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[2015] ZALCJHB 107
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Transport And Allied Workers Union of South Africa v Algoa Bus Company (Pty) Ltd and Others (J 603/15) [2015] ZALCJHB 107; [2015] 7 BLLR 738 (LC); (2015) 36 ILJ 2148 (LC) (27 March 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: J 603/15
DATE:
27 MARCH 2015
Not
Reportable
TRANSPORT
AND ALLIED WORKERS
UNION
OF SOUTH
AFRICA
..................................................................................................
Applicant
And
ALGOA
BUS COMPANY (PTY)
LTD
.......................................................................
First
Respondent
THE
SHERIFF OF THE HIGH AND LOWER COURT,
(PORT
ELIZABETH
SOUTH)
...............................................................................
Second
Respondent
THE
SHERIFF OF THE HIGH COURT
(JOHANNESBURG
CENTRAL)
..............................................................................
Third
Respondent
SOUTH
AFRICAN TRANSPORT AND
ALLIED
WORKERS
UNION
.................................................................................
Fourth
Respondent
TRANSPORT,
ACTION, RETAIL AND
GENERAL
WORKERS
UNION
................................................................................
Fifth
Respondent
Heard:
26 March 2015
Delivered:
27 March 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
The applicant brought this application before the court on an urgent
basis in terms of which it sought
inter alia
, a
rule nisi
staying the execution of a default judgment issued by this Court
dated 31 October 2014, pending the outcome of the applicant’s
application for rescission dated 17 March 2015. The applicant further
sought an order declaring the warrant of execution against
its
property issued by the Registrar of this Court on 3 March 2015, the
inventory issued by the Second Respondent dated 4 March
2015, and the
notice in terms of Rule 45 (12) dated 10 March 2015 to be declared
null and void, and to be set aside.
Background to the
application:
[2]
Two strike actions were embarked upon by members of the Applicant
(TAWUSA), the Fourth Respondent (SATAWU) and Fifth Respondent
(THOR)
in September 2011. A further strike action took place between 20
October 2011 and 10 November 2011. Emanating from these
strike
actions, the First Respondent then launched an application in terms
of section 68 (1) (b) of the Labour Relations Act under
case number
P337/12. The First Respondent claimed an amount of R13 550 905.00
(Thirteen Million Five Hundred and Fifty Thousand
Nine Hundred and
Five Rand) against TAWUSA, SATAWU, THOR and a number of individuals
identified in Annexures to the application,
payable jointly and
severally together with interest.
[3]
The application for the recovery of its losses was launched on 12
September 2012, and the First Respondent contends that the
application was properly served on TAWUSA’s premises in Port
Elizabeth on 13 September 2012, and service affidavits were
filed in
that regard. The same application was also served on TAWUSA’s
individual members. Despite proper service, TAWUSA
failed to file an
opposition to the application. TAWUSA was reminded on 31 October 2012
that it had failed to file opposing papers
and that the application
would be placed on an unopposed roll. TAWUSA still failed to respond.
[4]
The matter was then scheduled to be heard on 11 October 2013, and a
notice of set down was served on TAWUSA. SATAWU, had made
two
attempts to oppose the application, and on both occasions this Court
had dismissed those applications. Since neither TAWUSA
nor THOR had
opposed the application, the First Respondent obtained a default
judgment on 31 October 2014 as delivered by the Honourable
Cele J in
the Port Elizabeth seat.
[5]
The default judgment has far-reaching implications in the light of
the quantum ordered. SATAWU, TAWUSA and THOR were found to
be jointly
and severally indebted to the First Respondent in the amount of R10
350 000. 00 (Ten Million Three Hundred and Fifty
Thousand Rand) plus
interest. The individual respondents identified were also found to be
jointly and severally indebted to the
First Respondent for the share
of R350 000.00 of the main amount. Further individuals also
identified in a separate annexure were
found to be jointly and
severally liable and indebted to the First Respondent for a share of
R10 000 000.00 of the main amount.
The order required the three
unions and the individuals identified to pay the amounts within 14
days of its issue.
[6]
On 27 November 2014, the First Respondent’s attorneys of record
addressed a letter to TAWUSA, SATAWU, and THOR to demand
payment in
terms of the default judgment failing which the First Respondent
would execute on the judgment. The First Respondent
demanded R3 425
850.00 (Three Million Four Hundred and twenty Five Thousand Eight
Hundred and Fifty Rand), from TAWUSA, being its
portion based on
33.1% representivity within the company at the time of the industrial
actions. TAWUSA failed to respond to the
demand. In the light of
TAWUSA’s failure to act on the matter, warrants of execution
were issued out of the Port Elizabeth
Court and forwarded to the
Second and Third Respondents in Port Elizabeth and Johannesburg.
