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[2012] ZALCJHB 140
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De Lange v Mr Price Group Ltd t/a Street Sheet (J530/2010) [2012] ZALCJHB 140 (23 January 2012)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
CASE NO: J530/2010
In the matter between :
HANNES LOURENCE DE
LANGE
...........................................................................
Applicant
and
MR PRICE GROUP LIMITED
t/a SHEET STREET
..............................................
Respondent
Heard on: 14 December
2011
Delivered on: 23
January 2012
JUDGMENT
MAHOMED AJ
Introduction
This is an application
to rescind an order handed down by Francis J on 28 September
2010. The terms of the order provide
that ‘the application is
dismissed with costs’ (‘the order’).
The effect of the order
is to preclude the further prosecution of the main application by
the Applicant.
The rescission
application
Mr De Lange on 28
September 2010 filed an affidavit, without any notice of motion,
seeking a rescission of the order. The following
allegations are
made in support of the application:
‘
On
the 28
th
September 2010, I had to appear the Labour Court in Johannesburg. I
am a bleeder and my nose was bleeding for about 1 hour. Due
to that I
was 20 minutes late and the Judge dismissed my case ….’
(sic)
The rescission
application is opposed by the Respondent. In her opposing affidavit,
Natasha Nair, alleges that the application
was launched in terms of
Rule 16A(1)(b). When I enquired from the Respondent's Counsel,
Advocate Lapham, on what basis this allegation
was made, she was
unable to assist the court. Advocate Lapham correctly pointed out
that the application could well have been
launched in terms of
either Section 165 of the Labour Relations Act, 1995 ("the
LRA") or even the common law.
I will return to this aspect
later.
I do sympathise with the
Respondent in its ignorance of the basis upon which the application
was launched in that the Applicant
makes absolutely no averment in
this regard in his founding affidavit. In fact, even on the day of
the hearing the Applicant
was unaware on what basis the application
was being moved. This is notwithstanding, the Applicant quoting
another section of
the LRA, during the course of his submissions to
the court. A section of the LRA which, I must point out, was
entirely irrelevant
to the rescission application.
Prior to dealing with
the allegations made by the parties in the papers, I must mention
that no replying affidavit was filed.
I must also note that
Counsel for the Respondent sought to raise further additional facts
in relation to the status of the employment
relationship or lack
thereof, should I say, since the filing of the application. These
submissions were made from the bar. I
interrupted Counsel who than
conceded correctly, that I need not hear and/or consider same,
inasmuch as such information was
not raised in any supplementary
affidavit.
Under the common law an
Applicant for rescission is required to satisfy two criteria to
obtain relief:
A reasonable and
acceptable explanation for default;
A
bona
fide
defense
which,
prima
facie
,
carries some prospect of success.
1
The provisions of
Section 165 of the LRA very closely resemble the provisions of Rule
42(1) of the Uniform Rules of the High
Court. Here, relief will be
granted under Rule 42(1) where:
There was an
irregularity in the proceedings;
Where the court lacked
legal competence to have made the order;
Where the court at the
time that the order was made was unaware of facts which, if known
to it, would have precluded the granting
of the order.
It is
not necessary in such an instance for an Applicant to show good cause
in order to obtain relief under this rule.
Promedia
Drukkers en Uitgewers (Edms) Bpk v Kaimowitz and Others.
2
The provisions of Rule
16A of the Rules of the Labour Court repeat the provisions for relief
contained in Section 165 of the LRA.
In addition, Rule 16A(1)(b)
provides the court, in addition to any powers that it may have, on
the application of any affected
party, to rescind any order or
judgment granted in the absence of that party. Rule 16A(2)(b)
provides that in such a case the party
should show good cause as to
why the judgment or order of the court should be set aside. This
additional part of Rule 16A bares
a very close resemblance to the
provisions of Rule 31(2)(b) of the Uniform Rules of the High Court.
The requirements in both Rule
31(2)(b) and Rule 16(A)(2)(b) are:
The Applicant must
give a reasonable explanation for its default;
The application must
be made
bona fide
;
The
Applicant must show that he has a
bona
fide
defense
to a claim against him or, in respect of a claim that he has some
prospect of success.
HDS
Construction (Pty) Ltd v Wait
3
and
Shoprite
Checkers (Pty) Ltd v CCMA and Others
.
4
I have set out a brief
exposition of the law to illustrate why it is necessary that the
premise of the application is properly
understood. This is not the
case herein. I am alive to the fact that the Applicant is a lay
litigant. However, where the Applicant
demonstrated to the court
that he was
au fait
with another provision of the LRA, I can
see no reason why he was unable to make allegations setting out the
provision/s he relied
upon in support of his application or to make
reference thereto at the hearing. The Respondent is entitled to be
appraised of
the case it is to meet in opposition.
The applicant's
explanation for default
The Applicant's founding
affidavit provides no confirmation of why the alleged nose bleed
precluded him from timeously appearing
on 28 September 2010. Nair
correctly points out in opposition that no affidavit from a medical
practitioner is filed. When I
enquired from the Applicant why he had
no medical certificate, let alone an affidavit from a medical
practitioner, he submitted
from the bar that doctors do not provide
same. This alone is entirely inexcusable.
I agree with the
Respondent that the Applicant has not made out a case reasonably
explaining his default on 28 September 2010
when the matter came
before Francis J.
Prospects of success
or
bona fide
defense
The Applicant makes
absolutely no allegation in support of showing at least
prima
facie
that his claim has some prospects of success.
As I have previously
mentioned, no replying affidavit was filed by the Applicant. This is
particularly pertinent in relation to
the allegations made in
paragraphs 7.5 and 7.6 of the opposing affidavit relating to
prospects of success. With regard to the
question of prospects of
success, I am accordingly constrained to have regard to the
allegations contained in the above paragraphs.
I conclude that the
Applicant has not made out a case of establishing even
prima
facie
that the main application carries some prospect of
success.
In all of the
circumstances, the rescission application of 21 October 2010 must be
dismissed.
Costs
I explained the issue of
costs to the Applicant. The Applicant in effect indicated to me that
costs should follow the result of
the application. The Respondent's
Counsel, however, graciously indicated that insofar as the Applicant
was a layperson the Respondent
would not be seeking costs.
The following is
accordingly the order of this court:
The rescission
application is dismissed.
There is no order for
costs.
___________________
MAHOMED AJ
ACTING JUDGE OF THE
LABOUR COURT
Appearances:
For the Applicant: In
person
For the Respondent: Adv
Lapham
Instructed by: Shepstone
& Wylie
1
In
this regard See
Chetty v Law Society,
Transvaal
1985 (2) SA 756
(A).
2
1996
(4) SA 411
(C) at 417H - I.
3
1979
(2) SA 298
(E) at 300F – 301C.
4
(2007)
28 ILJ 2246 (LAC) at paras 35 - 40.