About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 240
|
|
Mafoko v Alcatel Lucent South Africa (Pty) Ltd and Another (JR1444/11) [2015] ZALCJHB 240 (5 August 2015)
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
no: JR1444/11
In
the matter between:
DANIEL MAFOKO
Applicant
and
ALCATEL LUCENT SOUTH AFRICA (PTY) LTD
First Respondent
LARVOL JEAN-PHILLIPE
Second Respondent
Heard:
12 July 2013
Delivered:
5 August 2015
Summary:
Superannuation and Revival of Judgments
JUDGMENT
PONELIS, AJ
Introduction
[1]
During April
2004 the second respondent dismissed the applicant, a senior support
engineer, for operational requirements. Thereafter
the applicant
initiated a dismissal dispute under the applicable provisions of the
Labour Relations Act
[1]
(‘LRA’). Ultimately the matter proceeded to adjudication
under this Court’s case number JS512/04. In a written
judgement
handed down on 18 May 2007 (‘judgment’), Leeuw AJ held
that the applicant’s dismissal was both procedurally
and
substantially unfair and ordered the first respondent to pay the
applicant twelve (12) months remuneration based on his rate
of
earnings at the time of his dismissal.
[2]
Pursuant to
the judgement, the first respondent obtained a tax directive from
South African Revenue Service (SARS), on the basis
that the
applicant’s gross annual salary, at the time of his dismissal,
amounted to R357 224.08. On 30 October 2008
the first respondent
paid the applicant the said amount, less tax as directed by SARS.
[3]
The
applicant contends that his entitlement under the judgement is in
excess of the sum of R357 224.08 on the basis of which
the first
respondent obtained the tax directive.
[4]
By
application launched during or about July 2011, under case number
J1444/11 (‘main application’), the applicant seeks
the
following relief, in addition to costs:
(i)
In the first instant, the applicant applies for
revival of the judgement, as envisaged in Rule 66(1) of the Uniform
Rules of Court.
As ancillary to this relief, the applicant seeks: (a)
an order that the correct amount to be paid as compensation by the
first
respondent is as set out in the judgement; (b) that the tax
directive is invalid and/or an out of court variation of the
judgement;
(c) directing the first respondent to re-apply for a tax
directive; and (d) ordering the respondents to comply with their
obligations
under the judgment. (Henceforth I shall refer to this
part of the relief sought as ‘Revival of Judgment and Ancillary
Relief’).
(ii)
In the second instant, the applicant applies for
a declaration that the first and second respondents are in breach of
the judgment
and that they be fined and/or imprisoned for contempt of
Court. (Henceforth I shall refer to this part of the relief sought as
‘Contempt of Court Application’). In conjunction to this
relief, the applicant launched an application by notice of
motion
dated 30 December 2011, under case number J1444/11, whereby he seeks
to change the citation of the first respondent and
to substitute the
second respondent for one Michael Henry Meyer; pursuant to Rules
22(4) and 22(5). (I shall henceforth refer to
this as ‘Rule 22
application’).
[5]
The
respondents further apply for condonation of late delivery of their
answering affidavit in the main application. Having read
the
documents filed of record and having listened to the submissions of
both parties, I am persuaded that the respondents have
shown good
cause for their failure to deliver the said affidavit within the
prescribed time limit. I accordingly condone late delivery
of their
answering affidavit.
Revival of Judgement and Ancillary Relief
[6]
The essence
of the applicant’s case is that the first respondent has failed
to pay him his full entitlement under the judgment.
It therefore
appears that he seeks to execute the balance which he maintains
remains outstanding. However, since the judgment was
handed down on
18 May 2007, it became superannuated in May 2010; which means the
applicant requires this Court’s authority
before he can proceed
with execution.
[7]
This
position is stipulated by Rule 66(1) of the Uniform Rules of Court,
read with Section 163 of the LRA. Rule 66(1) provides:
“
(1)
After the expiration of three years from the day whereon a judgment
has been pronounced, no writ
of execution may be issued unless the
debtor consents to the issue of the writ or unless a judgment is
revived by court on notice
to the debtor, but in such case no new
proof of the debt shall be required. In the case of judgment for
periodic payments, the
three years shall run, in respect of any
payment, from the due date thereof.”
[8]
It is trite
law that a Court has the discretion to either abide to an application
for revival or to refuse it. A Court will not
revive an old judgment
if, on the facts before it, such revival would be futile, will only
lead to useless litigation, and would
not give the applicant any real
remedy.
[2]
[9]
It follows
that, in order for the present application for revival of the
judgment to succeed, it must be shown the judgment debt
remains
outstanding, either in whole or in part. Otherwise, revival of the
judgment would be futile and academic.
[10]
Three
respective paragraphs in the judgment are of particular importance in
the present matter.
