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[2010] ZALAC 27
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Zwane and Others v Alert Fencing Contractors CC (JA36/09) [2010] ZALAC 27; (2010) 31 ILJ 2378 (LAC) (28 May 2010)
1
In the Labour Appeal Court of
South Africa
Held at Braamfontein
Case No. JA36/09
In the matter between:
Sabela Zwane
…...............................................................................
1
st
Appellant
Aaron Madonsela
…........................................................................
2
nd
Appellant
Petrus Madonsela
….........................................................................
3
rd
Appellant
Ezekial Nkosi
…...............................................................................
4
th
Appellant
William Mashaba
….........................................................................
5
th
Appellant
David Matadi
…...............................................................................
6
th
Appellant
And
Alert Fencing Contractors CC
…........................................................
Respondent
JUDGMENT
Waglay DJP
[1] This is an appeal against the judgment of the Labour
Court (Basson J) rescinding and setting aside the default judgment
granted
in favour of the appellants arising from the dismissals of
the appellants by the respondent based on the respondent’s
alleged
operational requirements.
[2] The Appellants were dismissed by the Respondent on
31 May 2004 and the reasons preferred for their dismissals was that
it was
necessitated by the Respondent suffering a severe drop in the
amount of work it was able to secure and consequently its inability
to retain its then staff complement.
[3] The appellants believed their dismissals were both
substantively and procedurally unfair and referred it as a dispute to
the
Metal and Engineering Industries Bargaining Council for
conciliation. The dispute remained unresolved at conciliation and the
appellants
then referred the matter to the Labour Court for
adjudication.
[4] The respondent opposed the referral and duly filed
its statement of response to the appellants’ statement of case.
After
the response was filed the parties failed to meet to agree upon
a pre-trial minute despite making arrangements to do so, with the
result that the Registrar of the Labour Court, enrolled the matter
for a pre-trial conference before a judge of the Labour Court.
The
respondent failed to appear before the judge for the pre-trial
conference and an order was made barring the respondent from
further
defending the matter and for the matter to be set down for default
judgment.
[5] About three weeks after the order referred to above
was handed down, the Registrar of the Labour Court enrolled the
matter for
default judgment on 25 May 2005. This notice of set-down
was only forwarded to the appellants. On 25 May 2005 the Labour Court
heard the matter and granted the default judgment in favour of the
appellants. The relief granted by the Labour Court was the
reinstatement
of the appellants together with 12 months of back pay
and costs. (I assume this was done pursuant to a finding that the
dismissals
of the appellants were unfair although this was not
expressed in the order)
[6] On 6 June 2005, less than two weeks after the
default judgment was granted, the respondent brought an application
in which it
sought an order:
to remove the bar placed by the Court disallowing the
respondent from defending the matter on 13 April 2005 (hereafter
“the
order dated 13 April 2005”); and,
to rescind and set aside the default judgment granted
on 25 May 2005 (hereafter “the judgment dated 25 May 2005”).
[7] In support of its application the respondent filed a
detailed affidavit setting out its explanation for its default. It
explained
that it failed to appear at the pre-trial conference
because its counsel had wrongly diarised the date for that conference
(this
was confirmed) and that it did not appear on the day the
default judgment was granted because it was not notified thereof. It
also
set out its defence supported by documents as to why it believed
it had a
bona fide
defence to the appellants’ claim.
Furthermore, it averred that it was always its intention to oppose
the proceedings and
that this was borne out by the fact that it had
duly filed its statement of response and had agreed to meet with the
appellants
to hold a pre-trial conference.
[8] The appellants opposed the application which was
only heard by the Labour Court on 2 November 2007 that is, over two
years after
it was launched. The Labour Court rescinded the judgment
granted by it on 25 May 2005 but postponed
sine die
the
application in relation to the order dated 13 April 2005. The
appellants requested the Labour Court to provide reasons for its
order, which reasons were only provided more than a year later. The
judgment gives reasons for the order rescinding the default
judgment
dated 25 May 2005 but does not explain the reasons for making the
order it did in respect of the order dated 13 April
2005.
[9] The appellant duly applied for leave to appeal and
this was granted on 17 June 2009.
[10] It is apparent that the Notice of Set-down for the
pre-trial conference was issued pursuant to rule 6 (5) (b) and/or (c)
of
the “Rules for the Conduct of Proceedings in the Labour
Court” (hereafter “the rules of the Labour Court”).
These sub-rules relate to the holding of a pre-trial conference
before a judge either formally or informally. Rule 6 (6) then goes
on
to state that a judge presiding at a pre-trial conference may “
make
any appropriate order for the further conduct of the proceedings…”
T
his sub-rule relates specifically to how the matter is to
proceed on an opposed basis. As against sub-rule (6) rule 6 (7)
provides
as follows:
“
6 (1)…
…
(7)
If any party fails to attend any pre-trial
conference
convened in terms of sub-rule (4) (a), (5) (b) or (5)
(c), or fails to comply with any direction made by a judge in terms
of sub-rules
(5) and (6), the matter may be enrolled for hearing on
the direction of a judge and the defaulting party will not be
permitted
to appear at the hearing
unless the court on good
cause shown orders otherwise.
(my emphasis)
[11] It is clear that on 13 April 2005 the judge before
whom the pre-trial conference was convened in terms of rule (5) (b)
and/or
(c) decided to act in terms of rule 6(7) and barred the
respondent from further defending the matter and ordered that the
matter
proceed as an unopposed claim. The Judge made that order
because the respondent failed to attend the pre-trial conference.
