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[2014] ZALCJHB 189
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Solartricity (Pty), A Division Of The Daly Morgan Group v Beltramo and Others (J1260/14) [2014] ZALCJHB 189 (29 May 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA,
IN JOHANNESBURG
JUDGMENT
OF
INTEREST TO OTHER JUDGES
CASE
NO: J1260/14
In
the matter between:
SOLARTRICITY (PTY)
LTD, A DIVISION OF THE DALY MORGAN GROUP
Applicant
AND
ENRICO ERNESTO
BELTRAMO
First
Respondent
THE SHERIFF
Second
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION AND ARBITRATION
Third
Respondent
Heard:
27 MAY 2014
Delivered:
29 May 2014
Summary:
(Stay of writ – balance of convenience decisive despite poor
merits – common identity of party in writ
and party whose
assets attached not in doubt).
JUDGMENT
LAGRANGE,
J
Introduction
[1]
The applicant in this matter has brought an
application to stay the writ of execution issued by the court on 13
May 2014 pending
the outcome of a review application under case
number JR1168/12.
[2]
On 23 February 2012 the first respondent,
Mr Beltramo, had obtained a default award in his favour against an
entity identified only
as the Daly Morgan Group, an unincorporated
entity (‘DMG’). The same entity applied to rescind the
default award, but
the rescission application was dismissed on 3
April 2012.
[3]
Notice of the set down of the arbitration
hearing on 13 February 2012 had been sent to the DMG on 10 January
2012. On 8 February
2012, the DMG had applied for a postponement of
the arbitration that the application was unsuccessful and a notice
that the application
for postponement had been dismissed was sent to
the DMG at 07H17 on 13 February 2012, the date of the arbitration,
which was due
to commence at 13H00. No one appeared to represent the
employer party. The reason DMG says it did not attend was that it was
unaware
of the communication of the refusal of the postponement and
therefore did not know the arbitration hearing would proceed on that
day. The deponent to the affidavit in the rescission application also
claimed that the employer had a
bona
fide
defence to the applicant's claim
because it contended there was no dismissal of the applicant, but
that he had repudiated his employment
contract. Moreover, she
contended that the postponement application was based on legitimate
grounds and ought to have succeeded.
[4]
The arbitrator did not accept that the
applicant had a good reason for not attending the arbitration
proceeding, especially since
it had not received confirmation that
the application for postponement had been successful. Under those
circumstances the respondent
ought to have attended the proceedings.
The arbitrator also noted that the application for postponement was
late and was not supported
by an affidavit. A factor taken into
account by the arbitrator was that after the arbitration date had
past the applicant appeared
to have made no effort to find out what
the status of the matter was until it received the default award on
24 February 2012. The
affidavits filed in support of the applicant’s
subsequent application to rescind the arbitration award, were deposed
to by
an official of the employer’s organisation, CTL
Management Forum, which appeared on behalf of the employer party. She
confirmed
that the parties in the rescission application were the
same as the parties cited in the default award. In other words, the
representation
that the DMG was a legal entity which could initiate
proceedings such as the rescission application, and have an award
made against
it in the default arbitration proceedings was
perpetuated.
[5]
In the review proceedings, DMG for the
first time revealed a more definite corporate personality, now citing
itself as “Solartricity
(Pty) Ltd a Division of the DMG”.
It is noteworthy that Solartricity(Pty) Ltd proceeded on the basis it
had
locus standi
as the respondent in the rescission ruling to bring the review
application even though the respondent had only been cited as DMG
in
those proceedings.
[6]
The review proceedings were initiated in
May 2012. On 5 August 2013, the first respondent filed an application
under Rule 11 to
dismiss the review application, though it would seem
the applicant had belatedly filed its supplementary affidavit only in
February
or March 2013, even though the record of proceedings had
been lodged with the registrar by the CCMA in May the year before,
approximately
10 months earlier. There is no evidence in the court
file containing the review application of proof of service of the
record of
the arbitration proceedings on the first respondent.
Curiously there is also a discrepancy between the date of the court
stamp
on the Rule 7A(8)(b) notice in the review application bundle
(dated 18 March 2013) and that of the court stamp (22 February 2013)
appearing on the copy of the notice which was forwarded to the first
respondent when it demanded evidence of the notice. Moreover,
not
only is there no evidence of service of the abovementioned items on
the first respondent, but in fact the first respondent
launched its
application to dismiss the review in the main on the basis it had not
received the Rule 7A(8)(b) notice, nor the record
of the proceedings.
