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[2009] ZALCJHB 90
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South African Post Office Ltd v Nxumalo and Others (J962/09) [2009] ZALCJHB 90 (18 May 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Case
No J 962/09
SOUTH
AFRICAN POST OFFICE LTD
Applicant
and
NXUMALO DZ
First respondent
and
11 others
JUDGMENT
VAN NIEKERK J
[1]
This is an urgent application to stay a writ of execution issued by
this court consequent on an arbitration award made in favour
of the
first to eleventh respondents, to whom I shall refer as ‘the
individual respondents’.
[2]
The factual background that gives rise to the application are briefly
the following. The applicant and the Communication Workers
Union
(‘the CWU’) were engaged in a long standing dispute
concerning the dismissal of the individual respondents. An
arbitration hearing was held on 10 August 2006, and an award issued
on 17 August 2006. In the award, the arbitrator held that the
individual respondents had been unfairly dismissed, and that they
should be reinstated with 12 months’ back pay. The applicant
filed an application to review and set aside the award. During
December 2006, after the review application had been filed, the
applicant’s human resources manager prepared a memorandum
setting out two options to settle the case. The first option was
that
the applicant awaits the outcome of the review proceedings; the
second that it offers to reinstate the individual respondents
and pay
them the equivalent of six months’ remuneration. The applicant
avers that its senior management agreed to pursue
the second option,
and that the dispute was subsequently settled with the CWU on this
basis. The applicant avers further that the
individual respondents
were reinstated and that they were paid the monetary component of the
settlement. As will appear hereunder,
these averments are contested
by the individual respondents.
[3]
On 21 April 2009, the individual respondents secured the issuing of a
writ of execution, after certification of the arbitration
award on 17
April 2009. On 5 May 2009, the twelfth respondent, the Sheriff for
Pretoria west, executed the writ and attached certain
of the
applicant’s assets. The applicant wrote to the sheriff on 7 May
2009 recording its dismay at the attachment, and attaching
proof of
payment to each of the individual respondents of what it averred was
the amounts owing to them in terms of the settlement
agreement. This
letter was copied to LJB Legal Consultants cc in a letter marked for
the attention of Adv LJ Boale, suggesting
that he advise his clients
that payment of the agreed amount had been effected and that this
should be verified with the individual
respondents.
[4]
On 12 May 2009. Adv Boale replied to the applicant’s letter,
on a letterhead that reads somewhat resplendently “
ADVOCATE
LEGODI JOSIAS, BOALE B. JURIS LLB AND COMPLETING LLM (UNISA)
Expect In Labour & Constitutional Law Managing Member
of LJB
Legal Construction and Cleaning cc
”
(sic). Boale stated
inter alia
that the payments made had been partial payment of its portion to the
provident fund. And that he “requested the complete
execution
of the writ”.
[5]
On 12 May 2009, the applicant filed the present application, seeking
as a matter of urgency
inter alia
to interdict the sheriff from removing the attached goods, and
setting aside the writ of execution. On 13 May 2009, attorneys
Mokobane and Chauke filed a notice of appointment as attorneys of
record for the individual respondents. On 14 May the application
was
stood down to permit the filing of an answering and replying
affidavit. On Friday 15 May the application was argued, and I
reserved judgment until Monday 18 May 2009.
[6]
The discretion to stay a writ of execution is wide, and must be
exercised judicially. Where a writ is sought to be executed
for
improper reasons (this is what the applicant in essence avers) the
court is entitled to stay execution. (See
Strime
v Strime
1983 (4) SA 850
(c),
Santam
Ltd v Norman
1996 (3) SA 502
(c) and
Robor (Pty) Ltd v Joubert & others
(unreported, Labour court J2264/08, 17 April 2009)). In determining
whether to stay execution, the courts have applied the test
applicable to the granting of interdicts. In effect, the applicant
seeks a final order setting aside the writ of execution. In
these
circumstances, the rules relevant to a dispute of fact in motion
proceedings where a final order is sought ought to be applied.
These
rules were established in what has become known as the “Plascon-Evans
test” (
see Plascon Evans Paints
Ltd v Van Riebeeck Paints (Pty) Ltd
1984
(3) SA 632
(A)) and were recently affirmed by the Supreme Court of
Appeal in
National Director of Public
Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA). The court said the following:
“
Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine probabilities.
It
is well established under the Plascon Evans rule that where in motion
proceedings disputes of fact arise on the affidavits,
a final order
can be granted only if the facts averred in the applicant’s
affidavits...which have been admitted by the respondent…
together with the facts alleged by the latter, justify such an order.
It may be different if the respondent’s version consists
of
bald or uncreditworthy denials, far-fetched or so clearly untenable
that the court is justified in rejecting them merely on
the papers”
(at paragraph 26).
[7]
In the present instance, there are at least two clear and fundamental
disputes of fact on the papers. The first relates to the
issue of
authority. The individual respondents deny the existence of the
agreement that the applicant avers was concluded with
the CWU.
While there is no dispute that the CWU represented the individual
respondents at the arbitration hearing, they deny
that they
authorised any third party to conclude any agreement compromising the
terms of the arbitration award on their behalf.
