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[2015] ZALAC 3
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South African Revenue Services v Mhlongo (JA115/2013) [2015] ZALAC 3 (12 March 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA,
JOHANNESBURG
Case no:
JA115/2013
DATE: 12 MARCH
2015
Not Reportable
In the matter
between:
SOUTH
AFRICAN REVENUE
SERVICES
..........................................................................
Appellant
And
CHARLOTTE
CONNIE
MHLONGO
...
.............................................................................
Respondent
Heard:
13 November 2014
Delivered:
12 March 2015
Summary:
rescission application – default judgment granted against
employer- employer erroneously providing incorrect fax
number in its
answering affidavit- set down notice sent to the incorrect fax number
– employer not in wilful default and
having good prospects of
success. Labour Court’s judgment set aside- Appeal upheld-
judgment rescinded.
Coram:
Waglay JP, Dlodlo AJA
et
Setiloane AJA
JUDGMENT
DLODLO
AJA
Introduction
[1] This is an
appeal (with leave of the court
a quo
) against the judgment
and order of the Labour Court (Gush J) handed down on 25 February
2012 dismissing an application for rescission
of the judgment. The
rescission application sought to rescind an order handed down by the
Labour Court (Van Niekerk J) on 9 June
2010 granting the Respondent
the relief she sought (namely to be reinstated in the Appellant’s
employ as a result of being
unfairly dismissed).
[2] On 19 May 2009,
the Appellant dismissed the Respondent for abscondment. On 14 October
2009, the Respondent filed application
proceedings seeking
inter
alia
, an order declaring her alleged suspension and subsequent
dismissal unlawful and that she be reinstated with full benefits. On
14 October 2009, the Appellant’s then attorneys (Eversheds)
filed Appellant’s notice of intention to oppose. In the
said
notice, the Appellant appointed Eversheds’ address and fax
numbers (086 673 6940) as the address and fax number
at which
the Appellant will receive notice and service of all
documents/pleadings in the application proceedings. On 3 November
2009, Eversheds attorneys filed the Appellant’s answering
affidavit; but then the fax number on the answering affidavit’s
filing sheet was recorded as 086 673 6040 (this was a wrong
number) instead of 086 673 6940 (the 0 and the 9 were
interchanged
– appears to be a typing error).
[3] On 19 January
2010, some two months after it filed its clients’ answering
papers, Eversheds wrote to the Respondent’s
attorneys in which
they complained about the lack of progress in the matter. In this
letter, Eversheds threatened to apply for
dismissal of the
application proceedings. This letter contains the correct fax number
appearing on Eversheds’ letterheads.
The matter was set down
for hearing and the Appellant and its legal representative failed to
appear at the hearing of the application
(in which the Respondent
sought to be reinstated in the Appellant’s employ).
Consequently, judgment was granted in favour
of the Respondent by
default. It is this judgment that the Appellant unsuccessfully sought
to have rescinded. This appeal concerns
the refusal to rescind the
judgment.
[4] The Respondent
resisting this appeal raised the point that the judgment sought to be
rescinded was not granted in error. The
truth is that the error was
committed by the Appellant’s attorneys in that they supplied a
wrong fax number. That was the
only reason that caused the Registrar
of the Court to send the notice of Set-down for the hearing of the
main application to an
incorrect fax number. It is, however, common
cause that the Appellant’s attorneys did not receive
notification of the set-down
from the Registrar of the Labour Court.
I fully agree with the submission made on behalf of the Respondent
that the judgment sought
to be rescinded was not granted erroneously.
[5]
It has been stated that it seems that a judgment has been erroneously
granted if there existed at the time of its issue a fact
of which the
judge was unaware of which would have precluded the granting of the
judgment and which would have induced the judge
(if aware of it) not
to grant the judgment.
[1]
Judgments have been rescinded on the ground of a mistaken belief on
the part of the court that the defendant knew of the hearing
when in
fact this was not the case.
