IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
CASE NO D868/98
In the matter between:
R GOYAL AND LA VOGUE Applicant
and
T V MWASI Respondent
JUDGMENT
WALLIS AJ
[1] This is an application for the rescission of a judgment granted by this
Court. The circumstances in which the application arises are as follows: the
respondent, Ms Mwasi, was employed as the manager of a shop trading
under the name La Vogue at premises situated in West Street, Durban. Her
employment was terminated when the business ceased trading from these
premises at the end of February 1998.
[2] Ms Mwasi was aggrieved by her dismissal and referred a dispute in that
regard to the CCMA. Whilst the papers and the reference are not before me,
the resultant certificate of nonresolution of the dispute issued by the
Commissioner identifies the parties as on the one hand, Mwasi, and on the
other, La Vogue.
[3] It is clear that there was no appearance by the employer before the
CCMA. Instead, a letter was addressed to the Commissioner on 12 March
1998. That letter is written on the letterhead of the present applicant, Episode
Importers and Wholesalers cc t/a La Vogue. It refers expressly to the "Matter
between Mwasi and La Vogue". The tenor of the letter is that there is an
identity between the corporate body and La Vogue. Thus it refers to a letter
written by the landlord of the West Street premises to "our company, La
Vogue". The letter is signed by one Roshika Goyal who claims to be a
"director". It is obvious that she was not alive to the niceties of the distinction
between a company and a close corporation.
[4] Ms Mwasi then approached attorneys who instituted proceedings
before this Court for her reinstatement in employment retrospectively to
the date of her dismissal. That application was brought in terms of Section
191(5)(b) of the Labour Relations Act 66 of 1995 to which I will hereinafter
refer as the LRA. It is in relation to these proceedings that certain
difficulties regarding the identity of Ms Mwasi's erstwhile employer began
to creep into the picture.
[5] In paragraph 1.2 of the statement of case filed in terms of Rule 6,
the respondent in those proceedings is cited in the following terms:
"The respondent is Roshika Goyal t/a
La Vogue, a clothing importers and retailers,
under registration number 4820164061 with its
offices at first floor, Unit 4, 274 Edwin Swales
Drive, Rossburgh, Durban. The address is P O
Box 41028, Rossburgh, 4072. Fax Number
(031) 4651599. Telephone number (031)
4651244."
[6] That form of citation is immediately confusing. Whilst the form is
consistent with the personal citation of a natural person, namely
Roshika Goyal, the description of the respondent which follows is
consistent with the description of a firm of which Roshika Goyal is
said to be the proprietor. If one seeks for clarification of the
position, all the indicators in the founding papers are to the effect
that a firm trading as La Vogue rather than a natural person,
Roshika Goyal, is being cited as the respondent.
[7] Firstly, there is the certificate of nonresolution of the dispute issued
by the CCMA to which I have already referred. Secondly, the letter
in terms of which Ms Mwasi's services were dispensed with is
annexed as part of the application and it is on the same letterhead
as the previous letter to the CCMA although in the annexed copy
the name of the close corporation has somehow been cut off. The
language of the letter is, however, inconsistent with Roshika Goyal
being the employer in her personal capacity. I should mention that
she is the author of the letter and she signs it as a director.
Thirdly,in dealing with the alleged substantive unfairness of the
dismissal, the application describes the respondent as being "a big
organisation". That is likewise inconsistent with a citation of
Roshika Goyal in her personal capacity as opposed to a citation of
a firm of which she was thought to be a proprietor.
[8] In my view, therefore, the application papers when properly
construed should be understood as citing a firm in its own name as
contemplated by Rule 20(1). As is the position in the High Court, an
erroneous reference to someone as the proprietor of the firm does not
affect the validity of the citation. I am fortified in this view by the fact that
on receiving a copy of the application papers that is how they were
understood by Roshika Goyal who was at the time representing the
applicant. At that time she was the person who held a 51 percent
member's share in the applicant close corporation which share she had
shortly before the date of the letter sold to her fellow member, one
Sanjeev Goyal. It is a matter of speculation as to the relationship between
Roshika Goyal and Sanjeev Goyal.
[9] Be that as it may, Roshika Goyal deposes to the fact that on
receiving the application papers she immediately faxed a letter to
Ms Mwasi's attorneys. That letter forms part of the papers and is
dated 25 November 1998. It is on the applicant's letterhead and is
clearly couched as being written on behalf of the applicant.
[10] In all the circumstances, there can, I think, be no prejudice to either
Roshika Goyal or to the present applicant in my construing the
citation of the respondent in the Section 191(5)(b) application as
being a citation of the firm of La Vogue which it is now common
cause is the name under which Episode Importers and Wholesalers
cc conducts business.
[11] It is unfortunate that the citation of the employer in the application
under Section 191(5)(b) was not immediately remedied on receipt
by the attorneys of Ms Goyal's letter dated 25 November 1998.
Had it been, much time, legal manoeuvring and costs would have
been saved. However, that was not to be and the application
proceeded in its original form.
