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[2017] ZALCPE 18
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South African Transport and Allied Workers Union v Algoa Bus Company (Pty) Ltd and Others (P519/17) [2017] ZALCPE 18 (6 November 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not
Reportable
CASE
NO: P519/17
In
the matter between
SOUTH
AFRICAN TRANSPORT
AND
ALLIED WORKERS UNION
Applicant
and
ALGOA
BUS COMPANY (PTY) LTD
First
Respondent
THE
SHERIFF PORT ELIZABETH
Second Respondent
STANDARD
BANK OF SOUTH AFRICA
Third Respondent
TRANSPORT
AND
ALLIED WORKERS
UNION
OF SOUTH
AFRICA
Fourth Respondent
TRANSPORT,
ACTION, RETAIL
AND
GENERAL WORKERS
UNION
Fifth Respondent
Heard:
3 November 2017
Delivered:
6 November 2017
Summary:
An application to stay the execution of a writ may not be granted in
the absence of an underlying
causa
which is the subject matter of an ongoing dispute between the
parties.
JUDGMENT
Lallie,
J
Introduction
[1]
The applicant launched this urgent application for an order mainly in
the following terms:
“
2.
An order that the warrant of execution dated 06 September 2017 and
the notice of attachment
dated 07 September 2017 under case number
P337/12 be set aside or stayed pending appeal application under case
number PA 14/2017.
3.
An order that the warrant of execution dated 24 October 2017 and the
notice of
attachment dated 25 October 2017 under case number P337/12
be set aside, alternatively be stayed pending appeal application
under
case number PA 14/2017.
4
Ordering the Second Respondent to immediately uplift any attachment
made
as a result of the above writs of execution and to reimburse the
Applicant any monies paid into the Second Respondent’s trust
account due to the aforementioned attachments”.
The application is
opposed by the first respondent which,
inter alia
, challenged
the urgency of the application on the grounds that the first
attachment was effected on 20 September 2017 and the application
launched on 2 November 2017. Having considered the arguments on
behalf of the parties on urgency, I accept the applicant’s
argument that the attachment of its second bank account on 25 October
2017 and the nature of the relief the applicant seeks rendered
the
application urgent.
[2]
The factual background to this application is that employees of the
first respondent, including members of the applicant, fourth
and
fifth respondents participated in strike action in September and
October 2011. Resulting from the conduct of the striking employees,
the first respondent sought a compensation order in terms of section
68 (1) (b) of the Labour Relations Act 66 of 1995 (the LRA)
against
the applicant, the fourth and fifth respondents and some employees.
The applicant’s attempt to oppose the application
was thwarted
by the late filing of its answering affidavit. On 31 October 2014,
the first respondent obtained, in default, an order
in which,
inter
alia
, the applicant, fourth and fifth respondents were found
jointly and severally indebted to the first respondent in the amount
of
R10,350,000 (ten million Rand) plus interest and costs. The
applicant filed an application for leave to appeal against the
default
judgement. As it was filed late, an application to condone
the lateness was also filed. The condonation application was
dismissed.
The applicant filed an application for leave to appeal
against the dismissal of the condonation application. That
application was
dismissed. On 6 September and 24 October 2017, the
first respondent caused writs of execution in respect of the order of
31 October
2014 to be issued. On 20 September and 25 October 2017,
the applicant’s two bank accounts were attached by the second
respondent
in terms of the writs of execution. The applicant
instructed its erstwhile attorneys to file a petition to the Labour
Appeal Court
against the dismissal of the applications and realised
only when its first bank account was attached that the instructions
were
never acted upon. Pursuant to the attachment of the applicant’s
second bank account, the applicant brought the application
at hand to
either set aside or stay the writs of execution authorising the
attachments and concomitant relief.
[3]
The grounds the applicant sought to rely on are that the attachments
violated its incorporeal rights as it is unable to conduct
transactions through the attached bank accounts. Amongst the
obligations the applicant is unable to meet, is payment of the
salaries
and benefits of its employees. The non-payment constitutes a
violation of section 32 of the Basic Conditions of Employment Act 75
of 1997 (BCEA). It is unable to pay legal representatives who
represent its members involved in disputes with employers. The
applicant
submitted that it will lose membership owing to its
inability to fulfill the obligation to act on behalf of its members.
A further
consequence of the attachment of the bank accounts is that
the applicant is unable to comply with the order of this Court of 15
September 2017 which requires the applicant to convene a central
executive committee conference to fill the vacant positions of
its
first and second president. The applicant also runs the risk of being
evicted from the offices it rents in different provinces
owing to its
inability to pay rent. Its very existence is in jeopardy as it is
unable to pay its creditors which provide electricity,
telephones and
printers.
[4]
A further ground the applicant seeks to rely on is a pending appeal
launched by the fourth respondent against the judgement
of 31 October
2014. The fourth respondent is amongst the respondents held jointly
and severally liable for the payment of the ten
million Rand to the
first respondent. After the order of 31 October 2014 had been
granted, the fourth respondent filed an application
for its
rescission. As the rescission application was filed late, the
respondent applied for its condonation. The condonation application
was dismissed and the fourth respondent successfully applied for
leave to appeal against the dismissal. The applicant submitted
that
the appeal is pending at the Labour Appeal Court under case number PA
14/2017. The applicant is of the view that the fourth
respondent’s
appeal has practical implications on the applicant and that if the
first respondent recovers the total amount
of the judgement debt
against the applicant, the application at hand will be rendered
academic. The applicant further argued that
it should be able to
access its bank accounts until the finalisation of the appeal. A
further consequence of the fourth respondent’s
appeal is that
the operation of the order of 31 October 2014 would be suspended or
stayed pending its finalisation. The applicant
expressed the view
that the underlying
causa
of the judgement debt in the matter
at hand is disputed in the appeal. The order of 31 October 2014 may
therefore not be executed
until the appeal is dismissed unless the
court granting leave to appeal permits execution. Execution has not
been permitted. It
was also argued on behalf of the applicant that a
writ of execution is stayed where real and substantial justice
requires or where
injustice would otherwise result. It is in the
interests of justice, so went the argument, that the writs of
execution be either
set aside or stayed.
