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[2017] ZALCPE 3
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South African Municipality Workers Union obo Dywili v Inkwanca Municipality (P399/2014) [2017] ZALCPE 3 (31 January 2017)
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not Reportable
Case no: P399/2014
SOUTH
AFRICAN MUNICIPALITY WORKERS UNION
OBO
ZUKO S DYWILI
Applicants
and
INKWANCA
MUNICIPALITY
Respondent
Heard:
04 March 2016
Delivered:
31 January 2017
JUDGMENT
TLHOTLHALEMAJE,
J
[1]
The
Respondent (Municipality), brought this application to rescind a
default judgment granted by Euijen AJ on 26 February 2015 in
favour
of the Applicant (Dywili). The default judgment followed upon the
statement of claim filed by the Applicants on 11 November
2014. Upon
the expiry of giving of notice to oppose on 25 November 2014, the
Applicants had then filed an application for default
judgment on 21
January 2015. The application for rescission is opposed. For the sake
of convenience, the parties will be referred
to as they appear in the
main claim.
[2]
In
seeking rescission of the default judgment, the Municipality relied
upon the founding affidavit deposed to by its Acting Corporate
Services Manager/Acting Municipal Manager, Mr Themba Mnguni (Mnguni).
He made the following averment;
2.1
The
statement of claim was received by the Municipality on 11 November
2014. Dywili had claimed an adjustment to his salary grade
from that
of task grade 6 to grade 11 retrospective from 2 January 2007. He
also sought payment in respect of the difference in
salary between
the two grades calculated retrospectively from 2 January 2007.
2.2
At the time that the statement of claim was filed, the Municipality
was going through turmoil
emanating from its dissolution and after
its affairs were taken over by the Department of Cooperative
Governance and Traditional
Affairs in terms of the provisions of
section 139 (1) (c) of the Constitution due to its instability. At
the same time, the Municipality
was experiencing industrial action by
its employees who were in solidarity with local community members who
were displeased with
the intervention and relocation of the
Municipality’s main offices from Sterkstroom to Molteno.
2.3
As a result of this turmoil, the Municipality’s offices were
deserted by its staff
and were manned solely by one the
Administrator, Mr. Ngamela Pakade, who had to perform both strategic
and administrative duties.
These tasks also included having to hold
meetings with the Provincial MEC, the SAPS and attorneys representing
the Municipality
in various matters including interdicting employees
and members of the community from destroying or damaging property.
2.4
Due to the overwhelming nature of the tasks he had to perform and the
pressure he was under,
Pakade did not recall having received the
statement of claim, or at most, he might have received it and
completely forgot about
it. Pakade in his confirmatory affidavit
stated that the statement of case might have arrived at the time that
he was busy sorting
out the day to day crisis that he had found, and
that due to the ‘chaos that prevailed at the time, it
(statement of case)
fell through his fingers’ or it was
‘deliberately taken from his incoming tray’.
2.5
He was aware of the default judgment, having received it on 19 March
2015, and denied that
the Municipality was in wilful default in
failing to file a notice of opposition and the statement of defence.
[3]
In
his answering affidavit, Dywili questioned how Pakade could admit
having personally received the statement of case and then losing
it,
without providing any reasonable explanation as to how that was
possible, save to state that someone might have removed it
from his
in-tray. He averred that the Municipality had not advanced any
reasonable explanation for its default, and was indeed
in wilful
default. He disputed that the failure to attend to the matter could
have been due to circumstances beyond the Municipality’s
control.
[4]
It
was submitted by Mr. Grogan on behalf of the Applicants that in the
absence of a reasonable explanation for the default, there
was no
need to consider whether the Municipality had a
bona
fide
defence to the Applicants’ claim. In this regard, it was
submitted that the Municipality had failed to proffer a reasonable
explanation for its default; that its tardiness had resulted in the
matter being set down on the unopposed roll despite the default
judgment being preceded by a properly motivated application, and
after the statement of case was filed on 11 November 2014 without
a
response as anticipated on 20 November 2014.
[5]
Rule
16A
[1]
of the Rules of this
Court makes provision for rescission of its own orders. Section 165
of the Labour Relations Act
[2]
makes similar provisions in respect of rescissions or variations of
court orders. The Municipality contended that the explanation
for its
default was reasonable, and that it had a good defence in the main
application. The principles regarding rescission applications
can be
said to be fairly trite. Where the provisions of section 165 (a) of
the LRA are relied upon, a judgment or order is erroneously
granted
if there existed at the time of its issue, a fact of which the judge
was unaware of which would have precluded the granting
of the
judgment, and which would have induced the judge (if aware of it) not
to grant the judgment
[3]
.
