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[2010] ZALCCT 31
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Cellucity (Pty) Ltd v CWU obo Peters and Others (C647/2010) [2010] ZALCCT 31 (12 August 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
IN CAPE TOWN)
CASE
NUMBER
: C647/2010
DATE
:
12 AUGUST 2010
In
the matter between:
CELLUCITY
(PTY) LIMITED
Applicant
and
CWU
ON BEHALF OF MS E PETERS
1
st
Respondent
THE
REGISTRAR OF THE LABOUR COURT
2
nd
Respondent
THE
SHERIFF OF THE HIGH COURT
3
rd
Respondent
J
U D G M E N T
STEENKAMP,
J
:
This
is the return day of a
rule nisi
,
which was granted by agreement following an urgent application on 29
July 2010. The application is one to stay a writ of
execution
issued by the second respondent, the Registrar of the Labour Court,
and the warrant of execution effected by the Sheriff
of the High
Court, the third respondent, on 12 July and 21 July 2010
respectively.
The
background to this application is that an arbitration award was made
in favour of the individual first respondent, Ms E Peters,
who is
assisted in this matter by her trade union, the Communications
Workers Union, on 4 September 2009 under case number WECT 9584-09.
On 21 October 2009, the applicant filed a review application in terms
of section 145 of the Labour Relations Act, read with Rule
7A.
The notice of motion was dated 8 October 2009 and was filed on 21
October 2009, together with a supporting affidavit
by one Bridget
Fonseca. (Her surname was misspelt as Fonesca in the opening
paragraph of that affidavit). She is the applicant’s
human resources manager, responsible for industrial relations
matters. Ms Fonseca also deposed to the founding affidavit
in
this urgent application.
Two
significant aspects appear from that affidavit forming part of this
application before me today. Firstly, when the application
was
launched, the so-called affidavit was unsigned. Of course it did not
constitute an affidavit properly speaking at that stage.
A
faxed signed copy of an affidavit without a case number was only
handed up to Court this morning and given to Mr
Jacobs
,
the trade union official appearing for Ms Peters, at the same time,
ie at the commencement of these proceedings. No original
affidavit has yet been filed. What is also significant is that
Mr
Marais
of Snyman Attorneys, who appears for the applicant, stated from the
bar that the affidavit was “compiled” by his colleague,
Mr Snyman.
In
paragraph 17 of that affidavit it is stated that the reason why the
applicant has not prosecuted the review application since
October
last year is that the CCMA only filed the record of proceedings
this
year
(my underlining). For the
record I point out that it is today 12 August 2010. It is also
stated in that paragraph of
the affidavit that the arbitration record
of the proceedings contained on one compact disc is “currently”
in the process
of transcription and should be completed within the
next two weeks. What is not stated in the affidavit is when the
applicant
or its attorneys gave that compact disc to the transcribers
in order to be transcribed. Neither could Mr
Marais
assist me from the bar, despite the Court having stood down for him
to attempt to contact Mr Snyman, which he was not able to do.
He could also not tell me who the transcribers are or when the CD was
given to them.
What
is worrying is that this evidence on affidavit is not borne out by
the court file in the review application, which is case
number
C733/2009. What appears from the review application is that the
CCMA in fact filed the record on 30 October 2009.
The CCMA
issued a notice of filing in compliance with Rule 7A(3) read with
Rule 7A(2)(b) on 30 October 2009 and sent the hard copy
of the
record, comprising all the documents that were dealt with at
arbitration, to Snyman Attorneys by registered mail on that
same day.
Also
on the same day, i.e. 30 October 2009, the registrar of this court
sent a fax to Snyman Attorneys containing a notice in terms
of Rule
7A(5), noting that in this review one CD and the contents of the
CCMA’s file, had been filed with the court.
It also
notified Snyman Attorneys that the applicant must uplift the CD for
transcription within 30 court days. Despite this,
the applicant
and its attorneys did nothing to comply with Rule 7A(6) and Rule
7A(8). The next significant moment is on 18
May 2010 when the
registrar of this court again sent a fax to Snyman Attorneys,
referring to this review application,
Cellucity
v CCMA & Others,
and stating:
“
The
above matter refers. Please note that the applicant must file
his application in terms of Rule 7A(6) and Rule 7A(8) within
five
days of receiving this notice. In order for the latter to
proceed, the above has to be complied with.”
Once
again the applicant and its attorneys did nothing. It appears
that it was only when the sheriff arrived at the applicant’s
premises to attach its goods on 21 July 2010, that the applicant and
its attorneys were prompted into action. However, they
still
waited for a week before serving an urgent application, together with
an unsigned document purporting to be an affidavit,
on the first
applicant’s trade union, CWU, on 28 July 2010, giving them
notice to appear in court the next day, on 29 July
2010. It is
in those circumstances on 29 July 2010 that the CWU agreed to a
rule
nisi
being issued with a return day in
two weeks’ time in order to give it an opportunity to oppose.
The matter thus came
before me today as an opposed matter.
With
regard to urgency, the applicant has not made out a case on its
papers why the matter is urgent, other than a bald statement
to say
that because the goods were attached on 21 July, the matter is
“therefore clearly urgent”. The relief
sought is
interim in nature, given that it is relief pending the finalisation
of the review application, although this is the return
day of a
rule
nisi
.
Mr
Jacobs
,
the union official, submitted that the applicant has not established
a
prima facie
right, much less a clear right. I agree with him. There
is no automatic stay of an arbitration award pending an application
for review. What is significant in this case is that the
applicant and its attorneys have dragged their heels for the last
11
months doing nothing to prosecute the review that it had launched
timeously.
Turning
to any harm caused by an execution, although it cannot be gainsaid
that the applicant will be caused some harm, it is not
irreparable.
If they do prosecute the review application and if they are
successful, they can take steps to recover the money
owing to Ms
Peters at this stage, which amounts to three and a half months’
salary.
The
balance of convenience clearly favours Ms Peters. She is an
individual who has been unemployed for the last 11 months,
following
what, in terms of the arbitration award forming the subject of the
review application, was an unfair dismissal.
I
do not express any view on the prospects of the review application at
this stage, but the award that stands until and unless it
is
reviewed, is at this stage cold comfort for Ms Peters, who was
awarded the equivalent of three and a half months’ salary
as
compensation, and it is now 11 months later. As I have pointed
out, the applicant and its attorneys have been far from
diligent in
showing any inclination to prosecute the review application. There is
no guarantee that if the stay of execution is
granted, they will
become more industrious.
With
regard to costs, the first respondent is represented by her trade
union and not by legal representatives. There are, therefore,
no
legal costs incurred, but the trade union official has incurred some
costs, including travel costs. I must say as an aside
that I
seriously considered ordering costs
de
bonis propriis
in this matter, given
that Mr
Marais
has stated that the affidavit attached to this application was
“compiled” by his firm of attorneys, specifically Mr
Snyman. It appears, on the face of it, that that affidavit
contains an untruthful statement that is intended to mislead this
Court. However, the affidavit was still deposed to by Ms
Fonseca, albeit belatedly, and I will do no more than to ask the
registrar to bring this judgment to the attention of the Law Society
of the Northern Provinces.
I
make the following order:
1.
The
rule nisi
issued on 29 July 2010 is discharged.
2.
The applicant is ordered to pay the first respondent’s
reasonable costs, including the union representative’s
travel
costs occasioned by this application.
__________________
STEENKAMP,
J
Date
of hearing and judgment: 12 August 2010
For the
applicant:
PD Marais of Snyman attorneys
For
the first respondent:
C Jacobs of CWU (trade union
official)