Emalahleni Local Municipality and Another v Rapolae; In re Rapolae v Emalahleni Local Municipality and Another (J1656/19) [2019] ZALCJHB 219 (16 August 2019)

Emalahleni Local Municipality and Another v Rapolae; In re Rapolae v Emalahleni Local Municipality and Another (J1656/19) [2019] ZALCJHB 219 (16 August 2019)

The court found that the application set down for 31 July 2019 was not properly served on the applicants, as the purported service by email was not recognized by the court's rules and was not substantiated by affidavit or credible evidence. The municipal manager's evidence of non-receipt and absence from the office was accepted and not seriously disputed. The respondent's representative misled the court regarding service. Accordingly, the order granted in the absence of the applicants was made erroneously and must be rescinded under Rule 16A. Given the conduct of the respondent and his attorney, a punitive costs order is justified to express the court's displeasure and uphold the...

Citation
[2019] ZALCJHB 219
Parties
Applicant: Emalahleni Local Municipality; Applicant: Municipal Manager: Emalahleni Local Municipality; Respondent: Ntshware Rapolae
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
16 August 2019
Case Number
J1656/19
Procedural Posture
Urgent Application / Application to Rescind an Order Granted in the Absence of the Applicants.
Outcome
Application for rescission granted; the order of 31 July 2019 is rescinded and costs awarded against the respondent on an attorney and client scale.
Judges
Van Niekerk
Legal Topics
Rescission of Judgment, Service of Process, Disciplinary Hearing, Attorney and Client Costs
Labour Law Civil Procedure Rescission of Judgment Service of Process Disciplinary Hearing Attorney and Client Costs

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Parties

Emalahleni Local Municipality

Applicant

Municipal Manager: Emalahleni Local Municipality

Applicant

Ntshware Rapolae

Respondent

Procedural Posture

Urgent Application / Application to Rescind an Order Granted in the Absence of the Applicants.

Legal Issues

  1. 1 Was the order granted on 31 July 2019 made in the absence of proper service to the applicants?
  2. 2 Is the applicant entitled to rescission of the order under Rule 16A?
  3. 3 Should costs be awarded on a punitive scale due to the conduct of the respondent and his attorney?

Ratio Decidendi

The court found that the application set down for 31 July 2019 was not properly served on the applicants, as the purported service by email was not recognized by the court's rules and was not substantiated by affidavit or credible evidence. The municipal manager's evidence of non-receipt and absence from the office was accepted and not seriously disputed. The respondent's representative misled the court regarding service. Accordingly, the order granted in the absence of the applicants was made erroneously and must be rescinded under Rule 16A. Given the conduct of the respondent and his attorney, a punitive costs order is justified to express the court's displeasure and uphold the...

Court Disposition

Application for rescission granted; the order of 31 July 2019 is rescinded and costs awarded against the respondent on an attorney and client scale.

Orders

  • The order granted on 31 July 2019 is rescinded.
  • The respondent is to pay the costs of the application on the scale as between attorney and client.