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[2008] ZALCD 1
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CTP Limited v Statutory Council of the Newspaper, Printing and Packaging Industry and Others (D52/20008) [2008] ZALCD 1 (22 February 2008)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD IN DURBAN
CASE
NO
D52/2008
HEARD
AND DELIVERED ON 22.02.2008
IN THE MATTER BETWEEN:
CTP
LIMITED
Applicant
and
THE STATUTORY COUNCIL
OF THE NEWSPAPER,
PRINTING AND PACKAGING
INDUSTRY First
Respondent
KOJANE, BONSILE
NO Second
Respondent
THE SOUTH AFRICAN
TYPOGRAPHICAL UNION Third
Respondent
NARAINSAMY,
JAYSEELAN Fourth
Respondent
JUDGMENT
PILLAY
D,J
This urgent application to stay a writ of
execution is dismissed for the following reasons:
1.
Urgent applications for staying writs of
execution is not there for the asking. The Court has a
discretion, exercised judicially,
to grant or refuse urgent
applications.
2.
The applicant employer has failed to
satisfy the Court that it will suffer irreparable harm if the
application is not granted.
The applicant can stop the sale in
execution by paying the amount of R57 893,30 awarded to the
fourth respondent employee
on condition that the employee refunds it
if the review application is successful. The employee has
invested his provident
fund of R307 428,57 and owns a house with his
wife. He is not a person of straw.
3.
The applicant has failed to satisfy the
Court that the balance of convenience favours the granting of the
application. The
award reinstated the employee, but as the
applicant has not employed him, he does not earn a living.
4.
The applicant has failed to date to file
the record of the arbitration. The review was filed on 21
November 2007; however
the applicant does not say when before the 1
st
of February 2008 it demanded production of the record. The
delay in prosecuting the review is prejudicial to the employee
and an
order dismissing this application is more likely to expedite the
review as the applicant would want to recover its payment
as soon as
possible.
5.
In reaffirming the difference between
review and appeal the judgment in
Sidumo
& Another v Rustenburg Paltinum Mines Ltd & Others
(2007)
28 ILJ 2405 (CC) has raised the bar against granting review.
The applicant’s ground of review is that the arbitrator
committed a gross irregularity in “not properly, adequately or
satisfactorily consider(ing) the entirety of the evidence
presented
before her”. Whereas the application had better prospects
of succeeding when the test for
6.
review was the rationality and
justifiability of the award, those prospects have diminished under
the reasonableness test.
In the
circumstances the application is dismissed with costs.
______________
Pillay D, J
Date
Edited: 3 August 2008
Appearances:
ON
BEHALF OF APPLICANT
:
P T BUSH
ON BEHALF OF
RESPONDENTS
:
M BINGUM
IN
THE LABOUR COURT OF SOUTH AFRICA
DURBAN
AND COAST LOCAL DIVISION
HELD AT DURBAN
CASE
NO
:
D52/08
DATE
:
22.02.2008
CTP GRAVURE (PTY) LTD
versus
J NARAINSAMY & 3
OTHERS
BEFORE
THE HONOURABLE MADAM JUSTICE PILLAY
ON
BEHALF OF APPLICANT
:
P T BUSH
ON
BEHALF OF RESPONDENTS
:
M BINGUM
INTERPRETER
:
NOT REQUIRED
REPORT ON
RECORDING
Clear recording.
SNELLER RECORDINGS
(PTY) LTD
DURBAN
TEL: 031 –
266 5452
FAX: 031 –
266 5459
TRANSCRIBER’S
CERTIFICATE
This
is, to the best abilities of the transcriber, a true and correct
transcript of the proceedings,
where
audible
, recorded by means of a
mechanical recorder in the matter:
CTP
GRAVURE (PTY) LTD v J NARAINSAMY & 3 OTHERS
CASE
NO
:
D52/08
COURT
OF ORIGIN
:
DURBAN LABOUR COURT
TRANSCRIBER
:
MS L J PICKLES
DATE
COMPLETED
:
19.05.2008
NO
OF TAPES/CD
:
CD
NO
OF PAGES
:
4
SNELLER RECORDINGS
(PTY) LTD
DURBAN
TEL: 031 –
266 5452
FAX: 031 –
266 5459