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Is Rescission Appealable?

Is Rescission Appealable?

It is not always easy to reconcile decisions of the Courts. Just when it seems that a definite decision has been made on a particular point of law, a conflicting decision comes along. When it is the same Court, in quick succession, it is more confusing. One case closed the door to appeals against the granting of rescission. The second left open the question: Is Rescission appealable?

In Crockery Gladstone Farm v Rainbow Farms (Pty) Ltd [2019] ZASCA 61 the Supreme Court of Appeal decided that an order granting rescission is not appealable. The rationale is that it is not a final order.

In Bayport Securitisation RF Ltd v Sakata [2019] ZASCA 73 the Court upheld an appeal against a decision of the High Court where it granted rescission in upholding an appeal from a magistrates’ court which had refused to rescind a default judgement granted by the clerk of that court.

The Court clearly wished to correct an incorrect decision in the Eastern Cape High Court in Bayport and therefore heard (and upheld) the appeal. However, it did not expressly state that it was making an exception to the rule in Crockery Gladstone Farm.

It has regrettable consequences for parties when the Courts give conflicting judgements. Some legal representatives will jump at the opportunity to use the conflicting judgements to further muddy the waters. There won’t be any certainty as to whether to appeal the granting of rescission or not. Cases will be potentially delayed for months or years while parties seek to appeal based on Crockery Gladstone Farm only to find that the Court applies Bayport.

Eastern Cape High Court was clearly wrong and had created precedent which needed rectification. However, the SCA could have stated that it was only hearing the appeal because of the exceptional circumstances.

So, that leaves the question: Is rescission appealable?

Justice Denied By Court Delays

Delayed Justice

It is a trite saying that justice delayed is justice denied. If that is the yardstick, then the South African court system is denying justice on a regular basis.

This is not a comment at all on the quality of the decision-making or on the principles of the legal system. They remain strong and unassailable. However, the inherent delays are not justifiable. The focus on the denial of justice caused by delays is normally on the criminal justice system but it is definitely not unique to that area of law.

A recent Labour Appeal Court case (Maripane v Glencore Operations South Africa (Pty) Ltd [2019] ZALAC 34) demonstrates the absurd delays that are intrinsic in the court system as it is currently structured. At the outset, it must be pointed out that the Courts keep repeating that the dispute resolution system entrenched in the Labour Relations Act is meant to be expeditious.

Glencore dismissed Mr Maripane on 7 February 2014.

CCMA Proceedings

Mr Maripane approached the CCMA, which conciliated the dispute and heard the arbitration in very quick time. Those with experience of the CCMA will know how these matters regularly take a lot longer to be finalised. Mr Maripane’s dismissal was set aside and replaced with a final written warning. Glencore was ordered to reinstate him retrospectively by 7 September 2014.

Labour Court

In September 2014 Glencore instituted an application to review that decision. In early February 2015 Mr Maripane filed a counter-application to set aside the finding that he had been guilty of misconduct. So a year later, despite a ruling in his favour, Mr Maripane remained unemployed.

The Labour Court handed down judgement on 20 September 2016, ruling in Glencore’s favour. Mr Maripane applied for leave to appeal. The application for leave to appeal was heard on 28 November 2016. Judgement in that application was only handed down on 11 May 2017 – that is over five months later. Mr Maripane remained unemployed during that time. Leave to appeal was refused. To make matters worse, despite it being a labour matter, the Court granted a costs order against Mr Maripane.

Labour Appeal Court

Mr Maripane then applied to the Labour Appeal Court for leave to appeal, which was clearly granted, as his appeal was then heard on 26 February 2019. Yes, that is more than five years after he was dismissed.

On 7 May 2019, approximately two and a half months later the Labour Appeal Court handed down its judgement. The result was a complete victory for Mr Maripane. He was reinstated retrospectively with the CCMA’s finding of misconduct set aside. Glencore was ordered to pay his costs. (Although it was a labour matter, they no doubt pursued a costs order against Mr Maripane, so there is definitely justice in that order).

Five years to finalise case

Mr Maripane no doubt celebrated his victory. However, the question must be asked – how does anyone expect an individual to survive, unemployed, for a period of over five years? The retrospective order will compensate him handsomely for lost income, but is that enough? What if he starved to death on the streets before the Courts could finalise his case?

One can be assured that if he had been one day late with any document, the Court would have insisted on an application for condonation, but how could it take five months for a Court to hand down a three page judgement refusing leave to appeal (which was subsequently set aside)?

Whether the Courts are overloaded or not, and regardless of administrative challenges which they face, it cannot be said that justice is ever served when an employee waits for over five years to be reinstated. Mr Maripane’s case is not unique, it is a regular occurrence in the Labour Courts.

The labour dispute resolution system is definitely not expeditious. Perhaps if Judges had to apply to the parties for condonation for taking five months (and sometimes longer) to hand down judgements, with possible adverse costs orders, the process may be speeded up.

On a daily basis, justice is being delayed and denied.

When A Party Delays Its Own Justice

When A Party Delays Its Own Justice

The Supreme Court of Appeal has now settled that the granting (as opposed to the refusal) of an application for rescission is not appealable.

This was confirmed in Crockery Gladstone Farm v Rainbow Farms (Pty) Ltd [2019] ZASCA 61 handed down on 20 May 2019.

History of the Matter

The matter began with an application in the Limpopo High Court, Polokwane, in June 2016 for an order declaring the termination of a contract null and void. The parties entered into settlement negotiations. While these were proceeding, the matter was set down for hearing on the unopposed motion roll. However, the Crockery’s attorneys indicated to the Rainbow’s attorneys that the matter will be ‘sorted out’. Despite this, Rainbow briefed counsel to attend at court and ensure the matter was postponed. Crockery’s counsel opposed any postponement and obtained an order in the absence of an answering affidavit.

Rainbow applied for rescission, which was opposed. The Court refused rescission on the basis that it was not a default judgement because Rainbow was represented by counsel when the order was granted.

Appeal Against Granting of Rescission

Rainbow appealed to the Limpopo Full Bench. That Court upheld the appeal in October 2017 and granted Rainbow leave to defend the matter. Not satisfied, Crockery appealed to the Supreme Court of Appeal. The SCA heard the appeal on 20 May 2019 and handed down judgement the same day. It dismissed the appeal, ruling that the granting of rescission is not appealable.

The effect of this is that, nearly three years after the case commenced, it has not progressed beyond where it was when default judgement was taken. Presumably the contract has remained terminated.

Would it not have made a lot more sense for Crockery’s attorneys to have agreed to rescission and got on with the case? Sometimes because one can, doesn’t mean one should. This seems to be one of those cases.

This is classic case where a party has denied its own justice. Instead of appealing against the granting of rescission it should have proceeded with the case on the merits immediately.