INDUSTRIAL
APPEAL COURT OF SWAZILAND
SANDILE
MASEKO & OTHERS
Appellant
vs
TIGER
GROUP LIMITED
Respondent
Appeal
Case No. 3/2002
Coram SAPIRE,
JP
MATSEBULA,
JA
MAPHALALA,
JA
For
appellant A. SHABANGU
For
Respondent P.GWEBU
JUDGMENT
(22/04/2002)
The
appellants are contesting the validity of a ruling of the Industrial
Court of Swaziland given on the 7th November, 2001.
The
ruling was made in a case in which the appellants had sued the
respondents for residual payments, which they claim, were due to
them. The defence of the respondent was that the applicants were in
December 2000 paid in full and final settlement of the monies and
benefits due to them and as such they have no further claims against
the respondent.
2
On
the 29th August 2001 this defence was argued in the absence of the
appellants' representative who failed to appear and was in default.
The matter had earlier on the 20th August 2001 been set for argument
but was postponed at the instance of the appellants for 29th August
2001. On the 29th August 2001 counsel for the appellants did not
appear and no explanation was given to the court for his absence,
Mr.
Gwebu who appeared for the respondent proceeded to argue the question
raised by the plea in the absence of the appellants. In support of
his argument he produced from the bar a bundle of documents
comprising receipts by all the appellants reflecting payments of
terminal benefits itemised as backpay, leave pay, member's notice,
overtime and uniform refund. The appellants duly signed all the
vouchers and the legend on each is.
"I
hereby receive this payment as full and final payment and I have no
further claim against the company at all. "
In
the absence of the applicants the court admitted the documents and
came to the conclusion that all the claims arising from termination
of employment of the appellants had been discharged.
Accordingly
the court upheld the defence and the claims by the appellants were
dismissed. No order as to costs was made.
The
appellants have noted an appeal against this decision and the
question arises whether the appeal has been properly noted.
The
case of Sparks vs David Polliack and Company (Pty) Ltd 1963 (2) 491
it is authority that a default judgment under rule 55(2) of the
Magistrate Court Act of South Africa, becomes final and therefore
appealable when it is no longer rescindable. The headnote recites
that a judgment had been given in default in terms of rule 55(2) of
the Magistrate Courts rales and there was nothing in the record on
appeal to show that an extension of time within which to have the
judgment rescinded had been refused under rule 53(5) It is further
held that the judgment is not in fact a
3
final
judgment and it is not appeal able under Section 8(3)(2) of the
Magistrate Court rule 32 of 1944.
A
similar situation obtains in the present case. The judgment or
decision of the Industrial Court is a judgment by default having been
given in the absence of one of the parties. There is a remedy
available in court in terms of the rules in the court a quo and that
is to apply for rescission of the judgment. If such application is
now out of time it is possible to have the period extended. Until
this is done the appeal to this court it is premature and based on a
judgment, which is not final. The Appellant's have failed to avail
themselves of the remedies provided for in the rales of the court a
quo
Accordingly
the appeal in this case must be dismissed, We make no order as to
costs.
SAPIRE,
JP
MATSEBULA,
JA
MAPHALALA,
JA
