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[2015] ZALCJHB 450
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Windybrow Theatre v Maphela and Others (J89/15) [2015] ZALCJHB 450; (2015) 36 ILJ 1951 (LC) (13 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case
number: J89/15
In
the matter between:
WINDYBROW
THEATRE
Applicant
and
VUYO
MAPHELA
First Respondent
SHERRIF
OF THE HIGH COURT
JOHANNESBURG
CENTRAL
Second Respondent
ALLIE
ACHMAT
Third Respondent
Date
heard: 22 January 2015
Delivered:
13 February 2015
Summary:
Urgent
application;
Attachment
in
terms
of
garnishee
proceedings
under Rule 45(12)(a) of the Uniform
Rules of Court set aside; Labour Court not
having
jurisdiction
to
order
former
employee
to
pay
back
portion
of
monies
already
distributed
to
him
by
the
Sheriff;
Writ
of
execution
stayed
pending
finalization of
review proceedings and
monies
held
in trust by Sheriff
ordered
to be released to applicant employer.
JUDGMENT
RABKIN-NAICKER
J
[1]
The Applicant sought an order on an urgent basis in the following
terms:
―
Ordering
the first respondent to pay the amount of R161, 466.65 (one hundred
and one thousand four hundred and sixty six rand and
sixty five
cents) to the applicant, alternatively to the second respondent,
within 24 hours of the date of this order;
Directing
the Sheriff to release the applicant’s funds currently held in
trust to the applicant;
Setting
aside the Writ of Execution and the Notice of Attachment issued in
enforcement of the arbitration award under case number
GAJB 13329 –
14, which was issued by the CCMA on 1 October 2014;
Staying
the further enforcement of the arbitration award pending the
finalisation of the review application of the award under case
number
GAJB 13329 – 14; and
Ordering
such respondents who oppose this application to pay the costs of this
application, jointly and severally, the one paying
the others to be
absolved;‖
[2]
The Applicant is a theatre company owned and funded by the Department
of Arts and Culture. It dismissed its Chief Executive
officer, the
First Respondent and Chief Financial Officer, the Third Respondent,
for financial irregularities relating to unauthorised
expenditure of
some R60 million.
[3]
The First and Third Respondents referred an unfair dismissal dispute
to the CCMA and an arbitration award was issued which held
their
dismissals to be unfair, and ordered compensation of some R 650, 000
to each of them. During November 2014, the Applicant
brought review
proceedings to set aside the award in the Labour Court, which
are still pending under case number JR2377/14.
[4]
The First and Third Respondents proceeded to have the award
certified and a writ of execution was issued out of the Labour
Court.
According to the Applicant, it was not informed of these
developments. Without notice to the Applicant, the Sheriff proceeded
to attach funds from its bank accounts on 19 December 2014, and 10
January 2015. The Applicant only became aware that a writ been
issued
and its funds had been attached after the fact. On 30 January 2015
the Sheriff’s office sent copies of the writ garnishee
attachment notices to the applicant by email.
[5]
The Applicant then discovered that the funds attached by the Sheriff
from its current account (some R160,000) had already been
paid to the
First Respondent by the Sheriff. The attachment of funds from the
Applicant’s investment account (some R1,3 million)
had not yet
been distributed to the First and Third Respondents, but only because
the funds had not yet been cleared into the Sheriff’s
account.
The Sheriff has since provided an undertaking to the applicant not to
distribute any further monies. The applicant sought
repayment of the
money received by First Respondent or in the alternative for him to
provide undertakings or security for repayment.
No such undertaking
was given and the First and Third Respondents oppose the urgent
application in this court. The Sheriff
has indicated in his letter
that he will abide by the decision of this Court.
[6]
Service and
execution of orders in the Labour Court take place in accordance
with
the
process
applicable in
the
High Courts
as provided for in section
163
of
the
LRA
[1]
.
The
Sheriff
erred
in
attaching
the
funds in
question
and
distributing
the
monies
to
the
First
Respondent
without
first
giving
notice
to
the
Applicant.
