Department of Correctional Services v Nyapela (J881/22; JS688/17) [2023] ZALCJHB 141 (17 March 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Case No: J 881/22

& JS 688/17

In the matter between:

DEPARTMENT OF CORRECTIONAL SERVICES Applicant and NYAPELA, LAMECK Respondent

Heard: 17 March 2023

Delivered: 17 March 2023

Edited: 26 April 2023

EX TEMPORE JUDGMENT

MOSHOANA, J

[1] Before me there are two applications; the one brought under case number JS688/17, being a rescission application, and the other brought under case number J881/22, being a contempt application. Effectively the contempt application seeks to enforce, as it were, the order that is under the rescission process.

[2] Before the matter could be argued, the Court indicated to both counsel that the outcome of the rescission application, one way or another, impacts on the contempt application. Both representatives were in agreement. Effectively what the Court was asking is that if the rescission is dismissed, then the contempt application would be granted, unless if there is an explanation as to why there is no compliance with the Court order. Similarly, if the rescission application is granted, then there will be no order to be contemptuous of, because that order would have been set aside by this Court.

[3] On those bases, it may not be necessary to give detailed background facts of both matters, but it suffices to state that the respondent,

Mr Lameck Nyapela, had a dispute with the department with regard to the level at which he is appointed. He complained that, amongst other colleagues of his, he was not at the same level as them; and as a result he felt, as it was put by his counsel, discriminated against for the purposes of promotion. Aggrieved by that, he then filed a statement of case in this court in terms of the rules of the court. The contentious issue is whether that statement of case was properly served. And I would return to this aspect later.

[4] Nevertheless, after the statement of case was filed, and on the version of the respondent in the rescission application, it was served on the other party. The other party did not react; and as a result, the respondent sought a judgment by default. Indeed, on 26 May 2021 a default judgment was issued by the Honourable Acting Justice Mabaso in favour of the respondent. Having been granted the order, the respondent commenced contempt proceedings because there was no compliance with the order.

[5] Without necessarily setting out the dates of each of the applications, the applicant in this regard, the Department of Correctional Services, then brought a rescission application seeking to rescind the order made by Mabaso AJ. On its version, the Department only became aware of the judgment on 2 June 2021 when a one-page court order was served on it.

[6] The rescission application is opposed. The basis of the opposition is effectively three-fold, namely (a) that the application is defective because it is not accompanied by a condonation application; (b) the application is defective because it effectively lacks merits, as the applicant was properly served; and (c) that there was a delay of almost a year in bringing the application and that delay is excessive and this Court must not grant the rescission application.

[7] During the debate with both counsel, it turned out that effectively this matter turns on the issue of the proper service of the statement of case. I do not find it necessary to deal with the issue whether there was a need for condonation, because on the submission by the department or the applicant, this rescission application is one brought under rule 16A(2)(a) of the Labour Court Rules (Rules) which specifically provides that all that a party needs to do is to apply on notice to all the parties whose interest may be affected by the relief sought.

[8] There has been a number of judgments of this Court to the effect that under that provision of this rule, there is no need for a condonation application. Now to my mind, given what I am going to say with regard to the error pointed out, there is no need for a condonation to be sought and granted in this regard.

[9] Mr Makinta, who appeared for the respondent, argued that there was proper service, because service was effected in terms of rule

4(1)(a)(iv) which reads:

“A document that is required to be served on any person may be served in any one of the following ways, namely: (a).”

[10] And, (iv):

“By faxing a copy of the document to the person if the person has a fax number.”

[11] In this particular instance, it is the contention of the respondent that a document was faxed to an official of the department and that is sufficient and proper service.

[12] The argument developed further to state that where the state is involved, a person effecting service has an option of either serving the state attorney or the department as a person; and that is straddling, according to how I understood the argument, between rule 4(1)(a)(iv) and 4(1)(b)(vi).

[13] Clearly this interpretation has its own difficulties. The primary difficulty is that the drafters of these Rules could not have contemplated a situation where a state department, could be served in the manner that is suggested as if it is an ordinary person who has a fax number. It is clear to me that proper service in this court, where the state is involved, is by serving a copy on the responsible employee in any office of the state attorney. Now it is common cause between the parties that such a service did not occur.

[14] Now I turn my attention to the default judgment. Had Acting Justice Mabaso known that there was no proper service within the contemplation of rule 4, the order that he made would not have been made. Mr Makinta conceded to this proposition. It is clear that Acting Justice Mabaso was not informed that there was a defective service, otherwise there is no way in which Acting Justice Mabaso would have issued a judgment in the face of a defective and improper service. On this basis alone, the application for rescission ought to

succeed.

[15] Accordingly, the order I make is the following:

ORDER (RECISSION APPLICATION)

1. The order granted by Mabaso AJ on 26 May 2021 is hereby rescinded and set aside.

2. There is no order as to costs.

[16] Before I conclude, I may mention that that then resolves the contempt application, which is also before me and the only manner in which I would deal with it is to simply say that now that there is no order that would be treated with contempt, then the contempt application ought to be refused. For that matter, the order I make in relation to that application is that:

ORDER (CONTEMPT APPLICATION)

1. The application to hold the respondent in contempt is dismissed.

Graham Nasious Moshoana

Judge of the Labour Court of South Africa