Dimakatso Grace Nthejane v The Department of Health, Free State

The applicant was employed by a local authority as a professional nurse on 1 October 1998. In December 2004, the local authority transferred the service to the respondent (Department of Health, Free State) as a going concern under section 197 of the LRA. The respondent erroneously registered her commencement date as 1 January 2005, which was corrected in 2009. On 29 July 2014, the applicant lodged a grievance requesting promotion to PNB2 level (which she claimed should have occurred in 2007 when other professional nurses were promoted to PNB3). She disputed being placed on PNB1 instead of PNB3, which had different remuneration and benefits. The applicant referred a dispute under sections 197 and 191 of the LRA in February 2015. The respondent filed an answering affidavit in April 2015 denying entitlement and raising prescription. On 14 August 2015, the Court ordered the applicant to plead specifics within 10 days, the respondent to respond within 10 days, and parties to conduct a pre-trial conference. The applicant filed supplementary pleadings on 7 September 2015. A pre-trial minute was signed on 18 November 2016. The matter was set down for 29 October 2018. On 24 August 2018, the applicant filed additional supplementary pleadings. On 9 October 2018, the respondent delivered a notice of irregular step and exception out of time without seeking condonation. On 29 October 2018, the respondent did not attend court, deliberately staying away on the assumption the matter was not ripe for hearing. Default judgment was granted against the respondent on 23 November 2018. The respondent applied for rescission of the default judgment.

• Whether the default judgment was erroneously sought or granted under Rule 16A(1)(a) of the Labour Court Rules
• Whether the respondent showed good cause for rescission under Rule 16A(1)(b) of the Labour Court Rules
• Whether the applicant complied with the court order dated 14 August 2015
• Whether the Court on 29 October 2018 was entitled to vary an interlocutory order and proceed with the hearing
• Whether the respondent's default in attending the hearing was wilful or due to gross negligence
• Whether costs should be awarded in a rescission application

The rescission application was dismissed. There was no order as to costs.

A rescission application under Rule 16A(1)(b) of the Labour Court Rules will fail where the applicant's default was wilful or deliberate. Wilful default is established where a party: (1) knows a matter is set down for hearing; (2) delivers documents out of time without seeking condonation or indulgence; (3) fails to enquire from the other party or the registrar whether the matter will proceed; and (4) deliberately stays away from court on an assumption (however reasonable) that the matter is not ripe for hearing. Such wilful default constitutes a failure to show good cause, making it unnecessary to consider other requirements such as prospects of success. Further, a court may vary or depart from an interlocutory procedural order where the objective of that order has been achieved, and a party cannot rely on its own failure to comply with such an order as grounds for rescission under Rule 16A(1)(a).

The Court noted that although paragraph 10.7.5 of the practice manual provides that a matter set down for hearing may only be removed from the trial roll with consent of the Judge President or appointed judge, this provision is not rigorously applied in practice. The Court also observed that while later judgments cast doubt on whether the Court is confined to the record when considering a rescission application (referencing the approach in Bakoven Ltd v G J Howes), it was not necessary to decide this issue in the present case. The Court expressed the view that the parties went into the history of the matter in great detail in pleadings and oral argument, which was unnecessary as the facts relevant to a rescission application are limited. On costs, the Court cited with approval the approach in Dorkin (endorsed by the Constitutional Court in Zungu) that costs in labour matters should only be ordered where a party acts frivolously or unreasonably, noting this principle applied even though the respondent was entitled to bring the rescission application.

This case clarifies the principles governing rescission applications in the Labour Court under Rule 16A. It confirms that: (1) interlocutory procedural orders can be varied by the Court to achieve the original objective; (2) a party cannot rely on its own default (failure to file supplementary pleadings) as grounds for rescission; (3) wilful default (deliberate non-attendance without enquiring whether the matter would proceed, and delivering documents out of time without seeking condonation) will defeat a rescission application under Rule 16A(1)(b) regardless of prospects of success; and (4) costs in rescission applications should only be awarded where a party acts frivolously or unreasonably (applying the Dorkin principle as endorsed by the Constitutional Court in Zungu). The judgment reinforces that parties cannot adopt a cavalier attitude to court dates and procedural compliance, even where they believe the matter is not ripe for hearing.