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[2011] ZAKZDHC 87
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Donnellly v Davill Recruitment SA (Pty) Ltd and Others (10635/2011) [2011] ZAKZDHC 87 (24 November 2011)
IN THE KWAZULU-NATAL HIGH
COURT, DURBAN
REPUBLIC OF SOUTH AFRICA
Case No: 10635/2011
In the matter between:
MELISSA DONNELLY
..........................................................................................................
Applicant
and
DAVILL RECRUITMENT SA (PTY)
LTD
.............................................................
First
Respondent
DAVID R. MITCHELL
..........................................................................................
Second
Respondent
JILL MITCHELL
.....................................................................................................
Third
Respondent
JUDGMENT
Delivered on 24 November 2011
McLaren j
[1]
In this opposed application the Applicant claimed the following
relief;
“...an order
against the First, Second and Third Respondents on the following
terms:
1. The Respondents
are ordered to forthwith cause the salaries of the staff members of
the First Respondent, namely the Applicant,
and those persons
stipulated in paragraph 19 of the founding affidavit for the month of
October 2011 to be paid forthwith;
2. The Second
Respondent, is ordered to pay the costs of this application on a
scale as between attorney, and own client;
3. Alternative
relief,”
[2] Mr Oberholzer appeared for
the Applicant, while Mr Boulle represented the Respondents.
[3] The Applicant’s Notice
of Motion is dated 2 November 2011 and the application was instituted
on that day.
[4] On 3 November 2011 an order
was made by consent in terms of which the matter was adjourned to 17
November 2011 and dates were
stipulated for the delivery of answering
and replying affidavits.
[5] On 17
November 2011 the application was adjourned to 22 November 2011 and
costs were reserved* On 22 November 2011 no argument
was addressed to
me on the issue of those reserved costs. The application was clearly
not ready to be heard as an opposed matter
on 17 November 2011 - for
one thing, Mr Oberholzer’s heads of argument were only
delivered on 18 November 201. It is unlikely
that any one of the
legal representatives would have submitted that the reserved costs
should be treated otherwise than as costs
in the cause. I intend
making an order to that effect, but it will only be of a provisional
nature. In my view this is an expeditious
and cost effective way of
dealing with the issue which escaped everybody’s attention. Any
party who is dissatisfied with
that order can set the matter for
hearing before me on 7(seven) days’ notice to the
'Other
side. At such a hearing, I will
rescind that order and consider those reserved costs afresh. I
discussed the efficacy of this proposed
order with a colleague, who
shared my view that it is competent for me to come to the assistance
of the parties in this manner.
I, therefore, make a provisional
order that the reserved costs of the adjournment on 17 November 2011
are costs in the cause.
[6] In his argument before me, Mr
Oberholzer made it clear that, in paragraph 1 of the Notice of
Motion, the Applicant did not claim
the payment of money, but an
interdict, namely, an order directing the Respondents to perform an
act, in other words, to do something.
Following on this, Mr
Oberholzer submitted that the Applicant sought a punitive cost order
against the Second Respondent only and
that it was not necessary for
the Applicant to have joined the other employees of the First
Respondent who will benefit from, the
interdict, in the sense that
their October 2011 salaries will be paid. As will become apparent
hereinafter, it is not necessary
for me to consider whether the said
other employees should have been joined as parties in the
application.
[7] At the hearing of the
application it was common cause that the First Respondent had paid
the October 2011 salaries of the Applicant
and the said other
employees on or about 18 November 2011. Mi Oberholzer, therefore, did
not ask for an order in terms of paragraph
1 of the Notice of Motion,
but he persisted with a claim in accordance with paragraph 2 thereof.
[8] In my view the issue of the
costs of the application can only be decided by first determining
whether the Applicant was entitled
to the relief claimed against all
three Respondents in paragraph 1 of the Notice of Motion. The legal
representations did not disagree
with this view and accordingly the
so-called '‘merits” of the application were argued before
me.
[9] It was
common cause that the Applicant was, at all relevant times, an
employee and a director and a shareholder of the First
Respondent and
that her monthly salary for October 2011 had not been paid by 2
November
2011
.