[5]
The first respondent denied that the applicant has made out a case
for the setting aside of the writs of execution. Amongst
the reasons
for opposition is that the underlying
causa
of the judgement
debt cannot be said to be disputed by the applicant. A further ground
is that the applicant has failed to disclose
its financial position
as it did not prove that it cannot meet its obligations with funds
other than those in the attached bank
accounts. It was argued on
behalf of the first respondent that its interests as a judgement
creditor have to be taken into account
in determining whether it is
in the interests of justice to have the writs of execution stayed.
[6]
Writs of execution may be set aside if they have been obtained
improperly. It is not the applicant’s case that the writs
of
execution were not properly obtained. An order setting the writs of
execution aside may not be granted in the absence of the
averment
that they were improperly obtained. In
Gois
t/a Shakespear’s Pub v Zan Zyl & others
[1]
the general principles of granting a stay of the writ of execution
were summarised as follows:
“
(a)
a court will grant a stay of execution where real and substantial
justice requires it or where
injustice would otherwise result;
(b)
the court will be guided by considering the factors usually
applicable to interim interdicts,
except where the applicant is not
asserting a right but attempting to avert injustice;
(c)
the court must be satisfied that -
(i)
the applicant has a well- grounded apprehension that the execution is
taking
place at the instance of the respondent(s); and
(ii)
irreparable harm will result if execution is not stayed and the
applicant ultimately
succeeds in establishing a clear right;
(d)
irreparable harm will invariably result if there is a possibility
that the underlying causa
may ultimately be removed, ie where the
underlying causa is the subject matter of an ongoing dispute between
the parties;
(e)
the court is not concerned with the merits of the underlying dispute
– the soul enquiry
is simply whether the causa is in dispute”.
[7]
The applicant submitted that an injustice will result if the writs of
execution are not stayed. The main reason for the submission
is that
the applicant will grind to a halt in that it will not be able to
rent premises from which it operates in different provinces,
pay its
staff and suppliers. Refuting the allegation, the first respondent
submitted that the applicant, as the author of its own
inconvenience,
may not rely on its failure to take the necessary steps which would
have prevented the issuing of the writs of execution.
The first
respondent served its application in terms of section 68 (1)(b) of
the LRA on the applicant. The applicant filed its
answering affidavit
long after it was due and applied for condonation. The condonation
application was unsuccessful and the application
was heard on an
unopposed basis and a default judgement was granted in favour of the
first respondent against the applicant and
other parties. In an
attempt to have the default judgement overturned, the applicant
applied, out of time, for leave to appeal
and sought condonation for
its late filing. The condonation application could not succeed
because, amongst other reasons, the applicant
sought an incompetent
order. Leave to appeal against a default judgement may not be granted
is orders granted in default may be
rescinded by the courts which
granted. They are not final orders. An order has to be final before
it can be appealed against. The
applicant should have applied for
rescission of the default judgement but failed to do so. The first
respondent has been waiting
for the applicant to pay the judgement
debt since it was granted on 31 October 2014. The applicant has
itself to blame for the
failure to file the answering affidavit
within the required time. It is also responsible for its further
failure to apply for rescission
of the default judgement. It has
itself to blame for following an incorrect procedure in attempting to
have the default judgement
overturned. When the interests of justice
of both parties are considered they point to the conclusion that
injustice will result
if the execution of the writs is stayed.
[8]
The applicant submitted that it will suffer irreparable harm if
execution is not stayed because the attachment of its two bank
accounts has resulted in its inability to pay employees, creditors
and suppliers. It is left unable to operate and it faces the
risk of
losing membership and deregistration as a trade union. The applicant
has failed to prove that it will suffer irreparable
because it did
not disclose its financial position. No evidence was presented to
prove that it does not have other bank accounts
or investments. Even
if I accept the applicant’s argument that its financial
position is implied in the averments that it
is unable to fulfil its
financial obligations, irreparable harm on its own does not
constitute grounds to have a writ of execution
stayed. The relevant
irreparable harm in applications to stay the execution is one which
will result if there is a possibility
that the underlying
causa
which is the subject matter of an ongoing dispute between the parties
may ultimately be removed. There is no pending
lis
between the
parties which the applicant may be successful in and stands to suffer
irreparable harm should it be successful after
the stay of the writ
of execution is refused. The absence of the ongoing dispute between
the parties on its own constitutes sufficient
grounds for the refusal
of an application to stay the writ of execution. It is common cause
that there is no ongoing dispute between
the parties. The application
for leave to appeal which was brought by the fourth respondent is not
a
causa
between the applicant and the first respondent. The
application can, in the circumstances, not succeed.
[9]
The first respondent sought a costs order against the applicant. I am
not convinced that it would be appropriate to grant it
as I am
convinced that notwithstanding the weaknesses in the applicant’s
case, the applicant’s conduct of approaching
this court for
relief was not unreasonable.
[10] In the premises, the
following order is made:
10.1 The
application is dismissed.
10.2 No
order is made as to costs.
Z
Lallie
Judge
of the Labour Court of South Africa
Appearances
:
For
the Applicant: Mr Daniel Majare of Majare Attoneys
For
the First Respondent: Advocate John Grogan
Instructed
by: Joubert Galpin Searle
[1]
(2003) 24 ILJ 2302 (LC)
at para 37