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[2019] ZALCJHB 80
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National Union of Metalworkers of South Africa (NUMSA) obo Fohlisa and Others v Hendor Mining Supplies a Division of Marschalk Beleggings (Pty) Ltd (JS794/03) [2019] ZALCJHB 80 (10 April 2019)
THE
LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
Not
Reportable
Case
no: JS 794/03
In
the matter between:
NATIONAL UNION OF
METALWORKERS OF
SOUTH AFRICA (NUMSA)
OBO MOSES
FOHLISA
& 41
OTHERS Applicant
And
HENDOR MINING SUPPLIES
A DIVISION OF
MARSCHALK
BELEGGINGS (PTY) LTD
Respondent
Considered:
In chambers
Delivered
: 10 April 2019
JUDGEMENT:
LEAVE TO APPEAL
CELE.
J
[1]
On 25 February 2019 I
issued a leave to appeal judgment in this matter while sitting in
chambers. As correctly endorsed in that
judgment I did not have the
benefit of submissions made by the respondents in this matter. I had
consulted with my Johannesburg
based secretary on whether the
application for leave to appeal was opposed. I was informed that no
opposing papers had been received,
notwithstanding the waiting period
given for the same.
[2]
I have since learnt
that opposing papers were filed in time even though they were not
passed on to my secretary. Had I known that
opposing papers were
filed in time with the office of the Registrar but that they were
delayed in transit, I would not have finalised
this application
without these papers. The application for leave to appeal the
judgment is consequently an order erroneously granted
in the absence
of the respondent party that was affected by this judgment and its
order. The leave to appeal judgment I issued
on 25 February 2019 in
this matter accordingly falls to be rescinded.
[3]
Extensive submissions have been made by the respondent in this
application to oppose
the application for leave to appeal for my
consideration. These submissions include a cross appeal,
albeit
on limited grounds pertaining to the applicability of the in
duplum
rule. The submission that the Constitutional Court order is
capable of two interpretations, one proffered by the applicant and
the
other coming from the respondent, is beyond doubt. In the
assailed judgment, the respondent’s interpretation was found to
accord with the context of the facts of this matter. There are
reasonable prospects that the Labour Appeal Court will agree with
the
interpretation of the applicant, in which case leave to appeal should
be granted. In that eventuality the cross appeal should
similarly be
granted.
[4]
In the premises the following order is made:
Order
1.
The leave to appeal judgment dated 25 February in this matter is
rescinded.
2.
The application for leave to appeal is granted on the outlined
grounds of appeal.
3.
The cross appeal is granted on the limited ground averred by the
respondent.
4.
Costs of this application shall be costs in the appeal.
__________________
H. Cele
Judge of the Labour Court
of South Africa