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[2012] ZALCJHB 19
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Tas Appointments & Management Services v Mavuso and Others (J11/12) [2012] ZALCJHB 19; (2012) 33 ILJ 2196 (LC) (20 February 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Reportable
Case No: J11/12
In the matter between:
TAS APPOINTMENTS & MANAGEMENT
SERVICES
….......................................
Applicant
and
NKOSIKHONA MAVUSO & 10 OTHERS
….............................................
First
Respondents
THE SHERIFF – JOHANNESBURG
CENTRAL
…...............................
Second Respondent
COMMISSION for CONCILIATION,
MEDIATION AND
ARBITRATION
….......................................................................................
Third
Respondent
COMMISSIONER WYNAND STAPELBERG
…......................................
Fourth
Respondent
Heard: 2 February 2012
Delivered: 20 February 2012
Summary: Subsequent to being
granted an order to stay the execution of a writ pending the
finalisation of a review application,
the applicant’s review
application was dismissed owing to its inordinate delay in its
prosecution. The extent of the delay
for no valid reason tilts the
balance of convenience in favour of the first respondents and
justifies the refusal of a similar
application to afford the
applicant an opportunity to pursue the same review application.
JUDGMENT
LALLIE J
In this application, the applicant
seeks an urgent interim order for the stay of the writ of execution
dated 9 December 2011,
pending the filing and finalisation of a
rescission application dismissing its review application.
The applicant seeks a further order
that in the event of the above order being granted, the writ of
execution be further stayed,
pending the determination of a review
application under case number JR1295/10, which was submitted on 12
July 2010.
The application is opposed by the
first respondents.
The facts
The facts of this application are
generally not in dispute and are briefly as set out below.
The applicant dismissed the first
respondents in November 2009. The first respondents challenged their
dismissal at the third
respondent. In an arbitration award dated 5
May 2010, the fourth respondent found the dismissal of the first
respondents unfair
and ordered their reinstatement and payment of
money equivalent to five months’ remuneration to each of the
first respondents.
A writ of execution was issued
against the applicant in favour of the first respondents to satisfy
the payment of the sum of R108
571.50 due to the first respondents
in terms of the arbitration award.
On or about 12 July 2010, the
applicant launched an application to review the arbitration award.
On 20 July 2010, the writ of
execution was stayed, pending the
filing and finalisation of the rescission and review applications.
Owing to the applicant’s
excessive delay in prosecuting the
review application, the first respondents moved an application in
terms of Rule 11 of the
Labour Court Rules on or about 16 September
2011 for the dismissal of the review application. The dismissal of
the review application
was unopposed and on 7 December 2011 the
applicant’s review application was dismissed
On 9 December 2011 a writ of
execution was issued for the attachment of the bank account of the
applicant for the payment of the
money due to the first respondents
in terms of the arbitration award in the global amount of R108
571.50 and the second respondent’s
costs in the sum of R1
268.14. The applicant reacted by launching an urgent application on
18 January 2012 for the stay of the
execution of the writ issued on
9 December 2011, pending the determination of the review application
under case number JR1295/2010
filed on 12 July 2010. That
application was dismissed, with costs, mainly because the review
application had already been finalised
when it was dismissed on 7
December 2011.
The urgent application:
In the present application, the
applicant seeks an urgent interdict to stay the writ issued on 9
December 2011, pending the filing
and finalisation of a rescission
application of an order dismissing its review application. Should
such application be granted,
the applicant seeks an order to further
stay the execution of the writ, pending the finalisation of the
review application it
launched on 12 July 2010.
Special Pleas
The first respondents raised two
Special Pleas. The first is
res
judicata
. They submit that
this matter is
res judicata
as this is a second application the
applicant is launching under the very same case number. They further
submit that the application
was dismissed on its merits on 19
January 2012. On that basis the first respondents sought to have
this application dismissed,
with costs.
The Plea of
res
judicata
is available when
final judgment has been given in proceedings between the same
parties, on the same cause of action and for the
same relief.
1
On 19 January 2012, the applicant
sought the stay of the execution of the writ, pending the
finalisation of a review application.
In the present application,
the applicant seeks different relief; it seeks the stay of the
execution of the writ, pending the
filing and finalisation of a
rescission application and in the event of that Order being granted,
the applicant seeks a further
stay of the execution of the writ,
pending the finalisation of the review application it launched on 12
July 2010.
The relief the applicant seeks is
materially different from the one it sought in the urgent
application launched in January 2012.
The rescission of the order
dismissing the applicant’s review application did not form
part of the urgent application which
was launched by the applicant
in January 2012. The Special Plea of
res
judicata
is therefore
dismissed.
The second Special Plea raised by the
first respondents is the absence of an underlying
causa
.
I will deal with this argument simultaneously with the requirement
that the applicant needs to have a right to be protected
before its
application can be granted as they cover similar principles. The
basis of the argument is that the relief sought by
the applicant is
not capable for being granted as the applicant’s review
application was disposed of when it was dismissed
on 7 December
2011. The first respondents further argued that the execution of the
writ cannot be stayed, pending a rescission
application which is not
even before Court.
