Special Investigating Unit v NEHAWU obo Grubb and Others (D1685/17) [2021] ZALCD 2 (5 March 2021)

Special Investigating Unit v NEHAWU obo Grubb and Others (D1685/17) [2021] ZALCD 2 (5 March 2021)

The court found that although the applicant's counsel was present, no opposing papers had been filed, and thus the order was granted in default. However, the facts presented by the applicant did not disclose any procedural irregularity or lack of jurisdiction that would render the order erroneously granted. The fee dispute and late withdrawal of attorneys did not affect the procedural entitlement of the first respondents to the order. The applicant's explanation and prospects of success on review were irrelevant to the rescission inquiry. The requirements of section 165 of the LRA and Rule 16A (1)(a)(i) were not met, as the order was not erroneously sought or granted. Consequently, the...

Citation
[2021] ZALCD 2
Parties
Applicant: Special Investigating Unit; Respondent: NEHAWU obo D Grubb & 1 Other; Respondent: The Commission for Conciliation, Mediation and Arbitration; Respondent: Lisa Williams-De Beer N.O.
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
5 March 2021
Case Number
D1685/17
Procedural Posture
Rescission Application / Opposed Application for Rescission of a Court Order
Outcome
Rescission application dismissed; arbitration award remains order of court; no costs order.
Judges
S.B. Mgaga
Legal Topics
Rescission of Judgment, Default Judgment, Unfair Labour Practice, Condonation, Arbitration Award Enforcement
Labour Law Civil Procedure Rescission of Judgment Default Judgment Unfair Labour Practice Condonation Arbitration Award Enforcement

Case Brief

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Parties

Special Investigating Unit

Applicant

NEHAWU obo D Grubb & 1 Other

Respondent

The Commission for Conciliation, Mediation and Arbitration

Respondent

Lisa Williams-De Beer N.O.

Respondent

Procedural Posture

Rescission Application / Opposed Application for Rescission of a Court Order

Legal Issues

  1. 1 Whether the order granted by Cele J on 14 June 2019 was erroneously sought or erroneously granted in the absence of the applicant.
  2. 2 Whether procedural irregularity existed justifying rescission under section 165 of the LRA and Rule 16A (1)(a)(i).
  3. 3 Whether the applicant's explanation for default constitutes grounds for rescission.

Ratio Decidendi

The court found that although the applicant's counsel was present, no opposing papers had been filed, and thus the order was granted in default. However, the facts presented by the applicant did not disclose any procedural irregularity or lack of jurisdiction that would render the order erroneously granted. The fee dispute and late withdrawal of attorneys did not affect the procedural entitlement of the first respondents to the order. The applicant's explanation and prospects of success on review were irrelevant to the rescission inquiry. The requirements of section 165 of the LRA and Rule 16A (1)(a)(i) were not met, as the order was not erroneously sought or granted. Consequently, the...

Court Disposition

Rescission application dismissed; arbitration award remains order of court; no costs order.

Orders

  • The rescission application is dismissed.
  • There is no order as to costs.