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[2017] ZALCJHB 126
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Ngake v South African Local Government Bargaining Council and Others (J864/17) [2017] ZALCJHB 126 (25 April 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case no: J864-17
In
the matter between:
EDNA
KELEBOGILE NGAKE
Applicant
and
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
First Respondent
TM
GRAHAM N.O.
Second
Respondent
RUSTENBURG
LOCAL MUNICIPALITY
Third
Respondent
SHERIFF
OF
RUSTENBURG
Fourth Respondent
Heard:
20 April 2017
Delivered:
25 April 2017
JUDGMENT
WHITCHER
J
Introduction
[1]
On 11 November 2016, the applicant launched a
review application to set aside an arbitration award issued on 24
October 2016 which
ordered the reinstatement with back pay of the
third respondent.
[2]
On 3 April 2017, the applicant launched an urgent
application under J779-17 to stay the writ of execution dated 7 March
2017 pending
the finalisation of the review application. On 7 April
2017, Steenkamp J struck the application from the roll for lack of
urgency.
The applicant was criticised for not treating the matter
urgently and approaching the court earlier.
[3]
The applicant thereafter, on 7 April 2017, wrote
to the third respondent’s attorney advising them that they have
“now
issued an application to stay the award and writ in the
normal course”, and in this regard, they urge the third
respondent
to give an undertaking to place the execution in abeyance
until the application to stay was determined by the Court on the
normal
roll. They further advised that if the undertaking was not
forthcoming by the close of business on 10 April, the applicant shall
proceed to approach the Court on an urgent basis
again
,
to stay the writ and award.
[4]
On 10 April 2017, the third respondent, through
her attorney, refused to grant the undertaking sought. Her attorneys
warned the
applicant that any fresh urgent application was irregular
because it would be based on the same subject matter, relief and
facts
as in the urgent application that was struck from the roll on 7
April 2017 under case number J779-17.
[5]
On 11 April 2017, the applicant launched this
urgent application to stay the writ of execution dated 7 March 2017
pending the finalisation
of the applicant’s application to stay
the writ and award under case number J779-17.
[6]
The applicant submits that other intervening
facts now exist which renders
this matter
urgent, namely that the third respondent has failed to give the
undertaking mentioned above.
[7]
In my view this new factor is nothing more than
an attempt to self-create urgency. In my view the circumstances under
which the
original application was dismissed have not changed, namely
that the applicant failed to act timeously and with appropriate
urgency
to bring their applications to stay the execution of the writ
and award. This application is nothing more than a repeat of the
original application and on this basis needs to be dismissed and not
just struck off the roll. Obviously the original application
under
J779-17i s still alive and pending.
[8]
I
also note that the applicant, despite claiming same, did not take
steps for the stuck off application to be filed and set down
in the
ordinary course and roll.
[9]
The applicant had from 11 November 2016 to launch
an application to stay the execution of the award. They ought to have
anticipated
that the third respondent in the absence of a stay to
enforce would attempt to enforce the award as what ordinarily happens
in
hundreds of cases, and in November sought an undertaking, and
failing which launch the application then. It is by now a well-known
and simple practice for parties to launch a review application
together with an application to stay the execution of the award.
Order
[10] The application is
dismissed with costs.
________________________________
Whitcher J
Judge of the Labour Court
of South Africa
APPEARANCES:
For
the Applicant: X Mofokeng, instructed by Majang Atttorneys
For
Third Respondent: Adv T Tema, instructed by De Swardt Vogel Myambo