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[2017] ZALCJHB 256
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Cullinan Diamond Mine (Pty) Ltd v Pienaar NO and Others (JR483/11) [2017] ZALCJHB 256 (4 July 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Not Reportable
CASE NO: JR 483/11
In
the matter between
CULLINAN
DIAMOND MINE (PTY)
LTD
Applicant
and
J
LE PIENAAR
N.O
First
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
Second
Respondent
MAMOKOPI
BOROKO
Third
Respondent
Heard:
13 June 2017
Delivered:
4 July 2017
Summary:
The defence of
lis
pendens
cannot succeed when the third respondent has not proved pending
litigation between the parties. When an order is, owing to an obvious
error, inconsistent with the body of the judgment, it may be
corrected in terms of
section 165(b)
of the
Labour Relations Act 66
of 1995
.
JUDGMENT
LALLIE
J
[1]
This is an application for the variation of paragraph 15 of the
judgment handed down by this Court on 14 January 2014, to have
the
order that ‘the application for review is dismissed’
corrected to read ‘the arbitration award is reviewed
and set
aside’. It is opposed by the third respondent.
[2]
The facts of this case are not in dispute. The applicant brought an
application to review and set aside an arbitration award
of the first
respondent. The application was opposed by the third respondent. The
application was argued and after considering
the papers and arguments
on behalf of the applicant and the third respondent, I issued the
judgment which is the subject of this
application, in paragraph 15 of
which I dismissed the review application. After the judgment was
handed down the applicant filed
an application for leave to appeal,
mainly, on the grounds that I erred in dismissing the review
application having found in the
body of the judgment that the first
respondent had reached an unreasonable decision. The third respondent
opposed the application
for leave to appeal. The application was
granted. In the reasons for granting leave to appeal I made it clear
that as a result
of an obvious error, I granted an order which is in
direct contrast with the body of the judgment. It also did not
express my intention.
After receiving the judgment on leave to
appeal, the applicant moved the application at hand. In the founding
affidavit the applicant
submitted that it would not pursue the appeal
as the obvious error could be corrected by bringing this application
in terms of
provisions of
section 165
(b) of the LRA
[1]
.
[3]
In the opposing affidavit the third respondent raised the defence of
lis
pendens
on
the grounds that the application at hand is irregular in the face of
the leave to appeal that is currently pending. The applicant
elected
to appeal the judgment and the appeal has not been dealt with. The
third respondent expressed the view that the application
for the
variation of the judgment is
lis
pendens
in the face of the appeal which had not been finalized. The applicant
did not file a replying affidavit. It was argued on behalf
of the
applicant that there is no merit in the point
in
limine
raised by the third respondent because there is no pending appeal as
the applicant decided not to pursue it. The third respondent
argued
that her version should be preferred as the applicant elected not to
file a replying affidavit and indicate whether the
applicant was
proceeding with the appeal or whether the appeal has been formally
withdrawn.
[4]
The defence
of
lis pendens
can be relied on in the following circumstances
[2]
:
‘
Lis alibi pendens
can only be raised if there is pending
litigation between the same parties or their privies based on the
same cause of action before
the same court or another court with
equal competence’.
As
the point
in
limine
was raised by the third respondent, even in the absence of a replying
affidavit, the third respondent had to prove
lis
pendens
.
The third respondent failed to prove pending litigation between the
parties. The applicant submitted that it was not pursuing
the appeal.
The third respondent may not rely on the applicant’s failure to
indicate whether it has withdrawn the appeal
because no allegation
was made to the effect that an appeal has been filed. After the
application for leave to appeal was granted,
the applicant acquired
the right to appeal. It was up to the applicant to decide whether to
exercise the right. As the applicant
had not exercised the right to
appeal, there was no pending appeal to be withdrawn. The third
respondent did not discharge the
onus of proving
lis
pendens
.
[5]
The arguments raised on behalf of the applicant are consistent with
the reason I gave for granting the application for leave
to appeal
that the order dismissing the review was an obvious error as in the
body of the judgment I made an unequivocal finding
that the award
under review was unreasonable. I have considered the arguments raised
on behalf of the third respondent and the
authority on which they are
based. I am not persuaded that they are correct. A proper reading of
the judgment reveals that making
the order dismissing the review
application was an obvious error as the order is inconsistent with
the body of the judgment and
does not express my intention. The error
is the kind of error envisaged in
section 165
(b) of the LRA.
[6]
In the premises, the following order is made:
Order:
1.
The point
in
limine
is dismissed.
2.
Paragraph
15 of the judgment under case number JR483/11 and dated 14 January
2014 providing that the application for review is dismissed
is varied
and corrected to read as follows:
2.1
The
arbitration award is reviewed and set aside.
__________________________
Z
Lallie
Judge
of the Labour Court of South Africa
[1]
Act 66 of 1995
[2]
Civil Procedure
In The Supreme Court
by DR
Harms,
SC