South African Municipal Workers Union v Umsunduzi Local Municipality & another [2026] ZALCJHB 370

Date of Judgment & Seat of Court: 2 October 2026, Labour Court, Johannesburg

Case No: 2026/187373

Name of Judge(s): Snyman AJ

Summary of Factual Matrix:

The South African Municipal Workers Union brought an urgent application to declare unlawful deductions made by the first respondent municipality from its members’ salaries, to interdict further deductions and to compel repayment. The respondents opposed the application through attorneys who had appointed a specific e-mail address for service. The matter was removed from the roll on 12 August 2026 owing to a registry difficulty, and the applicant’s attorneys then secured a fresh set-down for 14 August 2026 without serving any notice of set-down on the appointed address; correspondence was copied only to the respondents’ attorney’s private e-mail address and the hearing link was sent to the municipality directly. The order was granted in the respondents’ absence on 14 August 2026.

The respondents applied urgently, under Labour Court Rule 41(1)(b) read with Uniform Rule 6(12)(c), for reconsideration of that order. The issues were urgency, whether the default order had been erroneously granted for want of proper notice of set-down, the appropriate consequential relief and costs. The order was granted on 22 September 2026; this judgment furnishes the reasons.

Summary of Findings:

[7] ‘In these circumstances, I must confess that I find it difficult to understand how the applicant can legitimately challenge the urgency of the remedial steps now taken by the respondents as a result of the events that occurred in the course of that very same urgent application. In short, the same considerations of urgency should remain prevalent throughout.’

[9] ‘The respondents have contended firstly that the current application comes with an inherent quality of urgency. I am compelled to agree. As touched on earlier, the respondents’ application is founded on Rule 6(12)(c) of the Uniform Rules. That Rule applies in the context of urgent proceedings. It is designed to remedy a situation where, in the course of an urgent application, an order is taken in a party’s absence. The point is then simple. Just as the order was taken as one of urgency, it should be open to be reconsidered on an urgent basis.’

[10] ‘But an inherent requirement of urgency is not an open licence to a party to bring such a reconsideration application whenever a party seeking such relief pleases. […] In the end, where there is no undue procrastination on the part of the applicant party seeking relief, and there is no real substantial relief available in the ordinary course, then the inherent quality of urgency in applications such as these should prevail.’

[11] ‘In casu, the respondents’ attorneys became aware of the order on the afternoon of 14 August 2026, which was a Friday. The application was brought within the following week on 20 August 2026. I consider that to be prompt action, satisfying the requirement of expedition. Further, and having regard to the intervening events following the first set down of the matter on 25 August 2026, both parties have had a full and complete opportunity to ventilate their respective cases, and even file heads of argument. There can therefore be no prejudice caused to any party due to truncated time limits. The matter is for all intents and purposes properly ripe for hearing.’

[12] ‘I also believe that the respondents are not able to obtain substantial redress in the ordinary course. As matters stand, and without being afforded the chance to even state its case, the first respondent is interdicted from making deductions from the salaries of employees that it possibly could be legitimately entitled to make. Also, it must immediately pay monies back to employees that have not been properly quantified, and even if the order is reversed in due course, it will be a dubious prospect to recover those monies. In the end, all the first respondents are asking for is to be allowed to state their case and present their defence, and the only way to afford it that relief is to grant the order as prayed for in this application. In the end, I consider it to be in the interests of justice that this application be urgently dealt with. I am thus inclined to decide this matter as one or urgency.’

[25] ‘A number of irrefutable conclusions flow from these pertinent facts. Critically, it must be true that Ngcobo was not notified of the set down of the matter on 14 August 2026 at the duly appointed address for service. This is manifestly irregular. Even considering the communication with regard to the set down on 14 August between the applicant’s attorneys and the Registrar in which Ngcobo was copied to his private e-mail address, this still does not constitute proper and lawful notification of the set down of the matter on 14 August 2026. In my view, where it comes to notifying a party about the set down of a matter, especially in urgent proceedings, that notification must clearly indicate the date for hearing and be strictly served on the appointed address for service.’

[26] ‘Where there is no lawful service on the respondents of the set down of the matter, then it must follow that the default order was erroneously granted on this basis alone, without further consideration. This is because such a state of affairs is directly contrary to the principle of audi alteram partem.’

[27] ‘This answer is that any communication to any e-mail address other than the address specifically appointed for service, cannot be considered to be lawfully and regularly conducted for the purposes of conducting any litigation in a case. An appointed address is what it says. It stipulates that this address must be used.[8] There is an obvious reason for this. It is designed to ensure that things do not happen without a party’s knowledge. The matter in casu is a prime illustration of the point.’

[28] ‘The applicant’s attorneys answered this contention by saying they bore no such duty. I find this assertion by the applicant’s attorneys unacceptable.’

[30] ‘Applying the aforesaid sentiments in casu, it is quite clear to me that as of 12 August 2026, when the matter was aborted due to the difficulties in the Registrar’s office, the applicant’s attorneys was acutely aware of the full participation of the respondents’ attorneys in the matter and that they intended to appear to oppose the matter. The applicant’s attorneys were also fully aware of all the contact particulars of the specific attorney dealing with the case. Under these circumstances, and considering how the new hearing date of 14 August 2026 was arranged, the applicant’s attorneys, in my view, were duty bound to take direct contact with Ngcobo to ensure that he was aware of the new hearing date. In particular, a telephone call was needed to ensure he was aware of the hearing date. And on the day of the hearing, the presiding Judge should have been informed of the events on 12 August 2026 and at least an attempt should have been made at that point to contact Ngcobo.’

