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Paper Printing Wood & Allied Workers Union and Others v Sebba t/a Republic Brushware Newlands Wholesale ( JA28/2000) [2001] ZALAC 18 (19 April 2001)
.RTF of original document
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN
Case No. JA28/2000
In the matter between:
PAPER PRINTING WOOD & ALLIED WORKERS UNION First Appellants
JOSEPHINE SHAKANGA & OTHERS 2nd and Further
Appellants
And
SEBBA T/A REPUBLIC BRUSHWARE -
NEWLANDS WHOLESALE
Respondent
JUDGMENT DELIVERED ON 19 APRIL 2001
DAVIS AJA
Introduction.
[1] This is an appeal against the dismissal by the Industrial Court of
an application in terms of Rule 30 of the Rules of the Industrial Court in
which appellants sought quantification of the amount payable by respondent
to the second and further appellants in terms of an order of the Industrial
Court dated 7 October 1994 ('the order').
[2] The order was granted after default judgment had been entered
against respondent. Although the employees reported for work in accordance
with the order, respondent refused to allow them to resume work. On 21 July
1995 respondent applied to the Industrial Court for the rescission of the
default judgment which application was dismissed on 6 October 1995. On 11
November 1995 respondent appealed to the Labour Appeal Court against the
dismissal of its rescission appeal, which appeal was dismissed on 30 October
1996 with the respondent being ordered to pay costs on an attorney and
client scale.
[3] Respondent finally allowed the employees to resume work on 18
November 1996 after the dismissal of its appeal to the Labour Appeal Court.
The parties failed to reach agreement on compensation owed by respondent to
the employees, apparently because of differing interpretations of the order.
Consequently, on 26 November 1997 appellants applied in terms of Rule 30 of
the Rules of the Industrial Court for an order clarifying the order by
quantifying the compensation payable by respondent to employees granted in
terms of the order.
[4] Respondent opposed the application both on the merits and in terms
of a point raised in limine which disputed the relief sought on the grounds
that respondent had been incorrectly cited. In response to this point, an
application was brought by appellants to amend the citation in terms of Rule
15(1).
[5] The presiding officer, Mr Shear, found that the Industrial Court was
not empowered to make a ruling in terms of Rule 30 which went beyond the
terms of the order. As the order did not require clarification nor did the
dispute relate to an omission or error on the part of the Court, Rule 30(1)
was inapplicable to the dispute. The Court went on to find in favour of
respondent in respect of the objection in limine in that as the lis had come
to an end upon the judgment of the Labour Appeal Court, the Court was
functus officio to grant the relief sought in terms of Rule 15(1), namely
an order amending the citation of respondent.
[6] Appellants now appeal both against the dismissal of the application
in terms of Rule 15(1) and the application in terms of Rule 30.
The application in respect of the incorrect citation.
[7] In its answering affidavit in response to appellant's notice in
terms of Rule 30, Mr Sebba on behalf of respondent stated, "Although
respondent was cited as Sebba Group trading as Republic Brushware - Newlands
Wholesale, I have brought it to the attention of the applicants that the
true and proper entity of the respondent is Granhotra (Pty) Limited t/a
Republic Brushware. This is apparent for instance in the application for
rescission referred to paragraph 5.1 of the replying affidavit of attorney
Christopher Orr".
[8] In his replying affidavit appellant's attorney, Mr Orr, admitted
that the respondent was incorrectly cited and consequently he made an
application in terms of Rule 15(1) to correctly cite the respondent as
Granhotra (Pty) Limited t/a Republic Brushware.
[9] Rule 15(1) provides as follows:
"If in any proceedings it appears that any party in the
proceedings had been incorrectly or defectively cited, the court may, unless
precluded by the Act from doing so, on application, correct the error or
defect, or order the substitution of a party and, if the matter relates to
the function of the Court under section 17(11)(a),(bA), or (f) of the Act,
make such order as to costs as it may deem fit."
[10] Mr Shear found that, as the wording of Rule 15 made clear that an
application may only be brought during the course of the proceedings, the
application could not be successfully brought in the present dispute because
it had been brought after the proceedings had been terminated.
[11] A tribunal is only functus officio once it has given a decision in
respect of the matter to which it relates. See, for example, Thompson t/a
Maharaj and Sons v Chief Constable, Durban 1965(4) SA 663(D)(CLD) at 668 D.
