refer as
"the second
rescission application" failed and the three unsuccessful
applicants appeal against such failure. In dismissing
the
application on 7 December 2001
Ngcamu AJ
made no order as to
costs. For reasons I shall indicate the appeal against the dismissal
of the second rescission application ought
to succeed. The question
arises whether we ought to deal with the contempt application on the
merits and uphold the appeal in regard
thereto, making the appeal
against the second rescission application academic or whether we
ought to decide the latter appeal making
a decision on the former
redundant. In my view, we should take the second route because the
contempt application has in fact not
been adjudicated upon by the
Court a quo, and questions such as a possible referral to oral
evidence can best be dealt with by it.
[19] Mr
Reardon, the appellantsâ attorney, states in his affidavit in
support of the rescission that he had an arrangement with
Mthimkhulu's attorney, Mr Jafta, that, when the application for
rescission of the order of 26 February 2001 brought under case no
D1549/2000 was argued before
Ngcamu AJ
, the contempt
application brought under the same case number was not to be argued,
but was to be postponed. He says the contempt
application was not
even called and that no argument was addressed in regard thereto. In
support of his contention is a letter he
wrote to Mr Jafta dated 24
August 2001 the second paragraph of which reads:
"
We
confirm that on the 4
th
proximo our client's application
for the rescission of the judgment will be argued and your client's
contempt application will be
adjourned by consent to be re-enrolled
for hearing at a later, if necessary." (DA7/12)
Mr Jafta says
that this was not the understanding. According to him the postponing
of the contempt application "was only conditional
should the
Court be unwilling to deal with it at the time of the rescission
application." He goes on to say: "Since the
Court was
willing and comfortable with dealing with both applications at the
same time there was no point in adjourning the contempt
of Court
application." It is clear that no argument in respect of the
contempt application was put to
Ngcamu AJ
who said at p 39 in
para [11] of the judgment in the second rescission application:
"The two applications were properly before
the Court. The applicants decided to argue the application for
rescission.
4
They must have realised that the refusal of the application for
contempt of Court would depend on the success of the application
for
rescission. They decided not to address the Court to oppose the
application. They must have known that if the application for
rescission was refused, the natural consequence was the granting of
the application for contempt of Court which was left unopposed."
I have no
hesitation in rejecting Mr Jafta's version on the papers. The fact
that neither side argued or apparently even mentioned
the contempt
application during argument is entirely inconsistent with such
version. Significantly
Ngcamu AJ
fails to deal at all in
the body of the judgment of 5 September 2001 with the contempt
application and simply grants the order in
respect thereof "as
prayed". In these circumstances it seems to me clear that the
order was erroneously granted by the
learned Judge and that he ought
to have rescinded it in terms of section 165(a) of the LRA or rule
16A(1)(a)(i) of the rules of the
Labour Court. The contempt
application was in my view, not before him at all. It follows that
although the parties were before
the learned Judge for the rescission
application they were not before him in the contempt application and
the latter was decided
in their absence.
[20] I proceed
to deal with the question of costs. Mthimkhulu has succeeded to a
substantial extent since the appeal against the dismissal
of the
rescission application has failed and thus the order 26 February 2001
survives. This order determines the central issue between
the
parties. The appellants, however, have succeeded in rescinding
paragraphs 2 and 3 of the order of 5 September. The appellants
briefed the same counsel in both appeals. Counsel for the appellants
asks for the costs of the appeal in case DA 7/2002 to be paid
by
Mthimkhulu's attorney de bonis propriis on the scale as between
attorney and client since, so he argues, the attorney has made
a
false affidavit resisting the rescission concerned. Of course, Mr
Jafta's conduct is quite unacceptable. It is a very serious
matter
for an officer of the court to mislead it. There are, however,
weighty factors weighing against a costs order in favour of
the
appellants. Their success is after all limited to orders made
consequentially on the vital order of 26 February 2001. That
order
stands and there is no reason why a writ in respect of the payment of
money due in terms thereof should not issue at least
for compliance
with paragraphs 1(a) and (b) thereof. Furthermore, it is now more
that two years since the settlement of 15 May 2000
and the issues
between him and Enforce Security have never been properly ventilated
due to the flagrant failure to oppose the application
before
Pillay
J
â a failure for which all the appellants are responsible. I
initially thought, and put it to Mr Van Niekerk during argument that
Mthimkhulu had received nothing despite the long lapse of time.
After the hearing Mr van Niekerk informed us in writing that an
amount of R6 023.16 was in fact paid to Mr Jafta on 6 August 2001. I
accept that this is so, but, of course, this amount does not
represent full compliance with
Pillay J
's order. Counsel goes
on in the letter to make submissions about the order of
Pillay J
.
But that order is not on appeal. It seems to me that in all the
circumstances there should be no order of costs of the appeal.
Mthimkhulu's attorney has filed notices indicating that he does not
oppose either of the appeals due to Mthimkhulu's lack of funds.
I am
not disposed to grant Feuilherade, Davidtz and Enforce Security Ltd
the costs of the second rescission application in the Court
a quo as
a mark of this Court's displeasure of their conduct of the
litigation.
[21] I
make the following order:
The appeal
against paragraph 1 of the order of 5 September 2001 is dismissed.
The appeal
against the order of 7 December 2001 succeeds to the extent that
paragraph (a) of the order is deleted and the following
substituted
therefor:
"(a) Paragraphs
2 and 3 of the order of 5 September 2001 are deleted."
No order is
made in the appeal against paragraphs 2 and 3 of the order of 5
September 2001.
___________________
E
L GOLDSTEIN
Acting
Judge of Appeal
I
agree
___________________
R M M ZONDO
Judge
President
I
agree
___________________
D MLAMBO
Acting
Judge of Appeal
For
the Appellant: G O VAN NIEKERK SC
Heads drawn by M
Pillemer SC
Instructed
by: Millar & Reardon
For
the Respondent : No appearance
Date
of Hearing: 19 November 2002
Date
of Judgment: 20 December 2002
1
The
day of the order given in the notice is the clearly erroneous one of
29 instead of the correct one of 26. I shall refer to
the
application as "the contempt application".
2
I
leave out of account the extent to which they may be prevented by
the order of 26 February 2001 and the doctrine of issue estoppel
from disputing that Mthimkhulu tendered his services, as he says he
did in his affidavit in the application before
Pillay J
.
Cf
Liley and Another v Johannesburg Turf Club & Another
1983(4) SA 548 (W) at 552 A-B;
Custom Tariff Consultants CC v
Mustek Ltd
2002(6) SA 403 (W) at 407 C-E. Of course, issue
estoppel cannot prevent parties from relying on their lack of
intention to do
wrong.
3
See
para [6] above.
4
This
it will be recalled is a reference to the application for the
rescission of the order of
Pillay J
.