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[2016] ZALCCT 13
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Petersen v Meltrade 123 CC t/a Silvertree Restaurant and Another (C804/12) [2016] ZALCCT 13; [2016] 7 BLLR 667 (LC); (2016) 37 (ILJ) 1932 (LC) (31 March 2016)
REPUBLIC
OF SOUTH AFRICA
Reportable
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: C 804/12
In
the matter between:
ABEEDA PETERSEN
Applicant
/ judgment creditor
and
MELTRADE 123 CC
t/a
SILVERTREE RESTAURANT
First Respondent /
judgment debtor
JENNI JONES t/a PIE
MANAGEMENT
Second Respondent /
garnishee
Heard
:
16 March 2016
Delivered
:
31 March 2016
Summary:
Application for execution against garnishee.
Labour Court rule 26; High Court rule 45(12)(a). Jurisdiction: LRA s
158(1)(a)(ii),
BCEA s 77(3).
JUDGMENT
STEENKAMP
J
Introduction
[1]
This is an unusual application for this
Court. The applicant seeks an attachment order against a third party
as a garnishee. The
question arises whether this Court has
jurisdiction to grant such an order.
Background facts
[2]
The applicant, Ms Abeeda Petersen, was
employed by the first respondent, Silvertree Restaurant. She obtained
a default judgment
against Silvertree in the amount of R16 614, 23.
The Restaurant stopped trading. She now seeks to recover the debt
from the second
respondent, Jenni Jones (trading as PIE Events
Management) as garnishee.
[3]
Ms Petersen was employed as a banqueting
manager. She dealt with Ms Jones and PIE as a customer of the
restaurant in order to organise
events. She knows that PIE had failed
to settle two accounts to Silvertree and owes about R27 000 to
Silvertree. She says that
Jones “admitted that the money was
owed [to Silvertree] and advised [
sic
]
that she would be willing to pay the monies directly to me because of
the manner in which the judgment debtor dealt with its employees
before closing down”.
Jurisdiction
[4]
Upon reading the application papers, I
issued a directive to the applicant’s attorneys to address me
on the day of the hearing
on the question whether the Labour Court
has jurisdiction to issue a garnishee order. Mr
Rawoot
did so.
Evaluation
[5]
Neither
the Labour Relations Act
[1]
nor
the rules of the Labour Court deal with this issue directly. It seems
to me that it cannot be said that the Labour Court has
“exclusive
jurisdiction” to do so in terms of s 157(1) as neither the LRA
nor any other law gives it exclusive jurisdiction
to do so. Depending
on the amount owing, the High Court or the Magistrate’s Court
also has jurisdiction. But this debt arises
from the employment
relationship and, more specifically, from a court order obtained
against Silvertree in this Court. It appears
that the order was
granted in terms of s 77(3) of the Basic Conditions of Employment
Act.
[2]
And in terms of
that subsection:
“
The
Labour Court has concurrent jurisdiction with the civil courts to
hear and determine any matter concerning a contract of employment,
irrespective of whether any basic condition of employment constitutes
a term of that contract.”
[6]
It seems to me that, in those
circumstances, this Court does have concurrent jurisdiction to deal
with the dispute. And s 158(1)(b)
of the LRA gives the Court the
power to order compliance with the any provision of the LRA “or
any employment law”.
[7]
The
Rules of the Labour Court do not deal with garnishee orders. The High
Court Rules
[3]
do. High Court
rule 45(12)(a) provides that:
Whenever
it is brought to the knowledge of the sheriff that there are debts
which are subject to attachment, and are owing or accruing
from a
third person to the judgment debtor, the sheriff may, if requested
thereto by the judgment creditor, attach the same, and
thereupon
shall serve a notice on such third person, hereinafter called the
garnishee, requiring payment by him to the sheriff
of so much of the
debt as may be sufficient to satisfy the writ, and the sheriff may,
upon any such payment, give a receipt to
the garnishee which shall be
a discharge,
pro tanto
, of the debt attached.
[8]
Labour Court rule 26 provides that:
“
In
terms of section 163 of the [Labour Relations] Act, service and
execution of the court’s decisions, judgments or orders
must
take place in accordance with the procedure for service and execution
of decisions, judgments or orders of the High Court
of South Africa.”
[9]
And s 163 determines:
“
Any
decision, judgment or order of the Labour Court may be served and
executed as if it were a decision, judgment or order of the
High
Court.”
[10]
Read together, it seems to me that this
Court does have jurisdiction to order the attachment of a debt as
against a garnishee. The
applicant obtained a judgment in this Court
against the judgment debtor and seeks to enforce that judgment debt.
[11]
But she faces a further hurdle. She has not
asked the Registrar of this Court to issue a writ of execution. The
question then arises
whether the debt is “subject to
attachment”.
[12]
I think the meaning of the words “subject
to attachment” in High Court rule 45(12)(a) necessarily means
that a writ
of execution should already have been issued. The
rule goes on to say that the sheriff may, “if requested thereto
by
the judgment creditor, attach the same, and thereupon shall serve
a notice on such person, hereinafter called the garnishee, requiring
payment by him [
sic
]
to the sheriff of so much of the debt
as
may be sufficient to satisfy the writ.”
Conclusion
[13]
I find that this Court does have
jurisdiction to order attachment of a debt against a garnishee.
However, it is a prerequisite to
obtain a writ of execution against
the judgment debtor. The applicant (the judgment creditor) has not
done that. In those circumstances,
the order cannot be granted.
Order
[14]
The application is dismissed.
_______________________
Anton Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Yaseen
Rawoot
Instructed
by Parker attorneys.
[1]
Act 66 of 1995.
[2]
[2][2]
Act 75 of 1997.
[3]
Uniform Rules of Court (RULES REGULATING THE CONDUCT OF THE
PROCEEDINGS OF THE SEVERAL PROVINCIAL AND LOCAL DIVISIONS OF THE
HIGH COURT OF SOUTH AFRICA).