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[2015] ZALCJHB 452
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Mabaso v Cement and Concrete Institute (JR2566/11) [2015] ZALCJHB 452 (18 December 2015)
Not
reportable
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: JR 2566/11
In
the matter between:
HARRY
MABASO
APPLICANT
and
CEMENT
AND CONCRETE
INSTITUTE
RESPONDENT
Heard
:
3 December 2015
Judgment
delivered
:
18
December 2015
JUDGMENT
VAN
NIEKERK J
[1]
This is an application in terms of Rule 11 to set aside a writ of
execution issued by the registrar on 2 September 2013.
[2]
The material facts are not in dispute. The applicant was employed by
the respondent until his dismissal in November 2010. At
a later
arbitration hearing, the parties concluded a settlement agreement. In
terms of the agreement, the respondent agreed to
pay the applicant an
ex gratia
payment of R15 000 in full and final settlement of
the dispute. The amount was paid on 6 May 2011. On 17 October 2011,
the applicant
filed a review application in this court in which he
took issue with the settlement agreement. On 5 December 2011, the
respondent
demanded repayment of the R15 000 paid in terms of the
settlement agreement, on account of the applicant’s challenge
to the
agreement. The amount was repaid on 7 December 2011, by way of
a deposit made into the respondent’s attorney’s trust
account. On 9 March 2012, the applicant withdrew the review
application, which the respondent had opposed, and tendered the
respondent’s
costs. On 27 March 2012, the applicant
subsequently apologized for filing the review application and
requested the applicant to
furnish him with its taxed bill of costs,
on a party and party scale. On 28 May 2012, a bill of costs was taxed
and allowed in
the respondent’s favour in the sum of R14
608.68. On 5 June 2012, the respondent’s attorneys advised the
applicant
that the sum of R15 000 paid on 7 December 2011 plus
interest and less the taxed costs would be paid to him on the same
day. On
the same day, a deposit of R708, 87 was made into the
applicant’s bank account.
[3]
On 12 March 2013, the applicant applied to have the settlement
agreement made an order of court. The respondent opposed the
application. For reasons that are not apparent, the application was
treated as unopposed and on 17 July 2013, this court granted
the
order in terms of which the settlement agreement was made an order of
court. On 26 August 2013, the respondent’s attorney
wrote to
the applicant recording its surprise at the granting of the s 158 (1)
(c) application, given that the applicant was aware
that the
application had been opposed, and an answering affidavit filed. The
letter records that on enquiries made in the office
of the registrar,
the court file had been removed by the applicant on 26 March 2013.
The letter falls short of a direct allegation
that the applicant
himself removed the notice of intention to oppose and answering
affidavit from the file, but records that the
applicant had committed
fraud by representing to the court that his s 158 (1) (c) application
was unopposed. The letter further
records that the respondent’s
attorneys had deducted from the R15 000 held in trust an amount of
R14 608.68 (being the respondent’s
taxed costs) and paid the
difference of R391.32, plus interest of R 317.35, (total R708.67) to
the applicant on 6 June 2102. The
letter concluded with a
demand that the applicant conform that the respondent had complied
with all of its obligations in
terms of the settlement agreement and
that he confirm that he had no further claims against the respondent.
The respondent indictaed
that a failure by the applicant to provide
such an undertaking by no later than 30 August 2013 would result in
the respondent taking
the view that that the applicant intended
pursuing a claim for the sum of R15 000, and proceeding with the
‘necessary execution
steps’ in terms of the taxed bill of
costs.
[4]
On 3 September 2013, the registrar issued a warrant of execution
authorizing the sheriff to attach the applicant’s movable
goods
to satisfy the costs taxed by the respondent. That writ was served on
the applicant on 13 September 2013 and a
nulla bona
return
issued. On 18 September 2013, the registrar issued a writ of
execution in favour of the applicant in the sum of R15 000,
by virtue
of the judgment issued on 17 July 2013. That writ was executed on 10
March 2014 when the respondent paid the sheriff
the sum of R17 057.00
approximately R 1319.71 related to the sheriff’s costs and
commission. That amount, it would appear,
is being held by the
sheriff,
[5]
The respondent contends that by proceeding to have a writ issued and
executed, the applicant made it clear that he did not intend
to
honour his previous undertaking that the sum of R15 000 first be
appropriated to the respondent’s taxed costs, and that
he thus
became indebted to the respondent for the payment of its taxed costs.
