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[2012] ZALCD 16
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Afripile (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (D 1085/11) [2012] ZALCD 16 (27 March 2012)
Not reportable
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
DURBAN
JUDGMENT
case
no: d 1085/11
In the matter between:
AFRIPILE (PTY) LTD
Applicant
And
CCMA
First Respondent
RASHEED AMOD
Second Respondent
Heard
:
9 March 2012
Delivered
:
27 March 2012
judgment
VAN NIEKERK J
The applicant seeks a rule
nisi
calling on the first and
second respondent to show cause why a writ of execution issued on 22
August 2011 under case number KNDB
4835/11 should not be stayed, and
attachments made pursuant to the writ set aside. The parties agreed
that given the exchange
of full affidavits, the matter should be
argued as if for a final order.
The writ has its origin in a settlement agreement concluded between
the parties on 14 July 2011. In terms of the agreement, the
second
respondent was to be reinstated on the basis that he would work
short time, and that his remuneration would be reduced
accordingly.
In addition, the applicant agreed to pay the second respondent the
sum of R 202 788, being unpaid salaries and contributions
to
retirement funding. The sum was to be paid in an instalment of R10
000 payable on 1 July 2011, R50 000 on 31 July 2011, and
the balance
in monthly instalments of R10 00 to be paid on the last day of each
month until payment of the full amount. The settlement
agreement was
made an arbitration award certified.
The second respondent contended that the applicant had failed to
comply with the terms of the agreement, and on 22 August 2011,
without notice to the applicant, he had issued the writ that is the
subject of these proceedings. The writ was issued in the
sum of R
188 039.98. That amount is calculated by deducting from the total
indebtedness in terms of the agreement (the agreed
figure of R 202
788, 00) plus salary claimed for April. May, June, July 2011, less
payments received of R10 000 on 20 July 2011,
R35 000 on 2 August
2011 and R5 000 on 5 August 2011. It is apparent from these figures
that the applicant was in default of
its obligations in terms of the
settlement agreement as at the date on which the writ was sought –
a total of R50 000 had
been paid, whereas an amount of R70 000
(excluding any salary payable post the second respondent’s
reinstatement).
In these proceedings, the issue of the alleged non-payment of
amounts in respect of the sale of the applicant’s assets
was
not pursued. The proceedings were confined to the issues of the
alleged non-payment of the settlement amount, and the alleged
non-payment of salary. The second respondent contends that he was
entitled to have the writ issued in the sum of R188 039.98
since the
settlement agreement contemplated his right to remuneration (albeit
at a reduced rate) post his reinstatement, and
that the agreement
contained an implied term to the effect that in the event of the
applicant’s default in respect of any
one payment, the full
amount then owing would become payable. In regard to the former
contention, the second respondent submits
that he was entitled to
appropriate the payments made to his salary then outstanding, which
he did.
This is not a dispute which I am able to determine on the papers
before me. First, it is not clear for what purpose the payments
by
the applicant to the second respondent were made. The payments were
not designated as being in respect of the settlement amount,
or the
second respondent’s agreed salary post reinstatement. If the
second respondent was entitled first to appropriate
amounts not
designated for any other purpose to payment of his salary (and this
appears from the e-mail correspondence attached
to the answering
affidavit to be what he did) then the writ was issued in the correct
amount. Secondly, it is clear to me that
the applicant’s
contention that it was not indebted to the second respondent as at
the date on which the writ was issued
cannot be correct. During
argument, the applicant’s representative appeared to concede
this, but was unable to quantify
the extent of the applicant’s
indebtedness, if any, at this point. In these circumstances, the
dispute between the parties
as to the extent of the applicant’s
indebtedness to the second respondent (if any) as at the date on
which the writ of
execution was issued is a matter that ought
appropriately to be referred for determination after hearing oral
evidence. The court
ought then to be in a position to decide whether
the writ was validly issued, and/or whether the attachment in terms
of the writ
ought to be set aside.
I make the following order:
The matter is referred to oral evidence for a determination of
whether the applicant was in breach of the settlement agreement
concluded between the parties, and in particular, the extent of the
applicant’s indebtedness to the second respondent,
if any, in
terms of the settlement agreement concluded between the applicant
and the second respondent, as at the date on which
the writ of
execution was issued.
Pending the outcome of the above proceedings, the enforcement of the
writ of execution issued under case number KNDB 4835/11
is stayed,
subject to the condition that the applicant shall be entitled to use
the attached property in the ordinary course
of business operations.
The costs of these proceedings are to be determined by the trial
court.
_______________________
Van Niekerk J
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Ms SM Herselman,
Barkers Attorneys
SECOND RESPONDENT:
G Harrison, instructed
by Haralambous Attorneys