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[2007] ZALCCT 6
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September and Another v Muddford International Services Ltd; In Re: Muddford International Services Ltd v Metal And Engineering Services Ltd and Others (C664/2006) [2007] ZALCCT 6 (28 November 2007)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
REPORTABLE
CASE
NO.: C664/2006
In
the matter between :
SEDICK
SEPTEMBER
First
Applicant
MOGAMAT
KARRIEM
Second
Applicant
and
MUDDFORD
INTERNATIONAL SERVICES
LIMITED
Respondent
In
re :
MUDDFORD
INTERNATIONAL SERVICES
LIMITED
Applicant
and
THE
METAL AND ENGINEERING INDUSTRIES
BARGAINING
COUNCIL
First
Respondent
COMMISSIONER
SUZANNA
HARVEY
Second
Respondent
SEDICK
SEPTEMBER
Third
Respondent
MOGAMAT
KARRIEM
Fourth
Respondent
JUDGMENT
DELIVERED ON 28 NOVEMBER 2007
[1]
This is an application to compel Respondent to furnish security for
the Applicants’ costs in the review application instituted
by
Respondent impugning the award of the Arbitrator, Suzanna Harvey
issued on 29 August 2006 and varied on 18 November 2006.
Applicants, moreover, are seeking security for the amount of
compensation awarded in their favour by the Arbitrator.
The application is being opposed by Respondent.
[2] The background to the
matter briefly is that the Applicants were previously employed to
perform work at the instance of Respondent
on a floating rig, “
The
Dalia”
which was moored in the Cape Town harbour during
2006. Applicants commenced employment on 8 June 2006 on
the basis
that they would work 12 hour shifts 7 days per week while
the ship remained in Cape Town harbour, which was anticipated to have
been for a period of about 3 months. When they reported
for duty on 19 June 2006 they were informed by the security
personnel
at the Portnet security gate that their security passes had been
revoked. They were accordingly prevented
from rendering
any further services. The Applicants regarded this action
as a dismissal. Applicants referred
the dismissal dispute
to the Metal and Engineering Industries Bargaining Council under
whose auspices the subsequent arbitration
was conducted.
[3] In terms of the
variation award of 18 November 2006 each of the Applicants was
granted compensation in the amount of US $7497.00
less statutory
deductions for tax, to be paid on or before 10 September 2006.
The arbitration proceedings were
conducted in the absence of
Respondent who had failed to appear on the stipulated date.
[4] Respondent launched a
review application in respect of the award which review is being
opposed by the Applicants. On 23
August 2007 Applicants
demanded security from Respondent with regard to both the costs in
the pending review application as well
as the total amount of the
award.
[5] It is common cause
between the parties that in principle Applicants enjoy the right to
claim security for the cost of the review
application on the basis
that the Respondent is a peregrinus. It is also not in
contention that this Court is empowered
to grant orders for payment
of security for costs
(Mafuyeka v CCMA &
Others
(1999) 9 BLLR 953
(LC))
.
[6] The rules of this
Court unlike the High Court rules, do not expressly regulate the
procedure with regard to applications for
security for costs.
In terms of rule 11(3), this Court is empowered to regulate its own
procedure in matters not expressly
covered by the rules.
It is expedient in the circumstances to approach the matter on the
basis of the relevant provisions
in the High Court rule 47 which
regulates applications for security for costs in that Court.
[7] The sole basis upon
which Respondent is opposing the claim for security for costs (apart
from a dispute concerning the quantum
of such security) is that
Applicants had unduly delayed in bringing the application which
justifies that the application be dismissed
(Buttner v
Buttner 2006(3) SA 23 (SCA) at paras [38] – [40];
ICC Car Importers (Pty)
Ltd v A. Hartrodt SA
(Pty)
Ltd
2004(4) SA 607 (W); Wallace N.O. v
Rooibos Tea Control Board 1989(1) SA
137 (C))
.
[8] The review
application was launched on 11 October 2006 and the rule 7A(8)(b)
notice was served and filed on 18 February 2007.
Applicants’
answering papers were served and filed on 18 July 2007 followed by an
application for condonation for the
late filing of the answering
papers which was served and filed on 23 August 2007.
Due to the late filing of the
answering papers the review application
was set down for hearing on the unopposed roll on 28 August 2007.
The present
application for security for costs was served and filed
on 27 August 2007 and set down for hearing on 28 August 2007 being
the
date, as aforesaid, assigned to the matter on the unopposed
roll. The application was eventually heard on 23 October
2007.
[9] In the matter of
Buttner v Buttner
supra
the application for security for costs was filed close to the date
for hearing the appeal and the application was eventually heard
together with the appeal. In dismissing the application
for undue delay, the Supreme Court of Appeal held that it was
misconceived and futile to launch an application for security for
costs at a time when most of the costs had already been incurred.
[10] The above
consideration does not apply in the present matter where the review
application will be heard in due course.
Respondent has
indicated that it would be prejudiced should the application for
security for costs be granted. It does
not, however, aver
that it is unable to provide any security. It is clear that
Respondent would not suffer any real prejudice
should an order be
granted compelling it to provide security for costs. In
all the circumstances the delay in bringing
the application for
security for costs is not such as to justify the refusal of the
application.
[11] Insofar as the
quantum of the security for costs is concerned Applicants claim the
amount of R75 000 in the notice of motion
while Respondent adopted
the stance that an amount of R25 000 would be reasonable and
adequate. Having considered the
matter, I am of the view
that an amount of R50 000 would be fair and equitable in this regard.
