Paper Printing Wood & Allied Workers Union and Others v Sebba t/a Republic Brushware Newlands Wholesale (JA28/2000) [2001] ZALAC 18; [2001] 7 BLLR 726 (LAC) (19 April 2001)

IN THE LABOUR APPEAL COURT OF SOUTH AFRICAHELD AT BRAAMFONTEINCase No. JA28/2000In the matter between:PAPER PRINTING WOOD & ALLIED WORKERS UNION First AppellantsJOSEPHINE SHAKANGA & OTHERS 2nd and FurtherAppellantsAndSEBBA T/A REPUBLIC BRUSHWARE -NEWLANDS WHOLESALERespondentJUDGMENT DELIVERED ON 19 APRIL 2001DAVIS AJAIntroduction.[1] This is an appeal against the dismissal by the Industrial Court ofan application in terms of Rule 30 of the Rules of the Industrial Court inwhich appellants sought quantification of the amount payable by respondentto the second and further appellants in terms of an order of the IndustrialCourt dated 7 October 1994 ('the order').[2] The order was granted after default judgment had been enteredagainst respondent. Although the employees reported for work in accordancewith the order, respondent refused to allow them to resume work. On 21 July1995 respondent applied to the Industrial Court for the rescission of thedefault judgment which application was dismissed on 6 October 1995. On 11November 1995 respondent appealed to the Labour Appeal Court against thedismissal of its rescission appeal, which appeal was dismissed on 30 October1996 with the respondent being ordered to pay costs on an attorney andclient scale.[3] Respondent finally allowed the employees to resume work on 18November 1996 after the dismissal of its appeal to the Labour Appeal Court.The parties failed to reach agreement on compensation owed by respondent tothe employees, apparently because of differing interpretations of the order.Consequently, on 26 November 1997 appellants applied in terms of Rule 30 ofthe Rules of the Industrial Court for an order clarifying the order byquantifying the compensation payable by respondent to employees granted interms of the order.[4] Respondent opposed the application both on the merits and in termsof a point raised in limine which disputed the relief sought on the groundsthat respondent had been incorrectly cited. In response to this point, anapplication was brought by appellants to amend the citation in terms of Rule15(1).[5] The presiding officer, Mr Shear, found that the Industrial Court wasnot empowered to make a ruling in terms of Rule 30 which went beyond theterms of the order. As the order did not require clarification nor did thedispute relate to an omission or error on the part of the Court, Rule 30(1)was inapplicable to the dispute. The Court went on to find in favour ofrespondent in respect of the objection in limine in that as the lis had cometo an end upon the judgment of the Labour Appeal Court, the Court wasfunctus officio to grant the relief sought in terms of Rule 15(1), namelyan order amending the citation of respondent.[6] Appellants now appeal both against the dismissal of the applicationin terms of Rule 15(1) and the application in terms of Rule 30.The application in respect of the incorrect citation.[7] In its answering affidavit in response to appellant's notice interms of Rule 30, Mr Sebba on behalf of respondent stated, "Althoughrespondent was cited as Sebba Group trading as Republic Brushware - NewlandsWholesale, I have brought it to the attention of the applicants that thetrue and proper entity of the respondent is Granhotra (Pty) Limited t/aRepublic Brushware. This is apparent for instance in the application forrescission referred to paragraph 5.1 of the replying affidavit of attorneyChristopher Orr".[8] In his replying affidavit appellant's attorney, Mr Orr, admittedthat the respondent was incorrectly cited and consequently he made anapplication in terms of Rule 15(1) to correctly cite the respondent asGranhotra (Pty) Limited t/a Republic Brushware.[9] Rule 15(1) provides as follows:"If in any proceedings it appears that any party in theproceedings had been incorrectly or defectively cited, the court may, unlessprecluded by the Act from doing so, on application, correct the error ordefect, or order the substitution of a party and, if the matter relates tothe function of the Court under section 17(11)(a),(bA), or (f) of the Act,make such order as to costs as it may deem fit."[10] Mr Shear found that, as the wording of Rule 15 made clear that anapplication may only be brought during the course of the proceedings, theapplication could not be successfully brought in the present dispute becauseit had been brought after the proceedings had been terminated.[11] A tribunal is only functus officio once it has given a decision inrespect of the matter to which it relates. See, for example, Thompson t/aMaharaj and Sons v Chief Constable, Durban 1965(4) SA 663(D)(CLD) at 668 D.In the present case the Industrial Court could not have been functus officiountil such time as it disposed of the Rule 30 application. Accordingly itwas duly empowered in terms of Rule 15(1) to grant the amendment of acitation. In any event it was common cause that the original citation ofrespondent was incorrect. Furthermore, it could not be said that the lishad come to an end upon the judgment of the Labour Appeal Court and that"therefore, this Court is functus officio to grant any relief sought underRule 15(1)". The dispute continued, both at the Industrial Court in respectof the Rule 30(1) application and on appeal to this Court in respect of thesame matter. For these reasons I find that the Industrial Court erred innot exercising its power in terms of Rule 15(1) to grant the necessaryamendment.Clarification of the Order.[12] Rule 30(1) provides as follows:"A party to an award made by a Court in terms of section 45or 46 may request the Court to correct an omission or error or clarify anyprovision of such award by delivery of a notice to the Registrar or partiesupon which such award is binding and the Industrial Court havingjurisdiction". [13] As appellant had launched an application in terms of this Rule, thequestion which arises for determination is whether there was an omission,an error or an ambiguity which required clarification of the order.[14] The relevant paragraph of the order reads as follows:"The Applicants No's. 2 - 16 included on the said Scheduleare hereby reinstated in the employ of the Respondent on terms andconditions no worse than those prevailing on 14 April 1993. Thereinstatement order is made retrospective to 8 April 1994 (6 months). Thisreinstatement order is subject to the individual Applicants on the listreporting for work time on Tuesday 11 October 1994, failing which thisportion of the order will fall away in respect of anyone who does not reportfor work."[15] Mr Kennedy, who appeared on behalf of appellants, conceded that ifthere had been no further appeal after the order was granted on 7 October1994, there would have been no difficulty with the order in that the wordingper se was clear. Thus, the dispute did not turn on ambiguous wording. Thepresiding officer, Mr Shear, summarised the nature of the dispute succinctlyas follows: "In effect, the applicants seek an order where they are entitledto receive the money payable in respect of the Court order from the date ofthe Order, until the matter is finally disposed of by the Labour AppealCourt, in November 1996". [16] In essence appellants sought to obtain a supplementary orderquantifying the amount of money which had to be paid by respondent in termsof the order. This second order was sought because quantification of moneysto be paid by respondent was required as a result of the uncertainty createdby the order having been suspended pursuant to an appeal and the matterhaving only been finally disposed of in November 1996 when the Labour AppealCourt delivered judgment.[17] For this reason, the application in terms of Rule 30 had little todo with an inherent ambiguity or uncertainty of the order but rather withthe legal effect upon an order of an appeal which was subsequentlydismissed. It cannot be said that the application brought by appellants hadanything to do with the kind of ambiguity or omission in an order whichwould thus fall within the scope of Rule 30. [18] Mr Kennedy directed his argument to the question of the entitlementof appellants as a result of the matter having been finally determined bythe Labour Appeal Court in November 1996, that is more than two years afterthe granting of the order. He submitted that this Court should not apply aformalistic interpretation of the Rules but should engage with the clearsubstance of the matter, namely the effect on the rights of appellantscaused by respondents' prosecution of an appeal and the ultimate dismissalof that appeal by the Labour Appeal Court. The difficulty with thissubmission is that it was never raised before the Industrial Court nor inthe notice of appeal to this Court. The record of this case reflects thatthis issue was never canvassed. The notice of appeal sets out the essentialnature of the appeal as being that the Industrial Court had erred in findingthat the relief sought in the application did not fall within the ambit ofRule 30. I should add that nowhere in appellant's heads of argument wasany argument directed to this argument nor was any authority cited insupport of appellant's interpretation of the effect of a judgment againstwhich an appeal has been lodged and in which the appeal is ultimatelydismissed.[19] For these reasons I find that the appeal in respect of theIndustrial Court's decision as to the application of Rule 30(1) should bedismissed. Given that each party has been successful in respect of oneaspect of the appeal, each party is to pay its own cost._____________DAVIS AJA__________I agreeZONDO JP_____________I agreeDU PLESSIS AJA