Lezimin 2557 t/a BG Construction and Sheriff of the High Court and Another (J1469/07) [2008] ZALC 95 (16 July 2008)

Lezimin 2557 t/a BG Construction and Sheriff of the High Court and Another (J1469/07) [2008] ZALC 95 (16 July 2008)

The court found that the order making the arbitration award an order of court was granted irregularly, as the applicant had filed a notice of opposition and supporting affidavit, but was not served with a notice of set down due to procedural defects. The registrar's failure to serve the notice of set down was not due to wilful default by the applicant. The substance of the applicant's opposition indicated an intention to oppose and seek a stay of enforcement pending review. The court held that the order was erroneously granted in the absence of the applicant and should be rescinded. The court declined to award costs, finding it would not be fair under the circumstances.

Citation
[2008] ZALC 95
Parties
Applicant: Lezimin 2557 t/a BG Construction; Respondent: The Sheriff of the High Court; Respondent: Johan Jacobs
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
16 July 2008
Case Number
J1469/07
Procedural Posture
Rescission Application / Application to Rescind a Previous Court Order Making an Arbitration Award an Order of Court.
Outcome
Application for rescission granted; previous order making the arbitration award an order of court is rescinded.
Judges
Molahlehi
Legal Topics
Rescission of Judgment, Arbitration Award Enforcement, Unfair Dismissal, Stay of Execution
Labour Law Civil Procedure Rescission of Judgment Arbitration Award Enforcement Unfair Dismissal Stay of Execution

Case Brief

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Parties

Lezimin 2557 t/a BG Construction

Applicant

The Sheriff of the High Court

Respondent

Johan Jacobs

Respondent

Procedural Posture

Rescission Application / Application to Rescind a Previous Court Order Making an Arbitration Award an Order of Court.

Legal Issues

  1. 1 Whether the order making the arbitration award an order of court should be rescinded due to procedural irregularity.
  2. 2 Whether the applicant was in wilful default or whether the order was erroneously granted in its absence.
  3. 3 Whether the notice of opposition filed by the applicant was defective and its effect on the proceedings.

Ratio Decidendi

The court found that the order making the arbitration award an order of court was granted irregularly, as the applicant had filed a notice of opposition and supporting affidavit, but was not served with a notice of set down due to procedural defects. The registrar's failure to serve the notice of set down was not due to wilful default by the applicant. The substance of the applicant's opposition indicated an intention to oppose and seek a stay of enforcement pending review. The court held that the order was erroneously granted in the absence of the applicant and should be rescinded. The court declined to award costs, finding it would not be fair under the circumstances.

Court Disposition

Application for rescission granted; previous order making the arbitration award an order of court is rescinded.

Orders

  • The order granted by Judge Mayet AJ under case number J1469/07 on 5 September 2007 is rescinded.
  • There is no order as to costs.