IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO. J1281/98                                                                                      In the matter between:
SIZABANTU ELECTRICAL CONSTRUCTION          APPLICANT  and                                                                                                                   GUMA AND THREE OTHERS                                      RESPONDENTS                                                                          
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JUDGEMENT
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SEADY A J
[1]	This is an application for rescission of a judgement given by default on 17 	August 1998. In terms of the judgement the applicant’s dismissal of Messrs 	A. Nhlapo and A. Guma was found to be substantively and procedurally 	unfair and the applicant was ordered to reinstate Nhlapo and Guma on the 	same terms and conditions that existed at the time of their dismissal. In 	addition the applicant was ordered to pay to Nhlapo and Guma eight months 
compensation calculated at their rate of renumeration at the time of  their 	dismissal. Messrs Nhlapo and Guma opposed the application. Despite 	the citation of the respondent as “Guma and three others” this application 	concerns a judgement only in respect of Guma and Nhlapo ( “the 	respondents”).

[2]	The application for rescission is brought in terms of rule 16A(1)(b) of the 	rules of this court. Rule 16A came into effect on 4 September 1998 and 	subsection(1)(b) provides for a rescission of a judgement or order made in 	the absence of a party and requires that party to show good cause. This is 	similar to rule 31(2)(b) of the Uniform Rules of the High Court. 

[3]	The applicant was not present in court when judgement was given in favour 	of the respondents. The matter had been enrolled for default judgement. The 	background to this enrolment is mostly common cause. It is set out below.

	[4]	The respondents were dismissed by the applicant on 5 March 1998. They 	were dismissed for reasons relating to the applicant’s operational 		requirements. They referred a dispute concerning their alleged unfair 	dismissal to the CCMA. Conciliation failed to resolve the dispute and a certificate indicating that the dispute was unresolved was issued on 21 May 1998. The respondents referred their dispute to this court. They applied for and were allocated a case number and delivered a statement of claim 	in terms of rule 6. The applicant did not file a statement of defence within the period contemplated by rule 6 or at all. The matter was set down for default judgement on 14 July 1998. On that day the applicant was represented by Mr James Botha, the Project Manager of the Esekele contract on which the respondents were employed. The matter was postponed to 17 August 1998 for the hearing of oral evidence and the applicant was given until 30 July 1998 to file its statement of defence. On 17 August 1998 the applicant was not in court; neither had it filed a statement of defence. The matter was heard in its absence and an order as set out above was made. 

[5]	The applicant contends that it has satisfied the three requirements for a 	rescission in terms of rule 16A(1)(b). These are 
	·	a  bona fide application;
	·	a reasonable and acceptable explanation for the default;
	·	a bona fide defence on the merits.
A judgement of this court made by default may be rescinded in terms of 
	·	the common law;
	·	Section 165 of the Labour Relations Act (“the Act”) ; or
	·	rule 16A[See POLICE AND PRISONS CIVIL RIGHTS UNION v SAMUEL NTOPA SEKHU, unreported judgement of the Labour Court, Case No J1653/98, 10 September 1998]

	[6]	For this court’s approach to what must be shown to succeed with an 	application for rescission brought in terms of Section 165(a) of the ActSee CAWU v FEDERALE STENE(PTY) LTD(1998) 19 ILJ 642 (LC). In short, good cause is not required to be shown if the judgement or order was erroneously granted in the absence of a party.

[7]	The application before me is brought in terms of rule 16A(1)(b) of the 	Labour Court Rules. So I confine myself  to a consideration of whether the 	applicant has shown good cause for the rescission as required by that rule. 	Rule 16A(1)(b) is similar to rule 31(2)(b) of the Uniform Rules of the High 	Court. The requirements of good cause as contemplated by rule 31(2)(b) 	have been stated as follows 
	·	The applicant must give a reasonable explanation for his default. If it appears that his default was wilful or that it was due to gross negligence the court should not come to his assistance;

	·	The application must be bona fide and not made with the intention of merely delaying plaintiff’s claim; and 

	·	The applicant must show that he has a bona fide defence to plaintiff’s claim. It is sufficient if it makes out a prima facie defence in the sense of setting out averments which, if established at the trial, would entitle him to the relief asked for. He need not deal fully with the merits of the case and produce evidence that the probabilities are actually in his favour. [See Erasmus Superior Court Practice, Juta at B1-201 and 202]

	[8]	The applicant’s version is that its absence on 17 August 1998 was not 	wilful. It says it was not in court because it did not know the matter had 	been set down on that day. If it had known, it would have sent a 	representative  to oppose the granting of judgement by default. The reason it didn’t know that the matter had been set down is that James Botha, the project manager who had dealt with the dispute from its inception had left the employ of the applicant (his contract of employment terminated on 30 July 1998) and had failed to pass on the information to anyone. The registrar had not notified the applicant (or the respondent) of the set down, presumably because both parties were in court on 14 July 1998 when the matter was postponed to 17 August 1998. Accordingly, the applicant was not alerted to the set down of the matter through the registrar’s office. The applicant says the first it heard of the set down was on 3 September 1998 when it received a copy of the court order dated 17 August 1998. The applicant moved quickly to rescind the order, launching these proceedings  without undue delay.

