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[2014] ZALCJHB 127
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Pan South African Language Board v Feni and Others (J2486/2012) [2014] ZALCJHB 127 (17 April 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: J 2486/2012
PAN
SOUTH AFRICAN LANGUAGE
BOARD Applicant
And
ZIXOLISILE
FENI First
Respondent
THE
SHERIFF OF THE HIGH
COURT Second
Respondent
ABSA
BANK
(PRETORIA) Third
Respondent
Heard:
7 November 2013
Order:
7 November 2013
Full
Reasons: 17 April 2014
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
On 7 November 2013 being the return date, and having heard the
application before Court, I had issued an order in the following
terms;
1.1
The Applicant’s application is dismissed.
1.2
The Rule Nisi issued by this Court on 1 November 2013 is discharged.
1.3
The Applicant is ordered to pay the costs of this application.
[2]
I was not aware that the applicant had made a request for the reasons
for the order until about 17 February 2014 when correspondence
from
its attorneys of record was forwarded to me in that regard. Hereunder
follows the full reasons for the order.
Background
to the application:
[3]
Following his dismissal by the applicant, in June 2010, the First
Respondent (Feni) obtained an award, on 7 November 2012, from
the Commission For Conciliation, Mediation and Arbitration in terms
of which the applicant was ordered to reinstate him by 3 December
2012 and to pay him arrear salary in the amount of R1 742 416. 57.
The Applicant launched an application to review and set
aside that
award. That application was dismissed with costs by Molahlehi J on 26
July 2013, and the arbitration award was also
made an order of court.
[4]
Notwithstanding the court order, the Applicant still failed to comply
with the arbitration award. This necessitated Feni to
obtain a writ
of execution authorising the second respondent (Sheriff) to freeze
the Applicant’s bank account held with the
Third Respondent
(ABSA).
[5]
On 8 August 2013, the applicant approached the Court on an urgent
basis to nullify the writ of execution. It appears that the
parties
were implored by the Court to find a resolution to the dispute. This
had resulted in a settlement agreement which was made
an order of
Court. Feni was to report back for duty on 1 October 2012 and also be
paid his arrear salary on that date. On 2 October
2013, an
undertaking was made that Feni would be paid his area salary minus
the necessary tax deduction. Feni agreed to such deductions
being
made.
[6]
At some point, Feni received a salary advice in respect of amounts
paid to him. However, two amounts totalling R74 300.00 were
withheld,
and certain other amounts relating to increases from July 2010 to
November 2012 were not included. Having made enquiries
as to the
reason these amounts were not included or deducted, he was informed
that the deductions were made in respect of provident
fund
contributions and some other amounts deducted as a result of a
previous High Court order. Be that as it may, further payments
were
made to Feni in respect of the arrear salary. As at 3 August 2013,
not all amounts had been paid and the applicant had not
acceded to
Feni’s requests to reverse the deductions. On 15 October 2013,
Feni approached the Sheriff for execution of the
writ. On 17 October
2013, the Sheriff attached the Applicant’s bank account, and
the Applicant filed this application on
1 November 2013.
[7]
On 1 November 2013, Prinsloo AJ issued an interim order in the form
of a
rule nisi
, in terms of which the execution of the writ
was stayed pending the return date. The Sheriff was also directed not
to release the
funds to the Respondents until finalisation of the
matter.
The
Applicant’s submissions:
[8]
Piet Thokwana, the applicant’s Head of Human Resources deposed
to the founding affidavit in terms of which he contended
that the
purpose of this application was to rescind the writ of execution
granted on 17 October 2013. In the applicant’s
Notice of
Motion, it sought an order declaring the writ issued in the amount of
R873 063.23 to be null and void. The application
is brought in terms
of Uniform Rule 45A
[1]
.In the
same vein, Thokwana conceded that the writ was not based on any
judgment as the applicant had complied with the award granted
by the
court. He further contended that the writ was issued by mistake by
the Registrar as there was no order or judgment in the
amount in the
writ. He further alleged that a Mr. Gabo Dintshane from the office of
the Registrar’s office confirmed that
the writ was issued by
mistake and that he (Dintshane) would instruct the second respondent
to withdraw the writ. As a result Thokwana
contended that it was not
necessary to bring an application in terms of Uniform Rule 45A in
that as he contemptuously referred
to it, the writ issued by the
Registrar of this court was ‘a mere scrap of paper’.
[9]
Thokwana further submitted that on 22 October 2013, Johanna Leso, the
applicant’s legal officer was allegedly instructed
to conduct
an investigation at this court as to how Feni had obtained a writ
under case number JR2627/12 on 17 October 2013 and
whether there were
any supporting documents to substantiate the amount claimed as per
the writ. The Registrar of the court could
not allegedly trace the
file. A follow up meeting with the Registrar could not establish the
whereabouts of the file and no court
order could be found.