[11]
In the
first instant, paragraph 19 of the judgment where Leeuw AJ quoted
common cause facts as recorded in the pre-trial minute.
This includes
paragraph 2.18 of the pre-trial minute, which reads:
“
2.18
The Respondent indicated at the second individualised consultation
meeting that the retrenchment of the Applicant
would result in cost
saving for the Respondent in that the cost to company for two junior
support engineers is R430 per annum and
that the
cost
to company for one senior support engineer is R400 00,00 per annum
.”
(Emphasis added).
[12]
In the
second instant, paragraph 46 of the judgment where Leeuw AJ held:
“
[46]
The main reason for the retrenchment of the Applicant was that the
Respondent Company would save an
amount of
R389 517-60
which is the Applicant’s annual salary
.
The two junior support engineers namely Dannhauser and Madlope were
each earning R188 817-12 and R266 878-80 per annum
respectively, which is a total of R455 695-92.
The
Respondent gave the total amount of the two junior support engineers
as R430 000-00 and that of the Applicant as R400 000-00
in
the pre-trial minute
.”
(Emphasis added).
[13]
In the
third instant, paragraph 85; being the order contained at the end of
the judgment; where the following is held:
“
[85]
I accordingly make the following order
(a)
The dismissal by the
Respondent of the Applicant is substantively and procedurally unfair.
(b)
The Respondent is ordered
to pay the Applicant t
welve
(12) months remuneration based on his rate of earnings at the time of
his dismissal
.”
(c)
There is no order as to
costs.” (Emphasis added).
[14]
The
applicant’s case is essentially founded on paragraph 2.18 of
the pre-trial minute (paragraph 19 of the judgment) as well
as
paragraph 46 of the judgment, where the respective amounts of
R400 000.00 and R389 517.60 are mentioned. On the basis
of
the applicant’s founding papers, heads of argument and
submissions at the hearing of this matter, it is unclear which
one of
these amounts he relies on; i.e. whether he says that he was entitled
to R400 000.000 or R389 517.60.
[15]
Regardless,
reliance on either of the aforesaid paragraphs of the judgment is
misplaced in the present context. This is because
Leeuw AJ was seized
with an unfair dismissal dispute, and she was therefore not required
to make a finding on the quantum of the
applicant’s annual
package. Accordingly, the aforesaid paragraphs in the judgment are
not determinative findings in respect
of the applicant’s annual
income.
[16]
For
purposes of execution of the judgment, the applicant can only rely on
paragraph 85; being the order (operational part),
[3]
where Leeuw AJ ordered 12 months remuneration based on the
applicant’s earning’s at the time of his dismissal,
without
giving a specific amount.
[17]
The
respondents contend that this amounted to R357 224.08. In
support of this the respondents give a clear breakdown of the
said
amount, which is corroborated by a copy of the applicant’s
pay-slip as attached to the answering affidavit. Significantly,
the
applicant did not challenge the veracity of the breakdown or the
pay-slip in reply.
[18]
Accordingly,
there is no basis for the applicant’s reliance on either
R400 000.00 or R389 517.60 as his annual remuneration
package. On the evidence, it is clear that his annual remuneration
package amounted to R357 224.08.
[19]
I therefore
find that the first respondent has fulfilled its obligations in terms
of the judgment, for which reason revival thereof
would be futile.
Likewise there is no basis to grant the relief ancillary to revival
of the judgment.
Contempt of Court Application and Rule 22 Application
[20]
Since the
applicant failed to show non-compliance with the judgment, there is
no basis to give further consideration to the Contempt
of Court
application and the concomitant Rule 22 Application since it is clear
that this relief can also not be sustained.
Costs
[21]
The
applicant’s main application and Rule 22 application came very
close to what can be perceived as unnecessary litigation.
I was
similarly not impressed by the conduct of the applicant’s legal
representative on the day of the hearing; being woefully
unprepared
and repeatedly trying the patience of this Court.
[22]
Having said
this, I do not deem a special or punitive cost order to be in the
interest of justice. There is however no reason to
deviate from the
general proposition that costs should follow the result.
Order
[23]
In the
premises, I make the following order:
(i)
Late delivery of the respondents’ answering
affidavit is condoned.
(ii)
The applicant’s applications under case
number J1444/11 (main application and Rule 22 application) are
dismissed.
(iii)
There applicant shall pay the respondents’
costs in the aforesaid applications.
__________________________
PONELIS, AJ
Acting Judge of the Labour Court
For the Applicant:
Mr. J.N Mohamed
Goldberg Attorneys
For the Respondents:
Mr. F Malan
Edward Nathan Sonnenbergs
[1]
66 of 1995
[2]
Cooper v The Van Rhyn Gold Mines
Estates Limited and Mining Commissioner of Boksburg
1908
TS 698
[3]
Administrator, Cape v Ntshwaqela
1990 (1) SA 705
(A) at 716B-C