Van Schalkwayk v McCarthy's Armed Response (Pty) Ltd t/a Milnerton Arm Response (C894/2000) [2002] ZALC 41; [2003] 5 BLLR 513 (LC) (2 May 2002)

Van Schalkwayk v McCarthy's Armed Response (Pty) Ltd t/a Milnerton Arm Response (C894/2000) [2002] ZALC 41; [2003] 5 BLLR 513 (LC) (2 May 2002)

The court found that the applicant failed to provide a reasonable and acceptable explanation for its default, having been properly notified of both the arbitration award and the Labour Court proceedings. The applicant's conduct was neglectful and grossly negligent, and its attempts to avoid compliance with the award were evasive and contradictory. No bona fide defence or prospects of success were established, as the applicant conceded employment and dismissal despite earlier denials. The requirements for rescission under the Labour Court and High Court rules, as well as established case law, were not met. Accordingly, the application for rescission was refused and the arbitration award...

Citation
[2002] ZALC 41
Parties
Respondent: Louise Anne van Schalkwyk; Applicant: McCarthy's Armed Response (Pty) Ltd t/a Milnerton Armed Response
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
2 May 2002
Case Number
C894/2000
Procedural Posture
Review Application / Application for Rescission of Default Judgment and Stay of Execution
Outcome
Application for rescission refused; arbitration award stands; costs awarded against applicant.
Judges
MacRobert
Legal Topics
Rescission of Judgment, Default Judgment, Unfair Dismissal, Compensation, Wilful Default
Labour Law Civil Procedure Rescission of Judgment Default Judgment Unfair Dismissal Compensation Wilful Default

Case Brief

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Parties

Louise Anne van Schalkwyk

Respondent

McCarthy's Armed Response (Pty) Ltd t/a Milnerton Armed Response

Applicant

Procedural Posture

Review Application / Application for Rescission of Default Judgment and Stay of Execution

Legal Issues

  1. 1 Whether the applicant has shown sufficient cause for rescission of the default judgment making the arbitration award an order of court.
  2. 2 Whether the applicant provided a reasonable and acceptable explanation for its default.
  3. 3 Whether the applicant has a bona fide defence with prospects of success against the arbitration award.

Ratio Decidendi

The court found that the applicant failed to provide a reasonable and acceptable explanation for its default, having been properly notified of both the arbitration award and the Labour Court proceedings. The applicant's conduct was neglectful and grossly negligent, and its attempts to avoid compliance with the award were evasive and contradictory. No bona fide defence or prospects of success were established, as the applicant conceded employment and dismissal despite earlier denials. The requirements for rescission under the Labour Court and High Court rules, as well as established case law, were not met. Accordingly, the application for rescission was refused and the arbitration award...

Court Disposition

Application for rescission refused; arbitration award stands; costs awarded against applicant.

Orders

  • The application for rescission is refused.
  • The arbitration award of Commissioner Rubin issued on 14 August 2000, made an order of court on 30 August 2001, stands.