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[2019] ZALCPE 13
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Nthejane v Department of Health, Free State (PS7/15) [2019] ZALCPE 13 (18 July 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Reportable
Case
No: PS7/15
In
the matter between:
DIMAKATSO
GRACE NTHEJANE
Applicant
and
THE
DEPARTMENT OF HEALTH, FREE STATE
Respondent
Heard: 20 June 2019
Delivered:
18 July 2019
JUDGMENT
NIEUWOUDT,
AJ
[1]
The respondent prays for the rescission of
the default judgment granted against it on 23 November 2018.
Therefore, for the sake
of convenience, the parties will be referred
to as in the main application.
[2]
The rescission application was brought late
and the respondent has applied for condonation of this fact. This
application was not
strenuously opposed by the applicant and the
Court granted it.
[3]
Both parties went into the history of the
matter in great detail in the pleadings and in oral argument. This
was unnecessary as
the facts that are relevant to a rescission
application are limited.
[4]
The
respondent relied on both rule 16A (1)(a)
[1]
and
rule 16A (1)(b)
[2]
of
the rules of the Labour Court (the Rules) and the Court shall deal
with both grounds of the application after setting out the
salient
facts.
The facts
[5]
The
matter has a long and convoluted history. During February 2015 the
applicant referred “
a
dispute in terms of section 197 read with 191
”
of the Labour Relations Act
[3]
(the LRA).
[6]
The applicant’s case, as set out in a
founding affidavit, in essence is:
6.1
That she was employed by a local authority
as a professional nurse on 1 October 1998 and that, during or about
December 2004, the
local authority transferred the service, in which
she was employed, to the respondent as a going concern.
6.2
Her employment transferred to the respondent in terms of section 197
of the LRA. The respondent
erroneously registered her commencement
date as 1 January 2005, which error was corrected in 2009.
6.3
On 29 July 2014, the applicant lodged a grievance which she described
as “
I request to be promoted to PNB2 which was supposed to
be done 2007 (sic) when other professional nurses were promoted to be
PNB3
”.
These facts are not in
dispute.
[7]
What is in dispute is whether the applicant
ought to have been placed on a level, PNB3, which has certain
remuneration and benefits
attached to it, instead of PNB1, on which
she was placed and which is a lower level.
[8]
The respondent delivered an answering
affidavit during April 2015. The content thereof is not material save
to the extent that it
pleaded that:
8.1
The applicant was not, by virtue of
qualifications alone, entitled to be placed on the level of PNB3.
8.2
The applicant’s claim had prescribed.
[9]
The
next event of relevance occurred on 14 August 2015 when this Court
made an order which, amongst other things, ordered:
9.1
the applicant to plead the specifics of her
claim with sufficient particularity to enable the respondent to reply
thereto, within
10 days of the order;
9.2
the respondent to respond to the pleading within 10 days;
9.3
the parties to conduct a pre-trial conference upon the close of
pleadings; and
9.4
that the respondent’s prescription point should stand over to
be dealt with at the
outset of the trial.
[10]
On 7 September 2015 the applicant delivered
a pleading styled “
applicant’s
pleadings
”. The respondent was of
the opinion that this pleading did not comply with the order. This
notwithstanding, the parties conducted
a pre-trial conference and
signed a pre-trial minute on 18 November 2016.
[11]
The matter was enrolled for hearing on 4
June 2018 but, on 29 May 2018 the registrar directed the applicant to
comply with the paragraph
of the order dated 14 August 2015 which
directed her to file a supplementary pleading. This led to the matter
being removed from
the roll and the parties agreeing to a new date of
set down of 29 October 2018.
[12]
On 24 August 2018 the applicant filed a
supplementary pleading. There is no explanation why this only
occurred 3 years after the
August 2015 order and more than 2 months
after the directive. However, there was still ample time for the
respondent to respond
thereto if it wished to do so. The respondent
delivered a notice of irregular step and an exception on 9 October
2018. It was out
of time and there is no explanation for this fact;
nor did the respondent apply for condonation.
[13]
The matter proceeded on 29 October 2018 in
the absence of the respondent and the default judgment was granted
against it on 23 November
2018. The respondent did not file the
transcript of the proceedings, but it is apparent from the judgment
that the Court was aware
of the facts set out earlier in this
judgment, in particular:
13.1
of the contents of the court order dated 14
August 2015;
13.2
that the applicant had delivered supplementary pleadings; and
13.3
that the respondent had delivered
a notice
of irregular step and an exception.
[14]
The applicant prayed that the notice of
irregular step and exception should be set aside due to the fact that
it was filed late.