[7]
According to TAWUSA, the Warrant was served on it on 12 March 2015 by
the Port Elizabeth sheriff. It was advised that the sheriff
had taken
possession of its incorporeal rights in one of its bank account with
Standard Bank held at Port Elizabeth. A copy of
the return of service
was furnished in this regard.
Two
Main Preliminary points:
(a)
The place of hearing:
[8]
As already stated, the main cause of action was instituted in the
Port Elizabeth seat of this Court, which also granted the
default
award. The First Respondent contended that TAWUSA had failed to make
out a sufficient case for this application to be heard
at the seat of
this Court in Johannesburg. It contended that TAWUSA’s
allegations of lack of funds whether genuine or not
could not be the
reason for launching application or any other form of proceedings in
a court of choice.
[9]
In objecting to the choice of the court, the First Respondent pointed
out that TAWUSA’s members are still employed in
Port Elizabeth;
that the application for rescission launched by TAWUSA was pending
before the Port Elizabeth seat, and that the
actual file in both
compensation proceedings and the rescission application are in the
Port Elizabeth Court. The First Respondent
also pointed out that the
current application was interlocutory in nature, and it was improper
to bring it at a different seat
of the Court.
[10]
Section 165 (1) and (3) of the Labour Relations Act provides that
this Court has jurisdiction in all the places of the province
of the
Republic, and further that its functions may be performed at any
place in the Republic. In addressing the point raised by
the First
Respondent, the answer lies not only from the provisions of section
165 of the LRA themselves, but from an exposition
of these provision
given by Van Niekerk J in
BP
Southern Africa (PTY) Ltd v The National Bargaining Council For the
Chemical Industry
[1]
who held that;
“
In
my view, the LRA contemplates and establishes the Labour Court as a
single Court with national jurisdiction, meaning that proceedings
may
be instituted at any of the Court’s branches regardless of any
‘connecting factors’ that are relevant in
the case of
those Courts whose jurisdiction is more narrowly prescribed. Of
course, if a party abuses the process of this Court,
for example by
choosing a venue simply to inconvenience other parties or to increase
the costs of their defending any action, that
is a matter that the
Court can take into account in the exercise of its discretion in
regard to costs. Alternatively, a party who
takes issue with the
branch office of the registrar at which particular proceedings are
initiated may apply to have the matter
heard at a more convenient
venue. For these reasons, the HG Botha v Whitey Bester judgment is
with respect clearly wrong, and I
do not intend to follow it.”
(References and citations omitted)
[11]
Of course it is taken into account that there is merit in the First
Respondent’s contentions that considerations of convenience
would have made it proper for this application to be launched in Port
Elizabeth. I further agree that from a consideration of a
proper
administration of the matter and for the sake of consistency,
it would have made sense to have had the matter heard
in Port
Elizabeth. There is however nothing in law that prevented TAWUSA from
launching this application in Johannesburg, notwithstanding
that it
might be interlocutory in nature.
(b)
Urgency:
[12]
The First Respondent contended that this matter was a typical case of
self created urgency, and should be struck off the roll
with costs on
that ground alone. To recap the sequence of events, the default
judgment was granted on 31 October 2014; TAWUSA failed
to oppose the
main claim and respond to the set down notices. It further failed to
respond to a letter of demand issued on 27 November
2014. On 12 March
2015 it was made aware of the warrant, and the fact that its
incorporeal rights in one of its bank account have
been taken
possession of. This application was only brought before this court on
17 March 2015, and this was now after the sheriff
had proceeded to
attach TAWUSA’s movable property.
[13]
I am in agreement with the First Respondent’s contention that
TAWUSA has been tardy in dealing with matters that came
before its
attention, viz, the section 64 application, notices of set-down, the
default judgment and letter of demand, and that
it only acted once
its bank account was attached.
[14]
An applicant instituting an urgent application must justify the
necessity to circumvent the ordinary time periods set out in
the
Rules of this Court. This much can be gleaned from Rule 8 of the
Rules of this Court which provides that:
“
(2)
The affidavit in support of the application must also contain-
(a) the reasons
for urgency and why urgent relief is necessary;
(b) the reasons
why the requirements of the rules were not complied with, if that is
the case ...”
