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[2008] ZALCJHB 73
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Dienste v Havenga and Another (J602/08) [2008] ZALCJHB 73 (23 April 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: J602/08
In
the matter between:
CHRISTO
BOTHMA FINANSIELE
DIENSTE Applicant
and
RG
HAVENGA First
Respondent
THE
DEPUTY SHERIFF,
KLERKSDORP Second
Respondent
JUDGMENT
FRANCIS
J
Introduction
1.
This is an urgent application for an order that the warrant of
execution issued by the Registrar of this Court under case number
J1921/05 be stayed and suspended pending the outcome of an
application that the applicant served and filed under case number
JA23/2008.
2.
The applicant had also sought other relief abandoned during the
proceedings. I do not deem it necessary for purposes of
this
judgment to refer to the said relief.
3.
The application was opposed by the first respondent on several
basis. The first respondent also raised several preliminary
points that in my view are not decisive to the issue that I am
required to decide.
4.
It became clear during the proceedings that the real issue that I was
required to decide was whether the filing of a petition
for leave to
appeal with the Judge President of the Labour Court stayed the
enforcement of an order issued by this Court.
Both parties were
ordered to file heads of argument on this issue. These were
duly filed.
The background
facts
5.
Setting out the facts in any great detail is not necessary and I will
limit it to the issue that I am required to decide.
The first
respondent was employed by the applicant. She subsequently
resigned and referred a dispute to the Commission for
Conciliation,
Mediation and Arbitration (the CCMA), under case number NW1164/05.
In an arbitration award dated 7 August 2005,
the applicant was
ordered to pay the first respondent an amount of R87 000.00 on or
before 30 September 2005.
6.
In October 2005 the first respondent filed an application for review
under case number JR2680/05. On or about 20 October
2005, the
first respondent filed an application in terms of section 158(1)(c)
of the Labour Relations Act 66 of 1995 (the Act),
to make the
arbitration award an order of court. The said application was
opposed by the applicant.
7.
On 23 February 2007, the arbitration award was made an order of court
and the applicant was directed to pay the first respondent
an amount
of R87 071.38 with costs.
8.
On or about 7 March 2007, the applicant applied for leave to appeal
against the order made on 23 February 2007.
9.
The first respondent subsequently issued a warrant of execution for
the payment of the amount ordered by the court on 23 February
2007.
The second respondent on or about 18 April 2007 attached certain
goods on the basis that it belonged to the applicant.
The
applicant’s attorney wrote to the first respondent’s
attorney and pointed out that there was an application for
leave to
appeal and sought confirmation that the execution of the warrant
would be suspended pending the outcome of the application
for leave
to appeal. The first respondent did not proceed with the
attachment.
10.
The application for leave to appeal was dismissed on 27 March 2008.
11.
On 4 April 2008 the second respondent called at the applicant
premises and removed all of the applicant’s clients files
(hard
copies) amounting to approximately 300 in total; an HP laptop
computer with a charger that belongs to a lady who works for
the
applicant on a contract basis to perform its administrative duties
and a 1 X LG Computer, which contains all the information
about the
applicant’s business activities, which by its removal renders
any further operations by the applicant impossible.
The
applicant claims that the files removed,
inter
alia,
contain the financial information
of the applicant’s clients as required by the Financial
Intelligence Centre, 2001 (FICA),
and as can be seen from the
estimated value attached to it, is virtually worthless to anybody
except the applicant. The first
respondent’s attorney
agreed that once the applicant had paid an amount of R45 000.00 the
attached property would be returned.
An amount of R45 000.00
was deposited into the trust account of the first respondent’s
attorneys. The goods were not
returned on the basis of a second
warrant issued for the payment made in terms of case number J1921/05
in the section 158(1)(c)
application. The first respondent
contended that because the applicant’s application for leave to
appeal was dismissed
it was proceeding with the warrant of execution
issued under case number J1921/05. It would not instruct the
Sheriff to suspend
the execution of the writ of execution under case
number J1921/05 and any application would be opposed. Further
that the
petition for leave to appeal did not automatically stay the
writ of execution issued under case number J1921/05.
12.
On or about 8 April 2008 the applicant filed a petition for leave to
appeal with the Judge President of the Labour Court under
case number
JA23/08.
Analysis of the
facts and arguments raised
13.
