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[2014] ZALCJHB 162
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MEC Department Of Education (The Province Of Gauteng) v Gumbi, In Re: Gumbi v Oosthuizen and Others (JR2528/09) [2014] ZALCJHB 162 (12 May 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT
REPORTABLE
CASE
NO: JR2528/09
In
the matter between:
MEC
DEPARTMENT OF EDUCATION
(THE
PROVINCE OF
GAUTENG) Applicant
and
PAULA
GUMBI Respondent
In
Re:
PAULA
GUMBI Applicant
and
SANTIE
OOSTHUIZEN First
Respondent
EDUCATION
LABOUR RELATIONS
COUNCIL Second
Respondent
MEC
DEPARTMENT OF EDUCATION
(THE
PROVINCE OF
GRAUTENG) Third
Respondent
Heard:
24 October 2013
Delivered:
12 May 2014
Summary:
The applicant’s failure to apply for condonation of the late
filing of a rescission application
brought in terms of Rule 16 A (2)
(b) may lead to the dismissal of the application for lack of
jurisdiction.
Rescission
application in terms of Rule 16 A (2) (b).
JUDGMENT
LALLIE,
J
[1]
This is an application for the rescission of a judgment granted in
the absence of the applicant, reviewing and setting aside
the first
respondent’s arbitration award. The relevant facts are that the
respondent was employed by the respondent as an
educator. Subsequent
to her dismissal, she referred an unfair dismissal dispute to the
second respondent. It was arbitrated by
the first respondent who
found the respondent’s dismissal fair. The respondent
challenged the first respondent’s award
on review and on 29
June 212, this Court handed down a judgment reviewing and setting
aside the arbitration award.
[2]
On 20 September 2012, the applicant filed the present application. It
is opposed by the respondent who raised a point
in limine
to
the effect that the application stands to be dismissed as the
applicant failed to apply for condonation, having filed the
application
outside the 15 day period prescribed in Rule 16 A (2) (b)
of the Rules of this Court (“Rules”).
[3]
Rule 16 A which governs rescission applications provides as follows:
‘
(1)
The Court may, in addition to any other powers it may have -
(a)
of its own motion or on application of any party affected, rescind or
vary any order or judgment -
(i)
erroneously sought or erroneously granted in the absence of
any party
affected by it;
(ii)
in which there is an ambiguity or a patent error or omission, but
only to the extent
of such ambiguity, error or omission;
(iii)
granted as the result of a mistake common to the parties; or
(b)
on application of any party affected, rescind any order or judgment
granted in the
absence of that party.
(2)
Any party desiring any relief under -
(a)
subrule 1(a) must apply for it on notice to all parties whose
interests may
be affected by the relief sought.
(b)
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.’
[4]
The reason proffered on behalf of the applicant is that the judgment
was granted in the applicant’s absence and without
the
knowledge of either the applicant or her legal representative. The
deponent to the founding affidavit, Mr Selowa (Selowa),
the
applicant’s Director in the Labour Relations Directorate,
testified that this application was triggered when he realised
on 10
August 2012 that the respondent had obtained the judgment which is
the subject matter of this application. He was informed
by Pamba who
inherited this matter shortly before the judgment was obtained that
he never received a copy of the notice of set
down. He therefore
surmised that the applicant did not have knowledge that the matter
had proceeded unopposed.
[5]
In the answering affidavit, the respondent took issue with the
applicant’s failure to apply for condonation when her
application was filed later than the 15 day period prescribed in Rule
16 A (2) (b). In the replying affidavit, Selowa specifically
denied
having failed to comply with Rule 16 A (2) (b) and explained that the
15 day period stated running from the day the applicant
acquired
knowledge of the judgment.
[6]
A determination needs to be made whether there was a need for the
applicant to file an application for condonation of the late
filing
of this rescission application. The starting point of my enquiry is
aptly stated as follows in
Swissborough
Diamond Mines (Pty) Ltd and Others v Government of the RSA and
Others.
[1]
‘
The law
relating to the content of affidavits generally
It is trite law that in
motion proceedings the affidavits serve not only to place evidence
before the Court but also to define the
issues between the parties.
In so doing the issues between the parties are identified. This is
not only for the benefit of the
Court but also, and primarily, for
the parties. The parties must know the case that must be met and in
respect of which they must
adduce evidence in the affidavits.’
[7]
An application for rescission should fail when there is failure to
adequately explain why it was brought late
[2]
.
The Court further held that the magistrate lacked jurisdiction to
determine the rescission application without granting
condonation in
respect of its later institution.
[8]
In the founding affidavit, the legislation in terms of which the
rescission application was instituted is not disclosed. The
effect of
the omission is that issues between the parties were not defined
fully. When the point
in limine
was raised, the applicant was
presented with an opportunity of further defining the issues she
intended relying on. When Selowa
testified in the replying that the
rescission application was not defective as there was no failure to
comply with Rule 16 A (2)
(b), he placed the rescission application
without the realm of Rule 16A (2) (b). Had that not been the case, he
would have identified
the reason for pleading that it was not
necessary to file a condonation application.
[9]
A litigant’s case is determined on its pleadings. Arguments
need to be foreshadowed in the pleadings. It is impermissible
for the
applicant to raise arguments which are in variance with the
pleadings. Once an election to place this application within
the
purview of Rule 16 A (2) (b) was made, the applicant was precluded
from deviating from that election and argue that the application
was
brought in terms of the common law which does not limit the period
within which it could be brought. The attempt to effect
the change
very late in the day is an attempt to escape the inescapable election
the applicant made in the pleadings and the need
to apply for
condonation. The application was filed late and the applicant was
required to comply with Rule 16 A (2) (b) and apply
for condonation.
[10]
Non-compliance with court Rules cannot be down played. The following
dictum
in
Grootboom
v National Prosecuting Authority
[3]
is apposite:
‘
The language used
in both
Van
Wyk
and
eThekwini
is unequivocal. The warning is expressed in very stern terms. The
picture depicted in the two judgments is disconcerting. One gets
the
impression that we have reached a stage where litigants and lawyers
disregard the Rules and directions issued by the Court
with
monotonous regularity. In many instances very flimsy explanations are
proffered. In others there is no explanation at all.
The prejudice
caused to the Court is self –evident. A message must be sent to
litigants that the Rules and the Court’s
directions cannot be
disregarded with impunity.’
[11]
The deponents to the applicant’s affidavits could not tell
whether the applicant received the notice of set down, taking
into
account who the applicant is. Selowa got to know of the
judgment on 10 August 2012 and this application was brought
on 20
September 2012. It was therefore filed late by nine days from the
date Selowa acquired its knowledge. The applicant was,
in the
circumstances, required to have applied for condonation of the late
filing of the application. She failed, thus denying
this court the
necessary jurisdiction to determine the application.
[12]
The respondent sought costs against the applicant. Requirements of
the law and fairness militate towards the granting of a
costs order
against the applicant. The applicant unreasonably proceeded with this
matter causing the respondent to incur costs.
[13]
In the premises, the following order is made:
13.1
The point
in limine
is upheld.
13.2
The application is dismissed with costs.
____________
Lallie,
J
Judge
of the Labour Court in South Africa
Appearances
For
the Applicant:
Advocate K Molemoeng
Instructed
by:
The State Attorney
For
the Respondent: Advocate Magano
Instructed
by:
Photoane Attorneys
[1]
1999
(2) 279 at 323 F-G.
[2]
See
Wright
v Westelike Provinsie Kelders BPK
2001
(4) 1165 (C) at para 29.
[3]
[2014]
I BCLR 65 (CC) at para 34.