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[2011] ZALCJHB 210
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Afriguard (Pty) Ltd v SCMAWU obo Mangane and Others (J 453/10) [2011] ZALCJHB 210 (29 March 2011)
IN THE LABOUR
COURT OF SOUTH AFRICA
HELD AT
BRAAMFONTEIN
CASE NO. J
453/10
In the matter
between:
AFRIGUARD
(PTY) LTD
..................................................................................................
Applicant
and
SCMAWU obo T
MANGANE & 4 OTHERS
...........................................................
1
st
Respondent
REGISTRAR OF THE
LABOUR COURT
N.O.
....................................................
2
nd
Respondent
SHERIFF
OF THE HIGH COURT, VEREENIGENG
..........................................
4
th
Respondent
___________________________________________________________________________
JUDGMENT
___________________________________________________________________________
LAGRANGE J:
Introduction
This is the return
day for an interim interdict staying the execution of four rates
issued by the court pending the determination
of an application for
a declaratory order sought by the applicant company, Afriguard (Pty)
Ltd. the various individual former
employees of the company in
favour of whom the writs of execution were issued are opposing the
application. When the matter was
originally set down for
determination on an urgent interim basis, it appears that there was
no opposition to the application,
but the matter is now opposed by
the first respondent, the union, which acts on behalf of the five
individual respondents.
The background to
the writs of execution
There are five
individual respondents. All of them had referred unfair dismissal
disputes to the Commission for Conciliation,
Mediation and
Arbitration (‘the CCMA’) following their dismissals in
August 2007. Save for the fifth individual respondent,
settlement
agreements were reached with all the other individuals. In the case
of the fifth individual respondent the matter
could not be resolved
and resulted in an arbitration award in the employee’s favour.
On 1 April 2008,
the settlement agreements and the award were made orders of court,
and writs were subsequently issued to enforce
those orders. The
applicant further claims that a number of subsequent writs of
execution were issued on 27 May 2008 all in amounts
higher than that
agreed in the arbitration award, which were only executed on 3
August that year when the Sheriff effected attachments
in terms of
the warrants.
It was this that
prompted the first urgent application to stay the warrants which the
court acceded to on 8 September 2009. An
interim order was granted
to stay the warrants and a return day was originally set for 2
October 2009 but was extended to 19
November 2009, when the interim
order was discharged. No reasons appear in the court file for the
discharge of the order. The
parties are at odds about the effect of
the order discharging the rule.
It is not necessary
for the purposes of this application to detail the amounts due in
terms of the various writs except to say
that the aggregate sum now
claimed is in excess of R 100,000-00. The applicant is seeking a
declaratory order to the effect that
none of the individual
respondents are entitled to any further relief arising from the
settlement agreements and the CCMA award
which were the basis of the
writs of execution and, in particular, any further payments in terms
of the writs. The application
for a declaratory was brought under a
separate case number J2724/09 and was launched on or about 10
December 2009. The founding
affidavit in the matter is specifically
incorporated in the applicant’s founding affidavit in this
interlocutory application
to stay the execution of the writs pending
the determination of the main application. According to the
applicant, the application
for declaratory relief is not opposed,
but the first respondent denies this.
Unavoidably, it is
necessary to consider the merits of that application, without
deciding them, in order to determine whether
the rule should be
confirmed or discharged. It must be stressed that in this matter in
the court is considering the merits only
from the perspective of
assessing whether or not the applicant has a reasonable prospect of
success in that application.
Although there are
common elements to the applicant’s justification for not
giving effect to the various writs, it would
be convenient to deal
with each claim separately.
The unfair
dismissal dispute concerning the first individual respondent was
settled at the CCMA. The most important terms of that
settlement
agreement were that the employee agreed to report for work at the
applicant's head office on 4 November 2007 at 10h00,
and the
applicant would pay him backpay with a gross value of R 6,920-00 by
8 November 2007. The applicant claims that he never
reported for
work at the time specified or thereafter. It admits not paying the
arrear backpay by the due date, but claims that
it was paid by way
of a cheque issued on 14 December 2007, which was collected on
behalf of the employee on 17 January 2008.