[12] Insofar as the
application for security for the amount of compensation awarded is
concerned, Applicants rely on the decision
in
South African Iron &
Steel Corporation Ltd v Abdulnabi
1989(2) SA 224 (T)
as well as the decision of
Magida
v Minister of Police 1987(1) SA 1 (A)
.
It was submitted in this regard on behalf of Applicants that an
incola
defendant is entitled to security for the amount of the
judgment which may be awarded against a peregrinus plaintiff on a
claim
in reconvention. The following dicta at 232 H –
233 B of the judgment in the matter of
SA Iron & Steel
Corporation Ltd v Abdulnabi
supra
are pertinent in this regard :
“
There
is no doubt that a peregrinus plaintiff can be ordered to give
security for the costs of an incola defendant and also for
the amount
of the judgment which may be awarded against it on a claim in
reconvention. In Saker & Co. Ltd
v
Grainger
1937 AD 223
at 226 and 227 De Wet JA dealt with this
aspect as follows:
‘
It
was not disputed that the question was not one of substantive law but
one of practice, in which the Court has a discretion.
It was
laid down as far back as 1828 (Withan v
Venables 1 Menzes 291) that a non-resident plaintiff who
does not own
in this country immovable property can be called upon to give
security for the cost of the action. … It is
also
well-established practice that such a plaintiff can be further called
upon to give reasonable security for a claim in reconvention
by the
resident defendant… The principle underlying this
practice is that in proceedings initiated by a peregrinus
the Court
is entitled to protect an incola to the fullest extent.’
In
that case, only the question of security for costs of appeal had to
be considered, but the cases of Schunke v
Taylor and Symonds
(1891) 8 SC 104
referred to by De Wet JA;
Taylor v Merrington 2 SAR 30; Prentice
& Mackie v
Bells Assignee
1906 TH
29
and Africair (Rhodesia) Ltd v Interocean
Airway SA 1964(3) SA 114 (SR) are all authority for the
proposition that a peregrinus plaintiff can be ordered to give
security for a claim in reconvention.”
[13] In the matter of
Magida v Minister of Police
supra
at 14 F-G
the Court held that :
“
It
follows that the following dictum in Saker & Co. Ltd
v Grainger
1937 AD 223
per De Wet JA at 227, viz.
“
The
principle underlying this practice is that in proceedings initiated
by a peregrinus the Court is entitled to protect an incola
to the
fullest extent’,
should
be read subject to the qualification that it is only applicable after
the Court, in the exercise of its judicial discretion
in accordance
with the principles hereinbefore stated, had come to the conclusion
that a peregrinus should not be absolved from
furnishing security for
costs.”
[14] In the matter of
B&W
Industrial Technology (Pty) Ltd & Others v
Baroutsos 2006(5) SA 135 (W)
a full bench of the
Witwatersrand Local Division of the High Court surveyed the
authorities relating to security for costs in respect
of a
counterclaim. The Court accepted for purposes of
its decision that there was a practice as stated by De
Wet, JA in
Saker & Co. Ltd v Grainger
supra
that a Court may order security for the judgment on a
counterclaim by an
incola
defendant against a peregrinus
plaintiff. The Court concluded as follows in this regard
:
“
[41]
My view that generally speaking security should not be ordered in
respect of a claim by an incola in reconvention
is in accordance with
the sentiments expressed by Buchanan J in Schunke v
Taylor & Symonds
(1891) 8 SC 103
, where he said:
‘
But
while a defendant is sufficiently protected from being unduly
harassed by unfounded claims by compelling a foreign plaintiff
to
give full security for costs, either expressly or by being possessed
of property available in case of his failing in his action,
to compel
such a plaintiff who follows his debtor to such debtor’s
domicile and sues him in his own forum, to give security
for any
amount of damages which such debtor alleges he intends to claim by
way of reconvention, would open the way to a denial
of justice.’
[42]
I am of the view that, insofar as a practice existed to permit a
Court to order security for the amount
of a claim where an incola
counterclaims against a peregrine plaintiff, it, in present-day
circumstances, should not be followed,
save perhaps in the most
exceptional circumstances.”
[15] In my view, the
compensation award in this matter is comparable to a judgment debt in
reconvention in favour of Applicants.
In my view, this Court
enjoys discretionary powers (where it is justified by the
circumstances and if equity and fairness to both
litigants so
dictate) to order a peregrinus in the position of the Respondent to
provide security for compensation payable in terms
of an award, in
review proceedings instituted to impugn such award.
[16] Having considered
the matter I am of the view that it would be equitable and fair to
order Respondent to provide security for
payment of the compensation
award. In my view the circumstances of this matter are
exceptional and justify such a course.
I bear in mind in
this regard that the award would be rendered nugatory should the
Applicants, who are both individuals with
limited means, be compelled
to pursue Respondent to Greece, where it is domiciled, in order to
obtain satisfaction of the award.
In my view, any possible
prejudice that Respondent might suffer is by far outweighed by the
prejudice which the Applicants would
suffer should the payment of
security not be ordered. Respondent has not averred that
it is unable to pay the amount
in question or that it is unable to
provide security in the said amount.
[17] In the circumstances
I make the following order :
(a)
Respondent is ordered to provide security in the amount of R50 000
in respect of Applicants’
costs in the pending review
application instituted by Respondent under case number C664/2006;
(b)
Respondent is ordered to provide security for payment of the amount
of compensation awarded in favour
of Applicants in the sum of US
$14 994,00;
(c)
Respondent is ordered to pay Applicants’ costs.
____________________________
DENZIL
POTGIETER, A.J.
APPEARANCES
:
FOR
THE APPLICANT: Adv. Eugene Benade instructed by N. Allen
Attorneys
FOR THE RESPONDENT:
Adv. Saul Miller instructed by Bagraims Attorneys