Furthermore, whether the court grants a rescission application under
this provision does not depend upon the applicant showing
good or
sufficient cause (i.e. reasonable explanation for the default and a
reasonable defence to the claim). It is enough if the
order was
erroneously sought or granted in the absence of that party.
[4]
[6]
The
difficulty with the Municipality’s case is that it is not clear
on which provisions under section 165 of the LRA it had
relied upon.
These provisions are wide insofar as they outline the circumstances
under which rescission might be granted. On its
papers however, one
can safely assume that to the extent that its case is based solely on
the grounds that it had proffered a reasonable
explanation for its
default, and had a
bona
fide
defence to the Applicants’ claim, it relies on the provisions
of section 165 (a) of the LRA or Rule 16A (1) (a) (i) of the
Rules if
this Court. The question that arises therefore in the light of the
cited authorities is whether at the time that the default
judgment
was granted, there existed a fact of which Euijen AJ was unaware of,
which would have precluded him from granting the
judgment, and which
would have induced him (if aware of it) not to grant the judgment.
[7]
To
recap, the Municipality conceded having received the statement of
case on 11 November 2014. Ten days had passed without a notice
of
intention to oppose or a statement of response being filed. On 25
November 2014, the Applicants then filed an application for
default
judgment. The default judgment was granted in chambers on 26 February
2015, and there is nothing contained in the Municipality’s
pleadings before this court that indicates that there were factors
which could have dissuaded Euijen AJ from granting the application.
[8]
The
Municipality’s excuse in not attending to the matter, if
brought to the attention of Euijen AJ would in all probability,
not
have persuaded him to grant the application. The explanation or
excuse proffered in essence boils down to its neglect, especially
on
the part of Pakade, irrespective of whatever difficulties, if any,
the Municipality may have experienced at the time. It is
inexplicable
that amidst all the issues that Pakade had to deal with, including
taking legal steps against striking workers and
members of the
community, it would have skipped his mind to attend to similar court
papers that on his own version, had come to
his personal attention.
In the light of these conclusions, it would not be necessary to deal
with issues surrounding whether good
cause was shown. Further having
had regard to the issue of costs, and having taken into account
requirements of law and fairness
as dictated in section 162 of the
LRA, I am of the view that a cost order is not warranted in this
case.
Order
[9]
In the premises, I make following order:
1.
The
application to rescind the default judgment granted by this Court on
26 February 2016 is dismissed.
2.
There
is no order as to costs
________________
Edwin Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Respondent:
Adv. Simoyi
Instructed
by:
Nginda Vuba Attorneys
On
behalf of the Applicant:
Adv. JG Grogan
Instructed
by:
Wheeldon Rushmere & Cole
[1]
Which reads;
(1) The court may, in addition to any other powers it may have-
(a) of its own motion or on application of any party affected,
rescind or vary any order or Judgment
(i) erroneously sought or erroneously granted in the absence of any
party affected by it;
(ii) in which there is an ambiguity or a patent error or omission,
but only to the extent of such ambiguity, error or omission;
(iii) granted as the result of a mistake common to the parties, or
(b) on application of any party affected, rescind any order or
judgment granted in the absence of that party. “
[2]
‘
Variation and rescission of orders of
Labour Court
The Labour
Court, acting of its own accord or on the application of any
affected party may vary or rescind a decision, judgment
or order –
a) erroneously sought or erroneously granted in the absence of any
party affected by that judgment or order;
b)
in which there is an ambiguity, or an obvious error or omission, but
only to the extent of that ambiguity, error or
omission; or
c)
granted as a result of a mistake common to the parties to the
proceedings’.
[3]
South African Revenue Services v Mhlongo (JA
115/2013) (12 March 2015) at para 5
[4]
F & J Electrical CC v MEWUSA obo E Mashatola
and Others (2015) 36 ILJ 1189 (CC) at para 27, where it was held
that;
‘
A
party may have an order of the Labour Court rescinded under section
165(a) if it is shown that the order was erroneously sought
or
granted in the absence of that party. Whether the court grants
a rescission application under this provision does not
depend upon
the applicant showing good or sufficient cause. It is simply
enough if the order was erroneously sought or
granted in the absence
of that party. That is also the position under Rule 42 (1)(a)
of the Uniform Rules of Court. In
respect of Rule 42(1)(a) this
was held to be the position by a Full Bench in Tshabalala
and Another v Peer. Both
the Supreme Court of Appeal and this Court
have also made this point. The Court may even rescind or vary its
order on its own
accord under this provision.
’
See also
Superb Meat Supplies CC v Maritz (2004) 25 ILJ 96 (LAC) at para 15
where it was held that;
‘
When
the court considers whether a judgment has been granted erroneously,
it does not investigate whether good cause has been
established or
whether there has been wilful default’