[10] In the
answering affidavit the Respondents raised certain points
in
limine,
the first of which is that
the application had been prematurely launched. In this regard, the
deponent to the said affidavit relied
on the provisions of section 32
(3)(a) of the Basic Conditions of Employment Act, 75 if 1997 (“the
Act”), which provides
thus:
“
An employer
must pay remuneration not later than seven days after the completion
of the period for which the remuneration is pay
able.*'!
[11] At the hearing before me it
was common cause that the provisions of the Act applied to the
employment of the Applicant and
the said other employees and that
“the period for which the remuneration is payable” to
them was October 2011 and.
that the said period ended on 31 October
2011.
[12] In her replying affidavit
the Applicant erroneously stated that the first preliminary point was
that the application “was
launched before 9 November 2011”.
The reference to the date should obviously have been to 7 November
2011. In his argument
before me, Mr Oberholzer sought to overcome the
obstacle which the first preliminary point created, by referring to
and relying
on the following statement by the Applicant in her
replying affidavit:
“
I am advised
that 9 November 2011., has come, and gone, and on the level the money
is due, owing, and payable. In any event, and
with submission, I
would have been entitled to the relief on 2 November 2011, subject to
the proviso that
the date of payment
simply be adjusted to 9 November 2011, at best for the Respondents.1’
[13] However, the matter cannot
simply be brushed aside, in the manner set out in paragraph 12. I
draw attention to the following;
13.2. The “date of payment’
in paragraph 1 of the Notice of Motion is “forthwith”.
13.2. The application was already
before this Court on 3 November 2011.
13.3.
In the full bench decision of this Couit in
NG
Kcrk van Natal (Voortrekker Gem mite)
v
Administrator, Natal and
Another,
1954 (4) SA 763
(N) Broome
JP
said
this at 769
G-H:
“
It is
elementary that a plaintiffs cause of action must be complete when he
institutes his action.”
13.4. Inasmuch as an application,
commenced with the issue of a notice of motion, compromises the
pleadings and the evidence, the
words of Broome JP, in my view, apply
equally to this application.
[14] In my judgment, the
Applicant did not prove that on 2 November 2011, she was entitled to
receive her October 2Oil salary “forthwith”
and,
therefore, she did not have any enforceable cause of action against
any Respondent on that date, when the application was
issued.
[15] It
follows that the first point
in
limine
is good and, for that reason
alone, the application should be dismissed, with costs
[16] In case I am wrong in my
conclusion referred to in paragraph 15, I turn to a consideration of
the merits of the application,
principally with a view to establish
whether the Applicant proved a clear right to the relief claimed in
paragraph 1 of the Notice
of Motion.
[17] At the outset, I point out
that it is not easy to determine, from the application papers what
the nature of the Applicant’s
cause of action is. In
amplification of this observation, I draw attention to the following:
17.1. In her founding affidavit,
the Applicant incorporated, by reference thereto, the entire set of
application papers (comprising
171 pages) in the so-called “first
application” between the same parties and under the same case
number.
17.2. In the first application an
order was granted by Mbatha J on 23 September 2011 in favour of the
Applicant, which contains
exhaustive provisions, the clear purpose of
which is to enable the Applicant “and her expert” to
investigate the affairs
of the First Respondent.
17.3. Paragraph 1.3 of the order
referred to on paragraph 17.2 reads as follows:
“
The
Respondents are ordered to not
(sic)
without
the written consent of the Application (sic) to:
13.1. Retrench any
staff members, including the Applicant, pending finalization of this
application, and to duly pay their current
salaries;
13.2. Close the
Durban office, but to keep it fully operational, functional, and
funded in its present form;
13.3. Permit the
withdrawal, or expending of any funds from the First Respondent
without the prior written consent of the Applicant,”
17.4. The order referred to in
paragraph 17.2 was made the day after the first application had been
served on the Respondents, whose
“request for a postponement to
enable them to deliver an answering affidavit” was refused by
Mbatha J.
17.5. On 30
September 2011 the Respondents delivered a Notice of Application for
leave to appeal, in terms of Uniform Rule of the
Court 49 (l)(b).