[15]
Whether a matter is urgent involves two considerations. The first is
whether the reasons that makes the matter urgent, have
been set out
and secondly whether the applicant seeking relief will not obtain
substantial relief at a later stage. In all instances
where urgency
is alleged, the applicant must satisfy the Court that indeed the
application is urgent. Thus, it is required of the
applicant to
adequately set out in his or her founding affidavit the reasons for
urgency, and to give cogent reasons why urgent
relief is necessary.
As
Moshoana AJ aptly put it in
Vermaak
v Taung Local Municipality
[2]
;
“
The
consideration of the first requirement being why is the relief
necessary today and not tomorrow, requires a Court to be placed
in a
position where the Court must appreciate that if it does not issue a
relief as a matter of urgency, something is likely to
happen. By way
of an example if the Court were not to issue an injunction, some
unlawful act is likely to happen at a particular
stage and at a
particular date”.
[16]
I
t
is equally trite that an Applicant is not entitled to rely on urgency
that is self-created when seeking a deviation from the rules
[3]
.
In
National
Police Service Union and others v National Negotiating Forum and
others
[4]
,
this
court held the view that the latitude extended to parties to dispense
with the rules of the court in circumstances of urgency
is not be
available to parties who are dilatory to the point where their very
inactivity is the cause of the harm on which they
rely on to seek
relief.
[17]
The reasons advanced on behalf of TAWUSA as to why the matter is
urgent are far from convincing. On its version, it became
aware of
the default judgment in November 2014. An allegation is made in the
founding affidavit that instructions were issued to
its attorneys of
record on an unspecified date to obtain a copy of the order from the
court’s file. The file was received
by the attorney on 25
November 2014 and counsel briefed on or about 27 November 2014 to
obtain advice. The primary reason TAWUSA
could not act swiftly was
that it did not have sufficient funds to allow counsel to travel to
Port Elizabeth with witnesses, and
it could only obtain funds in
January 2015.
[18]
During argument I pointed out to Adv Wilke on behalf of TAWUSA that
an allegation of lack of funds was not an excuse for tardiness
and
lack of due haste in dealing with such an important matter. TAWUSA on
its own version has about 8000 members nationally with
branches and
local offices in various provinces. This is a fully registered union
which is a party to at least four National Bargaining
Councils and
was fully aware of the consequences of the default judgment. If it
cannot afford to instruct attorneys or counsel
in instances where a
judgment debt against it could collapse it completely, one wonders
what type of service it can possibly render
to its unfortunate
members.
[19]
It was further common cause that correspondence was exchanged between
the parties’ attorneys of record after the default
judgment was
obtained. TAWUSA’s attorneys of record sent correspondence to
those of the First Respondent advising that an
e-mail was received
from Standard Bank in Johannesburg on 23 March 2015 indicating that
the stop on TAWUSA’s account has
since been uplifted and
accordingly, the urgency in TAWUSA’s application for a stay of
the writ was since removed by the
upliftment of the stop on TAWUSA’s
account. In the light of the urgency having fallen away, TAWUSA had
requested that the
First Respondent should consent to the release of
its furniture from attachment. In the same letter, the attorneys
further proposed
that this application be postponed to the ordinary
roll and that it be transferred to the Port Elizabeth seat of this
Court.
[20]
On 24 March 2015, the First Respondent’s attorneys of record
responded and pointed out that no instructions had been
issued to the
sheriff to uplift the warrants against TAWUSA’s bank account,
and that the upliftment was unlawful. It was
further indicated that
counsel had been instructed to prepare opposing the application
before the court. TAWUSA’s attorneys
were further advised to
withdraw the application in the event it was believed that the
upliftment of the stop on the account had
been effected, and to
provide proof in that regards failing which the First Respondent
would proceed with its opposition.
[21]
On 24 March 2015 TAWUSA’s attorneys reiterated that the hold on
its bank account was indeed uplifted and furnished proof
of an e-mail
received from Standard Bank, but that the immediate urgency as
regards the attachment would only fall away once the
First Respondent
gave an undertaking not to further resuscitate that attachment
pending the outcome of a SATAWU appeal lodged in
the Port Elizabeth
Court.
[22]
Since no undertaking was given, TAWUSA hold the view that it was
apparent from the facts of this matter that the Sheriffs in
the Port
Elizabeth and Johannesburg will not await the judgment of this Court
in the rescission application and will proceed with
the removal and
sale in execution unless the relief prayed for in this application
was granted without delay.
