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[2011] ZALCCT 33
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National Bargaining Council for the Clothing Manufacturing Industry v Z Knitting CC (C179/2011) [2011] ZALCCT 33 (25 March 2011)
C179/2011
3
JUDGMENT
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
CASE NUMBER
: C179/2011
DATE
: 2011-03-25
In the matter between
:
NATIONAL BARGAINING COUNCIL FOR
THE CLOTHING MANUFACTURING INDUSTRY
…....................................
APPLICANT
and
Z KNITTING CC
…....................................................................................
RESPONDENT
J U D G M E N T
STEENKAMP J:
These are interpleader proceedings which, as is customary, are being
dealt with in terms of Rule 58 of the High Court Rules, as
the Labour
Court Rules do not specifically provide for such a procedure.
The applicant is the National Bargaining Council for the Clothing
Manufacturing Industry. The respondent is an entity called Z
Knitting
CC. The claimant is one Liang Yuan.
After having been served with the Rule 58 interpleader notice Mr Yuan
did not enter an appearance or submit any particulars of
his claim of
ownership of the attached goods, as he was invited to do. However, at
the hearing this morning Mr
Stubbings
, who appears for the
applicant, quite properly brought to my notice that Yuan had sent an
affidavit to the Bargaining Council.
That affidavit has not been
filed at court. Neither is Mr Yuan present at court today.
However, there is also an accompanying letter sent from Yuan’s
attorneys, Bezuidenhout Inc of Bloemfontein, dated 23 March
2011,
that is two days ago, that says the following:
“
We refer to the above matter and include
herewith an affidavit with annexures confirming Mr Yuan Liang’s
right to the said
attached property. We place further now on record
that an interpleader procedure would be held in Cape Town on Friday,
25 March
2011. However, our client is not in the financial position
to travel to Cape Town to oppose the attachment and we trust that you
can assist our client in receiving back his property.”
Mr Groenewald, who is the Legal Officer of the Bargaining Council,
responded to that letter yesterday, that is the 24
th
of
March, acknowledging the fax and pointing out that it does not
constitute valid service of any process in terms of the rules
of this
court, and that the Cuncil reserves its right to proceed with the
matter, whether or not Mr Yuan is present or represented
at the
hearing today.
Mr
Stubbings
submitted that in terms of Rule 58(5) I should
declare Yuan to be barred from making any claim in the circumstances
where he is
not present or represented today.
However, I do consider that this is a court of equity and that Yuan
appears to be resident in either Bloemfontein or Thaba Nchu
where
there is no seat of the Labour Court. I also take into account the
letter from his attorneys that he is not in a financial
position to
travel to Cape Town.
I will therefore consider the affidavit that he deposed to. In terms
of Rule 58(3)(b) the claimant must deliver particulars of
his claim
and as
Erasmus
points out in
Superior Court Practice
,
B-1400, the subrule does not expect of a claimant that he should
clothe his claim in the form of an affidavit. All that is expected
of
him is that he should furnish the particulars of his claim. The
purpose is to inform his opponent of the tenure of his case
in order
to enable the latter to decide whether or not to oppose the claim.
Although the rule does not require the claimant to set out his claim
with the same precision as in a pleading, Mr
Stubbings
also
referred me to
Corlett Drive Estates v Boland Bank Bpk en ‘n
Ander
1979(1) SA 863 (C) where Van Winsen J, as he then was,
said:
“
Die doel, onder andere, van die
uiteensetting van ‘n aanspraakmaker se besonderhede van sy
aanspraak is om sy teenstander
van die strekking van sy saak te
verwittig sodat laasgenoemde in staat gestel word om te kan besluit
of hy sy aanspraak gaan bestry
aldan nie
.”
The learned Judge then carries on to make the same point as that made
by
Erasmus
, concerning sufficient particularity of the claim.
Having perused the affidavit by Mr Yuan, I agree with Mr
Stubbings
that it does not set out with sufficient particularity that Yuan is
in fact the owner of the attached property. It merely makes
the bald
allegation setting out the property and saying that it belongs to
him. There is no proof attached to back up that bald
allegation.
In the circumstances I am not satisfied that the claimant has
established that he is in fact the owner of the attached goods.
With regard to costs, as I have said, I do take into account that it
appears that Mr Yuan was not in a position to appear today
and it
would have been very costly for him to attend the proceedings. In law
and fairness I do not consider a costs order to be
appropriate.
I therefore order that the claimant, that is L Yuan, is barred from
proceeding with his claim.
There is no order as to costs.
COURT ADJOURNS
: (at 10:41)
2011-03-25/11:04-11:12/EYL /...