National Union of Metalworkers of South Africa (NUMSA) obo Fohlisa and Others v Hendor Mining Supplies a Division of Marschalk Beleggings (Pty) Ltd (JS794/03) [2019] ZALCJHB 80 (10 April 2019)
The leave to appeal judgment issued on 25 February 2019 was rescinded because it was granted without consideration of the respondent's timely filed opposing papers, which were not made available to the judge due to administrative delay. Upon review of both parties' submissions, the court found reasonable prospects...
Source-derived case information.
- Citation
- [2019] ZALCJHB 80
- Parties
- Applicant: National Union of Metalworkers of South Africa (NUMSA) obo Moses Fohlisa & 41 Others; Respondent: Hendor Mining Supplies a Division of Marschalk Beleggings (Pty) Ltd
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- JS794/03
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal and Cross Appeal Following Judgment
- Outcome
- Leave to appeal judgment rescinded; leave to appeal and cross appeal granted; costs to be costs in the appeal.
- Judges
- H Cele
- Legal Topics
- Leave to Appeal, Cross Appeal, In Duplum Rule, Constitutional Court Interpretation
Source-derived case record
Summary, issues, holding and outcome
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Parties
National Union of Metalworkers of South Africa (NUMSA) obo Moses Fohlisa & 41 Others
Applicant
Hendor Mining Supplies a Division of Marschalk Beleggings (Pty) Ltd
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal and Cross Appeal Following Judgment
Legal Issues
- 1 Whether the leave to appeal judgment issued on 25 February 2019 should be rescinded due to the absence of respondent's submissions.
- 2 Whether leave to appeal should be granted to the applicant on the outlined grounds.
- 3 Whether the respondent's cross appeal on the applicability of the in duplum rule should be granted.
Ratio Decidendi
The leave to appeal judgment issued on 25 February 2019 was rescinded because it was granted without consideration of the respondent's timely filed opposing papers, which were not made available to the judge due to administrative delay. Upon review of both parties' submissions, the court found reasonable prospects that the Labour Appeal Court could interpret the Constitutional Court order in favour of the applicant, warranting the granting of leave to appeal. The respondent's cross appeal, limited to the applicability of the in duplum rule, was also granted. Costs of the application are to be costs in the appeal.
Court Disposition
Leave to appeal judgment rescinded; leave to appeal and cross appeal granted; costs to be costs in the appeal.
Orders
- The leave to appeal judgment dated 25 February in this matter is rescinded.
- The application for leave to appeal is granted on the outlined grounds of appeal.
Full Case Text
Judgment text and source record
28 paragraphs
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JS 794/03
In the matter between:
NATIONAL UNION OF METALWORKERS OF
SOUTH AFRICA (NUMSA) OBO MOSES
FOHLISA & 41 OTHERS Applicant
And
HENDOR MINING SUPPLIES A DIVISION OF
MARSCHALK BELEGGINGS (PTY) LTD
Respondent
Considered: In chambers
Delivered : 10 April 2019
JUDGEMENT: LEAVE TO APPEAL
CELE. J
[1] On 25 February 2019 I issued a leave to appeal judgment in this matter while sitting in chambers. As correctly endorsed in that judgment I did not have the benefit of submissions made by the respondents in this matter. I had consulted with my Johannesburg based secretary on whether the application for leave to appeal was opposed. I was informed that no opposing papers had been received, notwithstanding the waiting period given for the same.
[2] I have since learnt that opposing papers were filed in time even though they were not passed on to my secretary. Had I known that opposing papers were filed in time with the office of the Registrar but that they were delayed in transit, I would not have finalised this application without these papers. The application for leave to appeal the judgment is consequently an order erroneously granted in the absence of the respondent party that was affected by this judgment and its order. The leave to appeal judgment I issued on 25 February 2019 in this matter accordingly falls to be rescinded.
[3] Extensive submissions have been made by the respondent in this application to oppose the application for leave to appeal for my consideration. These submissions include a cross appeal, albeit on limited grounds pertaining to the applicability of the in duplum rule. The submission that the Constitutional Court order is capable of two interpretations, one proffered by the applicant and the other coming from the respondent, is beyond doubt. In the assailed judgment, the respondent’s interpretation was found to
accord with the context of the facts of this matter. There are reasonable prospects that the Labour Appeal Court will agree with the interpretation of the applicant, in which case leave to appeal should be granted. In that eventuality the cross appeal should similarly be granted.
[4] In the premises the following order is made:
Order
1. The leave to appeal judgment dated 25 February in this matter is rescinded.
2. The application for leave to appeal is granted on the outlined grounds of appeal.
3. The cross appeal is granted on the limited ground averred by the respondent.
4. Costs of this application shall be costs in the appeal.
__________________
H. Cele
Judge of the Labour Court of South Africa