Neither the review application nor the dismissal application have
been set down, and Mr Donaldson, the CTL
Management Forum
representative in court, submitted that as it was the practice for
the Registrar to set matters down, the applicant
bore no
responsibility for not attempting to finalise the review application
by requesting it be set down for a hearing.
[7]
In its application to stay the writ of
execution issued by the Registrar on 13 May 2013, the only basis
relied on by the applicant
for the relief, is the existence of the
pending review application in which it argues it has excellent
prospects of success. The
deponent to the founding affidavit on this
occasion is Mr J Kinkaid-Smith, who identifies himself as “the
Financial Director
of Solartricity (Pty) of the Daly Morgan Group.”
He further identifies the first respondent as an ex-employee of the
Applicant,
thereby confirming that even if DMG was the name by which
the employer party was identified in the CCMA proceedings, the
applicant
was the juristic entity which employed him. In the rest of
his affidavit, he clearly sees no distinction between the applicant
in these proceedings and the respondent in the arbitration
proceedings. They are to all intents and purposes treated as one and
the same.
[8]
Kinkaid-Smith further identifies the assets
attached by execution of the writ as being property of the applicant.
There is no hint
in the affidavit, that the Sheriff had attached the
property of the incorrect party, even though the writ directs the
Sheriff to
take into execution the moveable goods of The DMG.
The reason I mention this is that when the application was heard, Mr
Donaldson
raised an argument for which no factual basis was laid in
the founding papers, namely that the writ identified DMG as the party
whose moveable goods should be attached, and the court should not
allow execution of the writ in any event in view of this ‘defect’.
Indirectly, he was suggesting that the writ should be set aside as
invalid.
[9]
I debated the nature of the entity DMG with
Mr Donaldson and asked how CTL Management Forum could act for DMG if
it was not an identifiable
juristic person. The only explanation he
offered was perhaps that the CTL representatives had slipped up in
allowing this to happen.
[10]
However, the puzzle would have been
resolved if Mr Donaldson had drawn the court’s attention to
documentation which clarifies
the matter. Thus, the applicant’s
letter of appointment which forms part of the record in the
arbitration proceedings specifically
states that he was offered a
position in ‘the Company’ as a business developer and the
company is identified as “THE
DALY MORGAN GROUP”, but the
letter of appointment appears on a letterhead of Solartricity. The
term ‘DMG’ is
not unpacked in his letter of appointment
but in the Confidentiality Agreement he signed as an employee party
the other party to
that agreement is referred to as:
“
THE
DALY MORGAN GROUP (“the Company”) Which shall be
understood
to include and apply to any
of the following Companies:....Solartricity (Pty) Ltd”
(emphasis
added)
[11]
Thus the apparent distinction between the
DALY MORGAN GROUP and the associated companies of which it is
comprised, was clearly non-existent
in the minds of the parties.
The attachment of the property of the actual juristic entity
Solartricity (Pty) Ltd in a writ
of execution issued against DMG is
entirely consistent with this understanding of the meaning of DMG’s
true juristic identity
and on the face of it the attachment was not
improper on account of goods of the wrong party being attached.
Solartricity (Pty)
Ltd was not confused by its citation as DMG in the
arbitration. There is no reason for it to suggest there
is some
confusion now when its property is attached pursuant to a
writ issued against DMG arising from the arbitration award.
[12]
In
any event, quite apart from the fact that this issue was not one the
applicant was entitled to rely on based on its founding
affidavit,
the applicant ought to have brought an application to invalidate the
writ, which is the correct procedure for raising
such a challenge.
[1]
[13]
In
Gois
t/a
Shakespeare's
Pub v Van Zyl And Others
[2]
,
Waglay
J as he then was set out the general principles applicable to a stay
in execution:
“
[37]
The general principles for the granting of a stay in execution may
therefore be summarised as follows:
(a) A
court will grant a stay of execution where real and substantial
justice requires it or where injustice would
otherwise result.
(b) The
court will be guided by considering the factors usually applicable to
interim interdicts, except where
the applicant is not asserting a
right, but attempting to avert injustice.