[10]
Thokwana submitted that Feni was paid his monies awarded in terms of
the arbitration award and the court order totalling an
amount of R2
266 858.75, and that certain tax and provident fund deductions were
made in terms of the tax and pension fund laws.
The writ of execution
was obtained in the amount of R873 063.23. Thokwana contended that
this amount was not mentioned anywhere
in the court order, and that
notices of taxation were received and the matter was set-down for 18
November 2013 under case numbers
JR2627/12 and JR308/13, in respect
of amounts that are nowhere near the amount mentioned in the writ. It
was contended that the
amount of R873 063.23 is unsubstantiated, and
it is not known how or on what basis the Registrar issued the writ.
To this end,
it was submitted that the writ was obtained unlawfully,
or alternatively in error hence a meeting was scheduled with the
Registrar
to instruct the second respondent to withdraw the writ.
Feni’s
response:
[11]
Feni raised two preliminary points which are relevant for the
purposes of consideration of this application. The first was
that the
Registrar was not cited even though the applicant sought the court to
declare null and void a writ which was issued by
the Registrar. It
was contended that in view of the allegations made against the
Registrar, she should have been cited.
[12]
Secondly, it was submitted that the interim order sought by the
applicant was ill-conceived and bad in law in that the applicant
did
not seek to stay the writ pending the challenge against its validity
as it should do by way of a review to set the writ aside.
[13]
In regards to the writ obtained, Feni submitted that following the
dismissal of the applicant’s review application on
26 July
2013, and after the applicant refused to pay him in terms of the
award, he obtained a writ of execution authorising the
second
respondent to freeze the applicant’s bank account held by the
third respondent. On 8 August 2013, the applicant approached
the
court to nullify the writ of execution. However, when the applicant
conceded that it owed him money, the court had refused
to grant it
relief. The parties were implored by the court to find settlement.
They had reached settlement, and the agreement was
made an order of
court.
[14]
Notwithstanding the court order that Feni be reinstated and paid his
arrear salary on or before 1 October 2013, the applicant
failed to do
so and was accordingly in contempt of court. On 1 October 2013, Feni
had still not been paid. On 2 October 2013, Thokwana
had informed
Feni that the applicant would deduct tax from his salary before
paying him. Feni had agreed in writing to the amount
being taxed.
Notwithstanding the agreement, Feni was still not paid. At some point
he had received a salary advice and had discovered
that not only was
tax deducted from his arrear salary, but the applicant had also
withheld two amounts totalling R743 000.00 and
the increases from
July 2010 to November 2012. Feni had raised concerns about the
deductions and was informed that the deductions
were in respect of
provident fund and other amounts allegedly paid before in terms of a
court order.
[15]
Feni further submitted that the deductions were not authorised as he
was not a member of a provident fund at the time as he
had withdrawn
from the fund in June 2010 after his dismissal. He was nevertheless
paid some amounts in August 2012 which were not
taxed except amounts
in respect July 2010 to May 2013. He was also re-registered as a
member of the provident fund and a new employee
in October 2013. To
this end, he submitted that since he was paid until May 2013, there
was no basis for the applicant to make
any deductions in respect of
the provident fund, and that any deductions in that regard should
have been from end of October 2013.
Despite requests to reverse the
deductions, this has not happened. Despite undertakings by the
applicant’s Zwane to reverse
the deductions, this has still not
materialised. Zwane had through his secretary, informed him that the
matter was to be addressed
at the applicant’s Exco on 15
October 2013.
[16]
Feni obtained a writ on 17 October 2013 but did not immediately serve
it on the second respondent. It was only on 19 October
2013 that he
approached the sheriff to execute that writ.
[17]
The applicant’s replying affidavit was curiously deposed to by
its Corporate Legal Manager, Leso Moeder, who basically
reiterated
that that the purpose of this application was to rescind the writ of
execution granted on 17 October 2013 under case
number JR2627/12 by
the Registrar of this court. She also alleged that Feni had
obtained the writ through “dubious
means” as he did not
make out a case for the money allegedly owed to him. She also
confirmed that Feni was paid R2 231 925.31,
but that certain tax and
provident fund deductions were made in terms of the tax and pension
fund laws. She also stated that although
the writ of execution was
obtained in the amount of R873 063.23, this amount was not mentioned
in any judgment or court order.
The
legal framework:
[18]
Since the applicant seeks a declaratory, section 158 (1) (iv) of the
Labour Relations Act empowers the court to grant such
orders. In
National
Employers' Association of South Africa v Minister of Labour
[2]
Van Niekerk J stated as follows:
‘
Section
158(1) (a) (v) empowers this Court to make declaratory orders.
