Sabelo Zwane and Others v Alert Fencing Contractors CC

The applicants were retrenched on 31 May 2004. They obtained a default judgment in the Labour Court on 25 May 2005 for unfair dismissal without notice to the respondent, Alert Fencing Contractors CC. This occurred because the respondent's legal representatives failed to attend a pre-trial conference before a judge in the Labour Court, and the judge barred the respondent from defending the proceedings in terms of rule 6(7) of the Labour Court Rules. The matter was then set down for default judgment without being brought to the respondent's attention. The respondent's legal representative had not attended the pre-trial conference because its date had been wrongly diarised. The Labour Court subsequently rescinded the default judgment at the instance of the respondent. The Labour Appeal Court upheld the rescission order on appeal, relying on its judgment in Eberspächer v National Union of Metalworkers of SA on behalf of Skade & Others, holding that rule 6(7) required notice of the application for default judgment to be given to the respondent as a prerequisite to judgment being granted.

• Whether the Labour Appeal Court was correct in holding that rule 6(7) of the Labour Court Rules required notice of the application for default judgment to be given to the respondent as a prerequisite to judgment being granted
• Whether the rescission of the default judgment was properly granted

1. The application for leave to appeal is dismissed. 2. There is no order as to costs. 3. The Registrar of the Constitutional Court is directed to draw the contents of paragraph [7] of this judgment to the attention of the Judge President of the Labour Court and to the Registrar of that Court.

Rule 6(7) of the Labour Court Rules requires that notice of an application for default judgment must be given to the respondent as a prerequisite to judgment being granted, even where the respondent has been barred from defending the proceedings due to failure to attend a pre-trial conference. The requirement of notice is a fundamental aspect of procedural fairness that must be observed before a default judgment can properly be granted against a party.

The Court made strong observations about the unacceptable delay in finalizing labour disputes, particularly unfair dismissal claims. The Court stated that it is unacceptable that a claim for unfair dismissal had not been finalized for six and a half years after the retrenchment. The Court urged the Judge President of the Labour Court to do everything possible to ensure that the case is heard as a matter of urgency, and went so far as to direct the Registrar to draw these concerns to the attention of the Judge President and Registrar of the Labour Court. These observations reflect the Court's concern about access to justice and the need for expeditious resolution of labour disputes, though they do not form part of the binding legal principle in this case.

This case confirms the procedural requirement that notice must be given to a respondent before a default judgment can be granted under rule 6(7) of the Labour Court Rules, even where a party has been barred from defending proceedings for failing to attend a pre-trial conference. The case is also significant for the Constitutional Court's express concern about delays in the resolution of labour disputes, particularly unfair dismissal claims, and its willingness to direct the attention of the Judge President of the Labour Court to ensure urgent hearing of matters that have been unduly delayed. It reinforces the importance of procedural fairness in labour proceedings and the need for expeditious resolution of labour disputes.