About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 31
|
|
Ekurhuleni Metropolitan Municipality v SAMWU obo Ngawe and Another (J62/2017) [2017] ZALCJHB 31 (7 February 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: J62/2017
In
the matter between:
EKURHULENI
METROPOLITAN
MUNICIPALITY
Applicant
And
SAMWU obo
NOMATHEMBA NGAWE
First Respondent
THE SHERIFF,
GERMISTON SOUTH
.
Second Respondent
Heard:
01 February 2017
Delivered:
07 February 2017
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
The
Applicant approached the Court on an urgent basis to seek an order
staying the Writ of Execution issued under case number GPD111505,
and
to further set aside the certificate of award issued in terms of the
provisions of section 143 of the Labour Relations Act,
pending the
final determination of its rescission application launched at the
SALGBC. The application is opposed.
Background:
[2]
The
dispute between the parties dates back to 2010 after the amalgamation
of the then Springs Town Council into Ekurhuleni Municipality.
Following the transfer of contracts of employees in terms of the
provisions of section 197 of the LRA, the First Respondent (Ngawe)
as
represented by SAMWU, lodged a placement dispute internally, claiming
that she should have been placed at Clerk Grade 1 position
with
back-pay. Following an internal arbitration process, an award was
issued on 21 April 2010 in terms of which it was found that
Ngawe was
entitled to the placement she sought. The internal arbitrator however
declined to order back-pay on the basis that he
had no jurisdiction
to pronounce on the issue.
[3]
Five
years later in November 2015, Ngawe lodged a further unfair labour
practice dispute. The SALGBC, for unknown reasons allocated
two case
numbers to that dispute, viz GPD121506 and GPD111505. Both matters
were set down for conciliation on 26 January 2016 before
two
different Commissioners. It is not clear as to the reason the
Applicant or the First Respondents had not raised concerns at
the
time in view of the same dispute having been allocated two different
numbers and being conciliated on the same day. In case
number
GPD121506, the Commissioner in a ruling issued on 15 February 2016
held that the Council lacked jurisdiction to determine
the matter.
The Commissioner in case number GPD111505 however issued a
certificate of outcome, to enable the First Respondents
to refer the
matter for arbitration.
[4]
The
dispute under case number GPD111505 having been referred for
arbitration, it came before Commissioner Dawson on 29 June 2016,
where both parties were presented. An award was issued on 1 August
2016, in terms of which Ngawe was granted R420 000.00 in back
pay.
Aggrieved with the award, the Applicant then filed an application for
rescission on 22 August 2016. Answering and replying
affidavits have
since been filed in respect of that application. To date, the
application has not been determined by the SALGBC.
[5]
The
award issued on 1 August 2016 was certified by the CCMA in terms of
the provisions of section 143 of the LRA on 13 December
2016,
and SAMWU advised the Applicant to act on it failing which a sheriff
would attach.
Urgency:
[6]
The
Applicant launched this application on 20 January 2017. The deponent
to the Applicant’s founding affidavit, Xolani Nciza,
its
Manager-Collective Bargaining, averred that the application was
urgent on the basis that the writ of execution came to his
attention
in the second week of January 2017, and that if the Respondents were
not interdicted, it would be difficult for it to
vindicate against
third parties who would have purchased the movable goods in auction.
It was further averred that the Applicant
would suffer irreparable
harm if the order was not granted, and that Ngawe would not be
prejudiced as she was still gainfully employed,
and could execute the
writ in the event that the rescission application was dismissed.
[7]
The
First Respondents on the other hand contended that the application
was not urgent in view of the fact that the Applicant became
aware of
the intention to execute as early as 13 December 2016, and only
brought this application on 20 January 2017. It was contended
that
the Applicant has not explained the delay in approaching the Court
earlier if the matter was indeed urgent, nor had it explained
its
inaction in finalising the rescission application before the SALGBC.
The First Respondents held the view that the urgency claimed
in this
matter was self-created, and that the application ought to be struck
off the roll.
[8]
It
is trite that an applicant seeking urgent relief as contemplated in
Rule 8 of the Rules of this Court must adequately and in
detail, set
out in the founding affidavit, the reasons for the urgency, the
circumstances which render the matter urgent, and the
reasons why
substantial redress cannot be obtained at a hearing in due cause. In
determining urgency, a court will be guided by
considerations of
whether the reasons that make the matter urgent have been set out
succinctly in the papers and secondly, whether
the applicant seeking
relief will not obtain a substantial relief at a later stage. Thus,
the basis for allowing parties to dispense
with the Rules of Court
relating to time periods is to prevent the occasioning of an
injustice and involves the balancing of this
consideration with that
of the rights of parties to a considered opportunity to place their
cases before the court
[1]
. It
therefore follows that where the court is not satisfied that
sufficient reasons have been given for the matter to be treated
as
one of urgency, the application ought to be struck off from the roll
on that ground alone
[2]
.
[9]
In
its paragraph 9 of the Founding Affidavit, and to the extent that it
dealt with the issue of urgency, the Applicant stated that
the letter
of writ of execution was received around 14 January 2017, wherein the
Respondents had threatened to attach the Applicant’s
property.
The Applicant did not file a replying affidavit, and had merely filed
a supplementary affidavit in which it was averred
that having served
this application on 23 January 2017 on the Respondent, the
Second Respondent had nevertheless visited
the premises of the
Applicant with the intention to attach.
[10]
I
accept in this case that to the extent that the Second Respondent had
indicated its intentions to attach, and notwithstanding
the fact that
the Applicant had not explained in detail the reasons for the delay
between 13 and 20 January 2017, the application
ought to be accorded
urgency. That delay in the light of the circumstances of this case
cannot be of such a nature that the Applicant
should be denied the
right to a considered opportunity to place its case before this
court.