[12] As it was not opposed, it came before WAGLAY AJ (as he then
was) on 29 July 1998 and he granted an order in the following
terms:
"It is ordered that:
1. The dismissal of the applicant was procedurally and substantively unfair;
2. The applicant is hereby reinstated in her employment with the respondent
with retrospective effect and as from 1 March 1998 on conditions no less
favourable to her than those that governed the applicant's employment prior to
her dismissal. Such reinstatement is to be effected in one of respondent's
Durban businesses;
3. The respondent is to pay the costs of this application."
[13] I should mention that notice of set down was, in accordance with
the practice of this Court, sent by registered post to the named
respondent and there is no indication of nonreceipt thereof in the
Court file although such receipt is denied. A copy of the court order
was sent by the same means but attracted no response.
[14] After the court order was granted, it is clear that a bill of costs was
taxed on behalf of Ms Mwasi and apparently she tendered her
services but was rejected. Nothing was done by the present
applicant in regard to the judgment.
[15] Be that as it may, when Roshika Goyal received a letter from Ms
Mwasi's attorneys in September 1999, she caused attorneys to be
instructed to represent the present applicant in relation to the
proceedings flowing from the judgment. In a letter dated
10 September 1999, an application for rescission of judgment was
threatened. What is in my view significant is that it was the present
applicant on whose behalf such an application was foreshadowed.
That implicitly recognised that the judgment was one against the
present applicant.
[16] Indeed, when an application was brought on 22 September 1999
both Roshika Goyal and the applicant "trading as La Vogue"
brought the application. The basis of the application was that the
default was not wilful and that there was a proper defence on the
merits in that it was claimed that Ms Mwasi had been retrenched
due to circumstances beyond the employer's control. Roshika
Goyal denied personal liability on the basis that she was no longer
the owner or a member of the applicant.
[17] When this application for rescission of judgment was brought it
prompted Ms Mwasi's attorneys to bring an application to remedy
the problems regarding the citation of the respondent in the
Section 191(5)(b) proceedings. That application was granted
without opposition on 26 November 1999 and in terms of Rule 22
the present applicant, Episode Importers and Wholesalers cc t/a La
Vogue, was substituted for Roshika Goyal t/a La Vogue. The only
possible basis for that application was that the change was purely
in the nature of a clarification. It is obviously not permissible to
effect such a substitution after judgment so as to change the
identity of the party against whom a judgment has been granted.
[18] The result of the order for substitution was that the present
applicant brought a fresh application for rescission of judgment
based on the same facts as the previous application which facts I
have already summarised. The apparent reason for doing this was
a belief on the part of the applicant that as it was put in paragraph
2.3 of Mr Surtee's affidavit, "The respondent's claim was
transferred or initiated" when the order for substitution was granted.
For the reasons I have already given concerning the proper
meaning of the citation of the respondent in the Section 191(5)(b)
proceedings, I do not regard that contention as being correct.
[19] In argument before me today, Mr Ndaba, who appeared for the
applicant, effectively confined himself to the argument that the
judgment had been obtained against the wrong party and now that
the erroneous citation had been remedied, the true defendant and
admitted employer should be permitted to defend the proceedings.
If that were indeed the correct factual position then the contention
would have been irresistible. However, for the reasons already
given I do not regard the contention as being correct insofar as its
factual basis is concerned.
[20] The true position, in my judgment, is that the Section 191(5)(b)
proceedings were properly brought against a firm, La Vogue, and
the judgment was granted against that firm. The subsequent
proceedings have been directed solely at correcting the erroneous
identification of the proprietor of that firm. Now that this has been
done, the judgment stands and the correction of that identification
furnishes no basis for an application for rescission of the judgment.
Mr Ndaba did not pursue with any vigour the notion that in that
event rescission should be granted. In that he exercised, in my
view, a wise discretion.
[21] The Section 191(5)(b) application was served and received and
was not opposed. The claim by Roshika Goyal that she thought it
could be sorted out in correspondence with Ms Mwasi's attorney
rings hollow in the light of the express terms of the notice of
application and the absence of any favourable response from the
attorneys to her letter. Even if that failure could be regarded in
some measure as being excusable there is the further insuperable
difficulty that there is a palpable absence of any defence. The
dismissal of Ms Mwasi was effected without any attempt to comply
with the requirements of Section 189 of the LRA. It was, in my
view, manifestly unfair both procedurally and substantively. Even if
there are circumstances in which a failure to comply with the
provisions of Section 189 will not lead to the resultant dismissal
being condemned as unfair, there is in my view insufficient in the
papers in this matter to suggest that this is such a case.
[22] There is an endeavour to contend that the closure of the shop at the
instance of the landlord was done with great suddenness and very little notice.
