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 72
|
|
Carton-Barber and Others v Ekurhuleni Metropolitan Municipality (J421/07) [2009] ZALCJHB 72 (22 December 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
REPORTABLE
CASE
NO: J421/07
In
the matter between:
STEPHEN
JOHN
CARTON-BARBER
1
ST
APPLICANT
SHARON
ELIZABETH
DENNIS
2
ND
APPLICANT
THEOPHILUS
FRANK HURFORD
3
RD
APPLICANT
JOHN
RONALD HENRY DUNGEY
4
TH
APPLICANT
JOHAN
VON
WEIDTS
5
TH
APPLICANT
and
EKURHULENI
METROPOLITAN
MUNICIPALITY
RESPONDENT
JUDGMENT
Molahlehi
J
Introduction
[1]
The applicants in this application seek an order in the following
terms:
“
1.
To declare that Applicants are all employees of Respondent;
2.
To order Respondent to employ Applicants forthwith with retrospective
effect from 1 March 2004 on the same
terms and conditions that
governed their employment with Benoni Fire and Emergency Services
(Pty) Ltd on 29 February 2004.
3.
To order Respondent to pay all accumulated arrear remuneration of the
Applicants within 7 (seven) days of this
order.
4.
Costs of the application.
5.
Further and/or alternative relief.”
The
parties
[2]
The applicants occupied various management positions in Benoni Fire
and Emergency Service (Pty) Ltd (Benoni Fire & Emergency)
before
the services rendered by it were taken over by the Greater Benoni
Municipality as at February 2004.
[3]
The Benoni Fire & Emergency is a private company, duly registered
in terms of the laws of South Africa. According to the
applicants
this is not cited in this matter as it has no interest but is
referred to as their former employer. The respondent is
a
municipality created and established in terms of laws of South
Africa.
Background
facts
[4]
The relief which the applicants are seeking is essentially based on
the case of two former employees who obtained a declarator
that there
existed a transfer as a going concern between the Greater Benoni Town
Council and Benoni Fire & Emergency in the
Labour Court under
case JS 1499/02, in terms of section 197 of the Labour Relations Act
66 of 1995 (the LRA).
[5]
The Benoni Fire & Emergency got involved in the unfair dismissal
dispute because prior to September 1991, the Town Council
of Benoni
rendered fire and emergency services to the general public that fell
within the general municipal structure and boundaries
of the Town
Council of Benoni.
[6]
In September 1991 the Benoni town Council privatized its emergency
services and outsourced it to through an agreement with the Benoni
Fire & Emergency. That agreement regulated the standard of the
fire and emergency services which were to be rendered to the
general
public that fell under the sphere of the Town Council of Benoni
starting from 27
th
September 1991.
[7]
In terms of the agreement the Benoni Fire & Emergency had to
lease the fixed properties of the Town Council of Benoni, purchase
the movable assets and take over the employees, then employed by the
town council.
[8]
The agreement between the parties was renegotiated in 1996. That
agreement was only signed on 28 September 1998 and to be amended
on 8
September 2000.
[9]
The respondent, Ekurhuleni Municipality, came into existence towards
the later part of 2000 and was essentially the amalgamation
into one
combined Metropolitan Council of City Councils of the Greater Benoni
with the then existing councils of amongst others
Germiston, Boksburg
and Brakpan. The Benoni Fire and Emergency Services continued to
provide the fire and emergency services
to the general public
even after the amalgamation of the various town councils. There was
however an attempt by the respondent
to terminate the agreement in
2003. The Benoni Fire and Emergency Services successfully challenged
the attempt at cancelling of
the contract in the High Court. The
decision of the High Court was challenged on appeal but the parties
concluded a negotiated
settlement before the matter could be
considered. In terms of the settlement agreement the respondent took
over the rendering of
emergency services in the Benoni area from
Benoni Fire and Emergency Services with effect from 1
st
March 2004. The important aspect in as far as the contention of the
applicants in this matter is concerned is that the whole of
the
business of the Benoni Fire and Emergency Services was handed over to
respondent on 1 March 2004.
[10]
The applicants contend that despite the provisions of clause 7 of the
said settlement agreement, the respondent subsequently
provided
employment positions for all the 147 (hundred and fourty seven)
employees except for the 7 (seven) others including
the first
and second applicants. Those employees who were taken over were
placed on temporary employment contract and subsequently
appointed
after applying for those positions.