[23]
Notwithstanding the fact that even if the hold on TAWUSA’s
account may or may not have been uplifted, the fact of the
matter is
that these conflicting messages or uncertainty still cannot form the
basis of urgency albeit TAWUSA might deem it urgent.
TAWUSA to a
large extent had not given an explicit account of the reason that the
matter should be treated as urgent, nor has it
shown that it treated
the matter with the urgency it deserves to secure the Court’s
indulgence.
[24]
Ordinarily, given the above facts and considerations, this matter
should therefore be struck off the roll. The circumstances
of this
case however are not ordinary, in the light of the devastating
implications should the judgment debt be ultimately executed.
It is
in this regard that the question of alternative relief comes into the
picture. The interests of justice and other important
intervening
factors in respect of the whole claim as shall be illustrated below
dictate that this matter be treated as urgent even
though it is not.
The
legal framework in respect of stay of writ of execution:
[25]
In
Chillibush
Communications (Pty) Ltd v Michelle Gericke & others
[5]
Molahlehi J had lamented over various types and categories of cases
that are regularly before this court wherein parties seek to
stay
writs of execution. One of these instances is where a party does
nothing in the form of challenging the award or default judgment
but
waits until steps are taken to have the award or default judgment
enforced. The first time that a party reacts in these types
of cases
is when the Sherriff arrives at its premises to attach property to
realize the debt arising from the arbitration award
or default
judgment. TAWUSA’s case falls squarely in this category.
[26]
In
Chillibush,
Molahlehi J also summarised the approach of this court in dealing
with applications to stay a writ of execution pending a review
or
rescission application in the following terms;
‘
In
terms of section 145(3) of the LRA, the Court has the discretion to
stay the enforcement of the arbitration award pending the
outcome of
the review application. This discretion which is very wide has to be
exercised judicially taking account certain factors.
The most
important consideration in the exercise of the discretion is whether
there is a pending underlying cause of action arising
the arbitration
award or in certain instances arising from the Court order. There is
a wide range of factors which the Court will
take into account in
considering whether or not to order a stay of the execution of an
arbitration award, the most important of
which is whether the
interest of justice supports the stay of execution pending the
finalization of the review or rescission application.’
[6]
The
factors which the Court will take into account are:
a)
Whether the stay of the writ based
on the underlying causa was timeously filed,
b)
The existence of prospects of
success in the review or rescission application;
c)
The interest of all parties in
securing finality;
d)
The cost of the delay in finalising
the matter to all the parties;
e)
the cost to all parties of
instituting or opposing further proceedings;
f)
The
risk of injustice being done to the less powerful party to the
dispute.
[7]
[27]
In
Gois
t/a Shakespeare’s
Pub v van Zyl & Others
[8]
,
it was held that this court will favourably consider granting the
stay of execution when “
real
and substantial justice requires such a stay or, put differently,
where injustice would otherwise result
”.
Waglay J (as he then was) added that in exercising its discretion to
grant a stay of execution, a court is not required
to take the merits
of the underlying attack on the
causa
of
the writ into account. It is sufficient that there must be a
possibility that the
causa
underlying
the writ may ultimately be removed. An applicant is accordingly
not required to satisfy the court of the
existence of prospects of
success in the principal dispute; and further that an application for
a rescission, review or variation
of an award qualifies as an attack
on the
causa
underlying
the award.
[28]
The approaches in
Gois
and
Robor,
were considered by Ngcukaitobi AJ in
City
of Johannesburg v South African Municipal Workers Union obo Motaung
and Others
[9]
,
who held that the two approaches might appear to be at odds with each
other on the issue of the relevance of prospects of success
in the
underlying challenge to the
causa
of a writ, but were in fact reconcilable. I am in agreement with
Ncgukaitobi AJ that that these approaches are not necessarily
irreconcilable and are instead compatible with each other, as the
principle permeating in both is the need to take into account
the
interests of justice.
[29]
I do not intent to deal with all the other aspects of the merits of
this application as raised and argued given the limited
time within
which to deliver this judgment. In particular however, I pointed out
to Adv Wilke during arguments that any contentions
and allegations
surrounding the motives for seeking execution against TAWUSA are
purely speculative and not borne out by any evidence.
Furthermore, I
could not find any substance to the allegations that the warrants or
writs were not lawfully obtained.
[30]
It is however common cause that a rescission application has since
been launched in respect of the default judgment,
albeit
this was done some four months after the judgment was granted.
The
rescission application may also be the underlying
causa
to attack the judgment and whether it will succeed or not is a matter
for future determination.
