About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 21
|
|
NUMSA and Others v Fountain Dienstasie BK and Another (JS 66/09) [2015] ZALCJHB 21 (16 January 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JS 66/09
DATE: 16 JANUARY 2015
Not Reportable
In the matter between:
NUMSA
.................................................................................................
First
Applicant
KAIZER MOFOKENG & 12
OTHERS
.................
Second and
further Applicants
And
FOUNTAIN DIENSTASIE
BK
.......................................................
First
Respondent
ALLEGRO FILLING
STATION
...............................................
Second
Respondent
Heard: 14 January 2015
Delivered: 16 January 2015
JUDGMENT
ORR, AJ
Introduction:
[1] This is an application for the
rescission of an order handed down by Le Grange J on 26 July 2013.
The order, which was granted
in default of any appearance by either
respondent, joined the second respondent as a party to these
proceedings. The order was
granted notwithstanding the fact that the
second respondent was already a party to the proceedings, had been
cited as such since
the inception of these proceedings, and had
concluded a pre- trial minute with the applicants. In effect
therefore the Learned
Judge joined the existing second respondent to
the proceedings as second respondent. I will return to the question
of whether that
was correctly done in due course.
[2] The matter was set down for trial
on 3 March 2014. When the matter was called, in the words of the
founding affidavit of the
second respondent in the rescission
application ‘My attorneys then submitted that the matter was
not ripe for trial in that
the joinder application was not as yet
finalised and there is no certainty whether or not the 2nd Respondent
should defend itself
against an application by the Applicants’
(My emphasis).
[3] On being informed that an order had
been made in the joinder application, the second respondent stated
that it had no knowledge
of the order and sought a postponement of
the trial in order to bring the current application, which is brought
in terms of Rule
16A(1)(a) or alternatively 16A(1)(b).
[4] The second respondent contends that
it had, at all times, intended to oppose the joinder application. As
evidence of this it
refers to the fact that it delivered opposing
papers and heads of argument in the application. Reference is also
made to the fact
that the second respondent attended at Court when
the joinder application was first set down for hearing. The matter
was postponed
on that occasion because the applicant’s counsel
did not arrive at Court. The second respondent states that it did not
attend
Court on 26 July 2013 because it did not receive any notice of
set down. In substantiation of this it attaches two fax transmission
sheets which indicate that attempts to serve the notice of set down
on the second respondent on 23 April 2013 were unsuccessful.
[5] The second respondent submits that,
if rescission is granted, it will have excellent prospects in
persuading the Court that
joinder should not be granted. It is
apparent from both the founding and the replying affidavit, that the
second respondent is
of the view that the joinder application should
not have been granted as the second respondent has no substantial
interest in the
subject matter of the litigation. In other words, on
the papers, the second respondent holds to the view expressed on its
behalf
at roll call on 3 March 2014, namely that the joinder
application is determinative of whether the second respondent is a
party
to the original proceedings, and that, in the absence of being
joined, the second respondent is not a party.
[6] The applicants’ answering
affidavit was delivered late. In the affidavit itself application for
condonation for the late
filing of the affidavit was made. Despite
original opposition by the second respondent, this was withdrawn on
the day on which
this matter was heard. In the circumstances, I am
satisfied that good cause has been shown for the late delivery and
this is condoned.
[7] The applicants contend that the
second respondent was served with a notice of set down and therefore
in wilful default on 26
July 2103. In the answering affidavit in the
rescission application, which is deposed to by the applicants’
attorney, the
unsuccessful attempt to fax the notice of set down to
the second respondent is acknowledged. However, the allegation is
made that
a Ms Shongwe from the registrar’s office then phoned
the second respondents attorneys and was provided with an alternative
fax number. The notice of set down was then successfully faxed to
this number. A copy of the transmission report is attached to
the
affidavit. The applicants’ attorney does not provide any detail
at all on how he came to learn of these facts. No confirmatory
from
Shongwe is attached. Nor is there any mention of any attempt to
obtain one.
[8] In relation to the prospects of
success in opposing the joinder application should the rescission be
granted, the applicants
contend that the second respondent has none.
This is so, according to the applicants, because the second
respondent has always
been party to the proceedings. In these
circumstances the joinder application was “academic”,
that the order of joinder
“only confirmed what both parties
already knew”, that the second respondent ‘has always
been a party to the proceedings
whether or not rescission is granted
and joinder denied’.
