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[2012] ZALCJHB 95
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Cross Border Supply Chain Solution (Pty) Ltd v Jordaan (JR 1465/11) [2012] ZALCJHB 95 (17 February 2012)
3
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR 1465/11
In the matter between:
CROSS BORDER SUPPLY
CHAIN
SOLUTIONS (PTY) LTD
..................................................................................
Applicant
and
CHARMAIN JORDAAN
...............................................................................
Respondent
Heard on: 23 November
2011
Delivered on: 17
February 2012
Summary
:
Writ of Execution rescinded – default arbitration award not
served on the applicant.
__________________________________________________________________
JUDGMENT
BOQWANA AJ
Introduction
[1] The applicant seeks
an order rescinding a writ of execution issued by this Court on 12
April 2011 under case number GPRFDC12598.
The application is
unopposed.
[2] The writ of execution
was issued pursuant to a default award made by the National
Bargaining Council for the Road Freight Industry
(‘the
bargaining council’) on 28 August 2010 against Svenfreight CC
t/a Express Cargo (‘Express Cargo’).
[3] The applicant
contends that the default award was against Express Cargo and not
itself. It contends that the respondent was
employed and dismissed by
Express Cargo and not by the applicant and therefore it should not
have been cited as an alternative
debtor on the writ of execution.
[4] Express Cargo and the
applicant had apparently been using the same premises having entered
into a working agreement on 18 January
2010. In terms of this
arrangement, Michael Kapp (‘Kapp’), the owner of the
applicant was responsible for the day to
day management of Express
Cargo. This, the applicant alleges was due to Mark Svenningsen
(‘Svenningsen’) the owner
of Express Cargo’s
travelling commitments and not being able to personally manage
Express Cargo. The applicant alleges that
the fax numbers remained
separate. The fax numbers for Express Cargo was allegedly 011 397
3022, whilst the applicant’s
fax number was 086 602 4213.
[5] The relationship
between the two companies however went beyond that. A decision was
taken for the applicant to take over the
customer base of Express
Cargo on 01 May 2010.
[6] On 01 September 2010,
the applicant and Express Cargo entered into a sale agreement with
the applicant purchasing business assets,
debtors’ book and
customer base concern excluding liabilities. Employees were to be
retained by the seller and no employees
would be transferred with the
business assets. Effectively after the sale Express Cargo was
non-operational.
[7] Ms Dippenaar, who
appeared for the applicant conceded that the sale effectively
amounted to a sale of a business as a going
concern. Although she was
at pains to try and convince the Court that the sale was not the one
contemplated by section 197 of the
Labour Relations Act
1
(‘LRA’). She
however had to concede that if the sale was a sale of the business as
a going concern then employees would
be transferred to the applicant,
the new employer by operation of law, regardless of whether or not
the sale agreement excluded
them.
[8] On 31 May 2010,
Express Cargo issued the respondent with a letter that her services
were no longer required. The letter was
signed by Kapp.
[9] The respondent took
the Express Cargo to the bargaining council. In her referral form,
she cited both Express Cargo and the
applicant as the employer. Kapp
and one Debra Cronje (‘Cronje’) attended conciliation. At
conciliation, Kapp signed
on behalf of the applicant and mentioned
the applicant’s name. Kappa also entered 011 397 3022 as
the fax number. Effectively,
Kapp acted as manager in both companies
and would be aware of the activities both in Express Cargo and the
applicant. The argument
that the applicant was not aware of the
arbitration proceedings because its specific fax number was not used
is of no purpose in
my view. As an overall manager of operations Kapp
ought to have been aware of the activities and any documents received
by Express
Cargo.
[10] The arbitration
hearing proceeded on 24 August 2010 in the absence of Express Cargo
or the applicant .The notice of set down
was faxed to 011 397
3022. A default award was accordingly made in favour of the
respondent on 28 August 2010. The default
award appears to have been
faxed to 011 397 8158. It is not clear whose fax number that was
as it does not seem to appear
on any of the referral papers.
[11] The writ of
execution was issued by this Court on 12 April 2011. It appears that
this was done so pursuant to section 143(3)
of the LRA which makes
the arbitration award enforceable after being certified by the
Director of the CCMA. Apart from this writ,
no other documents such
as the LRA Form 7.18 were attached to these proceedings. It can
therefore not be verified whether the certification
of the award was
done and if so whether proper service to the applicant and/or Express
Cargo was done. The fax number where the
default award was seemingly
served is not the one provided by the employer in the attendance
register or mentioned in any of the
referral forms. It is purely on
this ground alone that I would grant the rescission of the writ of
execution.
[12] I therefore make the
following order:
1. The writ of execution issued on 12 April 2011 under case number
GPRFBC12598 is rescinded;
2. There is no order as
to costs.
_________________
BOQWANA AJ
ACTING JUDGE OF THE
LABOUR COURT
APPEARANCES:
FOR THE APPLICANT: Ms A
Dippenaar, Du Randt, Du Toit, Pelser Attorneys, Rosebank
FOR RESPONDENT: No
appearance
1
Act
No 66 of 1995