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[2016] ZALCCT 43
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Professional Security CC t/a Prosec v Karorero and Others (C181/15) [2016] ZALCCT 43 (9 November 2016)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not
reportable
Of
interest to other judges
Case
no: C 181/15
In the matter
between:
PROFESSIONAL SECURITY CC
t/a PROSEC
Applicant
and
E KARORERO & 8 OTHERS
Respondents
Delivered
:
9 November 2016
Summary
:
Default judgment not appealable.
RULING
ON LEAVE TO APPEAL
STEENKAMP J
Introduction
[1]
The applicant, Prosec, seeks leave to
appeal against a default judgment granted against it on 9 September
2016.
Default
judgment
[2]
Prosec did not oppose the referral to this
Court by the employees. Judgment was granted by default.
[3]
On the only evidence before the Court –
that of nine former employees – it was found that their
dismissal was substantively
and procedurally unfair.
[4]
The employees led evidence as to their
remuneration at the time of their dismissal. The Court ordered Prosec
to pay them compensation
equivalent to twelve months’
remuneration, based on the evidence before the court. It translated
to R51 600 each.
[5]
Despite judgment having been granted by
default, Prosec seeks leave to appeal rather than to have the
judgment rescinded.
[6]
Prosec claims in its heads of argument –
absent any evidence – that it had settled its dispute with the
third respondent,
Mambombo; and that the amounts on which the
compensation order was based are incorrect. It also complains that
the compensation
of 12 months’ remuneration is not just and
equitable. It now seeks to lead further evidence on appeal, not
having used the
opportunity to do so in the court
a
quo
.
[7]
In terms of s 166(1) of the LRA, only final
judgments and orders are appealable.
[8]
In
Pitelli
[1]
the SCA
made it clear that a default judgment is ordinarily not appealable:
“
An
order is not final, for the purposes of an appeal, merely because it
takes effect unless it is set aside. It is final when the
proceedings
of the court of first instance are complete and that court is not
capable of revisiting the order. That leads one ineluctably
to the
conclusion that an order that is taken in the absence of a party is
ordinarily not appealable (perhaps there might be cases
in which it
is appealable but for the moment I cannot think of one). It is not
appealable because such an order is capable of being
rescinded by the
court that granted it and it is thus not final in its effect.
“
It
seems to me that the appealability of an order must be dependent on
the nature of the order and not upon what the litigant chooses
to
make of it. An order made by default is by its nature not final in
its effect because it is capable of being revisited, albeit
that
condonation might be required for the delay. It is true that once
rescission has been refused, and an appeal against that
order has
been dismissed, the order is then not capable of being revisited. But
that order of the court of appeal brings the proceedings
as a whole
to an end and it is not then open to a litigant to return to an order
that was made midway in the proceedings.
“
It
also seems to me that the default judgment of the court
a
quo
is not appealable – it is not
final in effect in that the default judgment of the court
a
quo
is theoretically capable of being
revisited in the form of an application for rescission of judgment.
“
I
am mindful of the considerable hurdle that would need to be overcome
by a litigant who seeks to have an order
rescinded
when he or she deliberately allowed it to be taken by default,
bearing in mind that in order to succeed the litigant will need
to
provide a ‘reasonable and convincing explanation’ for the
default. But the
appealability
of the order is dependent upon whether it is capable of being
revisited and not upon whether such an application will succeed.
And
if a litigant deliberately chooses to permit an order to go by
default then he or she can hardly complain if a court refuses
to
allow the matter to be re-opened. A litigant cannot expect to blow
hot and cold depending on what is most advantageous at the
time.
“
The
orders that were made in this case were clearly susceptible to
rescission. In those circumstances they are not appealable.”
[9]
The same considerations apply in this case.
The judgment is not appealable.
[10]
The applicant asked for costs to be costs
in the appeal. It was unsuccessful. The respondents, who are workers,
asked for the applicant
to pay the costs. I see no reason in law or
fairness to disagree. The applicant did not defend its case when it
had the opportunity.
The workers had to incur further legal costs to
oppose the application for leave to appeal.
Order
The application
for leave to appeal is dismissed with costs.
_______________________
A J
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Adiel Nacerodien
Instructed by Dirk Kotze.
RESPONDENTS:
C J May of Adams & May.
[1]
Pitelli v Everton Gardens Projects
cc
[2010] 4 All SA 357
(SCA) ;
(2010) 5 SA 171
(SCA) paras 27, 31, 34 and 36 (my underlining).