IN THE INDUSTRIAL COURT OF SWAZILAND
HELD AT MBABANE CASE NO. 336/06
In the matter between:
O. K. BAZAARS SWAZILAND (PTY) LTD Applicant
VUSUMUZI MASEKO 1st Respondent
SENZO MTHUPHA 2nd Respondent
MDUDUZI DLAMINI 3rd Respondent
VUSUMUZI MASEKO 1st Applicant
SENZO MTHUPHA 2nd Applicant
MDUDUZI DLAMINI 3rd Applicant
O. K. BAZAARS SWAZILAND (PTY) LTD Respondent
P. R. DUNSEITH : PRESIDENT
JOSIAH YENDE : MEMBER
NICHOLAS MANANA : MEMBER
FOR APPLICANT : SABELA DLAMINI
On the 21st July 2006 the Respondents (who were then the Applicants) applied to court for an order against the Applicant (which was then the Respondent).
The Applicant did not enter any appearance to oppose the Application, and the court granted the following order by default:
â€œ(a) Directing Respondent to confirm the Applicants to permanent employment status to be covered by section 35 of the Employment Act 1980.
(b) Ordering Respondent to pay the Applicants their arear wages in respect of underpayments totaling E12919.50.
Ordering Respondent to grant Applicants leave or pay in lieu of leave from the date Applicants leave was due as per Part X11 of the Employment Act 1980 as amended.
The Respondent is ordered to comply with section 22 of the Employment Act 1980 as amended within a period of 7 days.â€
The Applicant (formerly the Respondent) thereafter applied to court for a stay of execution of the order granted on 21 July 2006; rescission of the order; and leave to oppose the main application.
The court granted an interim order staying execution pending determination of the application for rescission. The court is now required to determine the merits of the application.
In his founding affidavit, the Applicantâ€™s Mbabane Manager gives an explanation for the Applicantâ€™s default. He says that he received the application papers in the main matter and faxed them to his supervisor Conrad De Lange for actioning in accordance with company procedure. Confirmatory proof was provided by way of a fax coversheet dated 20 June 2006.
The manager never followed up to check whether De Lange had received the faxed process. He assumed that the matter was being actioned by De Lange and he was distracted by his work responsibilities.
The managerâ€™s complacency was abruptly disturbed by the arrival of the Deputy-Sheriff bearing a writ of execution. Upon enquiry, De Lange informed him that he never received the fax, hence no steps were taken to oppose the application. De Lange also told the manager that he was unable to trace what became of the fax because his support staff would not own up to having received it. No confirmatory affidavit was filed by De Lange in support of these allegations.
The Respondentâ€™s representative submits that this explanation discloses gross negligence on the part of De Lange and/or his support staff, not to mention the Mbabane manager who failed to follow up.
The Applicant submits that it has a good and bona fide defence to the Respondentâ€™s claim in the main application. In this regard the Applicant produced a Collective Agreement entered into between the Applicant and the Swaziland Commercial and Allied Workers Union (â€œSCAWUâ€) as the union representative of the Respondents. On the face of it, the contents of the Collective Agreement sets up a triable defence to the Respondentâ€™s case as made out in the main application.
The Respondents dispute the validity of the Collective Agreement on the basis that SCAWU had no authority to represent them, and in any event the agreement contravenes the provisions of the Employment Act 1980.
The tendency of the courts is to grant an application for rescission of a default judgement where the Applicant has given a reasonable explanation of his delay, where the application is made bona fide and not with an object of delaying the opposing partyâ€™s claim, where there has not been a reckless or intentional disregard of the rules of court, where the Applicantâ€™s defence is clearly not ill-founded, and where any prejudice to the opposite party could be compensated for by an appropriate order as to costs â€“
Shongwe v Simelane
Msibi v Simelane
(SLR 1977-78 page 183).
The fact that a party has been negligent in failing to appear to oppose an application is not a ground for refusing relief although it is undoubtedly a factor which will weigh with the court in deciding whether to exercise its discretion in favour of granting rescission.
Scott v Trustee, Insolvent Estate Cormerma 1938 WLD 136.
Even where a party has been grossly negligent the court retains its discretion to grant rescission.
Saraiva Construction v Zululand Electrical & Engineering Wholesalers 1975 (1) SA 612 (D).
In our view the reason for the Applicantâ€™s default originates in its policy to handle litigation in Swaziland from its office in Durban. It only required the malfunction of a fax machine or an office clerk to expose the shortcomings in this policy.
Default judgment was entered against the Applicant due to its own fault. It is clear however that the Applicant was not in willful default, and we do not consider its negligence was so gross as to disqualify it from obtaining the courtâ€™s indulgence.
A factor that weighs heavily in favour of granting rescission is that the merits of the dispute in the main application have a profound impact on the employment contracts of numerous employees at the Applicantâ€™s workplace, and it is in the interests of good labour relations that the dispute be thoroughly canvassed and determined by the court.
Indeed it is clear that the material factual disputes cannot be resolved by evidence on oath and call for determination by trial action.
The court is satisfied that the application for rescission of the default judgment should be granted in all the circumstances. We do not however consider that the Respondentsâ€™ opposition to the application was unreasonable or unwarranted, and we do not propose making any order as to costs, save that the Respondents are entitled to be compensated for the costs of the default judgement and the execution arising from such judgement.
We make the following order:
The order of the Industrial Court granted in the above matter on 21 July 2006 is hereby rescinded.
The Applicant (Respondent in the main application) is granted leave to oppose the main application.
The main application is referred to trial. The application papers and the affidavits filed of record in the application for rescission shall constitute the pleadings in the main application.
The matter is referred to the Registrar for allocation of trial dates.
No order is made in respect of the costs of the application for rescission, but the Applicant is to pay the wasted costs of the application for default judgement and any wasted costs of execution.
The members agree.
PETER R. DUNSEITH
PRESIDENT OF THE INDUSTRIAL COURT