The second issue
relates to the nature of the payment made into the individual
respondents’ bank accounts in January and
February 2007. The
applicant’s version is that these amounts were paid pursuant to
the agreement reached with the CWU. The
individual respondents aver
that the amounts related to provident fund contributions that the
applicant was required to make. I
am not persuaded that these
averments, tersely as they may have been made in the answering
affidavit, are of such a nature so as
to fall into the exception to
the
Plascon Evans
rule. These disputes (and any others that may exist) require
resolution in order for this court properly to determine whether,
as
the applicant contends, the writ was improperly obtained. I intend
therefore to order that the factual dispute be resolved by
the
hearing of oral evidence.
[8]
Finally, I wish to address the issue of Mr Boale’s right of
appearance. The rules of this court extend rights of appearance
inter
alia
to advocates and attorneys, and to
officials of genuine trade unions and employer organisations. In the
case of attorneys, this
court has held that only attorneys admitted
to practise and enrolled as such and having a trust account and
Fidelity Fund certificate
may appear (see
Marx
v Stalcor & others; Glaubitz v Preston Anderson CC
(2001) 22
ILJ
2669 (LC). It is not uncommon for persons to appear in this court,
claiming the right of appearance as an admitted advocate, having
represented their clients to that point in the capacity of officials
of a trade union or employer organisation of dubious authenticity
and
pedigree, or as labour consultants. In principle, and on the
basis of this court’s refusal to permit admitted but
non-practising attorneys to appear, I have my doubts whether these
persons ought to enjoy the right of appearance in this court,
and
whether their “members” and clients are adequately
protected against unscrupulous conduct. Be that as it may, I
did not
invite argument on this question and, for the present at least, do
not intend to take it further. But I was concerned when
I perused the
papers in the present matter that all of the correspondence annexed
to the papers suggests that in their dealings
with the applicant, the
individual respondents were represented by LJB Consultants cc and
that Adv Boale, who appeared on behalf
of the individual respondents
when the application was called, was a member of that close
corporation. I was also concerned
that the answering affidavit
had no filing sheet to indicate that it had been prepared and
presented by a firm of attorneys, and
that the quality of the
drafting of the affidavit was such that it did not seem to me that
the individual respondents had been
properly and professionally
advised by a firm of attorneys. When the application was called, I
expressed my concern to Adv Boale,
who represented the individual
respondents at the hearing in his capacity as an advocate, that it
was improper for him to act in
the course of the dispute for the
individual respondents as a labour consultant (specifically in the
capacity of a member of a
close corporation) and thereafter to appear
in this court as their counsel. Adv Boale is not a member of the
Society of Advocates.
I asked him whether he had been briefed to
appear in the application. He replied in the affirmative, and
produced a brief from
attorneys Mokobane and Chauke. No-one from that
firm was present in court. I then requested Mr Nxumalo, the first
respondent and
the only individual respondent present in court,
whether the individual respondents had instructed the firm Mokobane
and Chauke.
He stated that he had consulted Mr Mokobane in March
2009. On this basis, and on the basis of the brief produced by Mr
Boale, I
then permitted him to represent the individual respondents,
subject to the reservation that I would refer the matter to the
appropriate
authority for further investigation should I consider
this appropriate.
[9]
It concerns me that attorneys Mokobane and Chauke, apparently
instructed in this matter prior to the certification of the
arbitration
of the award and the issuing of the writ of execution,
played no role in this matter other than to brief Boale. The
application
to certify the award and to have a writ issued, LRA Form
7.18, was signed by Boale, in his capacity as the representative of
the
individual respondents. As I have noted, all of the
correspondence conducted with the sheriff and the applicant emanated
not from the offices of Mokobane and Chauke, but from LBJ Consultants
cc and in respect of the letter of 12 May, from Boale in his
personal
capacity. On the face of it, it was irregular for the firm Mokobane
and Chauke to accept an instruction from the individual
respondents
and then to abdicate their professional responsibilities to LJB
Consultants cc and to Boale, but for briefing Boale
to appear in
court to oppose the application. On the face of it, it was also
irregular for Boale to act for the individual respondents
in the
capacity of a member of a close corporation and/or in his individual
capacity by engaging with the CCMA, the sheriff and
the applicant,
and thereafter to accept a brief from Mokobane and Chauke to appear
as counsel. These are matters that warrant further
investigation by
the relevant professional bodies.
I
accordingly make the following order:
The
matter is referred to oral evidence, on a date to be arranged with
the Registrar.
The
costs of the proceedings on 14 and 15 May 2009 are reserved.
Pending
the further judgment of this court, the 12
th
respondent is interdicted from taking any further steps to execute
the writ of execution issued under case number GA 12312-02
on 21
April 2009, and in particular from removing any goods attached
pursuant to that writ.
The
Registrar is directed to forward a copy of this judgment and the
papers filed in this matter to the Law Society of the Northern
Provinces and the Johannesburg Bar Council, for investigation into
the propriety of the conduct in these proceedings respectively
of
Attorneys Mokobane and Chauke, and Adv LJ Boale.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date
of Hearing: 15 May 2009
Date
of Judgment: 18 May 2009
Appearances:
For
the applicant: Adv TF Mathibedi
instructed
by Mabuza Attorneys
For
the respondent: Adv J L Boale
Instructed
by: Mokobane & Chauke Attorneys