In the absence of opposition this prayer was
granted. The Court then proceeded to consider the pleadings filed by
the applicant
in terms of the order dated 14 August 2015 (although
the date thereof is recorded as 13 August 2015), the answering
affidavit,
the replying affidavit and the oral evidence led by the
applicant. The applicant testified why she was entitled to be placed
on
level PNB3 and, in the absence of any countervailing evidence, the
Court found in favour of the applicant and made the order that
is the
subject of the rescission application.
[15]
The respondent took a conscious decision
not to attend the hearing due to the fact that it held the view that
the matter would not
proceed as the pleadings had not closed.
[16]
The applicant did not in the papers dispute
the averment by the respondent that, had it been informed that the
matter would proceed,
it would have attended court.
[17]
However,
it is a mystery why the respondent’s attorney did not contact
either the attorney of the applicant or the registrar
to ascertain
whether the matter would proceed, especially in view of the fact that
paragraph 10.7.5 of the practice manual reads
“
[o]nce
a matter has been set down for hearing, it may be removed from the
trial roll only with the consent of the Judge President
or in the
case of matters subject to case management, the appointed judge.
”
(Although the Court accepts that this provision is not rigorously
applied.)
The
legal principles
[18]
There is a distinction between rescission
applications brought in terms of rule 16A(1)(a) and rule 16A(1)(b).
[19]
As far as rule 16A(1)(a) is concerned, the
respondent submitted that the default judgment was erroneously sought
and granted in
its absence on the basis that the applicant had not
complied with the order granted by this Court on 14 August 2015 and
that the
matter was not ripe for hearing as the pleadings had not
closed.
[20]
As far as rule 16A(1)(b) is concerned, the
respondent’s case was that it was able to show good cause.
[21]
The applicant contended that the respondent
had only relied on rule 16A(1)(a) in its founding affidavit. It is
thus necessary to
determine the grounds on which the respondent based
the application. In paragraph 5 of the founding affidavit the
respondent avers
that the default judgment was erroneously sought and
granted in its absence and in paragraph 5.11, the respondent pleads
that “
[I]n the premises the
default judgment was erroneously sought and granted.
Alternatively
,
the default judgment was granted by mistake common to both parties.
”
These averments relate to rule 16A(1)(a).
[22]
There is no express reference to good cause
in the founding affidavit. The high watermark of a case in this
regard is the averment
in paragraph 8.1 that the respondent had good
prospects of success and, in paragraph 9.1, that the reasons for its
absence were
bone fide.
[23]
The
question that falls to be decided is whether the respondent
sufficiently pleaded a case founded on rule 16A(1)(b) in order to
rely on it. The law in this matter is clear; a party is confined to
the case made out in its founding affidavit. In
KPMM
Road and Earthworks (Pty) Ltd v Association of Mineworkers &
Construction Union & others
[4]
the court dealt with this issue. The respondent had complained that
the applicant had failed to make out a case in its founding
affidavit
and had attempted to do so in reply. The Court referred with approval
to the decision of the Constitutional Court in
Betlane
v Shelly Court CC
where it was held that:
[5]
‘
It
is trite that one ought to stand or fall by one’s notice of
motion and the averments made in one’s founding affidavit.
A
case cannot be made out in the replying affidavit for the first
time.’
[24]
Despite
the lack of clarity in the pleadings, the Court is prepared to
consider the matter on the basis that the respondent has
laid a
sufficient foundation for a rescission application based on rule
16A(1)(b) in its founding affidavit. It was significantly
fleshed out
in its heads of argument.
Rule
16A(1)(a)
[25]
In
SA
Municipal Workers Union and another v SA Local Government Bargaining
Council and others
[6]
the
applicant applied for an order varying an order that the dismissal of
an employee was unfair, in order to expand the order to
include
reinstatement. The Court referred to
Bakoven
Ltd v G J Howes (Pty) Ltd
[7]
,
with approval. In that matter the Court interpreted the concept
“erroneously” in the following terms:
'An
order or judgment is "erroneously granted" when the Court
commits an "error" in the sense of "a mistake
in a
matter of law (or fact) appearing on the proceedings of a Court of
record" (The Shorter Oxford Dictionary). It follows
that a Court
in deciding whether a judgment was "erroneously granted"
is, like a Court of appeal, confined to the record
of proceedings. In
contradistinction to relief in terms of Rule 31(2)(b) or under the
common law, the applicant need not show "good
cause" in the
sense of an explanation for his default and a bona fide defence
………….. Once the
applicant can point to an
error in the proceedings, he is without further ado entitled to
rescission.'
[26]
T
he
Court held
[8]
that the
applicant, in order to be successful, has to show that, at the time
the judgment or the order was granted, there existed
a fact which the
Court was unaware of and which, had the Court been aware of, may have
caused it to adopt a different approach
in making the order.
[27]
In later judgments, doubt is cast on the
fact of whether the Court is confined to the record in considering a
rescission application
but it is not necessary to deal with that
aspect in this matter.
