ree DI¢ ?>
Sy wig >
« as y ay =
a F BS 4 >
Not reportable
THE LABOUR COURT OF SOUTH AFRICA,
HELD AT CAPE TOWN
Case no: C300/2022
In the matter between:
MABOI SHADRACK MOFOKENG First Applicant
MAFUBE ST VINCENT MOFOKENG Second Applicant
And
SOUTH AFRICAN MUNICIPAL WORKERS UNION First Respondent
DIHLABENG LOCAL MUNICIPALITY Second Respondent
In re:
SOUTH AFRICAN MUNICIPAL WORKERS UNION Applicant
And
DIHLABENG LOCAL MUNICIPALITY First Respondent
SHADRACK MOFOKENG NAPAKADI Second Respondent
MAFUBE MOFOKENG BIYO Third Respondent
Heard: 1 July 2025
Delivered: 7 July 2025
Page 2
Summary: application for rescission of judgment — no proper service of pleadings
on applicants in main application — judgment rescinded.
JUDGMENT
DE KOCK, AJ
Introduction
[1] This matter concerns an application by the applicants (Second and third
respondents in the main application) for rescission of the judgment
issued by the Labour Court on 20 August 2024 and date stamped by the
Registrar on 30 August 2024. The applicants did not oppose the main
application and an order was granted, in their absence, that the contracts
of employment of the applicants are declared unlawful and set aside.
The first respondent (SAMWU), the applicant in the main application,
opposed the application for rescission.
[2] The applicants rely on essentially two issues in seeking to have the
judgment rescinded; (i) that SAMWU lacked the necessary authority to
institute legal proceedings, which was argued as a mistake common to
the parties in terms of Rule 46(1)(a)(iii) of the Labour Court Rules, and
(ii) that the judgment was erroneously granted in their absence in terms
of Rule 46(1)(a)(i).
[3] Rule 46(1)(a)(iii) provides that the court may rescind any order or
judgment granted as the result of a mistake common to the parties. It is
abundantly clear from the pleadings, and even from the applicants’ own
heads of argument, that the reference to the lack of authority being a
mistake common to the parties is in fact not a common mistake at all.
SAMWU denies the allegation that the deponent and/or the attorneys
had no authority. This denial, rightly or wrongly, contradicts the
Page 3
applicants’ allegation that the alleged lack of authority was a mistake
“common to both parties”. The applicants are therefore not entitled to a
rescission of the judgment in terms of Rule 46(1)(a)(iii). The issue of
“lack of authority” may be raised by the applicants in due course given
this court’s finding hereunder.
[4] The court is further not satisfied that the judgment can be rescinded in
terms of Rule 46(1)(a)(i) insofar as the applicants rely on the alleged lack
of authority. A decision as to the alleged lack of authority cannot be
determined at this stage of the proceedings given that this issue has not
been properly addressed by both parties in the application for rescission.
It cannot be said that the court erroneously granted judgment in the
applicants’ absence in relation to the alleged lack of authority. This
however leaves the issue whether judgment was erroneously granted in
the absence of the applicants with reference to the alleged failure by
SAMWU to serve the application on the applicants.
[5] SAMWU was required, in terms of Rule 9, to serve the pleadings on the
applicants when they launched the initial application. The notice of
motion, accompanied by the founding affidavit and annexures, were
served by the sheriff at two different addresses. The pleadings were
served on “Mafube Mofokengy Biyo”, by the sheriff, on 22 July 2022 by
handing a copy thereof to Tsietsi Ramelale. The return from the sheriff
states that the pleadings were handed to Ramelale at the place of
“Mafube’s” employment, who was temporarily absent.
[6] The notice of motion, accompanied by the founding affidavit and
annexures, were served by the sheriff on “Shadrack Mofokengb
Nakapadi” on 22 July 2022 by handing a copy thereof to Nkosana
Sithole. The return from the sheriff states that the pleadings were
handed to Sithole at the place of “Nakapadi’s” employment, who was
temporarily absent.