National Union of Metalworkers of South Africa v Jumbo Products CC

• Jurisdiction: South Africa
• Judge: Corbett CJ, Vivier JA, Kumleben JA, Nienaber JA and Schutz JA
• Judgment Date: 05 September 1996
• Citation: 1996 (4) SA 735 (A)
• Docket Number: 474/94
• Hearing Date: 22 August 1996
• Counsel: G J Marcus (with him D N Unterhalter) for the applicant (appellant). P J Pretorius SC (with him J P Coetzee) for the respondent.
• Court: Appellate Division

Corbett CJ:

The respondent, Jumbo Products CC ('Jumbo'), sued the applicant, the National Union of Metalworkers of South Africa ('NUMSA'), in the Witwatersrand F Local Division for damages in the sum of R1 729 761. The cause of action alleged in Jumbo's particulars of claim was, in brief, that NUMSA, a trade union, had unlawfully caused certain of its members in the employ of Jumbo to engage in an unlawful strike and that this had resulted in certain losses being sustained by Jumbo in the business G (metal engineering) carried on by it. The damages claimed were to compensate for these losses. In its plea NUMSA, apart from denying Jumbo's cause of action and joining issue thereon, raised various alternative defences, including an unreasonable failure by Jumbo to mitigate its losses and contributory negligence on the part of Jumbo.

The matter came to trial before Plewman J in November 1993. Prior to the trial and on H the application of the parties an order of Court was made directing the separation of issues and for the trial to proceed on all issues except those relating to the quantum of damages, the hearing on the latter being postponed sine die. By an amending direction Plewman J also excluded from consideration in the proceedings then before him the defences of mitigation and contributory negligence. At the end of the trial the learned I Judge held in favour of Jumbo on its cause of action, made a declaration to that effect, postponed the matter to a date to be arranged for the hearing of the remaining issues and ordered NUMSA to pay the costs of the proceedings up to that stage. The judgment was delivered (orally it would seem) on 21 December 1993. J

Corbett CJ

A On 17 March 1994 NUMSA initiated motion proceedings in the Court a quo giving notice of an application for leave to appeal to this Court against the whole of the judgment of Plewman J. In terms of Rule 49(1)(b) of the Uniform Rules of Court this application ought to have been made not later than 11 January 1994. On 18 March 1994 NUMSA gave notice of a further application, to be moved at the time of the B hearing of the application for leave to appeal, for condonation of the late filing of the latter application. These applications, which were opposed by Jumbo, came before Plewman J on 3 June 1994. He delivered a short judgment dismissing the application for condonation with costs. As I shall later show, there is a suggestion on the part of C NUMSA that this judgment comprehended a refusal of leave to appeal against the judgment of 21 December 1993 (to which I shall for convenience refer as 'the judgment on the merits').

On 24 June 1994 NUMSA filed with this Court a petition in which it sought leave to appeal -

D '. . . both against the whole of the judgment of his Lordship Mr Justice Plewman (this refers to the judgment on the merits), together with his refusal to grant condonation'.

On 18 July 1994 Jumbo filed an answering affidavit opposing the relief sought and asking that the petition be dismissed with costs. In accordance with the provisions of s E 21(3)(b) of the Supreme Court Act 59 of 1959 the petition was considered by two members of this Court who on 18 August 1994 made an order in the following terms:

'(a)

The application for leave to appeal is referred for argument before the Appellate Division in terms of s 21(3)(c)(ii) of the Supreme Court Act 59 of 1959.

(b)

F Full argument on the merits of the proposed appeal will be heard at the same time as the argument on the application for leave to appeal so as to enable the Court, if leave is granted, to determine the appeal.

(c)

For the purpose of para (b) supra, the applicant is required to comply with all the Rules relating to the prosecution of appeals, and the G respondent, if he wishes to oppose, with all Rules relating to such opposition.'

This matter is now before us in terms of this order.

Before dealing with the merits of the petition there is something I should like to say about its form and content. In terms of Appellate Division Rule 3(5): H

'Every application for leave to appeal shall furnish succinctly and fairly all such information as may be necessary to enable the Court to decide whether such leave ought to be granted, and . . .'

In the present case the petition itself is succinct enough; in fact excessively so. It consists of a seven-page document, to which are annexed the pleadings in the action, the Court order granting a separation of issues, the judgment on the merits, the I applications for leave to appeal and condonation in the Court a quo and certain heads of argument. In all the original petition, together with annexures, comprise 229 pages.

The heads of argument annexed to the original petition purported to J

Corbett CJ

A be heads submitted to Plewman J at the conclusion of the evidence at the trial by counsel for NUMSA (annexure 'NUMSA 6') and by counsel for Jumbo (annexure 'NUMSA 7'). I say 'purport' for in fact NUMSA 7 consisted of another set of heads of argument prepared on behalf of NUMSA. This was pointed out by Jumbo in its affidavit opposing the relief sought in the petition and the error has been set right in the B record before us. Annexure NUMSA 7 now consists of heads of argument presented to the trial Judge on behalf of Jumbo at the conclusion of the evidence.

In its petition to this Court NUMSA makes no attempt to point out or contend in what way the trial Judge erred in coming to the conclusion reached by him in his judgment C on the merits. In fact that judgment is not subjected to any critical analysis, either as to its findings of fact or as to its exposition and application of the law. All that the petition states is that the aforementioned heads of argument (which as I have emphasised were prepared and submitted prior to the judgment) show how complex the matter is and how important it is to NUMSA. As regards the prospects of success, D which is of...