According to the face of
a copy of a cheque made out in favour of the employee it would
appear to have been banked on 30 January
2008.
In the case of the
second and third individual respondents, both were dismissed on 14
August 2007 for misconduct, and a settlement
agreement appears to
have been concluded at the CCMA conciliation meeting on 26 November
2007. In terms of the agreement they
were to be reinstated on 3
December that year and would receive two payments, one for unpaid
salary, and the other for backpay
in respect of their reinstatement.
According to the applicant, neither of the employees reported for
work on 3 December 2007,
and it provides evidence of a note signed
by the second individual respondent on 13 August 2008 in which she
demanded her money
and indicated she was attending a nursing school
and would return when she finished the course in 2010. As in the
former case,
a copy of a cheque in favour of her and banked on the
same date as the first individual respondent's payment was banked,
is attached.
The applicant alleges that the unpaid wages were paid
by electronic transfer, but there is no clear extrinsic evidence of
this.
The fourth
individual respondent was also dismissed in early August 2007. A
case of unfair dismissal was referred to the CCMA
and a settlement
agreement was conclude on 13 November 2007 in similar terms to those
of the other individual respondents. There
is evidence of a cheque
being issued in favour of the employee but it was only issued in
August 2009 and does not seem to have
been banked, whereas in its
founding affidavit the applicant claims that the payment was made on
30 November 2007. In this instance
there appears to be a disjuncture
between the claim made in the affidavit and the evidence of payment.
The fifth
individual respondent appears to have been dismissed on the same
date as the fifth respondent namely 5 August 2007.
The fifth
respondent's matter was set down for arbitration on the 7 November
2007 and in terms of the arbitration award the applicant
was ordered
to reinstate the sixth respondent. He was directed to report for
duty on 7 December 2007. The applicant was further
ordered to pay
him backpay of approximately R8,300-00 within 21 days of the award.
As in the other cases, the applicant claims
the employee never
reported for work and it claims to have paid out the backpay on 24
December 2007. Again, though there is a
payment authorisation
bearing the date 24 December 2007, a cheque for the amount only
appears to have been issued at the same
time as the cheque for the
fourth individual respondent in August 2009.
The main
contentions of the parties
The first
respondent contends that when the court finally declined to grant an
order staying the writs that was the final pronouncement
on their
status and the applicant had no alternative but to comply with the
original orders or to accept execution of the writs.
The applicant
claims that the learned judge presiding in the matter simply refused
to confirm the rule because there were no
pending proceedings for
example to challenge the validity of writs themselves, which would
have justified the execution of the
writs being stayed until the
outcome of those proceedings.
This application
now seeks to stay the execution of the writs once again, but on this
occasion pending the outcome of a declaratory
order that the
applicant has discharged its various obligations towards the
individual respondents in terms of the settlement
agreement and the
award. The first respondent disputes the applicant's contention that
it has not opposed the application for
declaratory relief and
attaches a copy of a registered postal slip bearing the address of
the applicant's attorneys which appears
to have been sent sometime
after 10 December 2009, which is when the declaratory application
was filed. Copies of the first respondent’s
opposing
affidavits were not attached in this application. Consequently, in
this hearing the first respondent has not placed
before the court
its response to the allegations in the applicant’s account of
the manner in which it claims to have discharged
its various
obligations under the settlement agreements and award.
Regrettably, this
makes it difficult for the court in assessing the prospects of
success of the applicant to consider if there
is a serious dispute
over the applicant’s allegations. It means that the merits of
the claim can only be assessed on the
applicant's own account. In
the summary above, it is clear that there appears to be some
problems with the extrinsic evidence
offered in the form of
supporting documents which relate to the claims of the fourth and
fifth individual respondents. However,
other than this, on the
evidence of the founding affidavit and supporting documents
appearing in the application for declaratory
relief, which the
applicant incorporated in its application for interim relief, I did
not really have a contrary version before
me. Owing to this, it must
be said that the applicant has reasonable prospects of succeeding in
demonstrating that it has discharged
its obligations at least
towards most, if not all of, the individual respondents.