In the present case the Industrial Court could not have been functus officio
until such time as it disposed of the Rule 30 application. Accordingly it
was duly empowered in terms of Rule 15(1) to grant the amendment of a
citation. In any event it was common cause that the original citation of
respondent was incorrect. Furthermore, it could not be said that the lis
had come to an end upon the judgment of the Labour Appeal Court and that
"therefore, this Court is functus officio to grant any relief sought under
Rule 15(1)". The dispute continued, both at the Industrial Court in respect
of the Rule 30(1) application and on appeal to this Court in respect of the
same matter. For these reasons I find that the Industrial Court erred in
not exercising its power in terms of Rule 15(1) to grant the necessary
amendment.
Clarification of the Order.
[12] Rule 30(1) provides as follows:
"A party to an award made by a Court in terms of section 45
or 46 may request the Court to correct an omission or error or clarify any
provision of such award by delivery of a notice to the Registrar or parties
upon which such award is binding and the Industrial Court having
jurisdiction".
[13] As appellant had launched an application in terms of this Rule, the
question which arises for determination is whether there was an omission,
an error or an ambiguity which required clarification of the order.
[14] The relevant paragraph of the order reads as follows:
"The Applicants No's. 2 - 16 included on the said Schedule
are hereby reinstated in the employ of the Respondent on terms and
conditions no worse than those prevailing on 14 April 1993. The
reinstatement order is made retrospective to 8 April 1994 (6 months). This
reinstatement order is subject to the individual Applicants on the list
reporting for work time on Tuesday 11 October 1994, failing which this
portion of the order will fall away in respect of anyone who does not report
for work."
[15] Mr Kennedy, who appeared on behalf of appellants, conceded that if
there had been no further appeal after the order was granted on 7 October
1994, there would have been no difficulty with the order in that the wording
per se was clear. Thus, the dispute did not turn on ambiguous wording. The
presiding officer, Mr Shear, summarised the nature of the dispute succinctly
as follows: "In effect, the applicants seek an order where they are entitled
to receive the money payable in respect of the Court order from the date of
the Order, until the matter is finally disposed of by the Labour Appeal
Court, in November 1996".
[16] In essence appellants sought to obtain a supplementary order
quantifying the amount of money which had to be paid by respondent in terms
of the order. This second order was sought because quantification of moneys
to be paid by respondent was required as a result of the uncertainty created
by the order having been suspended pursuant to an appeal and the matter
having only been finally disposed of in November 1996 when the Labour Appeal
Court delivered judgment.
[17] For this reason, the application in terms of Rule 30 had little to
do with an inherent ambiguity or uncertainty of the order but rather with
the legal effect upon an order of an appeal which was subsequently
dismissed. It cannot be said that the application brought by appellants had
anything to do with the kind of ambiguity or omission in an order which
would thus fall within the scope of Rule 30.
[18] Mr Kennedy directed his argument to the question of the entitlement
of appellants as a result of the matter having been finally determined by
the Labour Appeal Court in November 1996, that is more than two years after
the granting of the order. He submitted that this Court should not apply a
formalistic interpretation of the Rules but should engage with the clear
substance of the matter, namely the effect on the rights of appellants
caused by respondents' prosecution of an appeal and the ultimate dismissal
of that appeal by the Labour Appeal Court. The difficulty with this
submission is that it was never raised before the Industrial Court nor in
the notice of appeal to this Court. The record of this case reflects that
this issue was never canvassed. The notice of appeal sets out the essential
nature of the appeal as being that the Industrial Court had erred in finding
that the relief sought in the application did not fall within the ambit of
Rule 30. I should add that nowhere in appellant's heads of argument was
any argument directed to this argument nor was any authority cited in
support of appellant's interpretation of the effect of a judgment against
which an appeal has been lodged and in which the appeal is ultimately
dismissed.
[19] For these reasons I find that the appeal in respect of the
Industrial Court's decision as to the application of Rule 30(1) should be
dismissed. Given that each party has been successful in respect of one
aspect of the appeal, each party is to pay its own cost.
_____________
DAVIS AJA
__________
I agree
ZONDO JP
_____________
I agree
DU PLESSIS AJA
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