Neither the LRA nor the Rules of this Court prescribe the
circumstances in which an order may be made. Section 19(1)(a)(iii) of
the Supreme Court Act 59 of 1959, entitles the High Court,
in its
discretion, and at the instance of an interested person, to enquire
into and determine any existing, future or contingent
right or
obligation, notwithstanding that such person cannot claim any relief
consequential on the termination. The granting of
a declaratory order
is dependent on the judicial exercise by the Court of its discretion,
with due regard to the circumstances
of the matter before it.
(Reference omitted) Section 19(1) of the Supreme Court Act
establishes a two-stage approach - the first
leg of the enquiry is
concerned with whether the applicant has an interest in an existing,
future or a contingent right or obligation;
the second is whether or
not the order should be granted.’
[19]
Furthermore section 151 (2) of the Labour Relations Act also empowers
the court to grant a stay of its orders. This section
provides that;
‘
The
Labour Court is a superior court that has authority, inherent powers
and standing, in relation to matters within its jurisdiction,
equal
to that which a court of a provincial division of the Supreme Court
has in relation to the matters under its jurisdiction.’
[20]
A court will generally grant a stay of execution where real and
substantial justice requires it or where injustice would otherwise
be
done. The court has a discretion that must be exercised judicially,
which is further based on the facts before it.
[3]
The discretion that the court enjoys is a wide one
[4]
.
[21]
In general a Court will grant a stay of execution were the underlying
causa
of the judgment debt is being disputed or no longer exists, or when
an attempt is made to use for ulterior purposes the machinery
relating to the levying of execution
[5]
.
[22]
In endorsing the principle of “real and substantial justice”,
Wagley J (as he then was) further stated the following
in
Tony
Gois t/a Shakespeare’s Pub v Van Zyl & Others
[6]
;
‘
An
application for a rescission, review or variation of an award
qualifies as an attack on the
causa
underlying the award. “Where an application for a
rescission or review or variation of an award is pending, there is
a
possibility that the
causa
underlying the writ may ultimately be removed’
Evaluation:
[23]
One of the grounds on which a stay of execution is regularly sought
in this Court is that there is a pending attack on the
underlying
causa
giving rise to the judgement debt, whether arising from
an order of this Court or an arbitration award made in the CCMA or a
bargaining
council, and enforceable by reason of the provisions of
section 143(1) of the LRA.
[24]
In this case, it was common cause that there is no pending attack on
the underlying
causa
giving rise to the judgment debt. The
question that arises is: on what basis, given that there is no
application for rescission
or variation of judgment or any order,
would a Court exercise a discretion to grant the application?
[25]
The applicant approached the court on an urgent basis with a view of
declaring the writ null and void. The only basis on which
the writ of
execution is currently sought to be nullified is that it was obtained
by “dubious means”. In this regard,
Thokwana contended
that the writ was not based on any judgment. At first, he contended
that the writ was issued by mistake by the
Registrar of this court as
there is no order or judgment awarding an amount of R873 063.23 to
Feni. He further relied on information
from a Mr. Gabo Dintshane from
the Registrar’s office that a mistake was made, and that he
(Dintshane) will instruct the
second respondent to withdraw the writ
as soon as he could find the court file.
[26]
Notwithstanding the “alleged mistake” and allegations
against Dintshane, there is no confirmatory affidavit from
Dintshane
to corroborate the alleged mistake. Secondly, other than the ‘alleged
mistake’, Thokwane, supported by Moeder
in the replying
affidavit have alleged that the writ was obtained by “dubious
means”. This is notwithstanding the fact
that Feni filed an
affidavit in support of the writ. It is not clear now as to whether
there was a “mistake” or whether
the writ was issued by
‘‘dubious means’’. Be that as it may, serious
allegations have been made against
a Registrar of this court, and in
essence the integrity of the office of the Registrar is being
questioned. However, no attempts
were made to cite the Registrar in
order to enable him to answer to any allegations against him or his
office.
[27]
The Registrar of the court is an officer of this court appointed in
terms of section 155 (1) (a) of the Labour Relations Act.
Any
aspersions cast on his office or any allegations of impropriety
levelled against his office are taken seriously by this court
as
these impact on the smooth and effective running of this court.
When it is baldly alleged that an official document such
as a writ of
execution is a “mere scrap of paper” which was obtained
through “dubious means” from the office
of the Registrar,
that writ cannot merely be set aside on that allegation without the
office of the Registrar being afforded an
opportunity to either
confirm or deny the allegations. Furthermore, it is not within the
powers of the office of the Registrar
to issue writs and then
withdraw them willy-nilly. If Dintshane had made such an undertaking
as alleged by Thokwane, this is a
matter that needs serious
investigation. There is thus no reason proffered for not citing the
Registrar in the light of the interest
that her office has in this
application. To this end, the preliminary point raised by Feni is
upheld.