He
acted
in
terms
of
Rule
45
(12)
(a)
of
the
Uniform
Rules
of
Court,
which provides as follows:
―
Whenever
it is brought to the knowledge of the sheriff that there are debts
which are subject to attachment, and are owing or accruing
from a
third person to the judgment debtor, the sheriff may, if requested
thereto by the judgment creditor, attach the same, and
thereupon
shall serve a notice on such third person, hereinafter called the
garnishee, requiring payment by him to the sheriff
of so much of the
debt as may be sufficient to satisfy the writ, and the sheriff may,
upon any such payment, give a receipt to
the garnishee which shall be
a discharge,
pro tanto
, of the debt attached.‖ (my
emphasis)
[7]
In
South
African Congo Oil Co (Pty) Ltd v Identiguard International (Pty)
Ltd
[2]
the
SCA
considered
the
meaning
of
the
above
rule
and
found
that
it
should
be
read
with
Rule
45(8)
which
prescribes
the
manner
in
which
an
attachment
is to be made, and reads in material part as follows:
'(8)
If incorporeal property, whether movable or immovable, is available
for attachment, it may be attached without the necessity
of a prior
application to court in the manner hereinafter provided:
.
. .
(c)
In the case of the attachment of all other incorporeal property
or incorporeal
rights in property as aforesaid,
(i)
the attachment shall only be complete when —
(a)
notice of the attachment has been given in writing by the sheriff to
all
interested
parties
and where the
asset consists of incorporeal immovable property or an incorporeal
right in immovable property, notice shall also
have been given to the
registrar of deeds in whose deeds registry the property or right is
registered, and (my emphasis)
(b)
the sheriff shall have taken possession of the writing or document
evidencing
the ownership of such property or right, or shall
have certified that he has been unable, despite diligent search, to
obtain
possession of the writing or document;
(ii)
the
sheriff
may
upon
exhibiting
the
original
of
the
warrant
of
execution
to
the person
having possession of
property
in
which
incorporeal
rights exist, enter upon the premises where such property
is and make
an inventory and valuation of the right attached.'
[3]
[8]
The SCA considered the wording of rule 45(12) (a) as follows:
―
[22]
The argument of the respondent fails to take account of the plain
language employed in rule 45(12)(a) and in particular the
words
'attach the same, and thereupon shall serve a notice on such third
person'. The adverb 'thereupon' is of particular significance.
The
Shorter Oxford English Dictionary 6 ed vol 2 at 3234 ascribes the
following meanings to it:
(1)
'Upon that or it; Upon that (in time or order).'
(2)
'On that being done or said; (Directly) after that.'
(3)
'On that subject or matter with reference to that.'
Given
the context in which the adverb appears in rule 45(12)(a), the first
two meanings ascribed thereto are appropriate. Properly
interpreted
the phrase '(a)ttach the same, and thereupon shall serve a notice on
such third person' envisages two separate jural
acts: (a) an
attachment of the debt; and (b) service upon the garnishee of the
prescribed notice.
[23]
For these reasons I conclude that it is indeed a necessary
requirement of rule 45(12)(a) that the sheriff attach the debt in
accordance with rule 45(8)(c). Such attachment coupled with service
of the garnishee notice has the effect, as in English law and
other
foreign jurisdictions, of prohibiting the person upon whom the
garnishee notice is served from parting or dealing with the
debt
pending the outcome of the garnishee proceedings. It is by virtue of
the attachment that the garnishee becomes obliged to
pay not the
judgment debtor, but the judgment creditor (see Reichenberg (supra)
at 747H in fin; as also the cases there cited,
namely Paramount
Furnishers v Lesar's Shoe Store and Outfitters
1970 (3) SA 361
(T) at
364 – 365; and African Distillers Ltd and Others v Honiball and
Another
1972 (3) SA 135
(R) at 136H).‖
[9]
Given the above authority the attachment of the funds had to be
coupled with notice to the Applicant, and the Sheriff’s
failure
to complete the attachment in terms of the Rules rendered the
attachment unlawful and invalid. The attachment thus stands
to be set
aside.
[10]
A further issue I must deal with is the question of whether this
Court can order the First Respondent to repay the monies he
received
from the Sheriff by virtue of the unlawful attachment. Adv Fourie for
the Applicant argued that such an order is competent
given that this
would be incidental to the Labour Court’s powers. He referred
to the inherent power of high courts to protect
their own process
taking into account the interests of justice. In so doing he referred
to sections 169 and 173 of the Constitution
of the Republic of South
Africa which provisions deal respectively with the jurisdiction of
the High Court of South Africa and
its composition, and the inherent
power of the Constitutional Court, the Supreme Court of Appeal and
the High Court of South Africa
to protect and regulate their own
process, and to develop the common law, taking into account the
interests of justice.
