Marine Coffee Shop and Another v Msomi (D134/2001) [2001] ZALC 81; [2001] 10 BLLR 1134 (LC) (31 May 2001)

Marine Coffee Shop and Another v Msomi (D134/2001) [2001] ZALC 81; [2001] 10 BLLR 1134 (LC) (31 May 2001)

The court found that none of the circumstances justifying rescission under section 165 of the Labour Relations Act or Rule 42(1)(a) of the High Court Rules were present. The applicants were not absent in the sense contemplated by the statute, as their representative was present and had engaged with the respondent's attorney. The learned judge had applied her mind to the facts and law before exercising her discretion to refuse postponement, deny the applicants an opportunity to be heard, and join the second applicant. Any alleged errors by the judge rendered her functus officio, and the appropriate remedy for the applicants was review or appeal, not rescission. Even if jurisdiction...

Citation
[2001] ZALC 81
Parties
Applicant: Marine Coffee Shop; Applicant: Farmer Browns; Respondent: Princess Sibongile Msomi
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
31 May 2001
Case Number
D134/2001
Procedural Posture
Rescission Application / Judgment on Application for Rescission of Default Order
Outcome
Application for rescission dismissed with costs.
Judges
Pillay
Legal Topics
Rescission of Judgment, Default Judgment, Service of Process, Joinder of Parties, Retrenchment, Section 191 Lra
Labour Law Civil Procedure Rescission of Judgment Default Judgment Service of Process Joinder of Parties Retrenchment Section 191 Lra

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 3 Party arguments 2
Sign in to unlock

Parties

Marine Coffee Shop

Applicant

Farmer Browns

Applicant

Princess Sibongile Msomi

Respondent

Procedural Posture

Rescission Application / Judgment on Application for Rescission of Default Order

Legal Issues

  1. 1 Whether the default order was erroneously granted in the absence of the applicants as contemplated by section 165 of the Labour Relations Act.
  2. 2 Whether the applicants were properly served and given an opportunity to be heard.
  3. 3 Whether the joinder of the second applicant was procedurally correct.

Ratio Decidendi

The court found that none of the circumstances justifying rescission under section 165 of the Labour Relations Act or Rule 42(1)(a) of the High Court Rules were present. The applicants were not absent in the sense contemplated by the statute, as their representative was present and had engaged with the respondent's attorney. The learned judge had applied her mind to the facts and law before exercising her discretion to refuse postponement, deny the applicants an opportunity to be heard, and join the second applicant. Any alleged errors by the judge rendered her functus officio, and the appropriate remedy for the applicants was review or appeal, not rescission. Even if jurisdiction...

Court Disposition

Application for rescission dismissed with costs.

Orders

  • The application for rescission is dismissed.
  • The applicants are ordered to pay the costs.