The first respondents sought to rely
on the decision in
Tony
Gois t/a Shakespeare’s
Pub v Van Zyl
and
Others,
2
where it was held that an underlying
cause must exist before an order staying execution could be granted.
In the absence of the
underlying
causa
,
so the argument went, the applicant lacked the right capable of
being protected by an interim order.
For an interim order to be granted
the applicant needs only prove a
prima
facie
right. The applicant
seeks the stay of the writ of execution, pending the filing and
finalisation of a rescission application.
The applicant has a right to apply
for the rescission of the order dismissing its review application,
even if that right is open
to some doubt. The applicant’s
failure to file the rescission application before the current one
does not negate that right.
I therefore disagree with the first
respondents’ contention that there is no underlying
causa
,
because the rescission application to be launched constitutes an
underlying
causa.
The applicant need only establish a
prima facie
right,
though open to some doubt.
3
In the circumstances, I find that the
applicant has a right to be protected.
Another requirement for the grant of
urgent relief is that the balance of convenience must favour the
applicant. The applicant
submitted that the balance of convenience
favours it as it will suffer prejudice should this application be
refused. The prejudice
the applicant relied on is that it will
suffer irreparable financial harm.
The applicant further submitted that
the payment of an amount due to the first respondents in terms of a
writ with interest will
place serious strain on its operating
capital.
The first respondents denied that the
balance of convenience favours the applicant mainly because the
applicant squandered the
fair opportunity it was afforded to
challenge the arbitration award which resulted in the writ being
issued.
The first respondents also submitted
that the grant of this application may result in the applicant being
unable to satisfy its
obligations in terms of the arbitration award.
The first respondents sought to rely on the following paragraph in
the decision
of
Ndauti v
Kgami and
Others
4
:
‘
[16]
In determining the balance of convenience I am required to consider
the prejudice to the applicant should this application
be refused
against the prejudice to the respondent if it is granted.’
Should this application be refused
the applicant will suffer the prejudice of having to pay the amount
of R108 571.50 to the first
respondents, which they may be unable to
refund should the applicant be successful in both the rescission
application it intends
launching and the review application which
will be determined as a result of the success.
The prejudice the first respondents
will suffer should this application be granted is that in addition
to the 20 months they have
already waited from the date the
arbitration award in their favour was granted, they will have to
wait for the determination
of both the rescission and the review
applications. On 2 February 2012, the rescission application had not
been filed and the
hearing of the review application depends on the
applicant’s success in the rescission application.
The first respondents will be
prejudiced by a further delay because an order was granted in favour
of the applicant to stay the
execution of the first writ on 20 July
2010, pending the finalisation of the application to have the
arbitration award reviewed.
Notwithstanding letters enquiring about
the prosecution of the review application, the applicant failed to
take the necessary
steps to ensure that the review application was
prosecuted within a reasonable time. The first respondents
ultimately launched
an application for the dismissal of the review
application due to the inordinate delay in its prosecution. It was
granted on
7 December 2011 and the writ which is the subject of this
application was issued. Considering that the applicant was granted
an opportunity to pursue the review application which it failed to
seize for no valid reason, the first respondents will be prejudiced
should this application be granted because they will be compelled to
wait further for the implementation of the arbitration award
while
the applicant is granted a further opportunity to pursue its review
application. The applicant raised the possibility of
financial
difficulties in its papers. Should that possibility become a
reality, the applicant will be unable to pay the first
respondents
the money due to them in terms of the arbitration award and their
success at the arbitration will be obliterated
through no fault on
their part. For these reasons the balance of convenience favours the
first respondents.
I am satisfied that the applicant
will suffer irreparable harm should this application be refused as
the first respondents will
be unable to reimburse the sum of R108
571.50, plus interest, should the applicant be successful in its
rescission and review
applications. I am further satisfied that the
applicant has no alternative remedy. However, in determining whether
this application
should be granted its requisites should not be
considered in isolation, but in conjunction with one another.
5
The applicant has itself to blame for
being in a position of facing irreparable harm should this
application be refused by its
failure, for no valid reason, to
prosecute its review application within reasonable time after the
order to stay the execution
of the first writ was granted.
[28] For these reasons, this
application is dismissed. I found no reason for the costs not to
follow the result.
[29] In the circumstances, I make the
following order:
[29.1] The application is dismissed
with costs.
____________________
M Z N LALLIE
Judge of the Labour Court:
APPEARANCES:
FOR THE APPLICANT: Mr Jabangwane obo
Tas Appointments &
Management Services
FOR THE FIRST RESPONDENTS:
Mr. Voyi of Ndumiso Voyi Inc.
1
See:
Fidelity Guard Holdings (Pty) Ltd v
PUWU and Others
[2008] ZALC 85
;
[1998] 10 BLLR 995
(LAC).
2
[2003]
11 BLLR 1176 (LC).
3
Webster
v Mitchell
1948 (1) SA
1186
(W).
4
1948
(3) SA 27
(W).
5
In
this regard see:
Olympic
Passenger Services (Pty) Ltd v Ramlagan
1957
(2) SA 382
(D) at 383 E – F.