About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2009
>>
[2009] ZALCJHB 112
|
|
Wessels v De Jager t/a De Jager Boedery (J2692/07) [2009] ZALCJHB 112 (6 August 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
CASE
NO: J2692/07
In
the matter between:
J
M S WESSELS
APPLICANT
and
J
F DE JAGER
t/a
DE
JAGER BOERDERY
RESPONDENT
JUDGMENT:
VARIATION ORDER
Molahlehi
J
Introduction
[1]
In this matter this Court had on 9
th
June 2009, issued an order committing the respondent to prison for a
period of 30 (thirty) days because he had failed to comply
with the
order requiring him to issue the IRP5 form in terms of the Income Tax
Act, 58 of 1962 to the applicant.
[2]
Subsequent to that order this Court issued
a directive that the applicant should make submissions as to why the
order should not
be varied in line with the assumption that the duty
to deliver IRP5’s related to Income Tax Returns in terms of the
Income
Tax Act and the matter should not for this reason rather be
referred to the South African Revenue Services for its consideration
and possible prosecution.
[3]
In his written submission Mr Louw for the
applicant correctly submits that Income Tax Act contains only two
provisions in terms
of which certain actions and/or failures to
comply constitute an offence carrying certain penalties. The essence
of his submission
is that even if those provisions of the Income Tax
carry a criminal sanction, they are for the purpose of the relief
that the applicant
was seeking irrelevant. They are irrelevant in
that in the present instance the applicant is seeking the enforcement
of a Court
order which the respondent has refused or failed to comply
with. I fully agree with this sub mission.
[4]
However, what has now transpired in
considering the submission made by Mr Louw, is that I discovered that
I made an error in issuing
the order before giving the respondent an
opportunity to show cause why he should not be committed to prison
for failing to comply
with order issued by Basson J, which amongst
others required him to issue the IRP5 to the applicant. Affording a
person the right
to be heard before being committed to prison is
fundamental and that is the reason why I believe I made an obvious
error in issuing
the earlier order.
[5]
I am therefore of the view that the order
was granted in error and accordingly varies the order to read as
follows:
“
It
IS ORDERED THAT:
1.
The rule nisi is issued calling upon the respondents to show cause
why on 21
st
August 2009, the return day a final order should not be granted on
the following terms:
(a)
The respondent be held in contempt of this Court;
(b)
The respondent be detained and be brought before the Court to show
cause why he should not be committed
to detention in prison for a
period of 15 (fifteen) conservative days from date of this order;
(c)
At the expiry thereof he should be brought before the Court again to
show cause why a further period
of committal should not be imposed;
(d)
In the event of the respondent complying with the order of the court
or tendering to comply therewith,
he may at his instance be brought
before the court at an earlier date than the expiry of the said
period of 15 (fifteen) days.
2.
The costs of this application is to be paid by the respondent.
3.
The application is to be re-enrolled
for hearing on 21
st
August 2009.
4.
The applicant is to ensure that this order is served personally on
the respondent.”
_______________
Molahlehi
J
Date
of Judgment :
6
th
August 2009
Appearances
For
the Applicant :
Mr Eric Louw of Eric Louw Attorneys
For
the Respondent: N/A