Sneller Verbatim/JduP
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J3014/99
2002-02-11
In the matter between
A B MURRAY & ASSOCIATES Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Respondent
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J U D G M E N T
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REVELAS, J:
1. on 10 November 2000, Jammy AJ was presented with a
situation where on behalf of the applicant certain
documentation relevant to the question of the identity
of the employer of the applicants came in dispute. The
applicants alleged that the employer was A B Murray &
Associates, and the respondents contended that it was
not. The issue was pertinently raised in pretrial
consultations between the parties, and the question of
the relevance of the documentation concerned was in
issue before Jammy AJ.
1. 1. 2. It appears that the applicants believed that the
respondent has more than one identity or, moves from
one identity to another, whatever the case may be. That
was not the question that I had to decide.
3. During the proceedings before Jammy AJ, it was decided
that the respondent the applicant in the matter
before me today should be given the opportunity to
apply for rescission of an order dated 28 October 1998,
which is a considerable time ago. The application was
brought on 3 October 2001, more than a year, let alone
21 days, after Jammy AJ gave the order, which reads as
follows:
"1. The respondent should if he wishes to apply for rescission and
condonation of the judgments in matter J1499/98 and J1490/99
do so within 21 days, failing which he [respondent] is barred
from doing so.
2. The costs are reserved."
4. The matter came before me on 9 February 2002. There is
no application for condonation of the late filing of
the rescission application, which was not brought
within 21 days.
5. It was submitted on behalf of the applicant,
(A B Murray and Others), that the condonation
application need not take the form of a formal
substantive application for condonation, and that the
respondents must have been aware that it would pursue
the application for condonation at the hearing of the
rescission application. In order to pursue the
rescission application it was believed that it was
necessary that the matter be referred to oral evidence.
1. 6. I do not see the reason for this. I was asked to
interpret Jammy AJ's rescission application in that the
rescission application is coupled with an application
for condonation. This is put in an affidavit. There is
no proper explanation why the order of Jammy AJ was not
complied with, but one aspect of Jammy AJ's order is
very clear; namely: “ if the respondent does not comply with
that, it is barred from applying for a rescission.”
7. There was also a submission that I, as a court of first
instance, the Labour Court, may rescind Mlambo J's
order on the basis that it was vague and unenforceable.
This is clearly not so. I am certainly not in a
position to set it aside, on those grounds, may be
raised.
8. Consequently, in the absence of noncompliance with
Jammy AJ's order, the respondent is barred from
bringing the application for rescission. The applicant
is to pay the respondent’s costs or expenses, if any.
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E. Revelas