IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG CASE NO.: J1045/98
In the matter between
A C VAN DER MERWE Applicant
and
HESTER DU PLESSIS Respondent
[1] On 19 August 1998 Mlambo J issued an order that the
respondent pay the applicant compensation for the latter’s unfair
dismissal. The application that led to that order was filed on 14
May 1998. The respondent did not file a response, and the
application was first set down for hearing on the unopposed roll
on 23 June 1998. On that day, the applicant was instructed by
Basson J to redraft her papers to comply with the Rules of this
Court, and the matter was set down again for 19 August 1998,
when Mlambo J issued the order referred to above.
[2] On 22 October 1998 the respondent filed an application for the
rescission of the order granted by Mlambo J. For reasons that appear
below, I granted that application on 18 December 1998, rescinded the
order of 19 August 1998, and instructed the Registrar to set the matter
down for hearing on 1 February 1999 or as soon thereafter as the
matter could be heard.
[3] The applicant has now filed a document headed “Application for
leave to appeal to the Labour Court in terms of Rule 30(2)”. The
relief sought is that this Court “reinstate the Court order dated
19th of August 1998 & the resultant writ of execution”. It is
apparent that the applicant seeks, not leave to appeal, but
rescission of the order of 18 December 1998.
[4] Leave to appeal is granted only if this Court is satisfied that
another Court might reasonably reach a conclusion different from that
appealed against. An application to rescind an award can only be
granted on the grounds mentioned in section 165 of the Labour
Relations Act 66 of 1995 (“the Act”), which provides:
The Labour Court, acting of its own accord or on the
application of any affected party may vary or rescind a
decision, judgment or order -
erroneously sought or erroneously granted in the absence
of any party affected by that judgment or order;
in which there is an ambiguity, or an obvious error or
omission, but only to the extent of that ambiguity,
error or omission; or
granted as a result of a mistake common to the parties to
the proceedings.
[5] It was on the first of the above grounds that I granted the order
rescinding that of 19 August 1998. The reason for my decision
was that the papers indicated that the Registrar’s notification to
the respondent of the set down for 19 August 1998 was sent to
the incorrect telefacsimile number, which is given as (011) 805
2438 on the applicant’s statement of claim. The proof of
transmission attached to the file indicates that the respondent’s
copy of the notification was sent to (011) 805 2538. While it is so
that the respondent refers in her affidavit filed with the
rescission application to “die redes waarom ek nie verskyn het
by die verhoor van die 29ste Junie”, this is clearly a mistake.
[6] The material fact that emerged from the papers before me was
that there was no proof that the respondent had received
notification that the application was to be heard on the date on
which it was in fact heard – namely, 19 August 1998. This,
coupled with my conclusion that the respondent had indicated
that she had a bona fide defence to the application, convinced
me that the order granted by Mlambo J was erroneously granted
in her absence.
[7] There is in my view no basis for rescinding the order made on 18
December 1998. In any event, this certainly could not be done
on the basis of written submissions in terms of Rule 30(3A). I
therefore treat this application as one for leave to appeal in
terms of section 166(1).
[8] The only question for consideration in this application is
accordingly whether there is a reasonable prospect of another court
reaching a conclusion different from that reached by the Court in the
rescission application on 18 December 1998.
[9] With this in mind, I have reconsidered the respondent’s
submissions and the facts of the case. With regard to her failure to
defend the matter, the respondent submitted the following:
“Nadat my prokureur van rekord die hofleer in hierdie
aangeleentheid nagegaan het wil dit voorkom asof die
kennisgewing van plasing wat op die 31ste Julie 1998
gestuur is na ’n ander nommer as die nommer wat ek
opgegee gefax is….
Indien ek die kennisgewing ontvang het sou ek op daardie stadium
regsadvies ingewin het om te adviseer hoe om hierdie situasie te
hanteer.
Die nie-verskyning is met respek nie deur my eie toedoen
veroorsaak nie, maar deur die feit dat ek nie kennis gedra
het van die hofdatum nie.
Ek bevestig dat ek hierdie aangeleentheid wil verdedig op
die basis wat ek hierin vantevore uiteengesit het….”
[10] In addition to those mentioned above, the following facts are
pertinent.
[11] The telefax transmission slip attached to the original statement
of claim filed on 14 May 1998 does not indicate the number to which it
was transmitted and indicates that there were errors in respect of all
five pages transmitted. A copy of the same slip is attached to the
application to enroll the matter for hearing in the respondent’s
absence, dated 2 June 1998.
[12] Nothing turns on the fact that the applicant may have received
notification of the hearing of 23 June 1998 because those proceedings
merely led to an instruction to the applicant to correct her papers.
[13] The redrafted statement of claim, filed with the Court on 1 July
1998, was correctly faxed to the respondent’s number on 29 June
1998.
[14] The second application to have the matter heard by default was
lodged on 17 July 1998.
[15] Steps were taken to secure a writ of execution for attachment of
the respondent’s property in August 1998, and a notice of attachment
of the respondent’s emoluments was served on her employer on 30
September 1998.
[16] The respondent’s attorneys served notice on the applicant of its
intention to apply for rescission of the order on 14 October 1998, and
filed its notice of motion on 22 October 1998.
[17] The respondent was clearly dilatory in not replying to the
applicant’s amended statement of claim, which she received on 29
June 1998. The matter was therefore properly set down for hearing by
default on 19 August 1998. However, had the respondent been
informed of the date of the hearing, the respondent could still have
filed her answer before then and sought condonation for the late filing
thereof. Failing that, she could have appeared, or instructed a
representative to appear, to challenge the applicant’s version by cross-
examining her. It may well be that had a condonation application been
made, the Court would have refused it. It may also be that, had the
respondent appeared, it would have made no difference to the
outcome. I do not know. Given that the date of the hearing was not
known to the respondent (which on the papers I must accept), her
failure to do so on 19 August 1998 cannot be held against her.
[18] My view after hearing this matter was that justice required that
the respondent should be given the opportunity to explain her default
and take the steps that were available to her on 19 August 1998 to
and take the steps that were available to her on 19 August 1998 to
defend the matter.
[19] Having considered the reasons advanced by the applicant for
leave to appeal, I have concluded that there is no prospect of another
court reaching a different conclusion. There is therefore no basis on
which I can grant the present application.
[20] Even if the above conclusion is wrong, I am of the opinion that
leave to appeal must be refused on another basis. This is that
the order granted on 18 December 1998 is not final in effect.
Section 166 of the Act gives any party to proceedings before the
Labour Court the right to apply for leave to appeal against “any
final judgment or final order”. There is no direct authority of
which I am aware that deals with the issue whether an order
rescinding an earlier order given by default and directing that
the matter be heard on an opposed basis can be the subject of
appeal. I assume, however, that the normal test applies – that is,
whether the order in question finally disposes of the proceedings
between the parties, bearing in mind the tendency of the court
to apply this test in a pragmatic manner: see Liberty Life
Association of Africa Ltd v Niselow (1996) 17 ILJ 673 (LAC).
[21] I am of the view that the order granted on 18 December 1998
does not finally dispose of the principal issues between the parties in
this matter – namely, whether the respondent was unfairly dismissed
and, if so, whether she was entitled to compensation. Had I refused the
application for rescission, the order would have been final in effect.
However, the practical effect of the order issued on 18 December 1998
was that the matter will be re-heard after proper notification to the
respondent. In my opinion that order was interlocutory and therefore
may not be appealed.
[22] Leave to appeal against the order of 18 December 1998 is
therefore refused.
_________________
GROGAN AJ
ACTING JUDGE OF THE LABOUR COURT
Date of judgment: