Mimmo's Franschising CC and Others v Spiro and Others (JA58/00) [2002] ZALAC 7 (29 March 2002)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2002
>>
[2002] ZALAC 7
|

|

Mimmo's Franschising CC and Others v Spiro and Others (JA58/00) [2002] ZALAC 7 (29 March 2002)

IN THE LABOUR COURT OF
SOUTH AFRICA
HELD
AT JOHANNESBURG JA58/00
CASE
NO: J1889/00
In
the matter between:
MIMMO’S
FRANCHISING CC 1
st
Appellant
MIMMO’S
ROSEBANK CC 2
nd
Appellant
MIMMO’S
RANDBURG CC 3
rd
Appellant
MIMMO’S
WESTGATE CC 4
th
Appellant
and
SPIRO,
HARRY DAVID 1
st
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
& ARBITRATION 2
nd
Respondent
PHALA,
M.E. N.O. 3
rd
Respondent
MARIA
TRINDADE TEIXEIRA JARDIM 4
th
Respondent
JUDGMENT:
VAN REENEN AJA:
[1] This is an appeal, with the leave of this court, against a
judgment of Molahleli AJ, delivered on 6 June 2001, dismissing with
costs on an attorney and own client scale, an application in which
first, second, third and fourth appellants sought the following
relief against the respondents in the Labour Court, Johannesburg:
“
1. Condoning the non-compliance with the Rules of
Court in this Application and granting the Applicants leave to bring
this Application
as a matter of urgency.
Rescinding the
Award handed down by the Third Respondent in its entirety dated 18
December 1999.
Setting aside the
Warrant of Execution issued under Case No. 6066/1999 against
“Mimmo’s Pizzeria & Take Away” and executed
against the
Second, Third and Fourth Applicants. Such Warrant of Execution
annexed hereto marked Annexure “WE”.
Directing the
Deputy Sheriff to stay execution and in the interim pending a Final
Order in resect hereof to rescind his attachment
order and/or desist
from removing the movable property of the Second, Third and Fourth
Applicants
alternatively
directing the Deputy
Sheriff to return any and/or all goods so removed, in the interim,
and to restore same to the Second, Third
and Fourth Applicants,
pending finalization of this dispute.
Granting the First
Applicant leave to oppose the First Respondent’s Application in
terms of Section 158(1)(c) of the Act file
(sic)
under Case No:
J547/00, and to within 10 (Ten)
days hereof file its Answering Affidavit in opposition thereto.
Directing the First
Respondent to pay the costs of this Application in the event of his
opposing same on the scale as between Attorney
and Own Client.
Directing the
Fourth Respondent to pay the costs, de boniis propriss,
(sic)
of this Application.
Directing the
Second and Third Respondent’s to pay the costs of this Application
only in the event of them opposing same.
That an Interim
Order in terms of paragraphs 2, 3 4 and 5 do issue and that a Rule
Nisi be granted returnable on or before
Wednesday 24 May 2000
or upon anticipation of the return day aforesaid to the Applicants
by the First and Fourth Respondents on
48 (forty eight)
hours
notice.
That the
Respondents be directed to file their Answering Affidavits if any in
opposition to this Application on or before
Tuesday 16 May 2000
and that the Applicants file Replying Affidavits thereto on or
before
Monday 22 May 2000,
failing which the Applicants may
move for a Final Order herein.
Further and/or
alternative relief.”
[3] The application was set down for hearing on an urgent basis at
14h00 on 10 May 2000.
[4] Ms Jardim, the first respondent’s
attorney, who was cited as the fourth respondent because she had
allegedly “targeted”
the second, third and fourth appellants’
businesses, attempted to argue the matter solely on the founding
papers.
When
Advocate La Grange, who represented first, second, third and fourth
appellants objected to her referring to facts that had not
been dealt
with in the founding papers, the learned judge conferred with the
parties’ legal representatives in his chambers, who
after “a
brief facilitation” agreed that an order be made in the following
terms:
“
1. The parties agree that the first applicant should
pay an amount of R20 000 into the trust account of Bowman Gilfillan
attorneys
by noon on the 11 May 2000. The first respondent will
inform the attorneys for the applicants who the contact person at
Bowman Gilfillan
is by 10h00 on 11 May 2000.
The first and
fourth respondent are to file their answering affidavits in this
matter on or before 17H00 on Monday 2000.
The applicants are
to file their replying affidavits on or before 17H00 on Thursday 18
May 2000.
This matter must be
set down for hearing on an urgent basis on Monday 22 May 2000 10H00.
In this regard it is recorded that the
1
st
and 4
th
respondent do not waive their rights to challenge the urgency.
Pending the final
determination of this application any or all writs of execution
and/or attachments and/or removals by the Sheriff
be stayed.”
[5] As a result of that order and the undertaking to pay an amount of
R20 000 into the trust account of Messrs Bowman Gilfillan the
need
for the granting of the interim relief in prayer 9 of the notice of
motion fell away.
[6] The parties having complied with
the provisions of the order as regards the filing of answering- and
replying affidavits, the
application was heard on 22 May 2000.
[7] The warrant of execution and the
attachment that form the subject-matter of prayers 3 and 4 of the
notice of motion respectively,
are based on an arbitration award made
in arbitration proceedings in terms of the provisions of the
collective agreement pertaining
to the Bargaining Council for the
Restaurant Catering and Allied Trades (the bargaining council) which
was made an order by the
Labour Court under case No 6066/1999 on 4
April 2000, in terms of the provisions of section 158(1)(c) of the
Labour Relations Act,
No 66 of 1995 (the
Labour Relations Act).
[8
] The award that forms the
subject-matter of prayer 2 of the notice of motion was made by the
third respondent on 18 October 1999
in an arbitration under the
auspices of the Commission for Concilliation, Mediation and
Arbitration (the CCMA) and was made an order
by the Labour Court
under case No J547/00 on 13 April 2000, in terms of the provisions of
section 158(1)(c)
of the
Labour Relations Act. The
proceedings in
the Labour Court form the subject-matter of prayer 5 of the notice of
motion.
[9] The Bargaining Council and the
CCMA awards were made in the circumstances that are set out below.
[10] The first appellant, is the
beneficial holder and owner of the trade mark and trade name Mimmo’s
Pizzeria and Take Away. The
first appellant enters into franchise
agreements with natural persons and legal entities in terms whereof
they are entitled to use
the trademarks, logos and marketing concepts
devised by the first appellant in specified areas against the payment
of royalties.
There are a number of franchised Mimmo’s Pizzeria
and Take Away operations in the Republic of South Africa.
[11] First respondent, who then was
employed by another undertaking, was during June 1998 told that a
vacancy existed for a senior
manager at a Mimmo’s Pizzeria and Take
Away franchise shortly to be opened at Florida. He telephoned one
Tassos Demetriades at
the offices of the first appellant, and after a
meeting at a restaurant at Village Walk, was appointed at a monthly
salary of R8
500 with effect from 1 July 1998. The first respondent
underwent training at Mimmo’s Pizzeria and Take Away, Waterfront
(Mimmo’s
Waterfront), and assumed duties at Mimmo’s Pizzeria and
Take Away, Florida (Mimmo’s Florida), as from its official opening
on
1 November 1998
[12] The first respondent was
employed at Mimmo’s Florida until 31 April 1999. Mr Domenico
Cioffi and another person at a meeting
at the first appellant’s
offices on 4 May 1999, advised him that his employment was being
terminated and that he had to collect
at Mimmo’s Waterfront, on 20
May 1999, his salary for May 1999, and leave pay for the period 1
August 1998 to 30 April 1999, as
well as a letter terminating his
services. The first respondent duly took delivery of a cheque in an
amount of R14 874,00 but when
it was presented for payment it was
dishonoured as payment had been countermanded by the drawer thereof.
[13] The first respondent referred
the matter to the bargaining council on 20 July 1999, which, after
unsuccessful conciliation, arbitrated
the dispute in the absence of
the party cited as respondent, namely, “Mimmo’s Pizzeria and Take
Away, of 118 Sandton Drive, Sandton”,
despite the fact that the
secretary of the Bargaining Council, notified it of the date, time
and venue of the arbitration hearing
by means of a facsimile
transmission.
[14] The arbitrator ordered “Mimmo’s”
to pay “Spiro” (the first respondent) the following amounts by
30 September 1999
–
“1. The salary for
May 1999 R 8 500
Leave pay for the
period
1
August 1998 to 30 April 1999
R 6 375
TOTAL R14
875,00”
An
endeavour on the part of one Sarah Kok of the Labour Resolve
Consultancy, representing “Respondent Party: - Mimmo’s Pizzeria
and Take Away” to have the award rescinded was unsuccessful.
[15] After the Bargaining Council award had been made an order of the
Labour Court, the respondent, on the basis of that order, sued
out of
the office of the registrar a writ of execution against Mimmo’s
Pizzeria and Take Away, in terms whereof the sheriff for
the
districts of Roodepoort, Randburg and Johannesburg respectively, was
directed to attach and take in execution the movable goods
of Mimmo’s
Pizzeria and Take Away
“the above mentioned execution
debtor of Shop 3 Westgate Shopping Centre, 120 Ontdekkers Road,
Horizon, Roodepoort and 1 Regent
Place, Cradock Avenue, Rosebank and
further of Shop 227 Randburg Waterfront, Republic Road, Randburg”
and cause same to be realized by public auction. The sheriff duly
executed the writ on 4 April 2000 and attached movable assets
to the
value of R42
000 the property of Mimmo’s Westgate CC trading
as Mimmo’s Pizzeria and Take Away Restaurant (Mimmo’s Westgate)
at Shop 3,
Westgate Shopping Centre, 120 Ontdekkers Road, Horison,
Roodepoort.
[16] As the first respondent
furthermore considered that his dismissal constituted an unfair
labour practice, the dispute between
him and “Mimmo’s Restaurant
and Pizzeria” was referred to the CCMA. The CCMA arbitrated the
matter in the absence of Mimmo’
Restaurant and Pizzeria, who failed
to appear despite the fact that its been advised of the date and
venue of the arbitration by
means of a facsimile transmission. The
Commissioner, after he had heard the evidence of the first
respondent, made the following
award on 18 December 1999:
“
(a) That the respondent pay the applicant R59 500 for
procedural and substantive unfairness calculated at the monthly
salary of R8
500 from the date of dismissal being the 4 May 1999 and
the last day of the hearing 17 December 1999.
(b) The above amount to
be paid in four (4) equal instalments within 14 days after receipt of
the award. The first instalment is
due and payable on or before the
30 January 1999 and the balance on or before the 15 of every
consecutive month.”
[17] Despite the fact that Mimmo’s Pizzeria and Take Away was cited
as the respondent in the application to the Labour Court to
make the
CCMA award an order of court, the respondent, in the award that was
made an order of court, was cited as “Mimmo’s Restuarant
(sic)
and “Pizzeira (sic)”.
[18] The learned judge in his
judgment dealt individually with the relief that flows from the CCMA
and the bargaining council awards.
[19] In the case of the relief
pertaining to the CCMA award he found that
as urgency was based thereon
that fourth respondent advised the appellants on 17 April 2000 that
judgment had been taken against
an entity cited as Mimmo’s
Pizzeria and Take Away in an amount of R59 500, and no reason was
provided for the lodging of the
application only on 10 May 2000, no
case for urgency had been made out; and
the Labour Court possessed the
power to rescind CCMA arbitration awards only if a commissioner has
failed, when called upon to do
so, to exercise the powers with which
he or she has been imbued by
section 144
of the
Labour Relations
Act, when
called upon to do so.
[20] In the case of the relief pertaining to the Bargaining Council
award he found that
a) as the value of the assets of the fourth appellant that had been
attached exceeded the amount of the first respondent’s claim
and
there was no basis upon which the sheriff could have attached any
goods on the second and third appellants’ premises, the papers
before him did not disclose a satisfactory basis why they were “part
of this application”;
b) the appellants did not satisfy the
test for urgency in that they delayed taking steps to protect their
alleged rights from the
time the sheriff attached fourth appellant’s
assets to the time that he notified them of his intention to remove
same i.e. the
period 4 April 2000 to 8 April 2000, whilst they knew
that first respondent contended that his claims lay against first
appellant
and that he was entitled to levy execution against the
fourth appellant’s assets;
that the respondent by levying
execution was enforcing a right derived from the bargaining council
award; that whatever rights
the appellants sought to protect could
not override the first respondent’s said right; and that unless
and until the bargaining
council award and the court order were
rescinded or set aside the first respondent was entitled to enforce
the order by means of
execution; and
that no satisfactory explanation
was provided by the appellants for not having instituted
interpleader proceedings.
[21] The learned judge dismissed the application with costs on an
attorney and client scale “in the light of the above”.
[22] The precise basis on which the learned judge dismissed the
application is not clear. If he did so on the basis of an absence
of
urgency there was no need to have dealt with issues that touched on
the merits of the application and vice versa.
The
relief flowing from the CCMA award
:
[23] Labour Court
Rule 20
allows the institution of proceedings,
inter alia, against a firm i.e. a business carried on by a body
corporate under a separate
name, without alleging the identity of the
owner(s) thereof. It is clear from a careful perusal of the papers
before the court
a quo
that none of the appellants carried on
business under the name of Mimmo’s Restaurant and Pizzeria. The
inference is inescapable
that the citation of Mimmo’s Restaurant
and Pizzeria as the respondent in the CCMA proceedings was an
erroneous rendition of the
firm name common to all Mimmo’s Pizzeria
and Take Away franchised operations. That inference is based on the
fact that the respective
claims that formed the subject-matter of the
bargaining council- and CCMA awards were intended to be enforced
against a single entity
namely “Mimmo’s Head Office now cited as
First Appellant,” which, in the first-mentioned proceedings and the
application brought
under case No J 547/00, was cited at Mimmo’s
Pizzeria and Take Away. As judgments of courts remain binding until
varied, corrected
or set aside (See:
Behrman v Sideris and
Another
1950(2) SA 366 (T) at 370;
Richard Goldman Finance
(Pty) Ltd v Elmtree Finance & Investment Co (Pty) Ltd
1977(2) SA 624 (W) at 626 C) the relief claimed in prayers 2 and 5 of
the notice of motion had to be decided on the basis that the
CCMA
award was made against a judgment debtor whose identity does not
coincide with the trade name common to the appellants. Accordingly,
until a substantive application for the correction of the citation of
the judgment debtor succeeds, the appellants lack
locus standi
,
in that they do not have a direct and substantial interest in respect
of relief claimed in paragraphs 2 and 5 of the notice of motion

(See:
Jacobs en ‘n Ander v Waks
en Andere
1992(1) SA 521 (A) at 534) so that the need to decide whether they
are entitled to relief on an urgent basis, or whether the Labour
Court has jurisdiction to rescind arbitration awards of the CCMA does
not arise.
[24] In the circumstances the learned
judge, in my view, justifiably, refused the relief sought in prayers
2 and 5 of the notice of
motion and Advocate La Grange did not make
any submissions to the contrary.
The
relief flowing from the Bargaining Council award
:
[25] It is not clear, but unnecessary to decide, whether the finding
that the papers did not disclose a satisfactory basis why the
second
and third appellants were “part of the proceedings” was intended
to signify a misjoinder or an absence of
locus standi
, in the
sense referred to in paragraph 23 above.
[26] The writ of execution identifies
the judgment debtor as Mimmo’s Pizzeria and Take Away of, Shop 3,
Westgate Shopping Centre,
120 Ontdekkers Road, Horizon, Roodepoort, 1
Regent Place, Cradock Avenue, Rosebank, Shop 227, Randburg
Waterfront, Republic Road,
Randburg, which are the addresses of the
premises where Mimmo’s
Westgate,
Mimmo’s Rosebank
CC (Mimmo’s Rosebank) and Mimmo’s Randburg CC (Mimmo’s
Randburg) respectively carry on business. As second,
third and
fourth appellants trade under the style of Mimmo’s Pizzeria and
Take Away they answer to the description of the judgment
debtor in
the writ of execution, and accordingly, despite the fact that the
first respondent acknowledges that the writ of execution
is not based
on any judgment obtained against them, second, third and fourth
appellants were exposed to the consequences of execution
namely,
deprivation of property and impairment of reputation (See:
Xakana
v Elliot Brothers (Queenstown) (Pty) Ltd
1967(4) SA 724 (E)
at 727 B – C). It is implicit in the first respondent’s
oft-repeated stance that he was employed and dismissed
by “Mimmo’s
Head Office now cited as First Appellant” that the bargaining
council award and the court order under case No
6066/1999 were
purported to have been obtained against the first appellant. Despite
that stance the first respondent failed to approach
the court for a
declarator to the effect that the first appellant is the owner of the
firm Mimmo’s Pizzeria and Take Away so as
to enable it to levy
execution against its assets (See:
Rees v Feldman
1927
TPD 884
at 889;
M. Rauff (Pty) Ltd v Pietersburg Coal Agency
1974(1) SA 811 (T);
Roamer Watch Co SA & Another v Textile
Distributors also t/a MK Patel Wholesaler Merchants & Direct
Importers
1980(2) SA 254 (W) at 267 E – G). The first
respondent, in disregard of their proven existence as separate
corporate entities
(See:
Cape Pacific Ltd v Lubner Controlling
Investments (Pty) Ltd and Others
1995(4) SA 790 (A) at 803 A –
H), justifies execution against the assets of the second, third and
fourth appellants on the basis
that they are “head office stores”
in that they are “owned and controlled” by the first appellant.
That assertion is disputed
by all the appellants. In view of the
aforegoing, the appellants, in my view, do have a substantial and
direct legal interest in
the issue whether the writ of execution
should be set aside or not (See:
United Watch and Diamond Co
(Pty) Ltd and Others v Disa Hotels Ltd and Another
1972(4) SA
409 (C) at 415 E – H) and, accordingly, the learned judge erred in
having come to the conclusion that the papers before
the court failed
to disclose a satisfactory basis for the second and third appellants
being parties to the application.
[27] Did the appellants make out a case for urgency in respect of the
relief claimed in prayers 3 and 4 of the notice of motion?
[28] As paragraph 5 of the agreed
order of 10 May 2000, did away with the need of making an order in
terms of prayer 4 of the notice
of motion, the enquiry into urgency
is restricted to the relief claimed in prayer 3 thereof.
[29] A party applying for relief on
an urgent basis must in the founding papers set out the reasons for
urgency; state why urgent
relief is necessary; and also set out why
the requirements of the rules of court have not been complied with,
if that is the case
(sub-rules 8(2)(a) and (b)). The purpose of
those sub-rules is self-evident. Considerations of fairness dictate
that litigious
matters should be heard in more or less the sequence
in which they have become ripe for hearing. If it were to be
otherwise, it
will bring about additional delays in the hearing of
matters already awaiting their turn and result in self-evident
unfairness and
the potential for prejudice. Sub-rule 8(2) requires
an applicant to place such facts before the court as would be
sufficient to
enable it to exercise a judicial discretion in regard
to whether sufficient and satisfactory grounds have been shown to
exist to
justify giving the particular matter preference. Urgency
usually entails a deviation from the forms, time-limits and
procedures prescribed
by the rules or a departure from the
established sitting times of the court (Cf:
Luna Meubel
Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin’s
Furniture Manufacturers)
1977(4) SA 135 (W) at 136 H). The
factors that are usually taken into account in the exercise of such a
discretion are a) any
prejudice that an applicant might suffer if
the application had to be dealt with in the ordinary course; b)
any prejudice other
parties awaiting the hearing of their matters
might suffer if the particular application were to be given
preference; and c)
any prejudice that the respondent might suffer
as a result of any deviation from the prescribed forms and
procedures, the abridgement
of any prescribed time-limits and an
accelleration of the hearing (See:
IL & B Marcow Caterers
(Pty) Ltd v Greatermans SA Ltd and Another: Aroma Inn (Pty) Ltd v
Hypermarkets (Pty) Ltd and Another
1981(4) SA 108 (C) at 112 H
– 113 A; 114 A – B). The provisions of
Rule 8
clearly apply to
all urgent applications, irrespective of whether the relief claimed
is of an interim or final nature.
[30] The learned judge’s finding
that the appellants failed to satisfy the test for urgent relief is
predicated thereon that they
failed to take steps to protect their
rights from the time that the Sheriff attached fourth respondent’s
goods to the time his
intention of removing them manifested itself
i.e. the period 4 April to 9 May 2000. In assessing the impact of
such delay on the
urgency of the matter the learned judge appears to
have given substantial weight to the fact that first appellant knew
from the time
that the matter had been referred to the Bargaining
Council, that first respondent contended that his claim lay against
first appellant,
and that fourth appellant, from the correspondence
between its attorneys and the fourth respondent, knew that first
respondent contended
that fourth appellant was “owned and
controlled” by first appellant.
[31] There are instances where courts
have refused to exercise their discretion in favour of applicants who
have been dilatory in
bringing applications for the granting of
relief on an urgent basis (See:
Schweizer-Reneke Vleis
Maatskappy (Edms) Bpk v Die Minister van Landbou en Andere
1972(1) SA SA 235 (T);
Twentieth Century Fox Film Corporation and
Another v Anthony Black films (Pty) Ltd
1982(3) SA 582 (W) at
586 A – D;
Zulu and Others v Van Rensburg and Others
1996(4) SA 1236 (LCC) at 1243 D). It seems axiomatic that the length
of the delay and the cogency of the explanation therefor will
constitute pivotal considerations in the exercise by a court of such
a discretion.
[32] The learned judge held that an
applicant who approaches a court for urgent relief should in his/her
founding papers not only
set out the “bases for urgency but also
take the Court into its confidence by setting out all material facts
relevant to its case”.
The learned judge’s formulation of what
should be set out in the founding papers, in my view, is not only
more onerous than the
requirements of
rule 8(2)
as regards urgency,
and sub-rules 12(1) and (3) as regards the extention, abridgement
and condonation of prescribed time-limits,
but furthermore fails to
make any mention of those considerations that should be taken into
account by a court, in the exercise of
its discretion whether to
accord a matter preference or not, and are enumerated in paragraph 29
above.
[33] The enquiry into urgency must
take place against the following factual matrix.
[34] Messrs Biccari Bollo Mariano,
the first appellant’s attorneys, in a facsimile transmission to the
fourth respondent on 11 February
2000, conveyed its stance namely,
that the first respondent’s former employer was Mimmo’s Florida.
After the attachment of the
fourth appellant’s goods on 4 April
2000, its attorneys, Messrs Christelis Artemides, on 7 April 2000,
advised the fourth respondent,
by means of a facsimile transmission,
that their client was not a party to the bargaining council
proceedings on which the writ of
execution was based; that fourth
appellant did not have any contact with the first respondent; and
that as there was no basis upon
which the fourth appellant’s assets
could have been attached, proceedings for the setting aside of the
writ would be launched unless
fourth respondent undertook to
discontinue the execution.
[35] Messrs Biccari, Bollo Mariano on
the same date, by means of a facsimile transmission forwarded to
fourth respondent, reiterated
the first appellant’s stance, namely,
that the first respondent was employed by Mimmo’s Florida and that
the attachment of its
assets was invalid and, furthermore, sought
confirmation that, pending an application for the rescission of the
order underlying
the writ, execution would not be proceeded with.
[36] The fourth respondent, by means
of facsimile transmissions to Messrs Christelis Artemides and Biccari
Bollo Mariano respectively,
on 10 April 2000, gave an undertaking
that pending receipt within three days of proof that fourth appellant
was the owner of the
attached goods; that first respondent was
employed by Mimmo’s Florida; and had nothing to do with the second,
third and fourth
appellants, her client reserved the right to proceed
with the execution. The fourth respondent on 17 April 2000,
forwarded facsimile
transmissions to Messrs Christelis Artimides in
which she stated that unless an affidavit dealing with the fourth
respondent’s
ownership of the attached goods was received by 19
April 2000, she would instruct the sheriff to remove the attached
goods. Messrs
Biccari Bollo Mariano on 19 April 2000, in a facsimile
transmission addressed to the fourth respondent, again repeated its
contention
that the first respondent had been employed by Mimmo’s
Florida and that first respondent was not entitled to “proceed to
each
and every Mimmo’s franchise in South Africa … for the
purpose of executing in respect of your clients judgments, which are
specifically
obtained in respect of your client’s previous
employment at Mimmo’s Florida” and sought a written undertaking
that her client
would not execute against other franchisees, more in
particular second and third appellant’s, failing which,
interdictory relief
would be sought.
[37] It is common cause that the
fourth appellant’s managing member Karel Hendrik Johannes Willemse
(Mr Willemse) on 20 April 2000,
deposed to an affidavit, drafted the
previous day by the first appellant’s attorney Mr Bollo for the
specific intent and purpose
of producing it to the sheriff, should he
attempt to remove the attached goods, as the first appellant had been
advised that in the
event of there being competing claims to the
attached goods, the sheriff is in law obliged to notify the judgment
creditor and that
a stay of the execution process would ensue. The
fourth respondent on 20 April 2000, by means of a facsimile
transmission addressed
to Messrs Christelis Artemides, recorded that
as no affidavit dealing with the fourth appellant’s ownership of
the attached goods
had been received she was instructing the sheriff
to remove them. Thát facsimile elicited a response by means of a
facsimile transmission
dated 25 April 2000 to the effect that Mr
Artemides would be back at office on 2 May 2000 after which the
facsimile transmission
of 20 April 2000 would receive attention. As
there was no further response to the fourth respondent’s facsimile
transmission of
20 April 2000, she on 8 May 2000, instructed the
sheriff to remove the attached goods.
[38] The catalyst for the application
in the court
a quo
was that Mr Bollo was advised at 13h20 on 9
May 2000, that the sheriff, on the instructions of fourth respondent,
intended to remove
the property that had been attached on 4 April
2000. Mr Bollo spoke to Mr Jeremy Visagie (Mr Visagie) who was
attending to the
removal by telephone. He advised Mr Visagie that Mr
Willemse was unavailable and undertook to forward a facsimile copy of
his affidavit,
jurat 20 April 2000. After the affidavit had been
telefaxed to Mr Visagie, Mr Bollo telephonically obtained
confirmation that he
had received it and requested him to procure
confirmation from fourth respondent that the removal would not be
proceeded with. Mr
Visagie telephoned Mr Bollo approximately ten
minutes later and told him that fourth respondent insisted that the
attached goods
be removed. Mr Bollo then telephoned Mr Visagie’s
superior at the offices of the sheriff, Roodepoort who advised him
that the
removal would not take place. Mr Bollo unsuccessfully
attempted to communicate with fourth respondent to advise her of his
intention
to launch an urgent application for the rescission of the
judgment on which the writ of execution was based and requested her
to
instruct the sheriff not to remove the attached goods pending the
institution of such proceedings. Also Advocate La Grange, whose
services were enlisted by Mr Bollo in order to convey the urgency of
the matter to fourth respondent, did not succeed to communicate
with
her. Fourth respondent did not dispute her inaccessibility, but
advanced feasible reasons for her unavailability until she
at 11h45
on 10 May 2001, received notice that the application would be brought
at 14h00.
[39] Save that it is apparent that Mr
Artimides was absent from his office during the period 24 April 2000
to 2 May 2000, neither
he nor Mr Bollo has proffered any explanation
for the failure to have furnished Willemse’s affidavit to the
fourth respondent during
the period 20 April 2000 to 9 May 2000. As
the fourth respondent allowed the fourth appellant until 19 April
2000 to furnish her
with proof of its ownership of the attached
goods, the period of inaction was from 20 April 2000 to 8 May 2000,
and not 4 April 2000
to 9 May 2000, as held by the learned judge.
The fourth appellant provided the first appellant’s attorney with
an affidavit which
addressed its separate corporate existence;
disavowed liability to the first respondent; and asserted its
ownership of the attached
goods. Having done so, the fourth
appellant had no reason to anticipate any inaction on the part of
Messrs Biccardi, Bollo Mariano
as regards furnishing thereof to the
fourth respondent. The cases in which it was held that there is a
limit beyond which a litigant
cannot escape the consequences of his
attorney’s lack of diligence, were decided in the context of
litigants who, well-knowing
that action had to be taken sat by
passively without so much as directing any enquiries or reminder to
the attorney in whose hands
the matter was left (See:
Saloojee
and Another NNO v Minister of Community Development
1965(2) SA
135 (A) at 141 C – H;
Moraliswani v Mamili
1989(4) SA 1
(A) at 10 B – D;
Promedia Drukkers & Uitgewers (Edms) Bpk
v Kaimowitz and Others
1996(4) SA 411 (C) at 419 J – 420 C).
The present, in my view, is not such a case. As has been stated
already, first appellant
was advised that the production of the said
affidavit would be sufficient to trigger interpleader proceedings and
suspend the execution
process.
[40] As far as compliance with the
requirements of
Rule 8(2)
is concerned, the appellants clearly erred
on the side of paucity, but it is clear from the papers that they
attributed urgency to
the “irreparable and unquantifiable damage”
that would be done to the Mimmo’s Pizzeria and Take Away tradename
and trademark,
as well as the loss of clientele and goodwill, that
would result if the second, third and fourth appellants’ business
operations
were to be forced to close because of the attachment and
removal of their goods. Because no attachment of the assets of
first, second
and third appellants took place, the feared
consequences in their case were based only on fourth respondents
statement that she intended
executing against the various franchise
stores contracted to the first appellant, and accordingly, were less
acute than in the case
of the fourth appellant, as the goods
reflected in the sheriff’s inventory, namely, 50 iron and wood
tables, 200 wood and rattan
chairs, knives, forks and kitchen
equipment such as a griller, a flatbed gas-burner and a fridge appear
to be essential for the operation
of a restaurant/take-away business.
It is obvious that the prejudice the fourth appellant would have
suffered, had the removal of
the attached goods proceeded, would have
been significant.
