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South Africa Judgment

Labour Court

Probert and Others v RLS Engineering (J4936/99) [2001] ZALC 118 (2 August 2001)

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01

Holding and result

The court found that the applicant failed to address the evidence that the notice of motion and affidavits were sent to him by fax and did not deny receipt of these documents. As a result, he failed to demonstrate that he was not in willful default. The application for rescission was therefore dismissed with costs.

Court disposition

Application for rescission dismissed with costs.

Orders

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

02

Material facts

Parties

Jack Samuel Probert & Others

Applicant

RLS Engineering

Respondent

03

Procedural history

  1. Posture

    Rescission Application / Application for Rescission of Judgment

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant, Chris Pienaar, contended that he only became aware of the judgment when the writ of execution was served upon him. He claimed to have served an application on the CCMA for rescission and argued that the respondents should have been aware of this before applying to have the award made an order of court.
Respondent
The respondents relied on an affidavit by Mr Probert stating that on 13 March 2000, a copy of the notice of motion and affidavits was sent by fax to the applicant at the provided fax number, with a confirmation slip attached. The applicant did not deny receipt of these documents nor address the issue in his founding affidavit.

05

Court’s reasoning

  1. 01

    Labour Court practice

    An applicant for rescission must show that he was not in willful default and that proper service was not effected.

  2. 02

    Labour Court practice

    Failure to address evidence of service or to deny receipt of documents may result in dismissal of the rescission application.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the applicant failed to address the evidence that the notice of motion and affidavits were sent to him by fax and did not deny receipt of these documents. As a result, he failed to demonstrate that he was not in willful default. The application for rescission was therefore dismissed with costs.

Obiter and limits

  • Applicants must deal directly with evidence of service when seeking rescission of judgment.
  • Failure to do so may be fatal to their application.

Court disposition

Application for rescission dismissed with costs.

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

Source and reliance status

Labour Court

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Judgment text

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Source document

Labour Court

Judgment

[2001] ZALC 118

JUDGMENT

1 J4936/99-SSL

Sneller Verbatim/ssl

IN THE

LABOUR COURT OF SOUTH AFRICA

BRAAMFONTEIN CASE NO: J4936/99

2001-08-02

In the matter between

JACK SAMUEL PROBERT & OTHERS Applicant

and

RLS ENGINEERING Respondent

______________

J U D G M E

N T

_______________

LANDMAN J: This is an application for the rescission of judgment which was brought by Chris Pienaar against Jack Samuel Probert and Neville Britton Mr Pienaar alleges in his founding affidavit that he became aware of this matter when the writ of execution was served upon him. He also says that he served an application on the CCMA for rescission of the judgment and that Mr Probert and Mr Britton should have been aware of it before they applied to have the award that the Commissioner made an order of court.

However, in the court file, is an affidavit which was made by Mr Probert. He says that on 13 March 2000 he sent a copy of the notice of motion and affidavits by fax to the applicant, Mr Probert, at fax number 8182026. Their confirmation slip has been attached. Mr Pienaar in his founding affidavit does not say that he did not receive that document. He does not deal with it at all. In the circumstances he has failed to show to this court that he was not in willful default and in the circumstances his application for rescission must be dismissed and it is dismissed with costs. ______ Judge A A Landman Judge of the Labour Court of South Africa ---o0o---

However, in the court file, is an affidavit which was made by Mr Probert. He says that on 13 March 2000 he sent a copy of the notice of motion and affidavits by fax to the applicant, Mr Probert, at fax number 8182026. Their confirmation slip has been attached.

Mr Pienaar in his founding affidavit does not say that he did not receive that document. He does not deal with it at all. In the circumstances he has failed to show to this court that he was not in willful default and in the circumstances his application for rescission must be dismissed and it is dismissed with costs.

______

Judge A A Landman

Judge of the Labour Court of South Africa

---o0o---

1

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