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[2008] ZALCJHB 77
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Rham Equipment (Pty) Ltd v Nevlle and Others (J720/08) [2008] ZALCJHB 77 (13 June 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
IN BRAAMFONTEIN)
CASE
NO J 720/08
In
the matter between
RHAM
EQUIPMENT (PTY) LTD
APPLICANT
AND
NEVILLE
LLOYD
1
ST
RESPONDENT
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
2
ND
RESPONDENT
THE
SHERIFF, KEMPTON PARK SOUGHT
3
RD
RESPONDENT
JUDGMENT
AC
BASSON, J
Order
[1]
On 24 April 2008 this court made an order staying the warrant of
execution issued against the Applicant by the Labour Court
under case
number GAJB686/2006 in respect of the award granted in favour of the
1
st
Respondent against the Applicant for the sum of R 60
000.00 together with interest and costs which the 1
st
Respondent recovered under case number GAJB6868/2006 by arbitration
award issued by a Commissioner dated 20 June 2006 which was
certified
in terms of section 143(3) of Act 66 of 1995 by the Senior
Commissioner. An order was also granted uplifting the 3
rd
Respondents attachment of a John Deere 6068PF 250 6 cylinder engine
the property of the Applicant. No order as to costs was made.
[2]
The Respondent requested reasons for the order. Herewith brief
reasons.
Reasons
[3]
This is was an application for a stay of a writ of execution issued
from this Court under case number GAJB6868/2006 pending
the
finalization of the Applicant’s application for review of an
arbitration award granted by the Second Respondent (hereinafter
referred to as “the Commissioner”).
[4]
On 17 March 2008 the Applicant’s representative caused a letter
in response to the First Respondent’s application
in terms of
section 143 of the LRA confirming the receipt of the First
Respondent’s notice in terms of section 143 of the
LRA on 4
March 2008. In terms of this letter an undertaking was sought from
the First Respondent that the First Respondent would
stay the
enforcement of the award pending the determination of the review
application filed under case number JR1697/2006 in the
Labour Court.
However, pursuant to this letter the representatives of the First
Respondent addressed a letter to the Third Respondent
(hereinafter
referred to as “the Sheriff”) instructing him to
inter
alia
attach and remove the Applicant’s property. Pursuant
to the First Respondent’s instruction to the Sheriff, the
Sheriff
attended the premises of the Applicant with the view of
attaching certain property of the Applicant. In order to limit costs
and
to assist the Sheriff the Applicant offered to deliver to the
Sherif an engine to the value of approximately R 100 000.00. The said
John Deere engine was delivered to the Sheriff.
Relevant
background
[5]
On 20 June 2006 Commissioner Lynch (hereinafter referred to as “the
Commissioner”) delivered an award in favour
of the First
Respondent in terms of which the Commissioner held that the dismissal
of the First Respondent was substantively and
procedurally unfair.
The Applicant was ordered to pay the First Respondent compensation in
the amount of R 60 000.00.
[6]
It is common cause that pursuant to this award, the Applicant
launched a review before this Court setting aside the award made
by
the Commissioner. In compliance with Rule 7A(6) of the Rules of the
Labour Court, the Applicant delivered to the First Respondent’s
representative a copy of the record of the proceedings. The Applicant
also delivered a notice in terms of Rule 7A(6) dated 17 November
2006
stating that the Applicant stands by its Notice of Motion. The Court
official stamp on this notice confirms that it was filed
with the
Labour Court on 22 April 2006. It is common cause that to date the
First Respondent has not complied with the provisions
of Rule 7A(9)
of the Rules by not delivering an affidavit in answer to the
allegations made by the Applicant in its review application.
[7]
The Applicant correctly submits in its founding affidavit that this
Court will not consider the merits of the Applicant’s
case with
regard to the dispute underlying the warrant of execution and that
the Court will only take into account the
causa
for the
warrant of execution in dispute. Notwithstanding this fact, the
Applicant nonetheless submits that it has a reasonable prospect
of
success especially in light of the fact that the First Respondent has
to date not delivered an opposing affidavit to the Application
for
review. The Applicant submits in its papers that the First Respondent
had advised two co-employees that it had resigned and
that he had
also tendered his written resignation. Pursuant to tendering his
resignation, the First Respondent later withdrew his
resignation.
Notwithstanding this fact that the Commissioner concluded that the
First Respondent was dismissed. It is this award
that is currently
the subject of a pending review application.