This application for leave to appeal relates,
inter
alia,
to that part of the order
quoted in paragraph 17.3 and it is pending.
17.6. In her founding affidavit
the Applicant refers to an attached transcript of the proceedings
before Mbatha J, I fail to understand
why this was done.
17.7. In her founding affidavit
the Applicant refers to an averment by the Second Respondent “who
controls the (First Respondent’s)
bank account exclusively”
that “we are not in a position to pay salaries today as we do
not have sufficient funds to
pay both salaries and the VAT which, is
due”; the Applicant avers that the “Second Respondent is
intentionally and
unlawfully withholding” the said salaries;
that the “reason for his illegal action is because he says that
there are
not sufficient funds to pay the salaries”; that “this
allegation is not true and (that she) can demonstrate the
untruthfulness
of this statement7’.
17.8. The Applicant then sets out
that the First Respondent has an overdraft facility which could be
used to pay the said salaries
and that the Second Respondent drew
substantial amounts for himself from the First Respondent’s
banking account during October
2011.
17.9. The Applicant concludes her
founding affidavit by averring that the said salaries are “simply
being withheld unlawfully
to try and gain an advantage in the pending
litigation”, i.e. the first application.
17.10. The
Applicant, in my view, only made averments that the Second
Respondent’s conduct is unlawful and she did not “provide
the tacts that support those allegations” -
A.M.
Moola Group Ltd and Others
v
The
Gap Inc. and Others,
2005 (6) SA 568
(SCA) 585 C.
[18] In my judgment, the Second
Respondent dealt fully and satisfactory in his answering affidavit
with all the Applicant’s
unsubstantiated averments of unlawful
conduct on his part. In a nutshell, this is his version:
18.1. The
overdraft facility had to be used to pay Value Added Tax which was
due by the First Respondent to the South African Revenue
Service.
18.2. The Second Respondent was
contractually entitled to withdraw amounts from the banking account
of the First Respondent by way
of repayments towards the Second
Respondent's loan account in the First Respondent,
[19] In her replying affidavit
the Applicant avers that “the defence on the merits, namely
that (the First Respondent) cannot
afford the salaries and the wages
is untruthful and by viture of the remarkable allegations contained
in paragraphs 24, 26 and
28 of the Second Respondent’s
answering affidavit this has been proven.. I point out the following
in this regard:
19.1. The Applicant claims final
relief in the application.
19.2. Paragraph 24 of the Second
Respondents answering affidavit reads thus:
“
The
transactions Applicant refers to are legitimate withdrawals which I
have made, to service my personal loans to the First Respondent,
which I have always been doing, since its inception in 2002, in order
to assist the First Respondent with its financial obligations.”
19.3. The Applicant’s
replying affidavit does not refer to the said paragraph 24 at all.
19.4. In
paragraph 26 of the Second Respondent’s answering affidavit he
refers to and quotes from the shareholders’
agreement which is
attached to the said affidavit. The Applicant’s denial of the
Second Respondent’s averments does
not appear
bona
Fide
and her further averments in
this regard are unintelligible.
19.5. The Applicant did not deny
the averments in paragraph 28 of the Second Respondent’s
answering affidavit, but made this
statement:
“
The startling
admissions confirmed in this paragraph illustrates
(sic)
and
proves
(sic)
my and
the company's urgent need for relief.”
19.6. The Applicant’s
reference to “the company”, as quoted in paragraph 19.5,
is a reference to the First Respondent.
19.7. As I said in paragraph 17,
it is not easy to find out what the Applicant’s cause of action
against the Respondents is
and in her replying affidavit she,
inexplicably, avers that the First Respondent has .an “urgent
need for relief’.
19.8. In
paragraph 6, above, I pointed out that the Applicant's claim is for a
final interdict. In my view the evidence does not
remotely establish
all three the requisites for the granting of such relief, namely, a
clear or definite right; an injury actually
committed or reasonably
apprehended and the absence of another adequate remedy - The
Law
of
South
Africa
(second edition) volume 11
paragraphs 397-399.
