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[2018] ZALCJHB 222
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McDonald v TRSS 24 Hour Reaction (Pty) Ltd and Others (J1886/18) [2018] ZALCJHB 222 (18 June 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: J 1886/18
In
the matter between:
MATTHEW
GEORGE
MCDONALD
Applicant
and
TRSS
24 HOUR REACTION (PTY)
LTD
First
Respondent
CHARLES
PETER VICTOR
MOLYNEUX
URBAN
Second
Respondent
RENATO
RAMOS
Third
Respondent
KENNETH
BRETT
FISHER
Fourth
Respondent
PENNY
ARENDS
Fifth
Respondent
SHERIFF
SANDTON
NORTH
Sixth
Respondent
Heard:
13 June 2018
Delivered:
28 June 2018
JUDGMENT
MAHOSI.J
Introduction
[1]
This is an urgent application
in
terms of which the applicant seeks an order in the following terms:
‘
1
Dispensing with the time limit prescribed by the rules of the above
Honourable Court and dealing with this application on an urgent
basis.
2.
The 1
st
to 4
th
Respondents pay an amount equal
to the judgment order in the main application of applicant together
with interest accrued from
30
th
May 2017 to, as security
in the judgment order. Such amount to be paid into the Trust account
of the Sheriff Sandton North.
3.
The 1
st
to 4
th
Respondents to reimburse and pay
the applicant the wasted costs of the sheriff for attempted removal
of the attached goods on the
6
th
February 2018.
4.
The 2
nd
to 5
th
Respondents are found in
contempt of Court.
5.
Necessary expenses incurred by the Applicant in bringing this
application.
6.
Further and alternative relief.
Alternatively
1.
The 1
st
to 5
th
Respondents to hand over to the
Sheriff Sandton North forthwith the moveable property as described in
the writ of execution. The
Sheriff Sandton North to obtain the
services of the professional appraiser to value the goods as
described in the writ. Such costs
of the appraiser to be paid by the
1
st
to 4
th
Respondents.
2.
The 1
st
to 4
th
Respondents to pay in the amount
in difference (if any) between the valuation of the said attached
property as above and the judgment
order together with interest it
has accrued, into the trust account of the Sheriff Sandton North
within 24 hours after Sheriff
Sandton North has provided applicant
and the aforesaid respondents with such a valuation certificate
issued by the appraiser.
3.
The 1
st
to 4
th
Respondents to pay for the costs
of the Sheriff to remove and store the property as described in the
writ, such storage charges
to be paid by the aforesaid Respondents
from date of removal to date the matter in the main application of
applicant comes to finality.
4.
The 1
st
to 4
th
Respondents top adequately
insure and keep it insured, the movable property described in the
writ against theft, fire and/or any
other insurable risk. Such costs
of insurance to be paid by the aforesaid 1
st
to 4
th
Respondents.
5.
The 1
st
to 4
th
Respondents to reimburse and pay
the applicant the wasted costs of the Sheriff for the attempted
removal of the attached goods
on the 6
th
February 2018.
6.
The 2
nd
to 5
th
Respondents are found in
contempt of court.
7.
Necessary expenses incurred by the Applicant in bringing this
application.
8.
Further and alternative relief.’
Material
background facts
[2]
The facts in this matter are mainly common cause or not in dispute.
On 5 December 2017, this Court granted a default
judgment in favour of the applicant against the first respondent. The
applicant
served the order and a writ of execution on the respondent
on 6 December and on 11 December 2017. On 11 December 2017, the
applicant
brought a contempt of court application against the
respondents. On 29 January 2018 the Sheriff attended the premises of
the first
respondent and attached two vehicles belonging to the first
respondent.
[3]
Despite the attachment of the respondent’s movable property the
applicant allegedly afforded the first respondent an opportunity
to
satisfy the order and warned the respondent that should it persist in
ignoring the order, further steps would follow. The Court
order was
still not complied with.
[4]
The applicant then instructed the Sheriff to remove the attached
goods. On 6 February 2018 the Sheriff attended the premises
of the
respondent to remove the attached goods. Upon arrival, the Sheriff
discovered that the respondent had removed the attached
goods. It
came to the applicant’s attention that the respondents have
been using the attached property on a daily basis.
