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[2018] ZALCPE 15
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Burmeister De Lange Soni Inc and Another v Pay (PS23/13) [2018] ZALCPE 15 (6 April 2018)
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
CASE
NO: PS 23/13
Not
reportable
In
the matter between
BURMEISTER
DE LANGE SONI INC
First
Applicant
ZELPY
2345 (PTY) LTD T/A REAL
ESTATES
INVESTMENTS (PTY) LTD
Second Applicant
and
MICHELLE
PAY
Respondent
Application
heard: 22 March 2018
Judgment
delivered: 6 April 2018
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to rescind a
judgment granted by default by Lagrange J in Chambers on 31 May 2016.
In his order, Lagrange
J directed the first respondent in the main
application (the first applicant in this application, and to whom I
shall refer as
‘the applicant’) to pay the respondent the
amount of R 18 378.21, being commission due and owing, and a further
amount
of R11 300, being a deduction from salary.
[2]
The applicant makes no reference in the founding affidavit to the
statutory or regulatory provision in terms of which the application
is brought. The heads of argument signed and filed by the applicant
make matters no clearer, but for a passing reference to an
absence of
wilful default. The focus of the heads is on preliminary points of a
trivial nature. For example, the applicant avers
that when the
answering affidavit was signed, the commissioner of oaths failed to
use the pronoun ‘she’ when the oath
was administered (the
affidavit, as do the regulations, reflect the word ‘he’).
From this it is deduced that the answering
affidavit is not an
affidavit and that the application is therefore unopposed. The
heads are signed by an attorney, who describes
himself as the
managing director of the first applicant. This court has long
required parties’ representatives to avoid
technicalities and
point-taking, and to deal with the substantive merits of the disputes
in which they are engaged. The applicant’s
heads of argument
represent the antithesis of what the court expects of practitioners.
The inadequacy of the applicants’
heads of argument was no
doubt drawn to the attention of the applicants’ attorney.
Counsel thereafter prepared what are described
as supplementary heads
of argument, and which formed the basis of the submissions made on
the applicants’ behalf.
[3]
The matter has a history that extends beyond the judgment by default
that is the subject of the present application. Judgment
by default
was originally granted against the first applicant in February 2014
by Molahlehi J in the sums of R18 378.21, being
commission owed to
the respondent, and against both applicants in the sum of R 11 300,
being a deduction from the respondent’s
remuneration. That
judgment was rescinded on 5 February 2015. Paragraph 2 of the order
reads “
The First and
Second Respondents are granted leave to defend the Respondent’s
action
”.
[4]
The applicants aver that for a period of two years, the respondent
took no steps to proceed with the matter and that they accepted
that
the respondent had elected not to pursue the matter. The applicants
state further that they did not receive any notice of
the
respondent’s intention to seek default judgment to which they
were entitled in terms of Rule 7 nor of the directive issued
by the
court calling upon them to file an statement in response to the
statement of claim, and that they became aware of the judgment
only
on 6 June 2016. The applicants submit that they have a
bona
fide
defence to the
respondent’s claim, the basis of which is set out in the
previous application for rescission.
[5]
An application for rescission may be brought either under s 165 of
the LRA or in terms of Rule 16A (1) (b). The difference between
the
two procedures relates to the requirement of good cause – it
has been held that under Rule 16, it is incumbent on an
applicant to
provide a reasonable explanation for his or her default, that the
application must be bona fide and not made with
the intention of
delay and to demonstrate a bona fide defence to the claim. Section
165 on the other hand simply requires an applicant
to establish that
the judgment was erroneously granted in the absence of the party, and
is ordinarily used when party was genuinely
unaware that a matter had
been set down. Put another way, a judgment is granted erroneously if
at the time it was granted, there
existed facts of which the court
was unaware and, had it been aware of them, it would not have granted
the judgment.
[6]
It is not disputed that the terms of the order granted on 5 February
2015 specifically grant the applicant leave to defend the
action. It
was incumbent on the applicants therefore to have filed a statement
in reply to the statement of claim within the period
permitted by the
Rules. They failed to do so.
[7]
It would appear that on 17 March 2016, the registrar wrote to the
applicants recording that Cele J had perused the file and
directed
that the applicants file a statement of defence ‘
within
30 days from today with a condonation application for the lateness
calculated form the date of the rescission ruling’
.
The letter went on to advise that in the absence of the filing of a
statement of defence, the file would be presented to a judge
for
default judgment. The applicants deny having received the letter.
[8]
To the extent that the applicant’s rely on the absence of
notice of the application for default judgment, the simple answer
is
that they were never entitled to notice. Rule 16 was amended in 2001
to remove the obligation on the registrar to give notice
to parties
other than an applicant (see
BDO
Spencer Stuart Inc v Otto
(2002) 23
ILJ
1374 (LC)). Similarly, and to the extent that the applicants seeks to
show the absence of wilful default by reference to their
failure to
receive notice of the directive issued by Cele J, there is no
provision in the Rules or the practice Manual that entitle
the
applicants to such notice. On the contrary, Paragraph 6 of the
Manual makes clear that ordinarily, default judgments
will be
considered in Chambers. There is no requirement of notice.
[9]
The fact of the matter remains that the applicants, in terms of the
order of rescission that they sought and were granted on
5 February
2015, were obliged to file a response to the statement of claim. It
does not assist the applicants to assert, as they
have done, that
they were lulled into assuming that the respondent had elected not to
pursue her claim. The applicants were obliged
to file their response
within 10 court days of the order – they could not in that
short period, in the absence of any express
indication to the
contrary from the respondent, have reasonably formed the view that
she had abandoned her claim. The first applicant
is a firm of
attorneys and could not have misconceived of the nature and extent of
its obligations once the order dated 5 February
2015 had been
granted. The explanation for the failure to file the response is
manifestly without merit.
[10]
The applicant has failed to satisfy the requirement of good cause in
the sense of a reasonable and satisfactory explanation
for its
default. In these circumstances, their prospects of success are not
relevant. Even if they were, they are in my view not
so overwhelming
so as to outweigh the failure to satisfy the requirement of good
cause. The application stands to be dismissed.
Finally, there is no
reason to deny the respondent her costs.
I make the following order:
1.
The application is dismissed,
with costs.
André
van Niekerk
Judge
REPRESENTATION
For the
applicants: Adv. L Voultsos, instructed by BDLS Attorneys
For the
respondent: Adv. C Burton, instructed by Wikus van Rensburg Attorneys