[2]
[6]
In order to succeed, an applicant for rescission of a judgment taken
against him by default must ordinarily show good or sufficient
cause.
[3]
In effect, that
entails three elements, namely (a) give a reasonable (acceptable)
explanation for his default; (b) show that his
application is made
bona
fide
;
(c) show that on the merits he has a
bona
fide
defence which
prima
facie
carries some prospect of success. It is important to mention that the
court hearing the rescission application retains a discretion
which
must always be exercised after a proper consideration of all the
relevant facts and circumstances.
[4]
[7] The “good
cause” shown by the Appellant in the instant matter is simply
that it was unaware of the date of the hearing.
This point is
admitted also by the Respondent. Without condoning the error
committed by the Appellant’s attorneys in supplying
a wrong fax
number, it is only fair to enable the parties to ventilate issues on
merits in the instant matter. One only needs to
read the Appellant’s
answering affidavit together with the Respondent’s replying
affidavit in order to come to the
conclusion that the Appellant
demonstrated the prospects of success in this matter. According to
the answering affidavit filed
on behalf of the Appellant after the
arrest of the Respondent, she never returned to work. Ngwako James
Rapholo (deponent to the
appellant’s affidavit) states as
follows
inter alia
:
‘
32.
The Respondent (Appellant) made several unsuccessful attempts to
contact the Appellant with the view of having her to return
to work.
The letters sent to the Applicant by the Respondent, on 8 May 2009
and 19 May 2009, calling upon the Applicant to return
to work and
report for duty are annexed marked “CCM5” to the Founding
Affidavit and “NR7” to this affidavit.
The two letters
were written in compliance with the Respondent’s Internal HR
Policy: Timely Reporting of Unexpected Absences
annexed hereto marked
“NR8” (See Annexure A & B of the Policy).
33.
The Respondent’s attempts to contact the Applicant and requests
that she return to work were made with the view of making
arrangements for the Applicant to attend a proper disciplinary
hearing in line with the Respondent’s Disciplinary Code and
Procedure attached to the Applicant’s Founding Affidavit marked
“CCM6”.’
[8] I am mindful
that the Respondent in the instant matter denies the above
assertions. But the fact of the matter is that it remains
the duty of
the trial court to make a determination after hearing both litigants.
In my view, the assertions or averments made
by the Appellant quoted
above reveal that there are prospects of success demonstrated by the
Appellant. That this is a very important
matter cannot also be
doubted. The issues between the parties need to be ventilated in the
Court. Accordingly, I hold that it is
in the interests of justice
that this default judgment be rescinded.
Order
[9] In the result, I
would make the following order:
(a) The appeal
succeeds and the court
a quo
’s order is altered to read
as follows:
“
Default
judgment granted on 9 June 2010 in favour of the Respondent is hereby
rescinded”.
(b)
There shall be no order as to costs.
Dlodlo AJA
I
agree
Waglay
JP
I agree
Setiloane AJA
APPEARANCES:
FOR THE
APPELLANT: Adv Hw Sibuyi
Instructed by
Hogan Levells (SA) Inc.
As
Routledge Moside Inc.
FOR THE
RESPONDENT: Adv R Mastenbroek
Instructed by
Mpoyana Ledwaba Inc.
[1]
Nyingwa
v Moolman
1993
(2) SA 508
(TK GD) at 510.
[2]
De
Sousa v Kerr
1978
(3) SA 635
(W);
Topol
v LS Group Management Services (Pty
)
Ltd
1988 (1) SA 639
(W);
Nyingwa
v Moolman
supra
at 510E-F.
[3]
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
2003 (6) SA 1
(SCA) at 1042F-1043A;
Harris
v Absa Bank Ltd t/a Volkskas
2006
(4) SA 527
(T) at 529 D-E.
[4]
De
Wet v Western Bank Ltd
1979
(2) SA 1031
(A) at 1042F-1043A;
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
supra
;
Naidoo
v Matlala NO
2012 (1) SA 143
(GNP) at 152H-153A.