[41] As is apparent from the learned
judge’s statement to the effect that the outcome of the application
would probably have been
different, had the fourth appellant
furnished Mr Willemse’s affidavit “before the matter became
urgent” or provided a satisfactory
explanation for not having done
so, that such failure was pivotal to his finding that the appellants
had failed to make out a case
for urgency. The learned judge appears
to have lost sight thereof that the first appellant did not provide
the affidavit because
it was prepared for presentment to the sheriff
when the attached goods were to be removed, so as to trigger the
institution or interpleader
proceedings, and the fourth appellant
left the matter in the hands of the first appellant’s attorney.
Not only have adequate explanations
been furnished for the failure to
provide the affidavit of Willemse, but the learned judge appears to
have misconstrued the function
thereof. As it is the first
respondent’s case that he is entitled to execute against the
property of fourth appellant because
it was “owned and controlled”
by the first appellant, proof that the latter was the owner thereof
does not appear to have been
necessary, and, for the same reason,
there is no room for the existence of adverse claims essential for
the institution of interpleader
proceedings (See:
Kamfer v
Redhot Haulage (Pty) Ltd and Another
1979(3) SA 1149 (W) at 1152
E).
[42] The learned judge, in my view,
misdirected himself as regards the requirements of
rule 8(2)
in
respect of the averments that must be made by an applicant in an
urgent application; the criteria for a proper exercise by a
court of
its discretion in respect of urgency; a number of facts crucial to a
proper exercise of a such discretion; and furthermore,
erred in
having held that second, third and fourth appellants failed to
satisfy the test for urgent relief.
[43] The learned judge in my view
also misdirected himself by having held that unless and until the
Bargaining Council award and the
court order were rescinded or set
aside the first respondent was
entitled
to enforce the order
of the Labour Court by means of execution and, by implication,
precluded the setting aside of the writ of execution
issued under
case No 6066/1999. The writ of execution that forms the
subject-matter of prayer 3 of the notice of motion was issued
in such
a manner that, despite the fact that first respondent has not
obtained judgment against any of them the second, third and
fourth
appellants fall within the description of the judgment debtor
therein. Accordingly the validity or otherwise of the writ
of
execution is capable of adjudication independently of and without
having to consider the propriety of the order on which it is
based.
The learned judge, having
formed the
view that the first respondent was entitled to enforce execution
unless and until the order of the Labour Court was rescinded
or set
aside, in my view, erroneously, precluded himself from considering
the merits of the basis upon which the appellants assailed
the writ
of execution and in doing so, imposed a fetter on his judicial
functions.
[44] The finding that no satisfactory
explanation was given as to why interpleader proceedings were not
instituted, was made in the
context that the availability of such
relief constituted “an alternative remedy to the urgent relief”.
I have already found
that because of the absence adverse claims to
the attached goods, the institution or interpleader proceedings could
not be resorted
to. Accordingly, the absence of a satisfactory
explanation for not having invoked interpleader proceedings was
irrelevant, and in
the premises, the learned judge erred in having
taken it into account, if in fact he did.
[45] In view of the above, I have
come to the conclusion that the learned judge’s dismissing of the
relief claimed in paragraph
3 of the notice of motion cannot be
sustained, irrespective of which of the grounds in paragraph 20, it
was based on.
[46] This court, having come to the
conclusion that the judgmetn of the court
a quo
dismissing the
relief sought in prayer 3 of the notice of motion cannot be upheld in
terms of the provisions of
section 174(b)
of the
Labour Relations
Act, may
make any order that the circumstances may require.
[47] As the relief that is being
claimed in prayer 3 of the notice of motion is of a final nature, any
material disputes of fact must
be resolved by applying the test
enunciated in
Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd
1984(3) SA 623 (A) at 634 E – G namely, that the
relief sought can be granted only if the facts as stated by the
respondents,
together with the admitted facts in the appellants’
affidavits, justify the granting thereof.
[48] The first respondent’s case is
that he was employed and dismissed by “Mimmo’s Head Office now
cited as First Appellant.”
Although the first appellant disputes
that the first respondent was employed by it and avers that he was
employed by Mimmo’s Florida,
the first respondent’s version
stands to be accepted for the purposes of deciding the relief that is
being claimed. Even if the
first respondent were employed by the
first appellant, the Bargaining Council award and the writ of
execution on which it is based,
will be efficacious as against first
appellant only if it carried on business under the name Mimmo’s
Pizzeria and Take Away, an
aspect that has not been dealt with in the
papers specifically. The letter terminating the first respondent’s
services (HDS 3)
emanated from the first appellant’s offices and
was written on a letterhead denoting its tradename and trademark
namely, Mimmo’s
Pizzeria and Take Away. Those facts lend some
support to the contention that the first respondent traded under such
name. Even
if it is assumed that the first appellant answers the
description of the judgment debtor in the writ of execution (as
would every
other franchisee in the Republic of South Africa who
trades under the name Mimmo’s Pizzeria and Take Away), it is clear
from the
manner in which the writ of execution was formulated that it
was intended to be executed against the assets of the second, third
and fourth appellants and, accordingly, is unenforceable as against
them (see:
Kaplan v The Union Government
1924 TPD 532
at 533;
Sachs v Katz, 1955(1) SA 67 (T) at 72 F – G)
.