Having
regard to rule 6 (7) what was omitted in the order was the
latter part of sub-rule 7 which effectively, I believe, requires that
the respondent be informed that, if it is able to show “good
cause”, it may be allowed to continue with its opposition.
The
Registrar of the Labour Court on receiving the order proceeded to
enrol the matter for default judgement without notice to
the
respondent. The Labour Court entertained the matter and granted
judgment in favour of the appellants in the absence of the
respondent. It is also evident that respondent was not forwarded a
copy of the order of 13 April 2005 advising it that it was barred
from defending the matter.
[12] This matter is similar to the
matter of
Eberspäcer
v National Union of Metalworkers of SA on behalf of Skade &
Others.
1
That matter came before this Court
last year and this Court held that while an order/directive issued
pursuant to rule 6(7) barring
a party from pursuing its defence or
claim entitles the other party to obtain default judgment or to have
a claim against it dismissed,
the party that is barred (the
defaulting party) may have the bar against it lifted and it may
continue its defence or claim if
it is able to show “good
cause” for its default.
2
This Court, in that matter, went on
to hold that the Registrar of the Labour Court must, when enrolling
the matter for default judgment
based on an order issued pursuant to
rule 6(7), enrol the matter on notice to both parties and that the
Notice must indicate that
the matter has been
“
enrolled
for hearing in terms of rule 6(7).”
This
Court further held that:
[20] “…
Notice
to both parties is critical because either on the day of the hearing
or before that date the defaulting party is entitled
to approach the
court in order to satisfy it that there is 'good cause' for it to be
allowed to continue with its claim or defence.
In other words, while
a directive in terms of rule 6(7) automatically prohibits the party
that has failed to comply with rule 6(5)
or (6) from continuing with
its claim or defence the court may lift the prohibition if the party
prohibited from continuing with
its claim or defence shows 'good
cause' why it should be allowed to defend or prosecute its claim.
[21] Rule 6(7) is directed towards the enforcement of
compliance with the rules relating to pre-trial procedures and sets
out a
process to expedite matters where a party is dilatory. Although
this sub-rule has drastic consequences it allows a defaulting party
an opportunity to show 'good cause' so as to be allowed to continue
with its claim or defence. The fact that the defaulting party
is
entitled to seek the lifting of the prohibition against appearing at
the hearing implicitly requires that the registrar notify
it of the
date of hearing to afford it an opportunity to show 'good cause'.
[22] Accordingly, where a judge issues a directive
under rule 6(7) the matter may not be set down without notice to the
defaulting
party. Additionally the registrar should notify the
parties that the matter is set down pursuant to a directive in terms
of rule
6(7) so the parties are prepared, if need be, to deal with
the issue of 'good cause'.”
[13] In the circumstances the
judgment granted by the Labour Court on 25 May 2005 was erroneously
sought and erroneously granted
3
because the Registrar of
the Labour Court was not permitted to enrol the matter without notice
to the respondent nor was the Labour
Court entitled to entertain the
default judgment in the absence of respondent being notified thereof.
Mr. Maluleke who appeared
on behalf of the appellants argued that
where a party such as the appellants herein were entitled to a
judgement in the absence
of the other the judgment so granted cannot
be said to have been erroneously granted. In support of this
submission he referred
to the matter of
Lodhi
2 Properties Investments CC and another v Bondev Developments (Pty)
Ltd
2007
(6) SA 87
SCA at paragraph [27]. This argument is misconceived. The
Lodhi
matter is no support for
the appellants herein as the default judgement granted in that matter
was granted pursuant to a proper
application of the rules of the
Uniform Rules of Court and unlike in this matter where the rules were
not complied with.
[14] Hence, although the reasons proffered by the Labour
Court for rescinding the default judgment were based on the normal
requirements
for rescission, the order was indeed correct.
[15] With regard to the order barring the respondent
from continuing with its defence of the appellants claim, that matter
remains
pending in the Labour Court as that Court, when granting the
rescission of the judgement dated 25 May 2005, postponed the
application
to set aside the order dated 13 April 2005. The parties
therefore need to deal with that matter before the Labour Court.
[16] Finally, I need to mention
that I have not dealt with the various grounds of appeal raised by
the appellants because they were
clearly based on their failure to
appreciate the import and application of rule 6. Their grounds of
appeal were in any way without
merit because although the application
for rescission was also not based on rule 6 the respondent did make
out a case to rescind
the judgment granted by the Labour Court on 25
May 2005. The respondent in its application demonstrated that
it
was not in wilful default and showed good cause to have the judgment
rescinded. It also set out a
bona fide
defence to the appellants’ claim, and a
reasonable and acceptable explanation for its default.
[17] As both parties appeared to miss the crucial issue
I am of the view that there should be no order of costs herein.
[18] In the result, the appeal is dismissed.
__________________________
Waglay DJP
I agree
__________________________
Tlaletsi JA
I agree
__________________________
Musi AJA
For
the appellant: Mr. Maluleke (Trade Union)
For the respondent: Adv.JJC Swanepoel instructed by Tuckers Attorneys
Date of hearing: 27 May 2010
Date of judgement: 28 May 2010
1
(2009)
30 ILJ 880 (LAC)
2
See
paragraph [19]
3
See
s
ection 165 of the
Labour Relations Act 66 of
1995
which provides that the Labour Court may rescind a judgment or
order that was “erroneously sought or erroneously granted
in
the absence of any party affected by that judgment or order.”