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[2010] ZACC 22
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Zwane and Others v Alert Fencing Contractors CC (CCT 87/10) [2010] ZACC 22; [2011] 2 BLLR 109 (CC) ; (2010) 31 ILJ 2825 (CC) ; 2011 (3) BCLR 325 (CC) (23 November 2010)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 87/10
[2010] ZACC 22
In the matter between:
SABELO ZWANE
…...................................................................................
First
Applicant
AARON MADONSELA
…......................................................................
Second
Applicant
PETROS MADONSELA
…........................................................................
Third
Applicant
EZEKIEL NKOSI
….................................................................................
Fourth
Applicant
WILLIAM MASHABA
…...........................................................................
Fifth
Applicant
DAVID MATADI
…...................................................................................
Sixth
Applicant
and
ALERT FENCING CONTRACTORS CC
…....................................................
Respondent
Decided on : 23 November 2010
JUDGMENT
THE COURT:
This
application for leave to appeal is a further effort by the
applicants to cling to a default judgment secured by them in the
Labour Court, without notice to the respondent, to the effect that
they had been unfairly dismissed by the respondent. This happened
because the respondent’s legal representatives had failed to
attend a pre-trial conference before a judge in the Labour
Court and
that judge had, in terms of rule 6(7) of the rules of that Court,
1
barred the respondent from defending the proceedings. The matter was
then set down for default judgment without being brought
to the
attention of the respondent. The respondent’s legal
representative had apparently not attended the pre-trial conference
because its date had been wrongly diarised.
The
Labour Court subsequently, at the instance of the respondent,
rescinded the judgment that had been obtained by default on
the
basis of the respondent’s explanation.
The
Labour Appeal Court on appeal against the rescission order held,
relying on its own judgment in
Eberspächer v National Union
of Metalworkers of SA on behalf of Skade & Others
,
2
that rule 6(7) required notice of the application for default
judgment to be given to the respondent as a pre-requisite to
judgment being granted. The applicants contend that this conclusion
was incorrect.
The
application in this Court was lodged 10 days late. There is a
satisfactory explanation by the applicants for this relatively
short
delay and condonation must be granted.
We
disagree however that the decision of the Labour Appeal Court is
susceptible to criticism. That decision was correct. The application
for leave to appeal must be dismissed.
One
further difficulty must however be alluded to. The applicants were
retrenched on 31 May 2004, almost six and a half years
ago. The
chronology went something like this:
The
default judgment in favour of the applicants was granted a year
after their dismissal;
3
The
process for the rescission of judgment took almost two and a half
years;
4
The
process of leave to appeal aimed at securing an appeal to the
Labour Appeal Court took a little more than a year and a half;
5
and
The
appeal process took about one year.
6
It is
unacceptable that a claim for unfair dismissal has not been
finalised for such a long time. In the circumstances the Judge
President of the Labour Court is urged to do everything possible to
ensure that this case is heard as a matter of urgency.
Order
The
following order is made:
The
application for leave to appeal is dismissed.
There
is no order as to costs.
The
Registrar of this Court is directed to draw the contents of
paragraph [7] of this judgment to the attention of the Judge
President of the Labour Court and to the Registrar of that Court.
Ngcobo CJ,
Moseneke DCJ, Brand AJ, Cameron J, Froneman J, Jafta J, Khampepe J,
Mogoeng J, Nkabinde J, Skweyiya J and Yacoob J.
1
Rule
6(7) of the Rules for the Conduct of Proceedings in the Labour Court
provides:
“
If any party fails to attend
any pre-trial conference convened in terms of subrule (4)(a), 5(b)
or (5)(c), or fails to comply
with any direction made by a judge in
terms of subrules (5) and (6), the matter may be enrolled for
hearing on the direction
of a judge and the defaulting party will
not be permitted to appear at the hearing unless the court on good
cause shown orders
otherwise.”
2
(2009)
30 ILJ 880 (LAC).
3
On
25 May 2005.
4
The
application for rescission was made on 6 June 2005 and was granted
on 2 November 2007.
5
The
application for leave to appeal was made on 2 November 2007 and
granted on 17 June 2009.
6
From
17 June 2009 until 28 May 2010.