SA Post Office Soc Ltd v CCMA (JR254/16) [2016] ZALCJHB 200; (2016) 37 ILJ 2140 (LC) (27 May 2016) per Lagrange J.

The LC refused to grant the trade union’s purported application to anticipate a final order staying a writ of execution against the employer.  LC Rule 8(10) was considered as well as Rule 6(12)(c) of the high court.

Excerpts without footnotes

“[6]     The order made by Prinsloo J was final in nature and there simply was no ‘return day’ to anticipate. Accordingly, the applicant could not have anticipated that it would be called upon to argue the substance of an  application to reconsider the matter and understandably believed it was entitled to ask for the dismissal of the application based on the fact that there was no final order pending and that in effect the application was misconceived. It was only in the third respondent’s supplementary heads of argument handed up in court when the matter was argued that the third respondent’s reliance of Rule 6(12)(c) was raised and advanced as the true basis of the application.

[7]     The purpose of a notice and a supporting affidavit is to set out the basis of the case the respondent party has to meet. When the notice is couched as the anticipation of a non-existent return day, then the application turns out to be a re-consideration of the matter, it is understandable the respondent party should be caught off guard. I am inclined to dismiss the application brought ostensibly under Rule 8(10) because the true legal nature of the application, which was a reconsideration of the matter under a different rule was not disclosed in the third respondent’s notice or founding affidavit. It is not simply a question of formality: the nature of an application for anticipation of a return date presupposes that the court made an interim order, whereas an application to reconsider the matter does not.

[8]     It may be so that when a party anticipates a return date and when a party seeks to have an urgent order reconsidered, the substantive merits of the original application will be under consideration in both instances, albeit that under Rule 6(12)(c) the court can consider both interim and final relief, whereas in anticipating a return date, a party is necessarily only dealing with final relief. However, where the notice of the application and the founding affidavit articulate a case premised on anticipating a return date of an order that was not granted on an interim basis, the responding party understandably would not see the need to respond except by way of arguing that the application is fundamentally misconceived and would not see the need to enter the merits of the matter by way of a replying affidavit.

[9]     In the circumstances, it would be grossly unfair in my view for the court to enter the substantive merits of the matter when such an enquiry would not have been required given the misconceived nature of the application. However, in dismissing this application which is couched as relief under Rule 8(10), it does not prevent the applicant seeking to have the matter reconsidered under notice as contemplated under Rule 6(12)(c) of the High Court rules. At least when faced with a properly framed application of that sort, the applicant could take a view whether or not to file a replying affidavit in defending the matter.”