[31]
The basis for taking a different approach in this matter is that
there are intervening and interlinked factors that should
not be
ignored in determining this application. The first is that the
judgment debt was granted against the three unions, with
each being
jointly and severally liable for the main amount. THOR appears to
have faded into obscurity and SATAWU has since launched
an appeal in
regards to its failed attempts to oppose the main cause of action
that led to the default judgment. In the light of
the warrants of
execution having been issued against all the three unions, SATAWU has
since obtained temporary reprieve through
an order issued by this
Court in Port Elizabeth under P337/2012 on 25 March 2015. Thus the
writ of execution issued in favour of
the First Respondent against
SATAWU was stayed pending the determination of its appeal.
[32]
It is accepted that TAWUSA’s attack on the underlying
causa
was not made on time, and more pertinently, the application in that
regard was not incorporated into this application contrary
to
TAWUSA’s contentions. The difficulty however is that in the
light of SATAWU’s temporary reprieve and its pending
leave to
appeal against the whole judgment, it would be iniquitous not to
grant TAWUSA reprieve in circumstances where essentially
the
underlying
causa
under attack by both unions
albeit
acting
independently, is the same and arises from the same material facts.
[33]
There is merit in the First Respondent’s contentions that the
fact that SATAWU obtained temporary reprieve was immaterial
as the
unions were jointly and severally liable. The consequences of the
execution of the default judgment has huge implications
for both
unions and TAWUSA being the less powerful party in this case, faces
greater risks of injustice should it not be granted
temporary
reprieve. In my view therefore, the interests of justice, combined
with quest for finality on this matter requires that
a discretion be
exercised in favour of TAWUSA. I am in agreement with Adv Fourie’s
submissions that a
rule nisi
would not serve any purpose at
this stage since it is not known when the rescission application
launched by TAWUSA will be determined
by this Court.
[34]
It however needs to be stated that TAWUSA despite being granted
reprieve has not come to Court with clean hands. In fact its
approach
to this whole matter has been characterised by pure indifference,
incompetence and lack of care towards its membership
and its very
existence. It sought to portray itself as a victim in the very
consequences of its inaction which could have been
avoided. Other
than all the other problems highlighted, the bringing of this
application before the Court in Johannesburg is inexcusable
and had
caused great inconvenience to the First Respondent. It is apparent
from correspondence exchanged between the parties’
attorneys of
record that TAWUSA could have launched this application in Port
Elizabeth, but used this issue as a bargaining leverage.
In the light
of these factors, considerations of law and fairness dictate that
TAWUSA should be burdened with the costs of this
application on a
punitive scale. Accordingly, the following order is made;
Order:
i.
The execution of this Court judgment dated
31 October 2014 under case number P337/12 is stayed pending the
determination of the
Applicant’s rescission application dated
17 March 2015.
ii.
The attachment of the Applicant’s
bank account number 001 295 365 held with Standard bank is uplifted.
iii.
The Second and Third Respondents are
ordered to release and return to the Applicant within 14 days of this
order, any furniture
and equipment rightfully belonging to the
Applicant attached in accordance with warrants and writs issued.
iv.
All costs associated with and incidental to
compliance with (iii) shall be borne by the Applicant.
v.
The Applicant is ordered to pay the costs
of this application, inclusive of costs of one counsel and reasonable
travelling costs
incurred by the First Respondent’s attorneys
of record.
vi.
Any future determination of any matters
under the present case number is to be dealt with by the Port
Elizabeth seat of this Court.
Tlhotlhalemaje,
AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For the
Applicant: Adv F Wilke
Instructed
by: Lennon Moleele & Partners
For
the First Respondent: Adv G Fourie
Instructed
by : Joubert Galpin Searle Attorneys
[1]
CASE
NO. J 841/09
[2]
(JR315/13)
[2013] ZALCJHB 43 (12 March 2013) at para 12
[3]
J
iba
v Minister: Department of Justice and Constitutional Development and
Others
(2010) 31 ILJ 112 (LC) at para 18.
[4]
(1999)
20 ILJ 1081 (LC) para [39]
[5]
(2010)
31 ILJ 1350 (LC
[6]
At para 18
[7]
In reference to
Robor
(Pty) Ltd (Tube Division) v Joubert and Others
(2009)
30
ILJ
2779
(LC) at para 16.
[8]
(2003)
24
ILJ
2302
(LC) at paragraphs 32 - 36
[9]
(J618/14)
[2014] ZALCJHB 73 (19 March 2014) at para 28