[11]
Turning to what happened in case JS 1499/02, it is apparent that the
Benoni Fire & Emergency Services, which was the first
respondent
in that matter brought an interlocutory application in terms of which
it sought to be substituted by the second respondent
which was
Ekurhuleni Municipality. The interlocutory application was successful
and accordingly Benoni Fire and Emergency was substituted
by
Ekurhuleni Municipality.
[12]
The other important aspect of the outcome of case number JS1499/02,
is that the court held that the transfer of the business
of the
Benoni Fire and Emergency Services to the Ekurhuleni Metropolitan
Municipality on 1
st
March 2004 constituted a transfer of a
business as a going concern in terms of section 197(1)(b) of the LRA.
[13]
The respondent was clearly unhappy with the decision of the court and
thus filed an application for leave to appeal the decision
on the 8
th
June 2005, which was successful and was granted on 19
th
April 2006. However, the Ekurhuleni Metropolitan Municipality never
progressed the matter any further. On the 15
th
January
2007, Benoni Fire and Emergency Services brought an application in
the following terms against respondent under case number
JS 1499/02
“
1.
To order Second Respondent to proceed with the appeal against the
whole of the judgment of Modise, AJ dated
19 April 2006 within 7
(seven) day from the date of this order, failing which the Registrar
may enroll the matter to complete the
trail hearing of the matter;
2.
Costs of the application.
3.
Further and/or alternative relief.”
[14]
On 1
st
February 2007, the respondent filed a notice to
oppose the application and has to date failed to file any answering
affidavits
in support thereof and whereof the
dies
to do so,
expired on 30
th
January 2007. However, to date the
respondent has failed to file any answering affidavits in support of
its opposition to the case
under number JS 1499/02.
[15]
It is on the basis of the above that the applicants contend that they
were all employed by Benoni Fire and Emergency Services
on 29
th
February 2004, when the respondent took over the services of Benoni
Fire and Emergency Services under circumstances that constitute
a
transfer of a business as a going concern in terms of section
197(1)(b) of the LRA. It is also for this reason that the applicants
further contend that the Ekurhuleni Municipality is obliged in law to
appoint them as its employees with effect from 1
st
March
2004.
[16]
The respondent raised as a point
in
limine
in its defence the issue of
non-joinder. It is trite that all parties who have material and
direct interest in the outcome of the
proceedings should be joined in
such litigation. See
Gordon v Department
of Health: KwaZulu-Natal
[2008] 11 BLLR 1023
(SCA).
[17]
In the present instance there can be no
doubt that the Benoni Fire and Essential Services had an interest in
the matter. Its interest
is revealed even by the fact that they
brought an application to compel the respondent to take further steps
in the prosecution
of its appeal. The applicants have not joined the
Benoni Fire and Essential Services in the present matter. In my view
for this
reason alone the applicants’ application stand to
fail.
[18]
The other reason why the applicants’
case should fail is because of the basis upon which they relied on in
support of their
claim. In this regard the applicants relied on the
declaration in the judgment of Modise AJ, which was referred to
earlier in this
judgment. The applicants were never a party to the
proceedings nor did they ever sought to join the proceedings that
finally led
to the declarator.
[19]
In
SA Mutual
Life Assurance Society v Durban City Council
1948 (1) SA 1
(D),
the Court held that the declaratory order is conclusive only in as
regards the grounds with which it deals with, and cannot affect
the
right of persons who were not party to the proceedings. See also
Ex
Parte Van Schalkwyk N.O. and Hay N.O.
1952 (2) SA 407
(AD).
[20]
As indicated above the applicants were not
party to the proceedings that resulted in the order issued by Modise
AJ, neither did
they ever seek to be joined therein. Thus the
applicants are not entitled to approach this Court on that basis. In
my view, based
on the above reasons the applicant’s application
stand to fail. The applicants have failed to make out the case to
support
the relief they are seeking in their notice of motion.
[21]
I see no reason in fairness and law why the
costs should not follow the results.
[22]
In the premises the applicants’
application is struck of the roll with costs.
_______________
Molahlehi
J
Date
of Hearing :
27
th
October 2009
Date
of Judgment :
22
nd
December 2009
Appearances
For
the Applicant :
Adv F Venter
Instructed
by :
Alan C. Knight Attorney
For
the Respondent: Adv West
Instructed
by :
Du Plessis De Heus
& Van Wyk Attorneys