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[2011] ZALCD 47
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Corpco 280 CC T/A Richmond Coffin Manufacturers v Kunene and Others (D462/11) [2011] ZALCD 47 (28 October 2011)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
Not
Reportable
Case
no: d462/11
In
the matter between:
CORPCO
280 CC t/a
RICHMOND
COFFIN
MANUFACTURERS
Applicant
and
P
KUNENE
First
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
Second Respondent
KUSHY
RAMJATHAN
Third Respondent
THE
SHERIFF
RICHMOND
Fourth Respondent
Heard
:
10 June 2011
Delivered
:
10 June 2011
Date
hereof
:
28 October 2011
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
GUSH J
[1]
The applicant in this matter sought an
urgent stay of a sale in execution issued pursuant to an arbitration
award made in favour
of the respondent on 24
th
June 2005. On 10
th
June 2011 when the application was heard I dismissed the application
with costs in an ex tempore judgment in which judgment I set
out my
reasons for making that order. The applicant now applies for leave to
appeal against the dismissal of its application.
[2]
Immediately after the judgment was handed
down the applicant filed an application for leave to appeal against
my judgment and at
the same time brought yet another urgent
application for the same relief as it had applied for in its earlier
dismissed application
pending the outcome of its application for
leave to appeal.
[3]
The background to the matter is as follows:
3.1
On 24 June 2005 the CCMA made an award
under CCMA case number KNPM 846/05. In none of the applicants
numerous applications to this
court does the applicant attach a copy
of the order. The 1
st
respondent in his replying affidavit however avers that the award was
for an amount of R6000 which amount was to be paid within
15 days of
the award.
3.2
According to the first respondent, the
applicant did not comply with the award and he caused a warrant of
execution and attachment
to be served on the applicant on 9 December
2005.. As a consequence the applicant filed an application for
rescission of the award
with the second respondent which application
was refused on 10 May 2006.
3.3
On 7 June the applicant purported to launch
an application to review the award of the second respondent. The
applicant states in
its affidavit that this application was filed
under labour court case number D 353/06 and “is still pending
and has not been
finalised”. What the applicant disingenuously
failed to disclose in its application for the stay of the warrant was
that
it never filed the notice of motion with the court and has not
pursued the review despite the second respondent having complied
with
Rule 7A (3) and the court having served the applicant with a Rule
7A(5) notice on third August 2006.
3.4
In its application for rescission of the
award before the CCMA (the second respondent) the applicant averred
that there was no “legal
entity” Richmond Coffin
Manufacturers CC but that that was its trading name.
3.5
The first respondent recorded that he again
caused a writ of attachment to be executed on 14 May 2009, which
caused the applicant
to again aver and advise the first respondent’s
attorneys that Richmond Coffin Manufacturers CC was not a legal
entity.
3.6
On 13 May 2010 the first respondent applied
to the second respondent to change the citation of the applicant to
Corpco 280 CC t/a Richmond Coffin
Manufacturers
and a fresh writ was
issued on 5 November 2010 which application was granted on 27
September 2010.
3.7
On 10 December 2010 the 4 Respondent
attached goods belonging to the applicant.
3.8
On 25 January the applicant filed a second
application to review the award of the second respondent this time
the award substituting
Corpco 280 CC t/a Richmond Coffin
Manufacturers for Richmond Coffin Manufacturers, of the second
respondent under case number D55/11.
The applicant on this occasion,
however, deigned to file a notice of motion. In this application, as
in the urgent application,
the applicant repeated the averment that
the 2006 review is still pending and had not been finalised. As with
the 2006 review the
applicant has made no effort whatsoever to
prosecute this second review application.
3.9
On 3 June 2011 an advertisement appeared in
a local newspaper advertising the sale in execution in respect of the
attachment.
3.10
This caused the applicant to launch the
urgent application to stay the sale pending the outcome of the review
application it is
the order of this court in this application that
the applicant seeks leave to appeal against. The application was
opposed by the
first respondent.
[4]
It is abundantly clear from the papers that
the applicant at no stage has entertained any serious intention of
pursuing its applications
to review either of the awards of the
second respondent. Apart from disingenuously not taking the court
into its confidence regarding
the true circumstances surrounding both
its review applications and its failure to pursue either the 2006 or
the 2011 review, it
is obvious that the applicant only reacts when
the enforcement of the award is imminent.
[5]
The applicant offers no cogent explanation
why it seemingly abandoned finalising the review applications or at
very attempting to
prosecute them. This and the applicant’s
dilatoriness in no manner whatsoever justifies dealing with the
application as a
matter of urgency.
[6]
Not only is the matter not urgent but there
is no cogent reason offered by the applicant, given the circumstance
of this matter,
why it should be required to satisfy the award
pending the outcome of the review it insists is still pending but
which it has taken
no steps to finalise. The only reason the
applicant offers is that there is a danger the first respondent will
not be able to reimburse
the applicant if the review is successful.
This does not in all the circumstances constitute a sound reason for
staying the sale
in execution.
[7]
Having carefully considered the appellant’s
grounds of appeal I am not satisfied that another court would come to
a different
decision.
[8]
Accordingly I make the following order:
[9]
The applicant’s application for leave
to appeal is dismissed with costs.
_______________________
D H Gush
Judge
THE
APPLICANT:
Moosa
Desai: Managing member of the applicant
FIRST
RESPONDENT:
Govindasamy and Pillay Attorneys