[28]
The matter however is not disposed of merely on that preliminary
issue. A court will generally grant a stay of execution where
real
and substantial justice requires it or where injustice would
otherwise be done. It was common cause that the underlying
causa
that
led to the judgment debt is an order of this court in terms of which
inter
alia
,
the applicant’s application for review was dismissed, and the
arbitration award made at the CCMA was made an order of court.
Furthermore, the parties entered into a settlement agreement which
was made an order of court on 8 August 2012
[7]
.
In essence, the applicant has not attacked the
causa
underlying the writ.
[29]
On the whole, it appears that the applicant has resigned itself to
complying with the court order. The court order of Malindi
AJ of 8
October 2013 does not indicate an amount or quantum payable to Feni
and rightly so as the parties appear to have omitted
to include that
crucial aspect in the settlement agreement which was made an order of
court. In these circumstances, I fail to
appreciate what or where
injustice will be done if the applicant is obliged to make payments,
which on its own version it has admitted
it needs to make.
[30]
It appears that the parties’ dispute surrounds the exact amount
payable to Feni. This issue had necessitated the court
to intervene
and implore them to find a resolution on 8 August 2013, which they
did. The court cannot be burdened with the same
application involving
the same parties. One of the considerations in granting a stay of
execution is the interest that all parties
have in securing finality.
In this regard, as things stand, only the amount claimed in the writ
has been attached by the second
respondent, and this is the amount
that is the subject of disagreement. The applicant has remedies in
terms of section 34 of the
Basic Conditions of Employment Act where
it is of the view that there is a need to make any deductions to
payments to be made to
Feni.
[31]
Feni had correctly submitted that this application was ill-conceived
and is bad in law. The court cannot simply set aside a
writ in the
absence of an attack of the
causa
underlying the writ. Nothing
prevented the applicant from approaching this court for an interim
order pending the finalisation of
an application to vary the court
order in terms of section 165 of the LRA. However, no such
application was lodged. Instead, the
applicant approached the court
with serious allegations against the office of the Registrar, coupled
with hearsay allegations regarding
the conduct of the officials of
the office of the Registrar. It was further in the light of these
factors that a cost order was
deemed appropriate.
[32]
In
Polyoak
(Pty) Ltd v Chemical Workers Industrial Union & others
[8]
,
Brassey AJ held as follows in regards to matters before the court on
the return day;
“
It
is trite that on the return day, the court must be satisfied that a
proper case has been made out for each facet of the relief
sought………”
[33]
I am not satisfied that the applicant has made out a proper case for
a declaratory to be granted, nor am I satisfied that real
and
substantial justice requires a stay in execution of the writ. It was
in the light of these circumstances that the order under
paragraph 1
of this judgment was issued. Other than that order, it is my view
that the office of the Registrar should conduct investigations
into
this matter, and to file a report accordingly. To this end, the order
issued on 7 November 2013 is amended to read as follows
Order:
1.
The Applicant’s application is
dismissed.
2.
The Rule Nisi issued by this Court on 1
November 2013 is discharged.
3.
The Applicant is ordered to pay the costs
of this application.
4.
The office of the Registrar is directed to
conduct investigations into allegations made by Thokwane of the
applicant in his founding
affidavit in respect of the writ issued on
17 October 2013 and attached to the founding affidavit marked
Annexure “PAT 1.”
5.
The Registrar is directed to file a report
in respect of the above directive and to submit same to the Judge
President of this Court
by no later than 30 May 2014.
_________________
Tlhotlhalemaje, AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the applicant:
Adv.
TJ Makgathe
Instructed
by: Raborifi
Attorneys
For
the first respondent: Adv.
DZ Kela
Instructed
by: Faku
Attorneys
[1]
Rule
45A provides as follows: “The court may suspend the
execution of any order for such period as it may deem fit.”
[2]
[2012]
2 BLLR 198
(LC) at paras 17-18
[3]
Santam
Ltd v Norman & Another
1996 (3) SA 502
(C) 505 E-F
[4]
Robor
(Pty) Ltd. (Tube Division) v Joubert NO &
Others
(2009) 30 ILJ 2779 (LC) See also
Bartmann
AAC & Bartmann MME t/a Khaya Ibhubesi v De Lange CLG &
another
(Case No: J 441/09)
[5]
Whitfiled
v Van Aarde
1993 (1) SA 332
(E) at 337 G.
[6]
(2003)
24 ILJ3202 (LC) at para 36
[7]
The
Court order of Malindi AJ is erroneously dated 08 August 2012
[8]
(1999)
20 ILJ 329 (LC) at 395 para B