[11]
While the Labour Court is a specialist court with an equivalent
status to the superior courts, it is not part of the High Court
of
South Africa. Section 157 (1) and (2) of the LRA provide as follows:
―
(1)
Subject to the Constitution and section 173
[4]
,
and except where this Act
provides
otherwise,
the
Labour
Court
has
exclusive
jurisdiction
in
respect
of
all matters
that elsewhere in terms of this Act or in terms of any other law are
to be
determined by the Labour Court.
(2)
The Labour Court has concurrent jurisdiction with the High Court in
respect of any alleged or threatened violation of
any fundamental
right entrenched in Chapter 2 of the Constitution of the Republic of
South Africa, 1996, and arising from -
(a)
―employment and from labour relations;
(b)
any dispute over the constitutionality of any executive or
administrative
act or conduct, or any threatened executive or
administrative act or conduct, by the State in its capacity as an
employer; and
(c)
the application of any law for the administration of which the
Minister
is responsible.‖
[12]
Section 157
has been the subject of much
judicial
scrutiny since its drafting
[5]
.
After an
examination of this jurisprudence, the meaning of this section and
its
implications
were
succinctly
summarised
by
Nugent
JA
in
Mhanya
v
University
of Zululand
[6]
as
follows:
―
[18]
Thus to summarise:
•
The labour forums have
exclusive power to enforce LRA rights (to the exclusion of the High
Courts).
•
The High Court and the
Labour Court both have the power to enforce common-law contractual
rights.
•
The High Court and the
Labour Court both have the power to enforce constitutional rights so
far as their infringement arises from
employment.‖
[13]
Given the above, I do not find any basis to support the submission by
Adv Fourie that the Labour Court has an inherent power
to protect its
own process in terms of section 173 of the Constitution. I therefore
find that I do not have jurisdiction to order
First Respondent to
repay the money he received from the Sheriff. The Applicant may rely
on other legal avenues to recover the
amount.
[14]
In as far
as the prayer to set aside the warrant of execution is concerned,
no
case
has
been
made
out
that
the
writ
is
no
longer
supported
by
its
causa
[7]
.
There
was a submission made in oral argument that the warrant itself,
issued
out
of
this
court,
was
unlawful
in
its
terms.
No
substantiation
for
this
was made
on
the
papers
and
the
inference
sought
to
be
drawn
by
submissions
made
in
open
court
that
the
Registrar
was
at
fault
in
issuing
the
writ
are
regrettable.
[15]
Given that the Applicant is publically funded, I find no reason to
order that the Sheriff keep monies in his trust account
for the First
and Third Respondent’s security. The application for review of
the award in question was launched before the
amendments to the LRA
came into effect and the issue of mandatory security does not arise.
The First and Third Respondents made
no substantive case in their
papers against the staying of the writ pending the review. Their
opposition to the application seemed
rather to be the result of a
great deal of acrimony between the parties to the dismissal dispute.
[16]
I therefore exercise my discretion to stay the execution of the writ
pending the finalization of the review application. Given
that it was
the erroneous procedure followed by the Second Respondent that gave
rise to this application, I am not going to make
a costs order
in
casu
. I therefore make the following order:
Order
1.
The Second Respondent is ordered to release the Applicant’s
funds currently held in trust to the Applicant;
2.
The enforcement of the writ of execution issued under case number
GAJB 13329 – 14 is hereby stayed pending the finalization of
the review application under case number JR2377/14.
___________________
H.
Rabkin-Naicker
Judge
of the Labour Court of South Africa
APPEARANCES:
Applicant:
Adv Greg Fourie instructed by Cliffe Dekker Hofmeyr Inc Respondent:
Adv J Bauer instructed by F Rudolph Attorneys
[1]
Section 163 provides that: ―Any decision, judgment or order of
the Labour Court may be served and
executed
as if it were a decision, judgment or order of the High Court.‖
[2]
2012 (5) SA 125 (SCA)
[3]
At paragraph 8
[4]
Section 173 of the LRA deals with the jurisdiction of the LAC
[5]
For example in
Fredericks
v MEC for Education and
Training,
Eastern Cape, and Others
[2001] ZACC 6
;
2002
(2)
SA
693
(CC);
Chirwa
v
Transnet Ltd and Others
2008
(4) SA 367 (CC)
[6]
2010 (1) SA 62 (SCA)
[7]
Van
Dyk v
Du Toit
1993
(2) SA 781
(O)