[5]
On 6 February 2018, the first respondent served and filed an
application for the rescission of the default award, which
application
was served and filed under case number J 1569/17. On the
same date, the first respondent brought an urgent application to stay
the execution of the writ, which application was brought under case
number J 305/18 in this Court.
[6]
On the 22 February 2018, this Court ordered that:
‘
The
enforcement of the Court Order issued by Honorable Justice Gush on 5
December 2017, under case number J 1569/17, is stayed until
the
finalization of the first respondent’s rescission application
filed under the same case number.’
[7]
The first respondent’s rescission application is still pending.
[8]
The applicant’s submission was that the staying of the writ of
execution does not in any way cancel the writ or give the
respondents
any legal right to use the attached goods on a daily basis and/or to
have the same removed. Such an act, argued the
applicant, is unlawful
and in direct contempt of court.
[9]
The first respondent opposed this application and submitted that the
applicant failed to present any evidence to denote any
urgency in
relation to the relief sought. The first respondent contended that
the applicant is effectively attempting to appeal
the order granted
to stay the writ of execution. This contention was based on the fact
that all the facts set out in the current
application were also
before this Court when the stay application was heard.
Urgency
[10]
Rule 8 of the Rules of this Court, which
governs the urgent applications, provides as follows:
‘
(2)
The affidavit in support of the application must also contain-
(a)
the reasons for urgency and why urgent relief is necessary;
(b)
the reasons why the requirements of the rules were not complied with,
if that is the case; and
(c)
if a party brings an application in a shorter period than that
provided for in terms of section 68(2) of the Act, the party
must
provide reasons why a shorter period of notice should be permitted.’
[11]
The first respondent opposed this application for its lack of urgency
and merit.
In
Jiba
v Minister of Justice and Constitutional Development and Others,
[1]
this
Court considered Rule 8 and stated as follows:
‘
Rule
8 of the rules of this court requires a party seeking urgent relief
to set out the reasons for urgency, and why urgent relief
is
necessary. It is trite law that there are degrees of urgency, and the
degree to which the ordinarily applicable rules should
be relaxed is
dependent on the degree of urgency. It is equally trite that an
applicant is not entitled to rely on urgency that
is self-created
when seeking a deviation from the rules.
’
[2]
[12]
The applicant
discovered on 6 February 2016
that the first respondent removed the attached vehicles and that they
have been used on a daily basis.
This
application was filed on 4 June 2018 and it was set down to be heard
on 12 June 2018. In his founding affidavit, the applicant
submitted
that the respondents’ failure to comply with the writ issued
out of this Court is itself serious and urgent. The
applicant has not
explained why this application was brought almost three months after
being aware of the first respondent’s
use of the attached
goods.
[13]
As stated above, Rule 8 of the Rules of this Court requires the
applicant to set out an explanation why the relief is sought
on an
urgent basis and why the timeframes set out in the Rules should be
abridged. The applicant is required to show why the rules
of this
Honorable Court relating to forms and service should be dispensed
with. The Applicant has, in my view, failed to make out
a case for
urgency and it is for that reason alone that its application stands
to fail.
Costs
[14]
In terms of section 162 of the LRA, the Court has a wide discretion
in awarding costs. The Constitutional Court has recently
reiterated
in
Zungu
v Premier of the Province of Kwa-Zulu Natal and Others
[3]
,
that costs orders should be made in accordance with the requirements
of law and fairness. In this matter, I am of the view that
there
should be no order as to costs.
[15]
In the circumstances, I make the following order.
Order
1.
This
application is struck off the roll for
want of urgency.
2.
There is no order as to costs
_____________________
D
Mahosi
Judge
of the Labour Court of South Africa
Appearances
For
the applicant: Mr M.G Macdonald (In person)
For
the first respondent: Advocate A.J Nel
Instructed
by: Lee and Mcadam Attorneys
[1]
(2010)
31 ILJ 112 (LC).
[2]
At
para 18.
[3]
(2018)
39 ILJ 523 (CC).