It is common cause between the parties that the applicant’s
application for leave to appeal was dismissed and that the
applicant
had filed a petition for leave to appeal with the Judge President of
the Labour Appeal Court. It is clear from
the facts placed
before me that the warrant of execution that the applicant’s
wants to be stayed relate to the award made
an order of court.
14.
The real issue that arises in this matter is whether the filing of a
petition for leave to appeal stays the enforcement of the
order
issued by this Court. Should the filing of the petition stay
the enforcement of the order it follows that the application
should
succeed.
15.
It is trite that an application for leave to appeal in the High Court
stays the enforcement of a court order and any subsequent
writ of
execution issued against that party, which forms the subject of an
application for leave to appeal. This is so in
terms of Rule
49(11) of the High Court Rules. There was a measure of
uncertainty about whether the filing of a petition for
leave to
appeal would also stay the enforcement of an order. In
Claude
Neon Ltd v Europa Acceptances Group Ltd
1992
(2) SA 287
WLD, Marais J Court found that there were two conflicting
decisions in the Transvaal Provincial Division and in the
Witwatersrand
Local Division on this point. In the matter of
Jewellery Investments (Pty) Ltd v
Southern Sun Hotel Corporation
1992(2)
SA 291 (W), Goldstone J held that such a petition did suspend the
operation of the judgment, it being covered by Rule 49(11)
of the
High Court Rules. In the matter of
Van
der Walt v Kolektor (Edms) Bpk en Andere
1989
(4) SA 690
(T), De Villiers AJ concluded in the absence of any
reported authority that such a petition did not have the effect of
suspending
the judgement and that the provisions of Rule 49(11) of
the High Court Rules were not applicable to such a petition.
Marais
J said that he was in respectful agreement with the judgment
of Goldstone J in the
Jewellery
Investments case
where the Court said
that the words “application for leave to appeal” would
include an application for leave to appeal
made to the Chief Justice
by way of petition.
16.
It is trite that the Labour Court has equal status as a High Court.
It is a specialised court. Where an application
for leave to
appeal has been refused by a judge of the Labour Court, the Judge
President may be petitioned for leave to appeal.
In terms of
Section 67(2) and (3) of the Act, the Labour Appeal Court is the
final court of appeal in respect of all judgments
and orders made by
this Court in respect of matters within its exclusive jurisdiction
and the Labour Appeal Court is a superior
court that has authority,
inherent powers and standing in relation to matters under its
jurisdiction, equal to that which the Supreme
Court of Appeal.
(However I am aware of the judgments that have confirmed that the
Supreme Court of Appeal is the final court of
appeal in non
constitutional matters. It has no bearing on the issue that I
am required to decide).
17.
The Rules of this Court are silent about whether an application
for leave to appeal stays proceedings. This Court
does not have
a similar provision like Rule 49(11) of the High Court Rules.
However Rule 11(3) of the Rules of this Court,
states that if a
situation for which the Rules do not provide arises in proceedings or
contemplated proceedings, the court may
adopt any procedure that it
deems appropriate in the circumstances. I am of the view that
Rule 49(11) of the High Court Rules
should also be adopted by this
Court.
18.
In my view, the filing of a petition to the Judge President of the
Labour Appeal Court is equivalent to leave to appeal.
The
filing of a petition to the Judge President of the Labour Appeal
Court stays the enforcement of orders pending the outcome
of the
petition that is currently serving before the Labour Appeal Court.
I am therefore in agreement with the judgments
of Marais J and
Goldstone J referred to in paragraph 15 above.
19.
The application stands to be granted.
20.
I do not believe that this is a matter where costs should follow the
result. The law about what effect the filing of a
petition has
in this Court was unclear and the first respondent’s opposition
was not frivolous.
21.
In the circumstances I make the following order:
21.1
The execution of the order made under case number J1921/05 is stayed
pending the outcome of the petition
for leave to appeal which is
currently before the Labour Appeal Court.
21.2
There is no order as to costs.
___________________________________
FRANCIS
J
JUDGE
OF THE LABOUR COURT OF SOUTH AFRICA
FOR
THE APPLICANT
:
ATTORNEY E H LOUW
FOR FIRST
RESPONDENT
:
ATTORNEY WP SCHOLTZ OF JANSENS INC
DATE
OF HEARING
: 18
APRIL 2008
DATE OF
JUDGMENT
: 23
APRIL 2008