[20] I do not intend summarising
Mr Oberholzer’s heads of argument, save to say that the
Applicant’s cause of action,
as advanced therein, is founded on
the provisions of one or more of the following sections of the
Companies Act, 71 of 2008
; 75, 76, 77, 158, 161 and 163.
[21] In my view the Applicant’s
reliance on the provisions referred to in paragraph 20 is misplaced
because the said provisions
are not applicable or, if they are, the
evidence does not prove that the Second Respondent or the Third
Respondent breached any
one of the said provisions.
[22] In any event, and even if I
am wrong in my assessments referred to in paragraph 21, the cause of
action set out in paragraph
20 was not made out in the Applicant’s
founding affidavit (as it should have been done) but in her replying
affidavit, The
Applicant set the pace at which the application
proceeded and Mr Oberholzer obtained from the senior duty Judge the
preference,
in terms of which the application was adjourned from 17
November 2011 to 22 November 2011. The Applicant’s replying
affidavit
is dated 17 November 2011 and the Respondents did not
respond to the “new cases” which the Applicant attempted
to make
out therein.
[23] I say “new cases”
because the Applicant also introduced the following claims in her
replying affidavit:
23.1. “In accordance with
rule 49(11)
, the appeal against the court is herewith declared to be
of full force, and effect, notwithstanding the pending application
for
leave to appeal”.
23.2. “I also ask for
further additional relief Clearly, and on his own version, the Second
Respondent has oveipaid himself
from the company to the tune of R473
572-00 (four hundred and seventy three thousand five hundred and
seventy two rand). The company
clearly needs this money to continue
operating. I therefore also ask for an order in the following terms
‘
The Second
Respondent is ordered to pay into the bank account of the First
Respondent the sum of R473 572-00 (four hundred and seventy
three
thousand five hundred and seventy two rand) within seven (7) days of
date of this order, such monies to be used as working
capita] by the
First Respondent’.”
[24] At the hearing of the
application, Mr Oberholzer conceded that the relief set out in
paragraph 23 was first raised in the Applicant’s
replying
affidavit. Mr Oberholzer did not address me on this relief and said
that he “left the matter in the hands of the
Court”. Mr
Boulle submitted that the Applicant’s claims for the relief set
out in paragraph 23 should be dismissed.
[25] In her
replying affidavit the Applicant stated, clearly with reference to
paragraph 3 of the Notice of Motion, that she seeks
“further
relief under the heading ‘alternative relief”. There is a
vast difference between the relief claimed
in paragraphs 1 and 2 of
the Notice of Motion and the claims set out in paragraph 23. above.
In my view, the Applicant is not entitled
to advance those claims -
compare
Combustion Technology (Pty)
Ltd y Technoburn (Ply) Ltd,
2003
(1)
SA 265
(C) 268
B-G.
[26] Mr Oberholzer submitted, in
the alternative, that if the Applicant is not entitled to an order
for costs against the Second
Respondent I should grant such an order
against the First Respondent. In my view, this submission cannot be
sustained. I say so
for the following reasons:
26.1. In
paragraph 15, above, I concluded that the first point
in
limine
is good and it follows that
the Applicant’s claim against the First Respondent must be
dismissed, with costs,
26.2. Even if the conclusion
referred to in paragraph 26.1 is wrong, I am satisfied that the
Applicant did not prove that she has
any dear right against the First
Respondent, which will support the grant of any order against the
First Respondent. Put differently,
the Applicant did not prove any
claim against the First Respondent. See also, paragraph 19.8, above.
It, therefore, follows that
there is no basis on which I can order
the First Respondent to pay the Applicant’s costs.
[27] For the above reasons, I
make the following order:
The application is dismissed,
with costs.
McLaren j
24 November 2011
Date of Hearing: 22 November 2011
Date
delivered: 24 November 2011
For
the Applicant: Mr Oberholzer
Instructed
by: Johan Oberholzer & Company
22
Bute Road
Momingside
DX
48
DURBAN
For
the Respondents: Mr Boulle
Instructed
by : Haralambous Attorneys
36
Romsey Groove
Durban
North
DURBAN