[8]
The Applicant also submits in his founding affidavit that the
replacement value of the engine exceeds the value that would be
realized on an auction of the engine and that this will result in a
loss for the Applicant that it will not be able to recouver
should
the Applicant’s review be successful. It is further submitted
by the Applicant that it will suffer irreparable harm
should the
Applicant be successful in its pending application. It is significant
to point out that the First Respondent does not
dispute the
allegation made in the founding papers to the effect that the
Applicant will suffer irreparable harm should the sale
in execution
proceed. The First Respondent also does not dispute the allegation
that he will not in a position to repay the said
amount in the event
the Applicant being successful with the pending application.
Brief
exposition of the legal principles
[9]
In terms of
the provisions of section 163 of the Labour Relations Act 1995
(
hereinafter
referred to as “the LRA”), it is provided that any
decision, judgment or order of this Court may be served
and executed
as if it were a decision, judgment or order of the High Court of
South Africa for purposes of execution. It therefore
follows that
once an order is made by this Court, it is deemed to have the
attributes of an order of the High Court. This in turn
implies that
it would have the same effect and consequences as far as its
execution is concerned. In terms of Rule 45A of the Uniform
Rules of
the High Court, the Court may suspend the execution of any order for
such period as it may deem fit. This is a discretion
that the Court
must exercise and which must be exercised judicially. As a general
rule, a Court will grant a stay of execution
were real and
substantial justice requires such a stay or, put otherwise, where
injustice will otherwise be done. See
Strime
v Strime
1983 (4) SA 850 (C) 852 B
[1]
and
Bestbier
v Jackson
1986 (3) SA 482
(W) at 484.
[10]
In general
a Court will grant a stay of execution were the underlying
causa
of the
judgment debt is being disputed or no longer exists, or when an
attempt is made to use for ulterior purposes the machinery
relating
to the levying of execution (see
Le
Roux v Yskor Landgoed (Edms) Bpk
1984 (4) SA 252
(T) at 257
[2]
;
Whitfiled
v Van Aarde
1993 (1) SA 332
(E) at 337 G.
[3]
.
[11]
In
Gois t/a Shakespeare’s Pub v Van Zyl & Others
(2003) 24
ILJ
3202 (LC) this Court has held that, in
particular circumstances, the Court may, in the determination of the
factors to be taken
into account in the exercise of its discretion
under this rule, borrow from the requirements for the granting of an
interim interdict,
namely that the Applicant must show (i) that the
right which is the subject of the main action and which he or she
seeks to protect
by reason of the interim relief is clear or if not
clear, is
prima facie
established though open to some doubts;
(ii) that if the right is only
prima facie
established, there
is a well-grounded apprehension of irreparable harm to the Applicant
if the interim relief is not granted and
he or she ultimately
succeeds in the establishing of his or her right; (iii) that the
balance of convenience favours the granting
of interim relief; and
(iv) that the Applicant has no other satisfactory relief. In this
regard this Court held as follows:
"[32] Normally
this court will favourably consider the stay of a writ of execution
when real and substantial justice requires
such a stay or, put
differently, where injustice would otherwise result.”
[33] In Erasmus v
Sentraalwes Kooperasie Bpk
[1997] All SA 303
(0) at 307D-H it was
held that the requirements for an interim interdict could be taken
into account in determining whether or
not to grant a stay. This test
was found not to be entirely appropriate especially where an
applicant is not asserting a right
but seeks an indulgence on the
grounds that execution may result in an injustice. In Road Accident
Fund v Strydom
2002 (1) SA 292
(C) 304E-H the court held that 'at the
heart of the enquiry relative to the exercise of the Court's
discretion is whether it has
been shown by the applicant that there
is a well grounded apprehension of execution of the order taking
place at the instance of
respondent and of injustice being done to
the applicant by way of irreparable harm being caused to applicant if
execution is not
suspended.
[34] Furthermore, in
considering whether or not to exercise its discretion to grant a stay
of execution, a court is not required
to take the merits of the
underlying attack on the causa of the writ into account. In Strime v
Strime
1983 (4) SA 850
(C) the applicant applied for a stay in
execution pending the outcome of a variation of a maintenance order
which he had sought.
The court there said, 'whether or not the
applicant is likely to succeed in obtaining a cancellation or
variation of the maintenance
order is not for this Court to
determine. It would also be unwise to express my view because of the
pending maintenance court application
(at 852G-H).
