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[2010] ZAGPPHC 197
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Trade Now 193 BK v Balju: Pretoria Oos (5807/2010) [2010] ZAGPPHC 197 (19 October 2010)
NOT
REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTH GAUTENG HIGH
COURT, PRETORIA)
CASE
NO: 5807/2010
DATE:
19/10/2010
IN THE MATTER BETWEEN:
TRADE NOW 193
BK
...............................................................................
APPLICANT
AND
BALJU: PRETORIA
OOS
..........................................................................
RESPONDENT
JUDGMENT
BAM, AJ
[1] The
applicant was the former employer of the intervening party, Ms.
Fredah Mabusela.
[2] On 29 July 2008, as a
result of a disciplinary enquiry, the intervening party was dismissed
from her employment with the applicant.
[3] The
dispute was referred for arbitration, on award, by default, was
granted to the intervening party on 9 October 2008 and made
an order
of court on 4 March 2009 in terms of the provisions of section 143 of
the Labour Relations Act.
[4] A
warrant for execution was subsequently issued, on 17 September 2009,
and served upon the applicant on 15 December 2009.
[5] On
2 February 2009 the applicant brought an application against the
sheriff, Pretoria East, for the suspension of the warrant
for
execution pending an application for the rescission of the
arbitration award in favour of the intervening party. The
application
was granted, on an urgent basis by this court and a
rule
nisi
issued with return date 23
February 2010. The court order reads as follows:
“
(2)
Dat
‘n tussentydse bevel verleen word met keerdag 23 Februarie 2010
waar enige party kan kom antwoord waarom die volgende
bevel nie ‘n
finale bevel gemaak word nie
.
2.1
dat
die werking van die lasbrief wat gemagtig is, opgehef word om
geleentheid aan die applikant te bied om sy aansoek om
tersydestelling
van die arbitrasie wat gemaak is in terme van artikel
144 van die Wet op Arbeidsverhoudinge met die Kommissie vir
Bemiddeling,
Mediasie en Arbitrasie op 9 Oktober 2009 ingedien.
2.2 Dat die applikant
voor of op die keerdag na behore moet aansoek doen vir die
tersydestelling en/of wysiging van die toekenning
wat gemaak is onder
saaknommer PC2471/2008.
2.3 Indien gemelde
aansoek om tersydestelling en wysiging nie voor of op 16 Februarie
ingedien is nie sal hierdie bevel outomaties
verval. ”
[6] On
the 23
rd
of February 2010 the
rule nisi
was extended to the opposed role of the 20
th
of September 2010; subject to prove of compliance with pleas 2.3 of
the order granted on 2 February 2010. The order of 20 September
2010
further reads as follows:
“
(2) The
intervening party shall file her application for leave to intervene,
if any, and her opposing affidavit in the main application,
if any,
on or before 9 March 2010.
(3) The
applicant and the respondent shall file their answering affidavits to
the intervening parties’ applications for leave
to intervene,
if any, on or before 25 March 2010.
(4) The applicant and
the respondent will insure that the goods will remain under
attachment, pending the withdrawal and/or finalisation
of this
application.
(5) Costs reserved.”
[7] Today,
on behalf of the intervening party,
Ms.
Swart took a point
in limine
,
that this court has no jurisdiction. It was submitted by Ms. Swart
that the provisions of section 157 of the Labour Relations
Act
provides that the Labour Court alone would have jurisdiction in the
circumstances. It was further contended by Ms. Swart that
the
intervening party should originally have been joined as a party to
the proceedings. In this regard the applicant failed to
join the
intervening party.
[8] Neither the applicant
nor the respondent filed any replying affidavits pertaining to the
founding affidavit of the intervening
party.
[9] The
applicants apparently do not intend to pursue the matter. No
practice note, and no heads of argument were filed on behalf
of the
applicant.
[10] Mr
Uys appearing for the respondent submitted that the intervening party
had already intervened on 23 February 2010. Mr Uys
further submitted
that the applicant kept the respondent in the dark regarding any
further intended steps, including the decision
of the warrant for
execution, contemplated by the applicant. Mr Uys further submitted
to the court that in the supplementary affidavit
of the intervening
party dated 8 September 2010, mention was made of actions taken by
the intervening party pertaining to the issue
whether the applicant
has taken any further steps for the rescision of the warrant of
execution. The intervening party however
failed to notify the
respondent of the situation. According to Mr Uys’s submissions
the intervening party failed to comply
with the provisions of the
court order dated 23 February 2010.
[11]
As
a result of the applicant failing to pursue the matter, to my mind
the
rule nisi
should in the circumstances be dismissed.
[12] Regarding
costs it was contended by Mr Uys that the intervening party should be
penalised to pay the costs of the respondent
on a basis that the
intervening party, in failing to file a proper affidavit in that
regard, did not ask for any relief and did
further not suggest any
remedy for her predicament.
[13] Ms
Swart seems to be correct in submitting that right from the start
this court did not have jurisdiction in applying for the
suspension
for the warrant of execution issued by the Labour Relations Court. I
am further in agreement with Ms. Swart that the
intervening party
should have
been
joined initially when the applicant lodged the application in this
court. Accordingly make the following order:
1.
The
rule
nisi
is
dismissed.
2.
The
applicant is ordered to pay the costs of the application including
the costs of the intervening party.
AJ BAM
ACTING JUDGE OF THE HIGH
COURT
FOR THE APPLICANT:
UNKNOWN
FOR THE INTERVENING
PARTY: ADV. L SWART
FOR
THE RESPONDENT: ADV. UYS