NUMSA and Others v Fountain Dienstasie BK and Another (JS 66/09) [2015] ZALCJHB 21 (16 January 2015)

NUMSA and Others v Fountain Dienstasie BK and Another (JS 66/09) [2015] ZALCJHB 21 (16 January 2015)

The court found that the joinder of the second respondent was both erroneously sought and granted, as the second respondent had always been a party to the proceedings. The joinder application was unnecessary and therefore wrong. Under Rule 16A(1)(a), rescission is appropriate where an order is erroneously granted, and good cause need not be shown. Even if good cause were required, the second respondent demonstrated a clear intention to oppose the joinder and was not in wilful default. The order for joinder was rescinded, and the court declared that the second respondent has always been a party to the litigation. The matter is to proceed to trial, and no costs order was made due to the...

Citation
[2015] ZALCJHB 21
Parties
Applicant: NUMSA; Applicant: Kaizer Mofokeng & 12 Others; Respondent: Fountain Dienstasie BK; Respondent: Allegro Filling Station
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
16 January 2015
Case Number
JS 66/09
Procedural Posture
Rescission Application / Application for Rescission of Default Order
Outcome
Application for rescission granted; joinder order rescinded; second respondent confirmed as party; matter to proceed to trial; no order as to costs.
Judges
Orr
Legal Topics
Rescission of Judgment, Joinder of Parties, Wilful Default, Condonation, Costs Award
Labour Law Civil Procedure Rescission of Judgment Joinder of Parties Wilful Default Condonation Costs Award

Case Brief

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Parties

NUMSA

Applicant

Kaizer Mofokeng & 12 Others

Applicant

Fountain Dienstasie BK

Respondent

Allegro Filling Station

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Order

Legal Issues

  1. 1 Whether the order joining the second respondent was erroneously sought and granted.
  2. 2 Whether the second respondent was in wilful default for non-appearance.
  3. 3 Whether good cause for rescission must be shown under Rule 16A(1)(a).

Ratio Decidendi

The court found that the joinder of the second respondent was both erroneously sought and granted, as the second respondent had always been a party to the proceedings. The joinder application was unnecessary and therefore wrong. Under Rule 16A(1)(a), rescission is appropriate where an order is erroneously granted, and good cause need not be shown. Even if good cause were required, the second respondent demonstrated a clear intention to oppose the joinder and was not in wilful default. The order for joinder was rescinded, and the court declared that the second respondent has always been a party to the litigation. The matter is to proceed to trial, and no costs order was made due to the...

Court Disposition

Application for rescission granted; joinder order rescinded; second respondent confirmed as party; matter to proceed to trial; no order as to costs.

Orders

  • The late delivery of the applicants’ answering affidavit is condoned.
  • The application for the rescission of the order granted on 26 July 2013 is granted.