Luvhomba Group (Pty) Ltd t/a Luvhomba Group v Solidarity obo Tshili (JS103/15) [2019] ZALCJHB 51 (20 March 2019)

Key Facts

Issues

• The primary issue was the applicant's request to rescind the 2015 default judgment order issued by Voyi AJ, which found the dismissal of Ms Tsili automatically unfair and ordered compensation. The court examined whether the order was erroneously made in the applicant's absence despite its notice of intention to defend, citing principles from NUM obo Magagula v CCMA and others.
• The applicant sought condonation for filing the rescission application over six months late. The court evaluated this under the 'interests of justice' test, referencing Bloem Water Board v Abraham Nthako NO and others, and ultimately granted condonation to allow review of the rescission claim.

Holdings

• The court rescinded the order issued by Voyi AJ on 31 July 2015 under case number JS 103/15. The rescission was based on the principle that the order was erroneously granted in the applicant's absence, even though the applicant had filed a notice of intention to defend, and the court was not served with the statement of claim.
• The condonation application for the late filing of the rescission application was granted. The court found that the applicant's rescission application should succeed as the order was erroneously granted in the applicant's absence, despite the applicant having filed a notice of intention to defend. There was no order as to costs, in accordance with the requirements of law and fairness.

Remedies

• The condonation application for late filing of the rescission application is granted.
• There is no order as to costs.
• The Court order issued by Voyi AJ under the case number JS 103/15 dated 31 July 2015 is rescinded.

Legal Principles

• The court held that an order granted in the absence of an affected party without proper notice constitutes a violation of the rules of natural justice. This principle was applied to rescind the default judgment as the applicant was denied a hearing. The judgment referenced cases like NUM obo Magagula v CCMA and the requirement under Rule 42(1)(a) that erroneous judgments in the absence of a party should be rescinded without further inquiry.
• The court exercised its discretion under section 162 of the Labour Relations Act to make no costs order, aligning with the Constitutional Court's guidance that costs in labour matters should reflect fairness and legal requirements. This approach emphasized balancing procedural justice with equitable outcomes.

Precedent Name

• NUM obo Magagula v CCMA and Others
• Bloem Water Board v Abraham Nthako NO and Others
• Zwane and Others v Alert Fencing Contractors
• Eberspächer v National Union of Metal Workers of SA obo Skade and Others
• Zungu v Premier of the Province of Kwa-Zulu Natal and Others
• Transport and General Workers Union and Others v Kempton City Syndicate and Another

Cited Statute

• Uniform Rules of the Court
• Labour Relations Act

Judge Name

Passage Text

• [6.14] In order to succeed under Rule 16A (1) (b) a party affected by a judgment granted in his or her absence has to show good cause for the default... This means that there is no need to enquire further into whether good cause has been shown.
• [6.10] In the current matter, although the delay in filing the rescission application is over six months and there is no explanation thereof, my view is that it is in the interest of justice that I consider the applicant's prospect of success in the rescission application.
• [6.23] I align myself with the above sentiments. In light thereof, I am of the view that the applicant's rescission application should succeed.