Hon Shin Enterprises (Pty) Ltd v National Union of Metal Workers Of SA (JS651/07) [2013] ZALCJHB 335 (9 October 2013)

Hon Shin Enterprises (Pty) Ltd v National Union of Metal Workers Of SA (JS651/07) [2013] ZALCJHB 335 (9 October 2013)

The court found that the applicant's explanation for the delay in filing the second rescission application was unacceptable and grossly negligent, as knowledge of the default judgment was imputed to the company through its consultant and attorneys in October 2008. The delay of nearly three years was inordinately long and not accompanied by a reasonable explanation. The applicant's prospects of success on the merits were found to be poor, as the evidence supported the conclusion that the employees were dismissed rather than locked out, and the distinction between the applicant and its associated entities was insufficient to avoid liability. The court exercised its discretion to refuse...

Citation
[2013] ZALCJHB 335
Parties
Applicant: Hon Shin Enterprises (Pty) Ltd; Respondent: National Union of Metalworkers of SA; Respondent: Sipho Mtolo and 30 Others
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
9 October 2013
Case Number
JS651/07
Procedural Posture
Rescission Application / Second Rescission Application With Condonation Sought After Default Judgment
Outcome
Application for condonation and rescission dismissed; default judgment varied to compensation; costs awarded against applicant.
Judges
Bank
Legal Topics
Rescission of Judgment, Condonation, Automatic Unfair Dismissal, Lifting Corporate Veil, Default Judgment, Protected Strike
Labour Law Civil Procedure Rescission of Judgment Condonation Automatic Unfair Dismissal Lifting Corporate Veil Default Judgment Protected Strike

Case Brief

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Parties

Hon Shin Enterprises (Pty) Ltd

Applicant

National Union of Metalworkers of SA

Respondent

Sipho Mtolo and 30 Others

Respondent

Procedural Posture

Rescission Application / Second Rescission Application With Condonation Sought After Default Judgment

Legal Issues

  1. 1 Whether the default judgment was erroneously sought or granted in the absence of the applicant.
  2. 2 Whether condonation should be granted for the late filing of the second rescission application.
  3. 3 Whether the applicant provided a reasonable and acceptable explanation for the delay.

Ratio Decidendi

The court found that the applicant's explanation for the delay in filing the second rescission application was unacceptable and grossly negligent, as knowledge of the default judgment was imputed to the company through its consultant and attorneys in October 2008. The delay of nearly three years was inordinately long and not accompanied by a reasonable explanation. The applicant's prospects of success on the merits were found to be poor, as the evidence supported the conclusion that the employees were dismissed rather than locked out, and the distinction between the applicant and its associated entities was insufficient to avoid liability. The court exercised its discretion to refuse...

Court Disposition

Application for condonation and rescission dismissed; default judgment varied to compensation; costs awarded against applicant.

Orders

  • The late filing of the second rescission application is not condoned and is dismissed.
  • The default judgment of reinstatement is varied to compensation for affected employees as specified in the order.