[49] As already stated, the first
respondent seeks to levy execution against the second, third and
fourth appellants’ assets on
the basis that they are owned and
controlled by the first appellant. That assertion disregards the
provisions of
section 29(1)
of the
Close Corporations Act, No. 69 of
1984
that no juristic person may directly or indirectly, through the
instrumentality of a nominee or otherwise, hold a member’s interest
in a close corporation. That such an assertion was made, however, is
not unexpected as Mr Tasos Demetrides (who interviewed the
first
respondent before he was appointed) is a member not only of the first
appellant but also the second, third and fourth appellants.
[50] The averment that second, third
and fourth appellants are owned and controlled by the first appellant
is denied. The high-water
mark of the first respondent’s case in
thát regard is that he had been told, during a telephone
conversation with Raymond Friedman,
an erstwhile co-employee at
Mimmo’s Florida, that Mimmo’s Westgate, Mimmo’s Waterfront,
Mimmo’s Rosebank and two other stores
were “head office stores”
and that a receptionist, one H. Steenkamp, confirmed that such stores
were owned by “head office”.
First Appellant challenged those
averments as constituting hearsay and further questioned the ability
of those persons to have provided
reliable information thereanent. No
affidavits by Friedman and Steenkamp form part of the papers and no
reasons were provided for
such omissions. Failing an agreement as
regards its admissibility, and in the absence of an evidentiary basis
to enable the court
to exercise its discretion to admit such hearsay
evidence in accordance with the provisions of
section 3(1)(c)
of the
Law of Evidence Amendment Act, No 45 of 1988
, the statements
attributed to Friedman and Steenkamp have no evidential value and
must be disregarded. If that is done the only
juridical basis upon
which the first respondent based his entitlement to levy execution
against the assets of the first, second and
third appellants falls
away and no other basis permitting him to do so has been shown to
exist. A writ of execution unsupported
by a
causa
in the form
of a judgment debt against the party against whose assets execution
is enforced, lacks validity and may be set aside
(See:
Ras en
Andere v Sand River Citrus Estates (Pty) Ltd
1972(4) SA 504
(T) at 510 E;
Le Roux v Yskor Landgoed (Edms) Bpk en Andere
1984(4) SA 252 (T) at 257 B). That, in my view, is the position in
the instant case.
[51] I accordingly incline to the
view that the appellants were entitled to an order in terms of prayer
3 of the notice of motion.
[52] As the relief that is being
claimed in prayer 4 of the notice of motion is an automatic
consequence of the granting of the relief
claimed in prayer 3, there
is no need to make any order in that regard.
[53] The fourth respondent was joined
as a party in these proceedings because she is alleged to have
“targeted” certain Mimmo’s
Pizzeria and Take Away franchise
operations and that allegation served as the basis for a prayer for a
costs order
de bonis propriis.
The fourth respondent, as
appears from the cummunications that passed between her and the
appellant’s and their attorneys, merely
performed her professional
duties with a degree of dedication that could easily be misperceived.
In my view, any allegations of
impropriety on the part of fourth
respondent are unwarranted. Accordingly, no order for costs
de
bonis propriis
or otherwise, is called for.
[54] As the issue in respect of which
the appellants should have succeeded in the court
a quo
i.e.
the relief claimed in prayer 3 of the notice of motion is distinct
and severable from the issues in respect of which they failed
(see:
Transvaal and Orange Free State Chamber of Mines v General
Electric Co, 1967(2) SA 32 (T) at 72A – B
), i.e. the relief
claimed in prayers 2 and 5 thereof, they, in my view, should be
awarded only half their costs of suit against the
first respondent.
[55] Although the appeal was
successful only in respect of the relief claimed in prayer 3 of the
notice of motion, the appellants,
in my view, have been substantially
successful and should be awarded their costs of appeal.
[56] In my view
the appeal should succeed to the
extent that the appellants are entitled to the relief claimed in
prayer 3 of the notice of motion,
together with the costs of the
appeal and
2) the
order of the court
a quo
should be deleted and substituted
with the following:
“
a) The relief claimed in prayers 2 and 5 of the
notice of motion is refused.
The relief claimed
in prayer 3 of the notice of motion is granted
First respondent is
ordered to pay half of the applicants’ costs of suit."
______________
D. VAN REENEN
ACTING JUDGE OF APPEAL
I agree.
An order is made in terms of the order proposed by Van Reenen AJA.
____________
RMM
ZONDO
JUDGE PRESIDENT
I agree.
___________
NP
WILLIS
JUDGE OF APPEAL
Appearances:
For the appellants:
Adv O.J. La
Grange instructed by Biccari, Bollo & Mariano
For the 1
st
and 4
th
Respondents:
Ms M.T.T.
Jardim instructed by Mary Jardim Attorney
Date of Hearing: 8 NOVEMBER 2001
Date of Judgment: 29 MARCH 2002
Date of Judgment: