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[2014] ZALCPE 39
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EH Walton Packaging (Pty) Ltd v Clark (P413/14) [2014] ZALCPE 39 (11 November 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
CASE
NO: P413/14
DATE:
11 NOVEMBER 2014
In
the matter between:
EH
WALTON PACKAGING (PTY) LTD
..............................
Applicant
And
ALAN
MICHAEL CLARK
.............................................
Respondent
Heard:
11 November 2014
Delivered:
11 November 2014
Summary:
The Labour Court may invoke provisions of section 165 (a) of the LRA
and rescind an order sought and granted without the
application
having been served on the respondent.
JUDGMENT
LALLIE
J
[1]
On 11 November 2014 the applicant sought and was granted, on an
urgent basis, the following order in the absence of the respondent:
‘
1.
The sale in Execution scheduled for 12 pm today, 11 November
2014 under the case number P 421/13 is hereby
cancelled.
2.
E H Walton Packaging (Pty) Ltd is declared to be under business
rescue.
3.
There is no order as to costs.’
[2]
On the same day I invoked the provisions of section 165 (a) of the
Labour Relations Act 66 of 1995 (‘the LRA’) and
rescinded
the order. Section 165 (a) of the LRA enables the Labour Court, to
rescind, of its own accord, an order erroneously sought
and
erroneously granted in the absence of any party affected by the
order. In
McDonalds
SA (Pty) Ltd v CCMA and others
[1]
it was held that the purpose of section 165 was to provide an
expeditious means of correcting an obviously wrong order. The court
held as follows:
‘
The
provisions of section 144 of the Act which apply to the CCMA, are
repeated in section 165 of the Act with reference to the power
of
this Court to vary or rescind its orders. The provisions so enacted
in sections 144 and 165 of the Act in turn correspond with
the
provisions of rule 42 of the Uniform Rules of the High Court.
In
applying the provisions of rule 42, the High Court has held that the
rule “is a procedural step designed to correct expeditiously
an
obviously wrong judgment or order” (see
Promedia
Drukkers & Uitgewers (Edms) Bpk v Kaimowitz
& others
1996 (4) SA 411
(C) at 417C). Relief in terms of the
rule will be granted on the basis that an order or judgment is
erroneously granted if there
was an irregularity in the proceedings;
or if it was not legally competent for the court to have made such an
order; or if the
court, at the time when the judgment or order was
made, was unaware of facts which, if known to it, would have
precluded the granting
of the order such a, for example, where the
application had not been served on the respondent (see
Promedial
Drukkers & Uitgewers v Kaimowitz
(supra) at 417 G-I; Brassey
op cit
at A7:69;
Stander & another v Absa
Bank
1997 (4) SA 873
(E) at 883-884.’
[3]
At the time the order was granted, I was not aware that the
application had not been served on the respondent. It is after the
order had been granted that I realized that the applicant had not
filed the service affidavit or any form of proof that it had
served
the application on the respondent. No submissions were made on behalf
of the applicant confirming service of the application
on the
respondent. Had the applicant brought the omission to my attention I
would not have granted the order. It is for this reason
that I
rescinded the order I granted on 11 November 2014.
Lallie
J
Judge
of the Labour Court of South Africa
Appearance
For
the Applicant: Advocate Pask
Instructed
by Vlok Attorneys
For
the Respondent: No Appearence
[1]
[2003] 10 BLLR 1020
(LC) at page 1023