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[2015] ZALCJHB 448
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Letsoalo v Boyce NO and Others (JR1873/09) [2015] ZALCJHB 448 (17 July 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case
no:
JR1873/09
SHARON LETSOALO
Applicant
And
TIMOTHY BOYCE
NO
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION
MASTER CURRENCY (PTY) LTD
BIDVEST BANK
First Respondent
Second Respondent
Third
Respondent
Fourth Respondent
Delivered:
17 July 2015
JUDGMENT:
LEAVE TO APPEAL
EUIJEN,
AJ
[1]
This
is an application for leave to appeal against the judgment and order
delivered on 11 March 2015 in this matter, in which this
Court
rescinded its earlier order granted in default of an appearance by
the applicant on 15 July 2010. I will continue to refer
to the
parties as they are cited in the main judgment. The grounds on which
leave to appeal is sought are difficult to discern,
save that all of
this Court’ findings of fact and law are attacked, except for
those where adverse findings are made against
the applicant’s
attorney.
[2]
The
first issue to consider is whether an order granting rescission of
judgment, not being final in effect or determinative of any
part of
the main issue between the parties (which is the review application)
is appealable at all in terms of the provisions of
section 166(1)
of
the
Labour Relations Act, no. 66 of 1995
. That section refers
specifically to final judgments and final orders, which a rescission
order is not. On this ground alone, leave
to appeal ought to be
refused.
De
Vos v Cooper & Ferreira
1999 (4) SA 1290
(SCA)
Zweni
v Minister of Law and Order
1993 (1) SA 523
(A)
[3]
It
is conceded on behalf of the applicant that the ancillary condonation
application is appealable. The principal ground raised
in this regard
is that there is no separate condonation application; it is
incorporated into the rescission application. There
is no requirement
in the Rules that interlocutory applications must be “stand
alone” applications. Condonation applications
are routinely
incorporated into the main applications to which they are attached
and it is more convenient and expeditious that
they be done that way.
There is thus no substance in this ground of appeal.
[4]
In
their application for leave to appeal, the third and fourth
respondents raise a number of self-styled “jurisdictional”
issues which I shall briefly consider.
[5]
The
first of these is that the review application is said to be fatally
defective, on account of the misjoinder of the fourth respondent
and
the fact that condonation has not yet been granted for its late
filing. It is contended that this deprives this Court of jurisdiction
to consider the rescission application.
[6]
The
submission has no substance in law or logic. Whether the review
application is defective or not has nothing to do with this
Court’s
jurisdiction to hear the rescission application. The prospects of
success of the review application are relevant
only to the
determination of “good cause” which was found to be
unnecessary in this case, in the light of the conclusion
reached in
respect of the grounds contained in Rule 16A(1)(a).
[7]
The
second is a confusing attack on the applicant’s reliance and
this Court’s findings that a case had been made out
for the
granting of rescission of this Court’s earlier default judgment
on the basis that it was “erroneously sought”
within the
meaning of section 165(a) and Rule 16A(1)(a)(i), in that van Niekerk
J was under the erroneous impression that the notice
of set down had
been received by the applicant’s attorneys, whereas in fact it
had not.
[8]
Whatever
the precise nature of the attack is, it is certainly not a
jurisdictional issue either. In any event, there is no reasonable
prospect, in my view, that the Labour Appeal Court will depart from
the authority of this Court in
CAWU
v Federale Stene
[1]
,
and the cases which have followed it, cited in the main judgment. It
is clear from those judgments that the fact that the applicant’s
attorneys demonstrated, on a balance of probability, that they did
not receive the faxed notice of set down, is sufficient alone
to
grant rescission of judgment
[2]
.
[9]
Insofar
as the criticism is that this ground was not properly raised on the
papers, or is contradicted by reliance also on the grounds
contained
in Rule 16A(1)(b), I disagree. The issue of the receipt of the notice
of set down is extensively canvassed in the affidavits
filed by both
parties. There is no indication in the rescission application that
reliance is only placed on Rule 16A(1)(b); instead
the whole of the
Rule is relied on. Finally, the matter was fully argued on the basis
of both Rule 16A(1) (a) and (b) and at no
stage was it contended that
either issue was not before the Court.
[10]
Finally,
it is contended that costs ought not to have been awarded against the
third and fourth respondents in view of this Court’s
serious
criticism levelled against the applicant’s attorney. It is
clear from the main judgment that this was taken into
account in
consideration of the award of costs. However it was outweighed by the
other considerations given in the judgment. As
courts of first
instance are given a wide discretion on the issue of costs, the
Labour Appeal Court is, as a rule, reluctant to
hear appeals on this
issue alone.
[11]
This
Court strives to determine disputes between the parties on the merits
and as swiftly as possible. This has not occurred in
this case. An
enormous amount of effort and expense has been put into this
interlocutory application without determining any part
of the merits
of the dispute between the parties. This is a further factor which
militates against granting leave to appeal, insofar
as it is
competent to do so.
[12]
In
conclusion, I am not persuaded that there is any reasonable prospect
that the Labour Appeal Court will reach any different conclusion
about this rescission application to that held by this Court.
[13
]
For
the reasons given above:
a.
The
application for leave to appeal is refused with costs.
__________________
Euijen, AJ
Acting
Judge of the Labour Court of South Africa
[1]
(1991)(Pty) Ltd
[1998] 4 BLLR 374 (LC)
[2]
See
F
& J Electrical CC v MEWUSA obo E Mashatola and Others
[2015]
ZACC 3
(CC)