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[2015] ZALCJHB 165
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Motor Industry Bargaining Council v Suliman (JS2561/10, J29/14, J304/14) [2015] ZALCJHB 165; (2015) 36 ILJ 2644 (LC) (29 May 2015)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case No: JS2561/10
Case No: J29/14
Case No: J304/14
DATE: 29 MAY 2015
Reportable
In the matter between:
MOTOR INDUSTRY BARGAINING
COUNCIL
................................................................
Applicant
And
MOHAMED
SULIMAN
.......................................................................................................
Respondent
Heard: In Chambers
Delivered: 29 May 2015
JUDGMENT: APPLICATION
FOR LEAVE TO APPEAL
MOOKI AJ
[1] The applicant seeks leave to appeal
the judgments of the court in which the court dismissed the
applications in the following
cases: MIBC v Pastor Rodrigues Cumaio
(Case No J29/14) (“Cumaio”) and MIBC v Delen Johanna
Grogor (Case No J304/14)
(“Grogor”).
[2] The applicant raises three grounds
as the bases for its application. The grounds apply to all three
applications, namely:
2.1 The court has jurisdiction, in
terms of section 26 (5) of the Close Corporations, Act 69 of 1984
(“Close Corporations
Act”) to declare respondents
personally liable for the debts of a close corporation;
2.2 The court erred in deciding that
the applicant should have approached the court by way of action
proceedings;
2.3 The court erred in refusing to
accept the “windeed searches’ as prima facie proof that
the close corporations were
deregistered on the dates indicated in
the searches.
[3] The applicant relies on the
decisions in Dennis Meyer v Horizon Carpet Manufacturers CC and 2
Others (Case C 352/07) and Madeleine
Esterhuizen v Million-Air
Services CC and 3 Others (Case J 1870/05) in support of the
proposition that the Labour Court has jurisdiction
to declare a
member personally liable in terms of section 64 of the Close
Corporations Act. It is submitted on behalf of the applicant
that the
court ought to have followed the two decisions.
[4] The two authorities do not support
the case advanced on behalf of the applicant. The court in
Esterhuizen did not, contrary
to the position advanced on behalf of
the applicant, “decide” that “… the Labour
Court has jurisdiction
to declare a member personally liable in terms
of section 64 of the Act, where the Labour Court issued a writ in
respect of the
award.” On the contrary, the court determined
that section 64 was not applicable in relation to the issues to be
decided
by the court.
[5] The court in Esterhuizen identified
the “crux” of the matter before that court as whether the
corporate veil should
be pierced as regards the third respondent and
the enforcement of an arbitration award against the first respondent
and in favour
of the applicant in that case. The court determined,
in part, that “the award against the first respondent was in
fact against
third respondent. It should therefore be effective
against the third respondent in any guise.” Part of the order
made by
the court was that “The third respondent was a real
employer of the applicant and is liable, jointly and severally with
the
second respondent, to pay the amount awarded to the applicant in
the CCMA award under case number GA 17181/02”.
[6] It is manifest that the court in
Esterhuizen did not address the issues raised by the applicant in the
current applications.
It is in this regard that that decision is not
authority for the proposition been advanced on behalf of the
applicant. The same
applies to the decision by the court in Meyer.
[7] The issue before the court in Meyer
was whether the Labour Court has jurisdiction pronounce on a claim in
respect of sections
64 and 65 of the Close Corporations Act. The
applicant sought relief on the grounds that “… if a
Close Corporation
is deregistered while having outstanding
liabilities, the person who was a member of such corporation as a
time of deregistration,
shall be liable for such liabilities.”
In its grounds for leave to appeal, the applicant points out that its
application
was for the court “to declare the respondent
personally liable for the debts of the close corporations in terms of
section
26 (5) of the Close Corporations Act, Act 69 of 1984…”.
It is manifest that the court in Meyer did not consider the
same
subject matter as the applications before this court.
[8] The court did not, in dismissing
the applications, do so on the basis that the applicant should have
approached the court on
action proceedings as opposed to motion
proceedings. I find that the second ground lacks merit in that the
applicant misconceived
the basis upon which the court dismissed its
application.
[9] The relief sought by the applicant,
if the court were to grant that relief, requires the court to be
satisfied of the fact of
deregistration. The applicant contends that
the court should have accepted that the “windeed” reports
annexed to the
applications were prima facie proof of the fact of the
deregistration of the close corporations on the dates mentioned in
those
documents. The applicant did not advance any authority to
support its contentions when the court considered the applications on
the merits. The applicant equally does not cite any authority in
these applications.
[10] The substance of the issue raised
in the application appears somewhat novel. In particular, the
question of whether or not
the Labour Court can sanction a “civil
penalty” in the manner set out in the decision by the Supreme
Court of appeal
in Mouton v Boland Bank
2001 (3) SA 877
(SCA) does
not appear to have been considered by the Labour Court or by the
Labour Court of Appeal. A determination of this question
is
inextricably linked with the jurisdiction of the Labour Court itself
on this subject.
[11] The question ought to enjoy the
attention of the Labour Court of Appeal. I therefore grant leave to
appeal, but only in respect
of the following issue: whether the
Labour Court is competent to impose a civil penalty by obliging a
person who was a member of
a close corporation at the time of the
deregistration of such a close corporation liable for liabilities of
a close corporation
as at the time of the deregistration of such a
close corporation.
[12] There is an aspect that bears
mentioning. This concerns the proposition advanced on behalf of the
applicant that the court
in Meyer “decided” that the
Labour Court has jurisdiction to declare a member personally liable
in terms of section
64 of the Close Corporations Act. The court in
Meyer did not make such a decision. The ultimate issue determined by
the court was
whether or not to grant an amendment. The court granted
the amendment. Equally, the Court in Esterhuizen held that section 64
was
not applicable to the issue been determined by the court.
[13] Steenkamp J, in Meyer, cautioned
against attempts to advance a case on account of selective quotations
from a judgement. It
is of greater concern where a proposition is
advanced on the basis that the court “decided” a
particular issue when
in fact the court did nothing of the kind.
Practitioners have a duty, when advancing propositions on behalf of
their client, to
be faithful to whatever authority that they seek to
invoke. It doesn’t serve the interests of justice to suggest
that a court
decided an issue when a cursory reading of the
particular judgement demonstrates the contrary. It is almost as if a
practitioner,
in penning such a proposition, did not expect the court
to independently consider the particular authority. The court should
not
have to second-guess propositions advanced by practitioners; who
are, after all, officers of the court.
[14] I make the following order:
(i) Leave to appeal is granted, but
only in respect of the following issue: whether the Labour Court is
competent to impose a civil
penalty by obliging a person who was a
member of a close corporation at the time of the deregistration of
such a close corporation
liable for liabilities of a close
corporation as at the time of the deregistration of such a close
corporation.
O Mooki
Judge of the Labour Court (Acting)