The
legal framework and evaluation:
[11]
The
legal principles surrounding applications for the stay of a writ are
trite. The grounds upon which a Court may stay execution
include that
the underlying cause of action on which the judgement is based is
under attack, and/or that execution is being sought
for improper
reasons. In exercising its discretion to grant a stay of execution, a
court is not required to take the merits of
the underlying attack on
the
causa
of
the writ into account.
[12]
In
the light of the above, an applicant is accordingly not required to
satisfy the court of the existence of prospects of success
in the
principal dispute, as an application for a rescission, review or
variation of an award qualifies as an attack on the
causa
underlying
the award
[3]
. The court, in
further exercising its discretion, will also consider whether the
interest of justice supports the stay of execution
pending the
finalization of the review or rescission application
[4]
.
Thus where an injustice would otherwise be done, the Court would be
inclined to grant such a stay
[5]
.
[13]
In
this case, it was common cause that there is a pending application
for rescission before the SALBGC. Central to that application,
albeit
not before this court, is that Commissioner Dawson, despite it being
brought to his attention, failed or omitted to decide on the
jurisdictional issue raised during the arbitration proceedings held
on 29 June 2016. The Applicant’s contention was that
had
Commissioner Dawson done so, he would have concluded that he had no
jurisdiction to arbitrate the dispute on the basis that
it was either
res
judicata
,
or in the alternative, the dispute was filed out of time. These
defences were also raised in the light of two conflicting decisions
in respect of the same matter, with one Commissioner having
determined that the SALGBC lacked jurisdiction to determine the
dispute.
[14]
Commissioner
Dawson’s arbitration is thin in substance, and it is not
indicated therein whether the issues of jurisdiction
as raided by the
Applicant in this case were properly dealt with. In essence, the
award does not make any reference to these issues.
I am satisfied on
the facts and the papers before the court that there is a valid and
pending application for rescission before
the SALGBC. Furthermore, it
would not be in the interest of justice not to grant the application
in the light of the history of
the dispute that led to the impugned
award, and the fact that two different commissioners had dealt with
the same dispute differently.
[15]
It
was further common cause that Ngawe was still gainfully employed by
the Applicant. The dispute between the parties has a protracted
history, and I am in agreement with submissions made on her behalf
that she was entitled to finality on the matter and the fruits
of her
favourable award. Be that as it may, the amount of the award is not
insignificant, and to the extent that after a consideration
of the
rescission application she may still benefit from that award, she
stands to suffer no prejudice as that amount would be
paid to her
with due interest. On the other hand however, if the Second
Respondent were to proceed and attach, and the Applicant’s
property was sold off on an auction, that property might not be
recoverable, or at worst, the process of recovery might be arduous.
Accordingly, the prejudice to be suffered by the Applicant if the
application was not granted far outweighs that to be suffered
by
Ngawe, and the application therefore ought to be granted.
[16]
In
regards to the Applicant’s prayer 3 of its notice of motion, in
terms of which it sought the setting aside of the certified
award, I
am of the view that from the pleadings before the Court, no case has
been made out in that respect, and furthermore, to
grant the order as
sought would be to pre-empt the determination of the rescission
application pending before the SALGBC. I have
further had regard to
the requirements of law and fairness insofar as the issue of costs is
concerned, and I am of the view that
such an order is not warranted
in this case.
Order:
1.
The
application to stay the execution of the Writ issued under case
number GPD111505 pending the final determination of the rescission
application before the SALGBC is granted.
2.
There
is no order as to costs.
__________________
Edwin Tlhotlhalemaje
Judge
of the Labour Court of South Africa.
APPEARANCES:
On
behalf of the Applicant:
Adv. M. Tshivhase
Instructed
by:
Mohamed Randera & Associates
On
behalf of the First Respondent:
Mr J Gwebu of Madlela
Gwebu Mashamba INC
[1]
See National Police Services Union v National
Commissioner of the National Police Services and Others (1999) 20
ILJ 2408 (LC);
Commissioner For the South African Revenue Services v
Hawker Air Services (Pty) Ltd and Another Case no: 379/2005 at para
9 and
Vermaak v Taung Local Municipality (JR315/13) [2013] ZALCJHB
43 (12 March 2013)
[2]
See Commissioner For the South African Revenue
Services v Hawker Air Services (Pty) Ltd and Another (supra) where
it was held
that:
“
Urgency is a
reason that may justify deviation from the times and forms the rules
prescribe. It relates to form, not substance,
and is not a
prerequisite to a claim for substantive relief. Where an application
is brought on the basis of urgency, the rules
of court permit a
court (or a judge in chambers) to dispense with the forms and
service usually required, and to dispose of it
‘as to it seems
meet’ (Rule 6(12) (a)). This in effect permits an urgent
applicant, subject to the court’s
control, to forge its own
rules (See Republikeinses Publikasies (Edms) Bpk v Afrikaanse Pers
Publikasies (Edms) Bpk 1972(1) SA
773 (A) 782A-783H) which must ‘as
far as practicable be in accordance with’ the rules). Where
the application lacks
the requisite element or degree of urgency,
the court can for that reason decline to exercise its powers under
Rule 6(12) (a).
The matter is then not properly on the court’s
roll, and it declines to hear it. The appropriate order is generally
to
strike the application from the roll. This enables the applicant
to set the matter down again, on proper notice and compliance”.
[3]
[3]
Gois t/a Shakespeare’s Pub v van
Zyl & Others (2003) 24 ILJ 2302 (LC) at paragraphs 32
- 36
[4]
Chillibush Communications (Pty) Ltd v Michelle
Gericke & others (2010) 31 ILJ 1350 (LC) at para 18
[5]
Road Accident Fund v Stydom
2001 (1) SA 292
(C)