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[2014] ZALCJHB 7
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Tadyn Trading CC t/a Tadyn Consulting Services v Steiner and Others (J 2845/13) [2014] ZALCJHB 7; (2014) 35 ILJ 1672 (LC) (7 January 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case
no: J 2845/13
In the matter
between -
TADYN
TRADING CC t/a TADYN CONSULTING SERVICES
Applicant
And
STEINER
YVONNE
First
Respondent
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
Second Respondent
THE SHERIFF
KEMPTON
PARK NORTH /TEMBISA/ MIDRAND
Third Respondent
Date
heard: 19
December
2013
Date
delivered: 07
January 2014
Summary: Application to stay writ of execution. The enquiry to
conduct is whether substantial justice requires the granting or
refusal
of the stay of the writ. The applicant having failed to file
the record on time, deemed to have withdrawn the review application
in terms of the Practice Manual. Practice Manual silent on
condonation. Application for condonation in the event of non
compliance
should be inferred. The legal force and effect of the
Practice Manual considered.
JUDGMENT
MOLAHLEHI J
Introduction
[1]
This is
an application in terms of section 158 [1] of the Labour Relations
Act,
[1]
in
terms of which the applicant seeks an order to stay the execution of
the writ issued pursuant the arbitration award
made under
case number GAJB 32999-12. In terms of the arbitration award the
dismissal of the first respondent was found to have
been both
procedurally and substantively unfair. It was for that reason that
the Commissioner awarded compensation in the amount
of R204 000 (Two
hundred and four thousand rand).
Background facts
[2]
The
first respondent was prior to the termination of her employment
contract employed by the applicant and was for that purpose
assigned
to perform her duties at the First National Bank (the FNB). It is
common cause that the fixed term contract between the
parties which
commenced after the extension during July 2011 was to expire on 31
January 2013. The FNB had a service level agreement
with the
applicant.
[3]
It is
apparent that towards the end of the fixed term contract the FNB
embarked on a restructuring process and accordingly indicated
its
intention not to renew its service level agreement with the
applicant. It is also apparent that it was for this reason that
the
FNB instructed the first respondent to leave its premises. Thereafter
the employee did not report for work. She viewed the
instruction to
leave the premises of the FNB as a dismissal and accordingly referred
a dispute concerning an alleged unfair dismissal
to the second
respondent the outcome of which, was as indicated earlier, being that
the employee was dismissed and that dismissal
was unfair.
[4]
The
applicant being unhappy with the arbitration award instituted review
proceedings. The arbitration award was issued on 11 March
2013 and
the review application was filed on 24 April 2013. The record in
terms of rule 7A of the Rules of the Court was made available
to the
applicant on 13 May 2013. It was uplifted on 16 May 2013 but was only
served on the first respondent on 21 August 2013.
[5]
The
employee on the other hand instructed the Sheriff to execute the
arbitration award as the applicant had failed to honour the
same. The
initial instruction was incorrectly directed at the execution against
the property of the applicant’s attorney
of record.
The issues
[6]
The
first issue to consider in this application relates to urgency. The
first respondent contends that the urgency is self-created
because
the applicant was aware of her intention to enforce the arbitration
award as early as 3 September 2013 when she served
the writ of
execution on its attorneys of record.
[7] The applicant on the other hand contends that it only became
aware of the writ of execution on 6 December 2013 when it was
served
on it.
[8]
A
proper assessment of the facts and circumstances of this case
indicates that denying the applicant the stay the writ of execution
would occasion an injustice. It is for this reason that that the
matter is treated as one of urgency.
[9]
As
concerning the merits of the application the question is whether
substantial justice requires the granting of the stay of execution
pending the outcome of the review application. The key consideration
in this respect is whether the underlying
causa
of
the judgment debt is being disputed or no longer exists. The first
respondent in this respect contends in essence that there
is no
underlying dispute in existence because the applicant is deemed in
terms of the Labour Court Practice Manual to have abandoned
the
review application. The applicant is deemed to have abandoned its
review application due to the noncompliance with the provisions
of
clause 11.2.3 of the Practice Manual. Clause 11.2.3 of the
Practice Manual provides:
“
If the Applicant fails to file a record
within the prescribed period, the Applicant will be deemed to have
withdrawn the Application,
unless the Applicant has during that
period requested the Respondent’s consent for the extension of
time and consent has
been given . . .”
[10] Although
the applicant does not dispute the force and effect of the practice
directive, it contends that its value is limited
to serving as a
guideline. The force and effect of the practice directives which have
been introduced by the Heads of Courts in
the various Courts received
attention in
Greenberg
v Khumalo
,
[2]
in
which the Court per Potgieter AJ, dealing with the directive
requiring an explanation for failure to appear at the roll call,
held
that:
“
On
my analysis the practice directive under discussion is procedurally
incompetent, has no legal effect, and should not be applied
either by
the registrar or a Court to constitute a bar to …the
allocation of a date (enrolment) for the hearing of an application.”