The remaining issue
which must be addressed is whether the applicant is entitled to
bring this further application for interim
relief with the aim of
staying the execution of the writs, after an application for a final
order to this effect has been refused.
The essential question this
raises is whether a judgement in the main application pending before
this court would have the effect
of overturning the earlier decision
on this court refusing to stay the execution of the writs and would
be contrary to the principle
of
res
judicata
.
This defence can be
raised when a plaintiff demands the same thing on the same ground as
it did in a previous case. The question
is,
has
the same issue now before the court been finally disposed of in the
first application?
1
It is true that in
this application the relief sought, albeit now only on an interim
basis, would be the same as the previous
one (the staying of the
writs) and concerns the same subject matter (the same writs) and the
same parties. However, the final
relief sought in the pending
application for a declaratory order is not the same.
The judgment of my
brother, Cele J, did not require him to make any decision on whether
or not the applicant had discharged its
obligations. That issue was
not before him. In fact, when one considers the relief sought in
that application, it was not founded
on any cause of action at all,
which is doubtless why the learned judge finally dismissed it. To
hold that Cele J’s decision
included a determination of the
dispute whether or not the applicant had discharged the obligations
underlying the writs would
be wrong.
In the
circumstances, since the application before me is only to stay the
writs
pending
the determination of a dispute not previously
considered by the court, and is not an application for final relief,
I think it
has to be considered in the light of the main application
to which it relates. It is true that if the court ultimately finds
that the applicant has discharged its obligations towards the
individual respondents, the effect must be that the writs cannot
be
enforced, but then that will be a determination based on a proper
cause of action which was not apparent in the original application
to set the writs aside. It cannot be said that the cause of action
on which the main application is based is the same, and the
relief
now sought regarding the writs is merely interlocutory in nature.
Consequently, I am satisfied that the requirements of
res
judicata
have not been met and that principle is not an obstacle
to this application.
Conclusions
I am satisfied that
the applicant has demonstrated a reasonable prospect of success in
respect of most of the claims underlying
the writs which have been
issued and that because this is an application for interlocutory
relief pending the outcome of a claim
based on a new cause of
action, the principle of
res judicata
does not prevent this
application from being entertained.
On the question of
costs, I believe that the applicant should have brought the main
application when it initially sought to set
aside the writs and its
conduct of the litigation has been unnecessarily drawn out as a
result. It has put the first respondent
to unnecessary expense in
this regard, and I believe it would not be equitable for the first
respondent to bear the costs of
opposing the interlocutory
application.
Order
In the light of the
above a final order is made in the following terms:
[21.1] Pending the
determination of the application for declaratory relief under case
number J 2724/09 –
a. the execution of
all writs issued under case numbers J11/08, J12/08, J 13/08 and J
14/08 are stayed, and
b. the attachment
effected by the third respondent pursuant to the writs mentioned
above is set aside.
[21.2] The applicant
is ordered to pay the first respondent’s costs of opposing this
application.
[21.3] The registrar
is directed to set down the application for declaratory relief under
case number J 2724/09 on the opposed motion
roll on an expedited
basis.
ROBERT
LAGRANGE
JUDGE
OF THE LABOUR COURT
Date of hearing:
20 May 2010
Date of judgment:
29 March 2011
Appearances:
For the
Applicant: R J C Orton of Snyman Attorneys Inc.
For the First
Respondent: A Paile of Paile Attorneys
1
See
National
Sorghum Breweries (Pty) Ltd t/a Vivo Africa Breweries v
International Liquor Distributors (Pty) Ltd
[2001]
1 All SA 417
(A)
at
419, paras [2] –[3]