[9] In reply the second respondent
maintains that it did not receive the set down notice for 26 July
2013. The second respondent
states that the number that the notice
was sent to had not been the number of the second respondent’s
attorneys except for
a brief period. It was not operative on 23 April
2013.
[10] The heads of argument submitted by
the parties did not take matters much further. Mr Geldenhuys, on
behalf of the second respondent,
persisted with the contentions that
the joinder application would be determinative of whether the second
respondent was in fact
a party to the original proceedings. Mr
Lengane, on behalf of the applicants, made the further submission
that there was no prospect
of opposing the joinder application, as
the joinder application was “superfluous” in that the
second respondent had
always been a party to the original
proceedings.
[11] In argument Mr Geldenhuys, for the
first time, accepted that the second respondent had always been a
party to the original
proceedings. He accepted further that the
joinder application was thus not determinative of whether the second
respondent was a
party to these proceedings, and the application for
joinder had been superfluous in that it did not affect the position
of the
second respondent in the original proceedings. He stated that
the real issue for the second respondent was the costs award which
had been granted against it in default.
Analysis:
[12] Rule 16A (1)(a) provides that a
Court may rescind an order ‘erroneously sought or erroneously
granted in the absence
of any party affected by it’. The
wording of the rule is identical to that of section 165 of the Labour
Relations Act 66
of 1995 (‘the LRA”). In Sizabantu
Electrical Construction v Guma and Others
[1999] 4 BLLR 387
(LC),
this Court held that a party that relies on section 165 of the LRA
need only show that an order was erroneously granted or
sought in
order to succeed in a rescission application. Good cause need not be
shown. Given the identical wording of the section
and the Rule it
follows that the same applies to an application in terms of Rule
16A(1)(a).
[13] The question that I am required to
consider therefore is whether the joinder of the second respondent
was erroneously sought
and/or erroneously granted. Erroneous is
defined by the Oxford English Dictionary as “wrong” or
“incorrect”.
There has been acceptance by both the
applicants and the second respondent that the joinder application was
entirely unnecessary
given that the second respondent has been a
party to original proceedings right from the outset. Any unnecessary
proceedings must
surely be wrong or incorrect. The purpose of a
joinder application is to include a new party, either as an applicant
or as a respondent,
who is not a party to the proceedings. I fail to
understand how an existing second respondent can be “joined”
to proceedings
in which they are already the second respondent.
[14] In my view therefore the joinder
of the second respondent was both erroneously sought and granted and
the ruling by the Learned
Judge issued on 26 July ought to be
rescinded.
[15] I have already found that good
cause for the rescission need not be shown given the second
respondent’s reliance on Rule
16A(1)(a). For the sake of
completeness, I indicate that had the second respondent relied only
on Rule 16A(1)(b) ,I would have
found that good cause had been shown
to rescind the order. Given the second respondent’s clear
determination to resist the
joinder application at all times, the
probabilities are overwhelmingly in favour of it not being in wilful
default on 26 July.
As already indicated, it is my view that the
order for joinder was erroneously granted and, as such, the second
respondent would
have good prospects of resisting the order. This is
so even though there is now consensus that the order was in any event
unnecessary
In order to prevent any further debate in this regard I
have included a declarator to this effect in my order. This matter
must
now proceed to trial given that the dismissals took place in
2009.
Costs:
[16] In determining the costs in this
matter I am obviously mindful of the fact that the second respondent
has had success in the
rescission application. However, I am not
inclined to grant costs to the second respondent given the misguided
view that it adopted,
up until the hearing of this matter that the
joinder application was determinative of whether the second
respondent was a party
to the original proceedings. It was only at
the eleventh hour that this position was abandoned. Their position in
this regard should
have been communicated much earlier to the
applicants.
[17] In the premises I make the
following order
Order:
1. The late delivery of the applicants’
answering affidavit is condoned;
2. The application for the rescission
of the order granted on 26 July 2013 is granted;
3. The second respondent is currently,
and has been since the outset of the original proceedings, a party to
this litigation;
4. The registrar is directed to enrol
this matter for trial as matter of priority;
5. There is no order as to costs
Orr, AJ
Acting Judge of the Labour Court of
South Africa
APPEARANCES:
For the Applicant: Adv K Lengane.
Instructed by: Phungo Incorporated
For the Respondent: Geldenhuys of
Geldenhuys CJ at Law.