Sun International (Pty) Ltd t/a Table Bay v CCMA (C 636/2012) [2013] ZALCCT 46 (12 January 2013)

Principle:

Where a party to a review in the Labour Court chooses not to oppose the proceedings and the review upholds the applicant's case, the respondent cannot thereafter apply for leave to appeal.

A default judgement (ie a judgement given in the absence of the respondent) is not a final judgment and therefore cannot be appealed.

Facts:

The employee, who had been successful in arbitration, did not oppose the matter when the employer took the arbitration award on review. The employer was successful in the Labour Court and then the employee applied for leave to appeal the default judgment.

The Labour Court held that the employee had no right to seek leave to appeal in these circumstances. He had chosen not to oppose the proceedings at the relevant time, when the application for review was argued. He cannot afterwards elect to do so and ask the Court for leave to go to the Labour Appeal Court when it turns out that his choice not to oppose the matter in Labour Court had had adverse consequences for him.

Extract from the judgment:

Steenkamp J:

[1]   The third Respondent ("Martin") applied for leave to appeal in respect of my default judgment dated 11 October 2013. The preliminary question is whether he can do so, given that he chose not to oppose the applicant's application for review.

[2]   I ordered that the arbitration award handed down by the Commissioner (the second respondent) dated 14 July 2012 is reviewed and set aside. I substituted it with an order that Martin's dismissal was fair.

[3]   The proceedings before this Court on 11 October 2013 were unopposed, Martin having elected through the offices of his current attorney, Isak Murison, to file a notice of withdrawal of opposition on 23 May 2013.

The right to seek leave to appeal

[4]   It appeared to me that Martin has no right to seek leave to appeal in these circumstances. He chose not to oppose these proceedings at the relevant time, when the application for review was argued. He cannot now elect to do so and ask the Court for leave to go to the Labour Appeal Court when it turns out that his choice not to oppose the matter in Labour Court has had adverse consequences for him.

[5]   The Supreme Court of Appeal (SCA) per Nugent JA in dealing with a similar application has held:

'What also strikes one as odd is that submissions on behalf of Mr Pitelli should be made in this Court, when they could have been made to the court below before it made its orders, but were deliberately withheld. This is not a court of first instance. It seems to me that it would be most unfortunate for a court of first instance to find its orders reversed only because the litigant chose not to tell the court why the orders should not be made, and thought better to make these submissions to a court of appeal only after that had occurred.'

Appealability of the default judgement

[6]   It also seemed to me that the default judgment of the Court a quo is not appealable - it is not final in effect in that the default judgment of the Court a quo is theoretically capable of being revisited in the form of an application for rescission of judgment.

[7]   According to section 166(1) of the LRA, only final judgments and final orders are appealable:

'Any party to any proceedings before the Labour Court may apply to the Labour Court for leave to appeal to the Labour Appeal Court against any final judgment or final order of the Labour Court.'

[8]   In the words of Nugent JA in Pitelli:

'An order is not final, for the purposes of an appeal, merely because it takes effect unless it is set aside. It is final when the proceedings of the court of first instance are complete and that court is not capable of revisiting the order. That leads one ineluctably to the conclusion that an order that is taken in the absence of a party is ordinarily not appealable (perhaps there might be cases in which it is appealable but for the moment I cannot think of one). It is not appealable because such an order is capable of being rescinded by the court that granted it and it is thus not final in its effect...

.... An order made by default is by its nature not final in effect because it is capable of being revisited, albeit that condonation might be required for the delay...' [Emphasis added]

[9]   The fact that Martin is unlikely to succeed with any application for rescission is beside the point. This question too was considered by Nugent JA:

'I am mindful of the considerable hurdle that would need to be overcome by a litigant who seeks to have an order rescinded when he or she deliberately allowed it to be taken by default, bearing in mind that in order to succeed the litigant will need to provide a "reasonable and convincing explanation" for the default. But the appealability of the order is dependent upon whether it is capable of being revisited and not upon whether such an application will succeed. And if a litigant deliberately chooses to permit an order to go by default then he or she can hardly complain if a court refuses to allow the matter to be re-opened. A litigant cannot expect to blow hot and cold depending on what is most advantageous at the time.'