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[2008] ZALCJHB 84
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Mofokeng and Others v JAC Pallets Africa CC and Others (J1990/07) [2008] ZALCJHB 84 (13 October 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
IN JOHANNESBURG)
J1990
-07
MOFOKENG
& 12 OTHERS
Applicants
V
JAC
PALLETS AFRICA CC
1
st
Respondent
JAC
PALLETS
2
nd
Respondent
INTERNATIONAL
ESTATE WINES
(TAIWAN)
CC
3
rd
Respondent
INTERNATIONAL
ESTATE WINES
4
th
Respondent
INTERNATIONAL
ESTATE WINES (TAIWAN)
CC T/A
JAC PALLETS
5
th
Respondent
MR JG
KOEKEMOER
6
th
Respondent
COMMISSIONER
BONGE MASOTE
7
th
Respondent
COMMISSIONER
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
8
th
Respondent
JUDGEMENT
AC
BASSON J
,
[1]
This was an application for joinder of companies other than those
cited in the writ of execution; for an order for contempt
of court in
terms of section 143(4) of the LRA and for an order compelling the
sixth Respondent “
to ensure that the first to fifth
Respondents pay the Applicant the salaries they would have earned
form the 15
th
Day of January 2007 until they
are allowed to tender their services in line with the certified
award.
” In essence there were three applications before
this court: (i) A joinder application; (ii) An application for
contempt;
and (iii) An application for payment.
[2]
On 19 June 2008 this Court, after having heard argument and after
having considered the matter made the following order:
“
1.
The matter is postponed sine die to allow the Applicant to join the
liquidator
as an interested party in these proceedings.
2.
The Applicant is ordered to amend its papers and serve an
amended copy on this Court and the Respondents within 10 Court days
of
the date of this order.
3.
The Applicant is ordered to pay the Respondents’ wasted
costs of today.”
[3]
Herewith brief reasons for my order. The First Respondent in these
proceedings is a close corporation registered in accordance
with the
laws of the Republic of South Africa. The First Respondent has been
placed in liquidation. The 2
nd
and 5
th
Respondents are one and the same entity, namely a closed corporation,
International Estate Wines (Taiwan) CC trading as Jac Pallets
and
registered in accordance with the laws of the Republic of South
Africa. The 4
th
Respondent does not exist. No relief is
sought against the 7
th
and 8
th
Respondents.
[4]
In the joinder application, the Applicants seek to have the second to
fifth Respondents joined as Respondents in the writ of
execution. The
award in favour of the Applicants has, however, been issued against
the 1
st
Respondent (now in liquidation) only.
[5]
It is trite that this Court may join any number of persons as parties
in proceedings if their right to relief depends on substantially
the
same question of law and fact (see Rule 22 of the Rules of this
Court). The test is whether or not a party has a “
direct and
substantial interest
” in the subject matter of the action,
that is, a legal interest in the subject matter of the litigation
which may be affected
prejudicially by the judgment of the court. See
Henri Viljoen (Pty) Ltd v Awerbuch Brothers
1953 (2) SA 151
(O) at 168 – 170.
[6]
It is clear from the papers that the issue of the 1
st
Respondent’s pending liquidation arose prior to and was known
during the course of the CCMA arbitration proceedings and that
that
was the reason why the 1
st
Respondent did not attend the
proceedings with the result that a default award was issued. On
behalf of the Respondent it was submitted
that if the Applicants
indeed believed that they were employed by other entities, which is
denied by the Respondents, they should
have instituted joinder
proceedings at that stage – in other words – during the
CCMA proceedings.
[7]
In the proceedings before this Court the issue of non-joinder was
raised obo the Respondent. More in particular it was pointed
out that
the Applicants have been informed of the identity of the liquidator.
Despite this fact the Applicants have not joined
him as an interested
party in the pending proceedings before this Court. I have already
pointed out that one of the applications
currently pending before
this Court is a contempt application. It is trite that this Court can
hear contempt applications and may
grant an order for contempt where
the Respondent’s default is willful and
mala fide
. In
the present set of facts the award was certified only against the 1
st
Respondent. The 1
st
Respondent has been placed in
voluntary liquidation. It is trite that once an entity has been
placed in liquidation, the liquidator
steps in and becomes the
relevant entity to deal with any claims against the close
corporation. The liquidator has not been joined
as an interested
party in the pending applications (and especially the contempt of
court application) despite the fact that the
Applicants have been
made aware of the fact that the 1
st
Respondent has been
placed in liquidation.
[8]
In order to assist the individual Applicants, this Court has, in
fairness, granted them the indulgence to amend their papers
and to
join the liquidator as an interested party. This court has, however,
decided to order the Applicants to pay the wasted costs
of the
proceedings. The Applicants in this matter were aware of the fact
that the 1
st
Respondent was placed in liquidation but
despite this fact still persisted in approaching this Court without
joining the liquidator.
The Respondent was as a result placed in the
unnecessary position to oppose the application,
inter alia
, on
the basis of non-joinder. I can therefore find no reason why the
Applicants should not be ordered to pay the Respondent’s
wasted
costs.
AC
BASSON, J
13
October 2008