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[2019] ZALCJHB 219
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Emalahleni Local Municipality and Another v Rapolae; In re Rapolae v Emalahleni Local Municipality and Another (J1656/19) [2019] ZALCJHB 219 (16 August 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGEMENT
Not
reportable
CASE
NO: J 1656/19
In the matter between:
EMALAHLENI
LOCAL MUNICIPALITY
First
Applicant
MUNICIPAL MANAGER: EMALAHLENI
LOCAL
MUNICIPALITY
Second Applicant
And
NTSHWARE
RAPOLAE
Respondent
In re
NTSHWARE
RAPOLAE
Applicant
And
EMALAHLENI
LOCAL MUNICIPALITY
First
Respondent
MUNICIPAL
MANAGER: EMALAHLENI
Second
Respondent
Heard:
15 August 2019
Judgment
delivered: 16 August 2019
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to rescind an order granted by this court on
31 July 2019 when the
applicants in the present proceedings were
interdicted from proceeding with a disciplinary hearing against the
respondent.
[2]
I accept that the matter is urgent. The disciplinary hearing against
the respondent
is set to continue next week. These proceedings have
been protracted, to say the least. Indeed, the charge sheet was
issued exactly
three years ago, on 16 August 2016. Ever since then,
the respondent has sought by every means to delay the proceedings,
mainly
through the filing of various interlocutory applications. If
this matter were to be heard in the normal course, it is unlikely
given the present state of the opposed motion roll that the matter
would be enrolled for hearing before the second term of 2020.
It is
in both parties’ interest that there be some conclusion to the
disciplinary hearing as soon as possible, and any relief
that the
applicant might obtain in the ordinary course will not satisfy this
purpose. The fact that the respondent has been on
paid suspension
since August 2016 is nothing less than scandalous and represents
wasteful and fruitless expenditure of a significant
scale. The LRA
contemplates that disciplinary hearings are informal and expeditious.
[3]
The applicant states that it did not receive notice of the
application, and that the
copy of an email produced in these
proceedings purportedly as proof of service relates to a prior
application brought by the respondent
on under J 1625/19 on 22 July
2019, set down for hearing on 25 July 2019. That application was
dismissed. It appears from the papers
that the application which is
the subject of the present proceedings was served by email, which is
not a mode of service recognised
by the Rules of this court. However,
there is no affidavit to confirm that the email was in fact sent, or
that it was received
by the intended recipient. To the extent that
the respondent’s attorney states in a service affidavit deposed
to on 31 July
2019 that the email address is that of the municipal
manager and that he called and spoke to the municipal manager on 26
July 2019
at 11h40 on 013 690 6911 to confirm receipt of the notice
of motion, affidavit and annexures, the municipal manager avers that
on that date he was out of the office, at a meeting in Nelspruit. He
has annexed proof of his invitation to the meeting and the
attendance
register, in which his attendance is recorded. This version is not
seriously disputed. The response to the averment
is ‘allegations
herein are denied and reserve arguments’ (sic). In short, I
find that the application set down for
31 July was not properly
served, and that the applicant in the present proceedings had no
notice of it. Indeed, it would appear
that the respondent’s
representative went so far as to mislead the court on the issue of
service.
[4]
The present application is brought in terms of Rule 16A, which
provides that this
court may rescind a judgment erroneously sought or
erroneously granted in the absence of any party affected by that
judgment or
order. It is not necessary for an applicant in these
circumstances to establish good or sufficient cause – it is
sufficient
that the judgment was made erroneously in the absence of
the party seeking rescission.
[5]
It is clear that had the learned Judge been aware of the fact that
the application
had not been served on the applicant, she would never
have granted the order she did. The order granted on 31 July 2019
thus stands
to be rescinded.
[6]
In as far as costs are concerned, the court has a broad discretion to
make orders
for costs according to the requirements of the law and
fairness. I must necessarily take into account that the applicant has
succeeded
in the present application. However, it is further
necessary for the court to express its concern and displeasure at the
conduct
of the respondent and his attorney and the manner in which
the order that is the subject of these proceedings was obtained. The
courts rely on the integrity of a party and parties’
representatives. When that integrity is called into question, it
should
be expected that a costs order on a punitive scale is
appropriate.
I make the following order:
1.
The order granted on 31 July 2019 is
rescinded.
2.
The respondent is to pay the costs of the
application on the scale as between attorney and client.
André van Niekerk
Judge
REPRESENTATION
For
the applicant: Adv. Phehane instructed by De Swardt Myambo Attorneys
For the respondent: Adv. Maleka,
instructed by MH Mkhabela.