[35] The above decision
is in line with the finding in Le Roux v Yskor Landgoed (Edens) Bpk
1984 (4) SA 252
(T), to the effect that a stay of execution will be
granted where the underlying causa is the subject-matter of an
ongoing dispute
between the parties. It is therefore sufficient that
there is a possibility that the
causa underlying the writ may be ultimately removed. The applicant is
therefore not required to
satisfy this court as to his prospects of
success in the principal dispute."
[12]
The Court concluded therefore that when considering an application to
stay an execution, this Court is not concerned with the
merits of the
underlying dispute: the sole enquiry is simply whether the
causa
is in dispute. In the
Gois
-matter, the Court decided to
grant a stay of a writ of execution in that matter because --
"In the absence
of the stay the rescission application will be rendered
meaningless.
The sale in execution would have proceeded and First
Respondent
obtained satisfaction of the amount of the award. The First
Respondent is a man of straw and it is likely that Applicant
will
have no recourse against him. Effectively unless a stay of execution
is granted, the Applicant will loose his right to dispute
his
indebtedness to the First Respondent and it will be futile to pursue
the rescission application once the sale in execution
has taken
place."
[13]
I am in full agreement with the principles set out in the
Gois
-decision. Turning to the present matter, it is clear that
the underlying
causa
exists and that a real and substantial
injustice will result if the stay is not granted. It is also
undisputed on the papers that,
unless the stay of execution is
granted, the Applicant will loose his right to dispute his
indebtedness. It is furthermore also
undisputed on the papers that
the Respondent is a man of straw and that it is likely that the
Applicant will have no resource against
him should the sale in
execution be allowed to proceed.
[14]
In the event the application to stay the execution is granted.
______________________
AC
BASSON, J
Date
of reasons
: 13 June 2008
[1]
“
Execution
is a process of the Court and the Court has an inherent power to
control its own process subject to the Rules
A of Court. It
accordingly has a discretion to set aside or stay a writ of
execution (see Williams v Carrick
1938 TPD 147
at 162; Graham v
Graham
1950 (1) SA 655
(T) at 658; Cohen v Cohen
1979 (3) SA 420
(R)
at 423D - C). The Court will, generally speaking, grant a stay of
execution where real and substantial justice requires
such a
stay or, put otherwise, where injustice would otherwise be done.”
[2]
In
Le
Roux v Yskor Landgoed (Edms) Bpk en andere
1984
(4) SA 252
(T) at 257B-I, the Court held as follows: “
Die
algemene reël is dat ’n eksekusielasbrief tersyde gestel
sal word as die lasbrief nie ondersteun of nie verder
ondersteun
word deur sy causa nie. Die causa is die skuld en die vonnis wat
daarop verleen is. (Sien, in die algemeen Herbstein
en Van Winsen
The Civil Practice of the Superior Courts in South Africa 3de uitg
op 644-645 en Ras en andere v Sand River Citrus
Estates (Pty) Ltd
1972 (4) SA 504
(T) op 510E.) (a) Die uitvoering van die
eksekusielasbrief kan
dus
opgeskort word as die skuld wat die vonnis ten grondslag lê
aangeveg word deur die vonnisskuldenaar. Voorbeelde hiervan
is waar
eksekusie van ’n onderhoudsbevel opgehef word hangende ’n
aksie of aansoek vir tersydestelling van die bevel
of vermindering
van die bedrag betaalbaar (Williams v Carrick
1938 TPD 147
en Graham
v Graham
1950 (1) SA 655
(T)) of waar eksekusie van ’n
kostebevel opgehef word hangende hersiening van die taksasie (Stent
& Pretoria Printing
Works v Roos
1909 TS 1054)
; (b) Die
eksekusielasbrief kan tersyde gestel word: (i) as die skuld en
vonnis gedelg word deur betaling, compensatio, novatio,
delegatio of
cessie. ... (ii) waar die vonnis nie seker is nie, vir sover dit
slegs na die beslissing van ’n verdere regsprobleem
of
-probleme vasgestel kan word ... (iii) waar die lasbrief nie in
ooreenstemming met die vonnis is nie. ... (iv) waar die vonnis
waarop die lasbrief gebaseer is, tersyde gestel word ... (v) waar ’n
verkeerde persoon daarin genoem word as gedingsparty
...”
[3]
“
In
view of this conclusion it is not necessary to deal in detail
with the further submission made on behalf of the respondent,
namely
that if a Court has a discretion to grant a stay of execution it
only has such a discretion where the underlying causa
of the
judgment debt is being disputed or no longer exists.”