Diplopoint (Pty) Ltd v Twala

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Waglay JP and P Coppin JA and Kathree-Setiloane AJA
• Judgment Date: 26 May 2022
• Docket Number: JA 67/21
• Hearing Date: 12 May 2022
• Court: Labour Appeal Court
• Citation: 2022 JDR 1937 (LAC)

Coppin JA:

[1]

This is an appeal against the entire order of the Labour Court (Reddy AJ) in terms of which it dismissed an application by the appellant in terms of section 165 of the Labour Relations Act [1] ("LRA"), read with Rule 16A of the Rules for the Conduct of Proceedings in the Labour Court (''the LC Rules"), to rescind a default judgment granted against it by Nkutha – Nkontwana J on 30 April 2018. Leave to appeal was granted by the court a quo.

2022 JDR 1937 p2

Coppin JA

[2]

The respondent did not oppose the appeal. The appellant seeks to have the court a quo's order substituted with one in terms of which the rescission is granted with costs.

[3]

The issue that arises for decision in this appeal is essentially whether the appellant made out a case for rescission.

Background:

[4]

The respondent, who was employed by the appellant as a factory manager, was dismissed by it on 20 July 2017, allegedly for operational reasons. He referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration ("CCMA") on 3 August 2017. A certificate declaring that the dispute was unresolved was issued by the CCMA on 1 September 2017 and the respondent proceeded to refer the matter to the Labour Court for resolution.

[5]

The respondent filed his statement of case on 31 October 2017, which he alleged to have served by means of a fax transmission to the appellant. In the statement of case, the respondent, essentially, alleged that his dismissal by the appellant was both procedurally and substantively unfair; that it was founded on "unknown reasons" and was premeditated in that it was made before the appellant could properly engage and consult with affected employees, including the respondent on the need to retrench, the criteria to be applied, et cetera. Consequently, the respondent sought the following relief in the statement of case: (a) An order declaring that his retrenchment was both procedurally and substantively unfair; (b) retrospective reinstatement, alternatively, (c) an order for maximum compensation; (d) costs of suit and (e) further and/or alternative relief.

[6]

In terms of the statement of case, the appellant had 10 days from the date of receipt of that document to deliver its response. When no such response was forthcoming, the respondent lodged an application for default judgment with the court on 29 November 2017 in which he alleged: (a) that the statement of case was served on the appellant on 27 October 2017 and filed on 31 October 2017; (b) that the time period of 10 days for the delivery of the statement of

2022 JDR 1937 p3

Coppin JA

defence/opposition had elapsed; (c) that the appellant had failed to deliver a statement of defence/opposition; and (d) that in light of those circumstances the court a quo ought to grant the respondent default judgment against the appellant as prayed for in the statement of case.

[7]

The respondent's application for default judgment was accompanied by an affidavit of service deposed to on 15 November 2017 by Ms Precious Montjane, a receptionist employed by the respondent's attorneys of record at the time, Mitti attorneys, and a confirmatory affidavit as contemplated in paragraph 10.1.3 of the Labour Court's Practice Manual in which the respondent confirmed the truth of the contents of the statement of case and, inter alia, that the statement of case "was properly served".

[8]

In the service affidavit, Ms Montjane avers, in essence, that on 27 October 2017 a copy of the respondent's statement of case was served on the appellant by faxing it to the appellant at fax number (086) 219 5793 and that a copy of the fax transmission slip was attached. She furthermore averred that on 30 November 2017, she called the appellant's office on telephone number (011) 440 0645 to confirm whether it had received the statement of case. According to Ms Montjane she spoke, on that occasion, to a Ms Nicole Van Heerden who confirmed receipt of the document.

[9]

On 30 April 2018, and in the absence of the appellant, Nkutha-Nkontwana J granted an order in the following terms: (1) declaring that the respondent's dismissal was substantively and procedurally unfair; and (2) ordering the appellant to reinstate the respondent as from 30 April 2018 with full backpay.

[10]

On 19 July 2018, the appellant brought its application to rescind that order. The application was supported by a founding affidavit deposed to by Ms Qunsen Boyens, an accountant employed by the appellant. In the affidavit, Ms Boyens averred, inter alia, that...