On this basis, then respondent issued a writ and
executed same as
against the monies that it paid the sheriff in settlement of its
indebtedness to te applicant in terms of the
writ issued by him,
since these monies would be the only asset that the respondent would
be able to attach in order to obtain payment
under the respondent’s
writ.
[6]
The applicant seeks to have the writ issued on 2 September 2013 set
aside. The only grounds on which he relies is that he was
advised by
the registrar to apply to have the writ set aside on the basis that
it was never served on him, nor was it correctly
issued in that the
signature on the writ does not accord with that of the registrar. The
applicant states only in his founding
affidavit that some 6 months
after signing the settlement agreement, he ‘felt aggrieved’
by its terms and filed the
application for review. He states that in
December 2011 the respondent ‘demanded’ that money be
paid into its trust
account, and that he repaid the money and
withdrew the review application. He avers that the respondent
thereafter demanded payment
of taxed costs, and that he thereafter
filed the s 158 (1) (c) application, which was granted on 17 July
2013. The applicant submits
that the warrant should be set aside and
the money in the sheriff’s trust account paid to him.
[7]
None of these are valid ground on which to set aside the writ of
execution. The averment that the writ ought to be set aside
because
it was never served on him is of no consequence, since there is no
requirement in law that for a warrant to be valid, it
must be served.
In any event, the writ was in fact served on the applicant, a fact
established by the sheriff’s return of
service annexed to the
answering affidavit. In so far as the veracity of the registrar’s
signature is concerned, the applicant’s
averment amounts to
nothing more than his say-so. On the face of it, the writ is
regular. There is no affidavit by the registrar
to confirm that the
writ was not validly issued. In short, the applicant has failed to
establish any valid ground for the writ
of execution to be set aside.
For these reasons, the application stands to be dismissed.
[8]
In so far as the costs of the present proceedings are concerned, the
respondent sought a punitive costs order. It did so on
the basis that
the applicant has acted frivolously, maliciously and has engaged in
what amounts to vexatious litigation. The history
of the present
dispute goes some way to justifying a punitive costs order. The
applicant signed a settlement agreement, which he
sought to have
undone some 5 months later by way of a misguided application for
review. He tendered the respondent’s costs,
and then sought to
challenge the taxed bill, in effect, by asserting that the respondent
had not performed in terms of the settlement
agreement. This was
blatantly false. In the present application, the applicant continues
to raise issues relating to the taxation
of the bill, despite clear
evidence of his acquiescence in relation to the agreed terms of
payment of the bill. Further, the answering
affidavit raises serious
questions as to how the s 158 (1) (c) application came to be dealt
with on an unopposed basis when the
respondent had filed both a
notice of intention to oppose and an answering affidavit.
[9]
This court has a broad discretion in relation to costs orders. While
the applicant has been misguided in bringing the present
application,
and while his conduct borders on the vexatious, I do not believe that
an order for costs is appropriate. In relation
to the s 158 (1) (c)
application, I would note that the hand-written index to that
application includes a reference to the respondent’s
notice of
intention to oppose. On that basis, the application should never have
been granted on an unopposed basis, but the inclusion
of the notice
in his index does indicate that the applicant did not act dishonestly
by representing the application as unopposed.
Further, the applicant
is unemployed. Little purpose would be served in ordering him to pay
the respondent’s costs, on a
punitive scale or otherwise.
[10]
On the other hand, the applicant has caused the respondent to incur
costs in opposing an application that from the outset had
no merit,
and was wholly misguided. This is not the first time that the
applicant has put the respondent to the expense and inconvenience
of
litigation. Also relevant is the applicant’s failure to
disclose fully in his founding affidavit the terms on which he
agreed
that the issue of the taxed costs be resolved – the applicant
appears to have made a habit of entering into agreements
and later
reneging on them. Indeed, this matter ought to have proceeded no
further than the finalisation of the settlement agreement
in May
2011. The applicant is largely responsible for the events that have
transpired since.
[11]
On balance, the interests of the law and fairness are best served by
there being no order as to costs. Having said that, the
applicant is
cautioned that any further fruitless litigation may not be met with
the same response.
I
make the following order:
1.
The application is dismissed.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Appearances
For
the applicant: Self
For
the Respondent: Adv J Campanella, instructed by Garratt Hugo and De
Souza