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[2015] ZALCJHB 268
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Ngubeni v SGB (Primeserv) (Pty) Ltd and Another (J558/14) [2015] ZALCJHB 268 (20 August 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: J558/14
MZANEPE
ABRAM NGUBENI
Applicant
and
SGB (PRIMESERV)
(PTY) LTD
First Respondent
MERRICK ABEL
Second Respondent
Heard:
20
August 2015
Delivered:
20
August 2015
Summary:
Enforcement
of settlement agreement
JUDGMENT
MYBURGH,
AJ
[1]
This
matter involves an attempt by the applicant to enforcement of a CCMA
settlement agreement concluded with the first respondent
more than
two years ago. I have today been forced to join the CEO of the
Primeserv Group Ltd as the second respondent in this matter.
This
judgment explains why.
[2]
On
the papers before me, the relevant facts and sequence of events are
as follows:
a.
The
applicant was previously employed by the first respondent.
b.
On
11 June 2013, and following the applicant’s dismissal by the
first respondent, the parties entered into a formal settlement
agreement under the auspices of the CCMA. In terms of this agreement,
the first respondent undertook to re-employ the applicant
with effect
from 1 July 2013, and to pay him R3000 in outstanding salary by no
later than 25 June 2013.
c.
On
1 July 2013, and in accordance with the settlement agreement, the
applicant reported at the first respondent’s premises,
but it
refused or failed to comply with the settlement agreement.
d.
On
2 October 2014, and in these circumstances, Van Niekerk J made the
settlement agreement an order of this court in terms of section
158(1)(c) of the LRA
[1]
and
declared it enforceable (“the order of 2 October 2014”).
e.
On
20 January 2015, the applicant served the order of 2 October 2014 on
the first respondent by leaving a copy of the order with
Deidre
Cloete.
f.
On
15 May 2015, in an
ex
parte
contempt application, Matyolo AJ granted an order to the effect that
the first respondent and Ms Cloete (cited as the second respondent)
were to appear before this court on 31 July 2015 to show cause why
they should not be found guilty of contempt of this court for
failing
to comply with the order of 2 October 2014 (“the order of 15
May 2015”).
g.
In
the application that led to this order, the applicant described
Ms Cloete as a director of the first respondent. As dealt
with
below, it transpired later that this is incorrect.
h.
On
19 May 2015, the applicant served a copy of the order of 15 May 2015
on the first respondent and Ms Cloete by leaving a copy
with one
Khomotso Masena.
i.
On
31 July 2015, there was no appearance before court by either the
first respondent or Ms Cloete. I postponed the matter to 4 August
2015, and directed that the applicant be referred to the SASLAW
pro
bono
office. This in circumstances where it transpired that the applicant
had not effected personal service of the order of 15 May 2015
on
Ms Cloete. (In terms of para 14.1.3 of the practice manual, “in
applications for committal or some other penalty
for contempt of
court, personal service of the application must be effected on the
respondent”.)
j.
On
4 August 2015, the matter was dealt with by Brian Bleazard, who was
on duty at the SASLAW
pro
bono
office that day. Upon Mr Bleazard having contacted Ms Cloete
telephonically, she stated that she knew nothing about the matter,
but that she would get the human resources department to deal with
it. Mr Bleazard thereupon received a telephone call from one
Ferdie,
who apparently undertook to ensure the first respondent’s
attendance at court. Shortly before 13h00, and when no
one from the
first respondent had arrived, Mr Bleazard appeared before me on
behalf of the applicant. In circumstances where there
existed no
proof that the order of 15 May 2015 had been served personally on Ms
Cloete, Mr Bleazard moved for a fresh order, and
undertook to attend
to serving it.
k.
Accordingly,
on 4 August 2015, I granted an order, ordering the first respondent
and Ms Cloete to appear before this court on 18
August 2015 at 10h00
to show cause why they should not be found guilty of contempt of this
court for failing to comply with the
order of 2 October 2014 (“the
order of 4 August 2015”).
l.
On
7 August 2015, Mr Bleazard attended to serving the order of 4 August
2015. He attended upon the premises of the first respondent,
and
found his way to Ms Cloete’s office, where he left a copy of
the order on her desk in her presence. This after Ms Cloete
had
indicated that she did not want to accept receipt of the order, and
stated that it had “nothing to do with her”.
Mr Bleazard
then served a copy of the order on the first respondent by leaving a
copy with the receptionist, who was also not willing
to sign
acknowledgement of receipt of the order.
m.
On
17 August 2015, Mr Bleazard filed an affidavit of service setting out
the details addressed above. Mr Bleazard emailed a copy
of the
affidavit to the first respondent, and has submitted proof that the
email was successfully delivered.
n.
On
18 August 2015, Jacqueline Driver (briefed by the SASLAW
pro
bono
office) appeared before me on behalf of the applicant. There was,
again, no appearance by the first respondent or Ms Cloete. Ms
Driver
then held a telephonic discussion with Ms Cloete, during the course
of which Ms Cloete indicated that she is a personal
assistant and not
a director of the first respondent, and that the matter had “nothing
to do with her”. Ms Cloete referred
Ms Driver to Kevin Cowley,
who she described as the HR director. Sometime later, Ms Driver spoke
to Mr Cowley telephonically. Although
having confirmed that he was
aware and in receipt of the order of 4 August 2015, Mr Cowley stated
that neither he nor any representative
of the first respondent
intended appearing in court.
o.
I
then postponed the matter to 20 August 2015, and asked Ms Driver to
provide the court with an affidavit setting out the events
of 18
August 2015, which she subsequently did. In circumstances where the
question arose in court on 18 August 2015 whether the
order of
4 August 2015 should not be reissued with Mr Cowley replacing Ms
Cloete as the second respondent, Ms Driver’s
affidavit reflects
that she undertook some research into Mr Cowley’s status as a
director. The research revealed that: the
first respondent in its
current form is not a registered entity; Mr Cowley was previously a
director of Primeserv ABC Recruitment
(Pty) Ltd and Primeserv
Employee Solutions (Pty) Ltd, both of which entities are in
existence; Merrick Abel is the CEO and an active
director of
Primeserv ABC Recruitment and Primeserv Employee Solutions; and these
companies are part of Primeserv Group Ltd, which
is registered on the
JSE.
p.
On
20 August 2015, when the matter was called again in court, Ms Driver
advised that she had also established that Mr Abel
is the CEO of
Primeserv Group Ltd.
[3]
In
all the circumstances described above, this court is left with no
option other than to reissue the order of 4 August 2015, replacing
Ms
Cloete with Mr Abel as the second respondent. While the first
respondent may no longer exist as a legal entity, there exists
the
possibility that its business was transferred to some other entity
within the Primeserv Group, and accordingly that the legal
obligations in terms of the CCMA settle agreement remain alive. No
doubt, Mr Abel will be in a position to shed light on this.
[4]
In
the circumstances, the following order is made:
1.
The
respondents are ordered to appear before this court on Friday,
28 August 2015 at 10h00 to show cause why they should not
be
found guilty of contempt of this court for failing to comply with the
order of the court dated 2 October 2014;
2.
The
respondents are ordered to explain their conduct by way of an
affidavit to be filed by 16h00 on 27 August 2015;
3.
This
order must be served by the applicant’s representatives by way
of personal service.
________________________________
Myburgh, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES
On
behalf of the applicant: J Driver (briefed by the SASLAW
pro bono
office)
[1]
Labour Relations
Act 66 of 1995
.