[31] ‘In casu, the respondents sought to bring the application for reconsideration by way of a notice of motion and founding affidavit. This is because there was specific information the respondents wanted to place before this Court to illustrate why their right to a fair hearing had been infringed. In my view, this is a competent approach for the respondents to have followed in this case.’

[33] ‘An application relying on Rule 6(12)(c) of the Uniform Rules can be brought by virtue of Rule 41(1)(b), which provides for applications ‘… that are not specifically provided for in the rules’.’

[34] ‘What the Court alluded to in SA Post Office is that the ‘reconsideration’ provisions in Rule 6(12)(c) are akin to rescission applications in the case of default orders. As such, these reconsideration applications are decided along the same lines as rescission applications, but with particular emphasis on whether the audi alteram partem principle was complied with.’

[37] ‘A central theme in a reconsideration application, which aligns with the principle of audi alteram partem, is thus to ensure that a respondent party is able to place its argument in the matter before Court, so that its position can be properly considered.’

[38] ‘In fact, the Court in a reconsideration application has wide powers where it comes to consequential relief that can be granted in such an application. One of the orders the Court may make is that the Court may rescind the reconsidered order, and direct that the matter be heard on the merits.[22] For the reasons dealt with later in this judgment, I believe this is the appropriate order in this instance, should I be satisfied that the application succeeds.’

[39] ‘In casu, and in the context of having due regard to what led to the default order being granted on 14 August 2026, it is my view that the order was erroneously granted. In my view, the principles applicable to deciding whether an order has been erroneously granted in the context of rescission applications, can equally applied to deciding applications for reconsideration. After all, it goes directly to the notion of audi alteram partem and ensuring the respondent party had a fair opportunity to state its case, which is the cornerstone of a reconsideration application.’

[41] ‘In my view, it is thus undeniable, based on the aforesaid discussion, that the order in casu was erroneously granted by default against the respondents. This is because the respondents were not lawfully and properly notified of the set down date of 14 August 2026. I also accept, in all the circumstances of this matter, that the respondents (or better said their attorneys) were not aware of the set down of the matter, and considering what had transpired, could not have reasonably been aware of the same.[28] And lastly in this context, the applicant’s attorneys were under a duty to have taken further steps to ensure that the respondents were aware of the set down. Once it is true that the order was erroneously granted, there is no need for the respondents to show good cause for the order to be set aside.[29] Because good cause does not have to be shown, it means that the prospects of success in the main matter are simply not relevant, as the failure of audi alteram partem, per se, would entitle the respondents to the relief they seek.’

[42] ‘The above puts paid to the applicant’s criticism that the respondents failed to address the merits of the matter in the reconsideration application. The point is that the merits of the matter only need to be addressed if the respondents were required to show good cause. Since the order was erroneously granted, the respondents need not show good cause, and as such, are not required to deal with the merits of the underlying main matter.’

[43] ‘In summary, I am satisfied that the respondents’ application for reconsideration is justified, and properly substantiated by the facts. The respondents were not lawfully served with any notice of set down for the hearing on 14 August 2026, and were genuinely unaware of the same. The applicant’s attorneys were under a duty, considering everything that preceded the set down of the matter on 14 August 2026, to have contacted the respondents’ attorneys to ensure they had knowledge of the set down. The order that was granted by default was erroneously granted, and infringed the audi alteram partem principle and the respondents’ right to a fair hearing. As indicated earlier, all the respondents want is an opportunity to present their case and argument to this Court on the merits of the application, before a decision is made. I am inclined to oblige, by rescinding and setting aside the order of 14 August 2026, and remitting the matter for de novo determination on the merits.’

[44] ‘However, Zungu is not a blanket immunity against costs orders. The fact is that this Court always retains a discretion, as contemplated by section 162(1) of the LRA, to make a costs award against a party.’

[45] ‘The respondents have argued that considering what happed, of which the applicant was fully aware, the applicant should never have opposed the reconsideration application. In my view, there is force in this contention raised by the respondents. The applicant was legally assisted throughout. It must have been patently apparent to the applicant’s attorneys that the respondents never received proper and lawful notice of the set down on 14 August 2026. In fact, the applicant’s own version in the answering affidavit affirms this to be the case. For the applicant to continue to assert that all was in order because the respondents must have been aware of the set down completely ignores all that is said in case law about the importance of proper service of process such as set down notices. And then to simply state that there was no duty to contact the respondents’ attorneys to ensure they knew of the set down is entirely at odds with the professionalism expected of legal practitioners. The opposition in this case was, for all intents and purposes, hopeless.’

[46] ‘I believe that having received the reconsideration application and having due and proper regard what it contained where it came to the facts forming the basis of the application, which the applicant could not contradict, the applicant should have simply consented to the reconsideration order being granted. But instead, the applicant snatched at the bargain and sought to defend the indefensible. What makes it even worse is what the respondents sought would not compromise the applicant’s application on the merits at all. All the respondents wanted is the opportunity to defend the case on the merits and present their arguments to Court. If the applicant had thrown in the towel at the point of having considered the founding affidavit, it would have escaped a costs order. But it doggedly persisted with the opposition, even in Court when the matter was argued.’

[47] ‘Accordingly, this is a case where I consider a costs order against the applicant to be fair and justified. I will accordingly make a costs order against the applicant, on the party and party scale A.’

Relief: The reconsideration application was heard as one of urgency; the order of Nyuswa AJ of 14 August 2026 was reconsidered, rescinded and set aside, and the applicant union was given leave to enrol the main application on the urgent roll for hearing on the merits on an opposed basis. The union was ordered to pay the first respondent’s costs on the party and party scale A.

Judgment on SAFLII