(c) The
court must be satisfied that:
(i) the
applicant has a well-grounded apprehension that the execution is
taking place at the instance of the respondent(s);
and
(ii) irreparable
harm will result if execution is not stayed and the applicant
ultimately succeeds in establishing
a clear right.
(d) Irreparable
harm will invariably result if there is a possibility that the
underlying causa may ultimately
be removed, ie where the underlying
causa is the subject-matter of an ongoing dispute between the
parties.
(e) The
court is not concerned with the merits of the underlying dispute -
the sole enquiry is simply whether the
causa is in dispute.”
[3]
[14]
Clearly, there is a possibility of the
award being set aside, and there is a prospect the applicant may not
be able to recover moneys
paid out to the first respondent following
a sale in execution of its property, but that is not the end of the
matter. The order
in this matter is sought pending the outcome of a
review application, which has not been diligently prosecuted.
[15]
The applicant delayed ten months in filing
its supplementary affidavit, in circumstances where it was not
necessary for it to wait
for the production of a transcript of
proceedings. Even worse, the applicant has proffered no answers to
the allegations raised
in the dismissal application to explain away
the first respondent’s claim that in fact he was not served
with the record
or the supplementary affidavit. The absence of any
proof of service in the review application file makes this a matter
of particular
concern. Even if I assume that proper service of these
documents had been made on the first respondent, why has the
applicant made
no effort to have the review application set down
since March last year? If it had any real interest in pursuing the
review application
it would have requested the registrar to enrol the
matter and would have filed opposing papers in the first respondent’s
dismissal application. It is telling in this regard that the
applicant only contacted its attorneys of record in the review
application
to enquire about progress in the matter when the writ was
served, nearly two years after the review was launched.
[16]
In
my view, this is one of those matters where the applicant has dragged
its heels at best, or has positively tried to obstruct
the conclusion
of the review proceedings by not serving process on the first
respondent. It has not diligently pursued the
dispute which it
claims is the reason the execution of the award should be delayed. In
these circumstances, it is in no small way
responsible for the
situation it now finds itself in of potentially suffering irreparable
harm. This court has recognised that
where a party is seeking a stay
of execution of a writ, it must demonstrate it has not been remiss in
pursuing the remedy for which
it seeks the stay. Where it has delayed
the review procedure, it cannot simply escape execution of a writ
because that process
is incomplete mainly through its own fault.
[4]
[17]
However, although the first respondent
claims to be emotionally and financially prejudiced by the delay in
giving effect to the
award, he has not demonstrated that he will
suffer significant hardship caused by any further delay and the value
of the award
is to an extent preserved by the interest charges
accruing on the debt, whereas the sale of productive assets in the
amount of
R 202, 000-00 might well hamper the applicant’s
business and there is no indication on the affidavits it will easily
recover
this. It is solely on the balance of convenience, when
considering the relative prejudice the parties may suffer that I am
inclined
to refuse the applicant relief.
[18]
However, when considering the question of
costs, I am satisfied that the first respondent acted reasonably when
seeking to execute
the writ in the absence of any progress in the
review application and his opposition was anything but frivolous.
Moreover, the
applicant has displayed a non-committal approach at
best to pursuing the review application which necessitated this
application
and its success in the application is on a very limited
ground. In the circumstances, I believe it is just and equitable for
the
applicant to pay the respondent’s costs.
Order
[19]
Accordingly, an order is made in the
following terms:
19.1
The matter is dealt with as one of urgency.
19.2
The execution of the writ issued by this
court on 13 May 2014 is stayed pending the outcome of the review
application and dismissal
application under case number JR 1168/11.
19.3
The applicant must pay the first
respondent’s costs.
19.4
Either party may request the Registrar of
the Labour Court to enrol the applications mentioned in paragraph
19.2 above, on a prioritised
basis, to be heard simultaneously.
_______________________
R LAGRANGE, J
Judge of the Labour
Court of South Africa
APPEARANCES
APPLICANT:
Q Donaldson of CTL Management Forum
FIRST
RESPONDENT:
P Verveen instructed by D Smith
[1]
Mahomed
v Ebraheim
1911
CPD 29
[2]
2011
(1) SA 148 (LC)
[3]
At
155-6
[4]
See
also in this regard,
Robor
(Pty) Ltd (Tube Division) v Joubert & others
(2009)
30
ILJ
2779 (LC) and
TAS
Appointment & Management Services v Mavuso & others
(2012)
33
ILJ
2196 (LC)