[11]
I do not, with due respect agree with the above approach. The correct
approach in my view, as to the force and effect of practice
directives similar the one in issue is the one adopted in Re: Several
Matters on urgent roll,
[3]
in which the Court had to consider the force and effect of the
provisions of the Practice Manual Chapter 9.24 of the South
Gauteng
High Court regarding the failure by the applicant to set out the
explicit circumstances which rendered the matter urgent.
The Court
held that in law the Judge President was entitled to issue practice
directives relating to the procedure of setting down
matters on the
roll.
[12] The applicant contends that consideration should be given to the
fact that it has made application for condonation for the
late filing
of the record of the arbitration hearing.
[13]
Although
the Practice Manual makes no provision for condonation for
non–compliance with the time frames provided therein,
it was
not disputed, correctly so, that application for condonation can be
inferred. The prospects of success in as far as the
condonation
application is concerned have not been put in question.
[14]
In
general the key factor to take into account when considering an
application for the stay of the enforcement of an arbitration
award
is the existence or otherwise of the underlying
causa
of the
dispute. This includes the issue of whether the machinery of the stay
of execution is being used for ulterior motive such
as frustrating
the respondent from enjoying the benefit derived from the arbitration
award.
[4]
In
Tony
Gois 5 t/a Shakespeare’s Pub v Van Zyl and Others
,
[5]
the
Court found that the applicant would not be able to challenge its
indebtedness if the stay of the writ of execution was not
granted. It
was further found that it would be futile to pursue the rescission
application if the stay of the execution of the
writ was not stayed
because the respondent was a man of straw who would not be a position
to repay the amount of indebtedness once
the rescission application
was successful.
[15] In the
present instance the key aspect for consideration is the issue of the
underlying causa which has to be weighed having
regard to issues
which the Commissioner in making his arbitration award had to take
into account. In this respect the
first
issue which the Commissioner had to consider was whether the employee
had been dismissed. In this respect the Commissioner
records in his
arbitration award that:
"35.
It is further common cause that the respondent had
not orally or in writing terminated the applicant's
contract
of employment.
Despite this being the case the applicant had not
reported for duty
nor did the respondent made any effort to enforce the contractual
obligation. A factual question had arisen whether
the applicant under
such circumstances was dismissed.”
[16]
The Commissioner concludes that the first respondent was dismissed on
the bases that the conduct of the applicant “had
created an
inference that the applicant was dismissed.” Furthermore, the
Commissioner found that the applicant could have
assisted the first
respondent in securing her employment by enforcing the notice of
termination clause in its agreement with the
FNB.
[17] The applicant’s review application, as appears on the
papers before this Court, raises the issue of whether the CCMA
had
jurisdiction to entertain the dispute as was formulated by the first
respondent. It is trite that the CCMA does not have the
power to
determine its jurisdiction.
[18]
In my
view the findings made by the Commissioner in relation to whether the
first respondent was dismissed raises a serious question
as to
whether the objective facts are such that they support the view that
the CCMA has jurisdiction. It may well be that the facts
which do not
necessarily appear on the pleadings for the purpose of this
application may be revealed by the transcript of what
transpired at
the arbitration proceedings. Those facts may support the view that
the CCMA does have jurisdiction to entertain the
dispute. That is a
matter to be determined by the review Court if condonation
application for the late filing of the record is
successful. As
matters stand at this stage the underlying dispute of whether the
first respondent was dismissed remains unresolved.
[19]
I need
to pause and say that in my view, having regard to the explanation
tendered for the delay of the filing of the record and
the short
period of 10 days delay, there are excellent prospects that the Court
will grant condonation.
[20]
In
light of the above, I am of the view that the applicant’s
application stands to succeed. However, I do not find it to have
been
unreasonable for the first respondent to have opposed the application
and therefore it would not be fair to allow costs to
follow the
results.
Order
[21]
In the
premises the following order is made:
1.
The
time limits prescribed by the rules of this Court are dispensed with
and the matter is treated as urgent.
2.
The
writ of execution issued against the property of the applicant
pursuant to the arbitration award made under case number GAJB
32999-12 is stayed pending the finalisation of the review application
filed under case JR848-13.
3.
There
is no order as to costs.
Molahlehi
J
Judge
of the Labour Court of South Africa
Appearances:
For the Applicant: Lee and Mc Adam Attorneys.
For
the First Respondent: Wright, Rose Innes Inc.
[1]
Act
66
of 1995
[2]
(2012)
JOL 29170
( )
[3]
(20130
4 SA 549
(GSJ)
[4]
Rham
Equipment (Pty) Ltd v Neville Lloyd & Others
[2008] JOL 22012
(LC).
[5]
(2003)
24 ILJ 2302 (LC).