REVISED / REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN DURBAN
CASE NO D134/2001
DATE 2001/05/31
REVISED
In the matter between:
THE MARINE COFEE SHOP First Applicant
FARMER BROWNS Second Applicant
and
PRINCESS SIBONGILE MSOMI Respondent
______________________________________________________________
JUDGMENT DELIVERED BY THE HONOURABLE JUDGE PILLAY
ON 31 MAY 2001
______________________________________________________________
TRANSCRIBER
SNELLER RECORDINGS (PROPRIETARY) LTD - DURBAN
1
J U D G M E N T
PILLAY J
This is an application for rescission of the order granted by default by my sister
STELZNER A.J. The employee had referred a dispute about her retrenchment in
terms of section 191(5)(b) of the Labour Relations Act No 66 of 1995 (the LRA).
The first applicant was allegedly not properly served with the referral.
Nevertheless, Mr Goncalves appeared for the first applicant. Mr Goncalves was
the husband and administrator of the sole member of a close corporation which
traded as the first applicant. He was also the sole member of the close
corporation which traded as the second applicant.
At the hearing the learned judge refused to adjourn the matter and to allow the
first applicant an opportunity to defend it after considering representations from
both parties.
After the employee's evidence was taken and apparently arising from her
evidence Mr Jafta, attorney for the employee, applied successfully to have the
citation amended to include the second applicant, formerly trading as Harvest
Bakery as the respondent in those proceedings. The learned judge further
informed Mr Goncalves that if he wished to oppose the matter he would have to
"apply for that judgment to be rescinded and place proper facts before this Court
including a reasonable explanation for the failure to do anything about the matter
prior to today.
This application proceeds substantially in terms of section 165 of the LRA read
with rule 16A1A(i) of the rules of this Court. Section 165 provides as follows:
"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
(a) erroneously sought or erroneously granted in the absence of any party affected by
that judgment or order."
2
The first question is, is the order tainted by an error such as is contemplated in
section 165 or is it one that must be rectified on appeal or review.
The first ground of the application for rescision was that the first applicant had not
been properly served and that there was no service at all on the second applicant.
The second ground was that the second applicant had not been notified of its
joinder and was not given a hearing at all. The third ground was that the learned
judge had erred in her direction to Mr Goncalves to apply to have the matter
rescinded. These errors, it was contended, were made "in the absence" of the
applicants, they having been denied an opportunity to be heard by the Court.
Therefore, although Mr Goncalves was physically present at the hearing,
technically the applicants were not before Court. So it was submitted.
It was a considered decision of the learned judge to render the first applicant
"absent" from the proceedings. This decision was taken when the first applicant
was still represented. In refusing the postponement and denying the applicants
an opportunity to be heard and to defend the matter, in finding that there had
been service adequate to enable her to proceed and in joining the second
applicant, the learned judge would have applied her mind to the facts and to the
law before exercising her discretion.
The court referring to Rule 42(1)(a) of the Rules of the High Court in ProMedia
Drukkers Uitgewer (Edms) Beperk v Kaimowitz and Others 1996(4) SA 411 in the
headnote at page 412 provides that:
The Supreme Court may rescind an order or judgment erroneously sought or
erroneously granted in the absence of any party affected thereby. It is a
procedural step designed to create expeditiously an obviously wrong judgment or
order. The Rule sets out exceptions to the general principle that a final order,
correctly expressing the true decision of the Court cannot be altered by that
correctly expressing the true decision of the Court cannot be altered by that
Court. The judge is functus officio. The Court has a discretion whether or not to
3
grant an application for rescision under Rule 42(1). Relief will be granted under
this Rule if there was an irregularity in the proceedings, if the Court lacked legal
competence to have made the order, or if the Court, at the time the order was
made was unaware of the facts which, if known to it, would have precluded the
granting of the order. It is not necessary for the applicant to show good cause for
the Rule to apply."
None of those circumstances obtain in this case. If the learned judge erred in any
way she is functus officio and her decision falls to be taken on review or appeal. It
cannot be rescinded in terms of section 164. This is especially so with regard to
the application to join the second applicant as a respondent in those proceedings.
[10] If I am wrong in concluding that the Court does not have jurisdiction to rescind the
order, I deal with the matter on the merits. The first applicant had sufficient
notice of the proceedings. It was also common cause that Mr Goncalves had had
discussions with Mr Jafta prior to the hearing. On its own version it failed to make
reasonable inquiries to establish what was required of it in order to defend its
rights and to take the necessary steps to do so.
[11] In these circumstances the application for rescission is dismissed with costs.
________________________________________________________
FOR THE EMPLOYEE: ATTORNEY P.O. JAFTA
INSTRUCTED BY: JAFTA & COMPANY
FOR THE EMPLOYER: ADVOCATE A.G. BERRY
INSTRUCTED BY: DE FREITAS & COMPANY
4