[28]
In
Martin
v Commission for Conciliation, Mediation and Arbitration and
others
[9]
the Court, although dealing with the issue of the powers of a
commissioner to rescind or vary an award, held that the provisions
of
s144 of the LRA was similar to the provisions of rule 42(1) of the
Uniform Rules of Court (which in turn is similar to the provisions
of
rule 16A(1)(a)). The Court continued to hold that:
‘…
an
order or judgment will be held to be erroneously granted if there was
an irregularity in the proceedings, or if it is not legally
competent
for the court to have made the order or judgment, or there existed at
the time of issue a fact of which the judge was
unaware, which would
have precluded the granting of the judgment and which would have
induced the judge, if he had been aware of
it, not to grant the
judgment.’
[29]
The
same test was postulated in
Cash
Paymaster Services (Pty) Ltd v Mogwe and others
[10]
.
[30]
It would be convenient to dispose first of
the contention that the order was granted as a result of a mistake
common to the parties.
This is clearly not the case. The applicant
consciously and deliberately sought default judgment and obtained it.
[31]
As recorded above, the respondent did not
transcribe the proceedings on 29 October 2018 and the Court is
accordingly not in a position
to determine exactly what transpired on
that date. It is confined to the facts recorded in the judgment.
[32]
Was the order dated 14 August 2015 complied
with, and if not, what are the consequences thereof? The applicant
did not comply with
the 10-day period laid down for the delivery of a
properly detailed pleading but that issue was moot on 29 October
2018. The Court
held that the applicant’s supplementary
pleading sufficed and dismissed the respondent’s notice of
irregular step and
exception; thus, these points were addressed.
[33]
The respondent had not filed a
supplementary response and a (further) pre-trial conference had not
been held. It contended that
these requirements were elevated to
absolute requirements because they were contained in a court order.
However, the parties had
conducted the pre-trial conference in
compliance with the order dated 14 August 2015. It appears that the
respondent seems to be
relying on its own default.
[34]
Be
that as it may, the court order dated 14 August 2015, was
interlocutory and of a procedural nature. There is no reason why the
Court was not entitled to deal with the matter some 3 years later as
it deemed fit.
It
considered the matter and held that it was ripe for hearing. In
Bell
v Bell
[11]
the
variation of an interlocutory order was allowed where the object of
the original interlocutory order would be achieved by the
variation.
The headnote of the case reads: “
a
purely interlocutory order, that is, one not having the effect of a
final decree, may at any time before final judgment in the
suit be
varied or set aside by the judge who made it or by any other judge
sitting in the same court and exercising the same jurisdiction
.”
This was applied by
Brown
and Others v Yebba Cc t/a Remax Tricolor
[12]
and
this Court intends to follow it. The objective of the order on 14
August 2015 was to ensure that the matter would be ready to
proceed
to be heard and the Court on 29 October 2018 held that it was ready
to proceed.
[35]
To the extent that the Court varied the
provisions of the court order dated 14 August 2015, it was perfectly
in order for it to
do so. Accordingly there was no irregularity in
the proceedings of Court on 29 October 2018 and the order handed down
on 23 November
2018 was not erroneously sought or granted.
Rule
16A(1)(b)
[36]
In
Northern
Province Local Government Association v Commission for Conciliation,
Mediation & Arbitration & others
[13]
the Court succinctly set out the test
[14]
to be applied when deciding whether good cause has been shown in a
rescission application. This approach was followed in a number
of
cases, including
Vemisani
Security Services CC v Mmusi & another: In re Mmusi & another
v Vemisani Security Services CC
[15]
and
Shoprite
Checkers (Pty) Ltd v Commission for Conciliation, Mediation &
Arbitration & others
[16]
.
[37]
The
application by the High Court of the test when considering whether a
default judgment should be rescinded, is also of assistance.
In
Grant
v Plumbers (Pty) Ltd
[17]
the then Supreme Court
succinctly set out the test:
‘
Having
regard to the decisions above referred to, I am of opinion that an
applicant who claims relief under Rule 43 [the then applicable
rescission provision] should comply with the following requirements:
(a)
He must give a reasonable explanation of his default. If it appears
that his default
was wilful or that it was due to gross negligence
the court should not come to his assistance.
(b)
the application must be
bona fide
and not made with the
intention of merely delaying plaintiff's claim.