Indeed, the suggestion is that only one day's notice was given. In my view,
however, that contention is incompatible with the correspondence which Ms
Goyal annexed to her founding affidavit. There are two annexures to that
affidavit, both of which are letters dated 26 February 1998 addressed by the
landlord to the applicant. The one letter records that it has been explained
many times to the applicant that the landlord was unable to allow it to continue
many times to the applicant that the landlord was unable to allow it to continue
its occupation on a monthly basis. It also records that the landlord was not
prepared to enter into a longer term lease agreement at a reduced rental as
suggested by the applicant. That this was indeed the suggestion was
confirmed by the affidavit of Ms Goyal and by the other documents in the
papers. In those circumstances, it is manifest that the suggestion that the
lease terminated suddenly thereby forcing a retrenchment without compliance
with the provisions of Section 189 is not factually correct. The proper
inference to be drawn from this letter is that the existing lease had expired and
the applicant was continuing to occupy the premises from month to month
whilst endeavouring to negotiate a fresh lease. In those circumstances its
continued occupation of the premises was at all times precarious and
consequently there was at all times a distinct possibility that it would be
compelled to close the business.
[23] On the facts put before me there is no suggestion that it would have
been feasible simply to move the business to alternative premises.
Accordingly, the risk of loss of jobs existed and had probably
existed for several months prior to the final termination of the
applicant's occupation of the premises. Those several months
should have been used for the purpose of complying with the
requirements of Section 189. The failure to use the time available
for that purpose was manifestly unfair to Ms Mwasi.
[24] In the circumstances, there is nothing in the application papers
before me which suggests that if this judgment were rescinded and
the matter proceeded to trial as it would then have to do, the
outcome of that trial would be any different from the order which
has already been made.
[25] Leaving that aside, there are some arguments in the papers concerning
the disposal of Roshika Goyal's interest in the close corporation and Mr
Surtee's acquisition thereof. These arguments are misconceived. Ms Mwasi
was employed by a corporate body and dismissed by a corporate body. She
was employed by a corporate body and dismissed by a corporate body. She
was entitled to relief against the corporate body irrespective of who owned the
member's interest therein.
[26] In the result, the application must be dismissed with costs. In the
taxation of those costs I draw the registrar's attention to the
massive and unnecessary duplication of proceedings and
documents by both sides. This duplication should be taken account
of in the taxation of the bill of costs presented for that purpose.
[27] There is one last matter. It is that much of the activity leading up to
the application for rescission of the judgment stemmed from
endeavours by the attorneys on behalf of Ms Mwasi to enforce the
order for reinstatement. To that end, they sued out a writ of
execution on 16 August 1999 directing the Sheriff of the district of
Durban to attach and take into execution certain movable goods
and thereafter to cause those goods to be realised by public auction
for the purpose of paying to Ms Mwasi the sum of R17 000,00
together with interest and the taxed costs of the application in terms
of Section 191(5)(b). The attachment which was effected pursuant
to that writ prompted an urgent application that was in turn
opposed. The order which was ultimately made by MLAMBO J on
14 December 1999 was that the sale in execution pursuant to the
writ be stayed pending the rescission application to be heard on
21 February 2000. That is the application I have already dealt with.
The costs of the urgent application were reserved for decision by
the Court determining the rescission application.
[28] As I indicated in argument, I have considerable reservations
concerning the propriety of the issue of that writ. I am unable to
see on what basis one can take an order for reinstatement in
employment and use that as a foundation for the issue of a writ
levying execution for payment of a sum of money. Of course,
insofar as the writ was issued in respect of the recovery of the
taxed costs, that is a wholly different matter.
[29] The position, as I understand it, from the order of MLAMBO J is that
the stay of the sale in execution will lapse with my judgment in the
rescission application. To the extent necessary, I will add an order
to that effect.
[30] That leaves the question of the costs of the urgent application.
There is a difficulty with those costs. On the one hand, as I have
indicated I have some reservations about the propriety of the issue
of the writ. On the other hand, that was not the point raised in the
urgent application. Instead, the point that was made was simply
that pending the outcome of the application for rescission it would
be inappropriate for Ms Mwasi to be permitted to pursue execution
in terms of the judgment she has obtained. That is, in principle,
correct subject to the merits of the application for rescission. The
approach adopted by Ms Mwasi in her opposing affidavit in that
application was that the matter was being unduly delayed, the
application for rescission was unmeritorious and there was no
defence to her claim. By and large, I have upheld those
contentions.
[31] In all the circumstances, it seems to me that recognising both the
strengths and weaknesses of each party's case in regard to that
urgent application, it would be appropriate for me to order that each
party pay its or her own costs of that urgent application.
[32] I accordingly make the following order:
1. The application brought under case number D868/98 for the rescission
of the judgment granted by WAGLAY AJ on 29 July 1999 is dismissed with
costs.
2. Insofar as it is necessary to do so, I direct that the order granted by
MLAMBO J on 14 December 1999 staying the sale in execution pending the
outcome of this application lapses on the grant of the order dismissing the
application for rescission.
3. As regards the costs of the urgent application for a stay of the sale in
execution, the applicant and the respondent are to bear its and her costs
respectively in that application.
WALLIS AJ