SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE LABOUR COURT OF SOUTH AFRICA , JOHANNESBURG
Not Reportable
Case No: JR 86/1 9
In the matter between:
ATLAS PLANT HIRE (PTY) LTD Applicant
and
COMMISSIONER JOHAN STAPELBERG N.O. First Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION Second Respondent
GEORGE MCLEAN Third Respondent
Heard: 19 June 2025
Delivered: 30 June 2025
JUDGMENT
LENNOX, AJ
[1] This is an opposed application to rescind an order handed down by this Court
on 9 February 2023 which provided:
“The review application under the above case number is dismissed.”
[2] The matter was heard in the absence of the Applicant on 9 February 2023.
The reason for such non- attendance was that the email sent by the office of the
Registrar was sent to an incorrect email address being m […] and not m[…].
[3] In response to this submission the Third Respondent states that he has no
knowledge of these facts, overlooking the fact that the Applicant had annexed to e-mail reflecting the incorrect email address as annexure “WA4” to the founding affidavit. The Court does not look kindly on this as the Third Respondent has either failed to consider the Founding Affidavit and the annexures or sought to avoid a necessary concession.
[4] In CAWU v Federale Stene (1991) (Pty) Ltd
1 the following was held:
“The first applicant had at all times intended to defend the application, that it
was through an unfortunate set of circumstances under the false impression
that the matter would not be heard on the date on which it had been set down, and that the Court would not have made an award by default if it had not been under the impression that the first applicant had deliberately declined to
attend the hearing. Where the defaulting party was genuinely unaware of the
date of set -down, granting judgment by default would be erroneous. In these
circumstance, it was not necessary for the party applying for rescission to
prove good cause.”
1 [1998] 4 BLLR 374 (LC)
[5] In Bayete Security Holdings v Mokgadi2 the following was held:
“In the circumstances, it would appear that judgment was erroneously granted
in the absence of the applicant on 10 March 1999 and, as such, in applying
for rescission, applicant is not bound by the provisions of rule 16A(1)(b) with regard to the showing of good cause, nor by the time limit of 15 days. ”
[6] That should be the end of the matter. A seemingly clear and unassailable
case was set out in the founding affidavit. The Third Respondent in answer asked that the Court not grant the application and exercise a discretion not to grant the rescission.
[7] The complication which emerged is that the review application has actually
lapsed.
[8] Section 11.2.7 of the erstwhile Practice Manual reads as follows:
“A review application is by its nature an urgent application. An applicant in a
review application is therefore required to ensure that all the necessary
papers in the application are filed within twelve (12) months of the date of the
launch of the application (excluding Heads of Arguments) and the registrar is
informed in writing that the application is ready for allocation for hearing. Where this time limit is not complied with, the application will be archived and be regarded as lapsed unless good cause is shown why the application should not to be archived or be removed from the archive.”
[9] There is no dispute that the record was filed out of time and that no
application to reinstate the review application has been brought. Given that an application in terms of Rule 11 relied on this fact to support the prayer that the review application be dismissed, it is explicable that the Applicant has done nothing since
January 2020 to cure the problem.
2 [2000] 9 BLLR 1020 (LC)
[10] The Applicant has changed attorneys at the 11th hour and although Ms
Fouchè argued as best she could, she was hamstrung by the facts.
[11] This Court exists as a court of law and equity in terms of section 151(1) of the
Labour Relations Act No 66 of 1995 (“the LRA”). It must also give effect to section
1(d)(iv) of the LRA which reads as follows:
“The purpose of this Act is to advance economic development, social justice,
labour peace and the democratisation of the workplace by fulfilling the primary objects of this Act, which are—
. . .
(d) to promote —
. . .
(iv) the effective resolution of labour disputes.”
[12] As this Court held in Kolobe v Proxenos (Sophia’s Restaurant)
3 the word
“effective” should be equated with “speedy” .
[13] The Court is however mindful that the reason that the Applicant was not
present when the matter was heard on 9 February 2023 is as a result of the notice
being sent to the incorrect email address.
[14] For this reason the following Order is made:
1. The application to rescind the Order granted by Acting Justice
Mathalane on 9 February 2023 is granted.
2. The review application is deemed to have lapsed in terms of the
provisions of section 11.2.7 of the erstwhile Practice Manual of this Court.
3. The Registrar is to archive the review application.
3 [2000] 11 BLLR 1291 (LC)
4. The Third Respondent may instruct the Sheriff to execute a writ of
execution in respect of the arbitration award issued by Commissioner J ohan
Stapelberg under the auspices of the Commission for Conciliation, Mediation
and Arbitration under case number GAJB 16870- 18 on 6 December 2018.
5. There is no order as to costs.
M.A. Lennox
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Ms M Fouchè
Melany Fouchè Inc
For the Respondent: Mr D Coetsee
Dirk Coetsee Attorneys