(c)
He must show that he has a
bona fide
defence to plaintiff's
claim. It is sufficient if he makes out a
prima facie
defence
in the sense of setting out averments which, if established at the
trial, would entitle him to the relief asked for. He
need not deal
fully with the merits of the case and produce evidence that the
probabilities are actually in his favour. …………’
[38]
In
Maunjean
t/a
Audio Video Agencies v Standard Bank of SA Ltd
[18]
the
then Supreme Court held that:
‘
More
specifically in the context of a default judgment 'wilful' connotes
deliberateness in the sense of knowledge of the action
and of its
consequences, ie its legal consequences and a conscious and freely
taken decision to refrain from giving notice of intention
to defend,
whatever the motivation for this conduct might be. See in this
connection
Kouligas
& Spanoudis Properties (Pty) Ltd v Boland Bank Bpk
1987
(2) SA 414 (O)
at I 417
and authorities there cited. In other words the additional element of
perverseness or obstinacy is not
required.’
[39]
In
Chetty
v Law Society, Transvaal
[19]
the
then Appellate Division held that:
'It is not sufficient if
only one of these two requirements is met; for obvious reasons a
party showing no prospect of success on
the merits will fail in an
application for rescission of a default judgment against him, no
matter how reasonable and convincing
the explanation of his default.
And ordered judicial process would be negated if, on the other hand,
a party who could offer no
explanation of his default other than his
disdain of the Rules was nevertheless permitted to have a judgment
against him rescinded
on the ground that he had reasonable prospects
of success on the merits.’
[40]
Against this background, the Court now
turns to consider whether the respondent’s default was wilful
or due to gross negligence
or whether it evinces a deliberateness as
contemplated in
Maunjean
or
disdain as contemplated by
Chetty.
The
following facts show that this is the case:
40.1
The respondent was aware that the matter
had been set down for hearing on 29 October 2018; in fact, it had
agreed to that date.
40.2 It
delivered its notice of irregular step and exception out of time
without any indication in the papers
that it had sought an indulgence
from the applicant or the Court.
40.3 It
did not enquire from the applicant or the registrar whether the
matter would be removed from the roll
without any party appearing.
40.4
In fact, it stayed away from court without
notice to either the registrar or the applicant on the assumption
that the matter was
not ripe for hearing. There is no indication in
the papers that this occurred as a result of a mix-up at the
respondent or the
state attorney. The case is that the respondent had
deliberately decided to stay away because it held the view the matter
was not
ripe for hearing.
[41]
In the premises, the default of the
respondent was wilful and it evinces the type of deliberateness
referred to in
Maunjean.
In
accordance with the authorities set out earlier in this judgment,
this finding means it is not necessary to consider the other
requirements for showing good cause.
[42]
The respondent has failed to show good
cause for its default and the application falls to be dismissed.
Costs
[43]
This
Court had granted default judgment against the respondent with costs.
The respondent was entitled to apply for the default
judgment to be
rescinded.
In
Member
of the Executive Council for Finance, KwaZulu-Natal v Dorkin N.O
.
[20]
the Labour Appeal Court (LAC) held that, in law and fairness, costs
should only be ordered if a party was frivolous or unreasonable
in
bringing or conducting a suit. This is not the case in the rescission
application.
[44]
The Court makes the following order:
Order:
1.
The application is dismissed
2.
There is no order as to costs.
______________________
H.
Nieuwoudt
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Mr
Khang of Mphafi Khang Inc
For
the Respondent: Advocate TL Manye
Instructed
by: The
State Attorney
[1]
“
(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…”
[2]
“
(1)(b)
on application of any party affected, rescind any order or judgment
granted in the absence of that party”,
to
be read in conjunction with Rule 16A (2)(b) which reads: “
(2)(b)
subrule 1 (b) may within 15 days after acquiring knowledge of an
order or judgment granted in the absence of that party
apply on
notice to all interested parties to set aside the order or judgment
and the court may,
upon
good cause shown
,
set aside the order or judgment on such terms as it deems fit.”
[3]
Act 66 of 1995, as amended.
[4]
(2018)
39 ILJ 609 (LC) at para 11.
[5]
2011
(1) SA 388
(CC) para 29.
[6]
(2014)
35 ILJ 2528 (LC).
[7]
1992
(2) SA 466
at 471E-G.
[8]
Ibid
a
t
para 8.
[9]
(2008)
29 ILJ 2254 (LC).
[10]
(1999)
20 ILJ 610 (LC).
[11]
1908
TS 887.
[12]
2009
(1) SA 519 (D).
[13]
(2001)
22 ILJ 1173 (LC).
[14]
Ibid
a
t
para 16.
[15]
(2013)
34 ILJ 440 (LC).
[16]
(2007)
28 ILJ 2246 (LAC).
[17]
1949
(2) SA 470
(O) at 476 to 477.
[18]
1994
(3) SA 801
(C) at 803 H – I.
[19]
1985
(2) SA 756
(A) at 765 D – E.
[20]
(2008)
29 ILJ 1707 (LAC). This approach was recently endorsed by the
Constitutional Court in
Zungu
v Premier of the Province of Kwa-Zulu Natal and Others
(2018) 39 ILJ 523 (CC).