	[9]	The respondents oppose the application to rescind the court order of 17 	August 1998. They have filed what purports to be an affidavit, but the 	document does not satisfy all  the formal requirements for an affidavit. 	There is no indication of who the deponent is and it is not signed by the 	deponent. The applicant  raised its objection to the statement in their 	replying affidavit, but the respondents have not put up any explanation for the form of their answering papers. The applicant argued that this court should disregard the respondent’s answering statement. Rule 16A does not indicate what form the papers should take. The applicant therefore argues that rule 7 applies and a proper affidavit is required. 

	[10]	It is not necessary for me to decided whether or not I should condone this 	failure or treat the respondent’s statement as being in substantial compliance 	with the rules. I say so because this matter can be decided by reference to 	whether the applicant has shown that it has a bona fide defence on the 	merits. This question can be decided on the applicant’s papers without 	reference to the respondent’s answering statement. That statement is 	relevant to the other aspect of good cause to be shown by the applicant, namely whether there is an acceptable explanation to the applicant’s default.  The applicant says that it did not know about the set down because James Botha had been handling the dispute and  had left their employ, telling no-one about the set down. The applicant concedes, correctly in my view, that whilst Botha was employed he acted as their internal agent and they cannot rely on his errors or failures to substantiate an application for rescission.  Otherwise a corporate entity could always seek rescission on the basis that one of its agents acted negligently. 
[See POPCRU v SAMUEL SEKHU (supra)]

	[11]	The applicant failed to file any answering statement of defence to the 	respondent’s statement of claim. This failure took place at the time of 	Botha’s employment with the applicant and when he was tasked with 	dealing with the dispute on their behalf. The applicant’s failure to file 	a statement of defence between 14 and 30 July also took place when Botha 	was employed by the applicant and acting as their internal agent. The 	applicant accepts responsibility for these failures, but argues that once 	Botha left their employ they should not be penalised for his failures. On 	their version there is an acceptable explanation for their default on 17 	August 1998. The respondents deny that the applicant was not informed of 	the hearing on 17 August 1998. They say that Botha must have reported to 	the applicant after his appearance in court on 14 July and that the applicants 	failure to attend on 17 August is indicative of its high-handed approach to 	labour disputes and their resolution. As indicated above I do not find it 	necessary to decide the probabilities in this regard because I am not 		persuaded that applicant has shown it has a bona fide defence.

	[12]	The applicant must show that it has a bona fide defence on the merits. 	Although it	need not deal fully with the merits of the case or produce 	evidence to show that the probabilities are in its favour, it must demonstrate 	it has a defence which prima facie carries some prospects of success. The 	applicant has failed to set out a defence of this nature. It admits that the 	respondents were employees and that they were dismissed for reasons 	relating to the applicant’s operational requirements. It provides no basis to 	show, even prima facie, that the dismissal was substantively fair and 		procedurally fair. All it says is 
“ Seeing that this particular project’s duration was only short term the 		respondents were informed, prior to completion of the contract that 		due to operational requirements some of the employees had to be 		dismissed. It was specifically stated that as soon as a new project was 		available these employees would be the first persons to be re-			employed. All the wages and other monies due and owing to the respondents under this contract were 	paid to them prior to their dismissal” [ para 14.1 p.10 of bundle].
and
“I confirm that the respondents’ dismissal was based on operational 		requirements and that the applicant complied with the provisions of 		Section 189 of the Labour Relations Act, 1995.” [para 14.5, p.11]

[13]	Section 189 is detailed in the obligations placed on an employer to ensure 	that an employee is not unfairly dismissed. The applicant has fallen far short 	of showing compliance with its provisions. I am not satisfied that their 	defence, as set out above, has any prospects of success at trial.

	[14]	The applicant goes on to say that the respondents were employed for two 	weeks in terms of the aforesaid undertaking. This takes the matter no further 	in regard to the fairness of the dismissal. Additional  averments concerning 	payment of monies due are also not relevant.[para 14.1 - 14.4, p.10-11 of 	bundle] Although the respondents may have complained of non payment the 	court order of 17 August 1998 does not deal with this issue. The Act makes 	it clear that any compensation ordered in terms of Chapter VIII is in 		addition to any amount to which the employee is entitled in terms of law. 

[15]	In my view, the applicant has not set out averments which, if established at 	the trial, would entitle it to the dismissal of the respondent’s claim that they 	had been unfairly dismissed. It has not made out a prima facie defence. In 	the circumstances it has failed to prove one of the necessary requirements 	for rescission in terms of rule 16A(1)(b) and the application must fail. I find 	no reason in law or fairness why the applicant should not be ordered to pay 	the respondents costs.. 

[16]	In conclusion the application is dismissed. The applicant must pay the 	respondents costs.

_________________________________
SEADY A J

Date of hearing : 		28 October 1998
Date of judgement: 	5 November 1998

For the applicant: 		Advocate Brandford, instructed by Adolf Malan and 				Vanmeulen.
For the respondents: 	Mr A. Guma and Mr A. Nhlapo, personally.