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[2018] ZALCJHB 337
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Mabaso v Enicker and Another (J2205/18) [2018] ZALCJHB 337 (18 September 2018)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: J 2205/18
In the matter between:
THANDIWE ZUKISWA
MABASO
Applicant
and
TATUM
ENICKER
First
Respondent
EBRAHIM
BODA
Second
Respondent
Heard:
28 August 2018
Delivered:
18 September 2018
JUDGMENT
TLHOTLHALEMAJE, J.
[1]
The question that arises with this unopposed application brought in
terms of Rule 22 of the Rules of this Court is whether it
is
permissible for this Court to grant a joinder in circumstances where
a party sought to be joined was not a party in the proceedings
that
led to the granting of an order or judgment.
[2]
The applicant, (Mabaso) seeks an order joining the second respondent
(Boda) to proceedings that emanated from an unfair dismissal
dispute
referred to the Commission for Conciliation Mediation and Arbitration
(CCMA). Having referred the dispute to the CCMA,
Mabaso had alleged
she was dismissed by the first respondent, Ms Tatum Enicker (Enicker)
on 17 March 2017 and that the
dismissal was substantively
and procedurally unfair.
[3]
The dispute was scheduled for an arbitration hearing for
30 June 2017, which Enicker failed to attend. This had
resulted
in a default award being issued in favour of Mabaso on
11 July 2017. The Commissioner awarded her R18 000
(equivalent
to six months’ remuneration) as compensation for
the unfair dismissal claim.
[4]
On
23 November 2017, Enicker belatedly approached the CCMA
seeking to rescind the default arbitration award. Her application
for
condonation for the late filing of the rescission was dismissed in
terms of a ruling issued on 8 January 2018. On
16 January 2018, the default award was certified in terms
of section 143 of the LRA, and could thus be enforced
as if it
were an order of this Court under section 143(1) of the Labour
Relations Act (LRA)
[1]
thus
enabling the Sheriff to attach and take into execution Enicker’s
movable goods at her residence.
[5]
Enicker signed a
nulla bona
certificate on 7 February 2018
following attempts by the Deputy Sheriff (Johannesburg) to execute.
On 12 February 2018,
the Deputy Sheriff issued a
nulla
bona
return against the instruction to collect the debt emanating
from the default arbitration award. Enicker had informed the Deputy
Sheriff that she held no title over any movable property and further
that she did not have the financial means to satisfy the debt.
[6]
On 6 February 2018, Boda declared in an affidavit that he
was married to Enicker out of community of property, and
that all the
assets in the family home belonged to him.
[7]
Mabaso then re-referred a dispute citing Boda as the respondent. The
matter was heard at the CCMA on 9 March 2018.
Boda had
raised a point
in limine
contending that he had never
dismissed Mabaso and that the main and only protagonist in dispute
was his wife, Enicker. Boda had
at those proceedings further
contended that Enicker owned two vehicles, had an account with
Nedbank, and further that the Sheriff
ought to have executed against
those movables and her banking account. Mabaso thereafter elected to
withdraw the dispute against
Boda.
[8]
In submissions on behalf of Mabaso it was contended that Boda ought
to be joined as the second respondent on basis that he is
the true
employer in respect of the erstwhile employment relationship. It was
further submitted that Boda has a substantial interest
in this
proceedings.
[9]
It was further submitted that the respondents have jointly refused to
comply with the default arbitration award on grounds that
both
alleged that Mabaso was employed by the other. In essence, both Boda
and Enicker disowned liability and pointed fingers at
each other.
The
legal position and evaluation:
[10]
This Court
is empowered in terms of the provisions of Rule 22 of the Rules of
this Court to join any party to the proceedings before
it under
certain circumstances.
[2]
Mabaso
approached this Court in terms of sub-rule 22(1) of the Rules (which
provide for the joinder of any person to the proceedings
if in the
Court’s view, the substantially relief sought by the applicant
depends on the determination of substantively the
same facts or
application of the law) read with sub-rule (2)(a) of the Rules of
this Court (which provides for the joinder of any
party who in the
Court’s view has a substantial interest in the subject matter
of the proceedings to be joined).
[11]
Central to Mabaso’s joinder application is that she performed
services (in respect of her employment relations) to the
benefit of
Boda
i.e.
she was a child-minder of both Enicker and Boda’s
child and in the result Boda is jointly and severely liable for the
judgment
debt emanating from the default arbitration award in respect
of the unfair dismissal claim. Mabaso further avers that Boda and
Enicker shared a home and therefore are parents to the child whom she
was caring for. Thus, Boda was jointly her employer in respect
of the
unfair dismissal claim.
[12]
In
City
of Johannesburg and Others v South African Local Authorities Pension
Fund and Others
[3]
,
the SCA held the following in respect of the principles to be applied
in an application for joinder and the non-joinder of a party:
“
As to the relevant
principles of law, it has by now become well-established that, in the
exercise of its inherent power, a court
will refrain from deciding a
dispute unless and until all persons who have a direct and
substantial interest in both the subject
matter and the outcome of
the litigation, have been joined as parties (see e.g.
Amalgamated
Engineering Union v Minister of Labour
1949 (3) SA 637
(A) at 657
and 659;
Gordon v Department of Health, KwaZulu-Natal
[2008]
ZASCA 99
;
2008 (6) SA 522
(SCA) para 9). A ‘direct and
substantial interest’ is more than a financial interest in the
outcome of the litigation.
A test often employed to determine whether
a particular interest of a third party is the one or the other, is to
examine whether
a situation could arise in which, because the third
party had not been joined, any order the court might make would not
be
res judicata
against that party, entitling him or her to
approach the court again concerning the same subject matter and
possibly obtain an
order irreconcilable with the order made in the
first place (see e.g.
Amalgamated Engineering Union
at 661;
Transvaal Agricultural Union v Minister of Agriculture and Land
Affairs & others
2005 (4) SA 212
(SCA) paras 64-66).
[13]
It is
apparent then that for an application for a joinder of a party to the
proceedings to pass muster, the applicant or the party
seeking to be
joined must successfully demonstrate that the party sought to be
joined has a direct and substantial interest in
the outcome of the
litigation.
[4]
Differently put,
there must be proceedings initiated which are still pending in which
a third party has a direct and substantial
interest in the outcome of
the proceedings. The purpose of a joinder application would be in the
main to give an opportunity to
the third party to be heard,
[5]
in circumstances where the relief sought may substantially affect the
interests of a third party.
[6]
[14]
What is apparent from the pleadings is that Mabaso seeks to join Boda
as a respondent in order to execute an arbitration award
already
granted in her favour. The claim referred to the CCMA for unfair
dismissal was resolved through a default arbitration award
on
11 July 2017 against Enicker and further when the Deputy
Sheriff returned with
nulla bona
on 12 February 2018.
The proceedings initiated against Boda were withdrawn, and
effectively, there are no proceedings
pending before any forum.
[15]
The
question is thus whether a party which was not party to initial
proceedings can be joined as a party purely for the purposes
of an
enforcement of an order or judgment already granted. A similar
question came before this Court in
Wallejee
and Another v FCSA Organisation Service (Pty) Ltd and Another
[7]
.
Molahlehi J had agreed that a judgment or order cannot be
enforced against a party that was not cited as a party in the
proceedings which led to the granting of the order. The basis of that
conclusion, and further placing reliance on
Ngema
and Others v Screenex Wire Weaving Manufacturers (Pty) Limited and
others
[8]
was that a party sought to be cited in those proceedings must have
been afforded the opportunity to be heard in relation to its
potential liability to the applicant.
[16]
In this case, Mabaso is in possession of a favourable award which has
since been made an order of Court. Attempts to rescind
the default
award proved to be unsuccessful, and as matters stand, there is no
indication that Enicker has taken the matter further.
Ordinarily, the
default award remains executable and neither Enicker nor Boda
have opposed the joinder application. Significantly,
there is further
no indication that
interpleader
proceedings have been
launched. It further appears that the Deputy Sheriff in the light of
the
nulla bona
return and certificate is at a dead end.
[17]
Both Boda and Enicker appear to have been content to wash their hands
off any liability, and their approach is that an affidavit
denying
liability and a
nulla bona
certificate should be sufficient,
and that the matter or the claim would inevitably go away. I
nonetheless do not think so. I appreciate
that based on the legal
principles alluded to, a joinder or substitution of Enicker is
unattainable at this stage of the claim.
It is my view however that
it would be iniquitous for this court to simply ignore the fact that
Mabaso has no other remedy in executing
her favourable award. Boda
and Enicker in the face of their denial of liability cannot be home
and dry. In terms of the provisions
of section 158(1)(a)(iii) of the
LRA, this Court is empowered to make any appropriate order directing
the performance of any particular
act which order, when implemented,
will remedy a wrong and give effect to the primary objects of the
LRA.
[18]
To this end, it is deemed appropriate make the following order;
Order:
1. The second respondent
(Mr Ebrahim Boda) Boda is ordered to file an affidavit to show cause
why he should not be found to be jointly
and severally liable under
the execution of a default award granted against the first respondent
(Tatum Enicker) in favour of the
applicant.
2. The above affidavit is
to be filed and served within 21 days from the date of this order,
and the applicant is entitled to file
an answering affidavit.
3. The first and second
respondents are further ordered to appear in Court on 26 October 2018
at 10h00 where the second
respondent’s affidavit as ordered
under orders 1 and 2 would be considered.
4. In the absence or a
failure by the second respondent to file an affidavit or failing to
appear in court despite being properly
served the, Court may make any
order it deems appropriate.
5. A copy of this
judgment and order must be served personally upon the second
respondent (Mr Ebrahim Boda).
_____________________
E. Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: Mr B. Zwane (Union official of NDCAWU)
For
the Respondents: No appearance
[1]
Act 66 of 1995 (as amended)
[2]
Rule 22
Joinder
of parties, intervention as applicant or respondent, amendment of
citation and substitution of parties
(1) The court may join
any number of persons, whether jointly, jointly and severally,
separately, or in the alternative, as parties
in proceedings, if the
right to relief depends on the determination of substantially the
same question of law or facts.
(2)(a) The court may, of
its own motion or on application and on notice to every other party,
make an order joining any person
as a party in the proceedings if
the party to be joined has a substantial interest in the subject
matter of the proceedings.
(b) When making an order
in terms of paragraph (a), the court may give such directions as to
the further procedure in the proceedings
as it deems fit, and may
make an order as to costs.
(3) Any person entitled
to join as a party in any proceedings may, on notice to all parties,
at any stage of the proceedings,
apply for leave to intervene as a
party and the court may make an order, including any order as to
costs, or give such directions
as to the further procedure in the
proceedings as it deems fit.
(4) If a party to any
proceedings has been incorrectly or defectively cited, the court
may, on application and on notice to the
party concerned, correct
the error or defect and may make an order as to costs.
(5) If in any
proceedings it becomes necessary to substitute a person for an
existing party, any party to such proceedings may,
on application
and on notice to every other party, apply to the court for an order
substituting that party for an existing party
and the court may make
such order, including an order as to costs, or give such directions
as to the further procedure in the
proceedings as it deems fit.
(6) An application to
join any person as a party to the proceedings or to be substituted
for an existing party must be accompanied
by copies of all documents
previously delivered, unless the person concerned or that person's
representative is already in possession
of those documents.
(7) No joinder or
substitution in terms of this rule will affect any prior steps taken
in the proceedings.
[3]
[2015] ZASCA 4
; (2015) 36 ILJ 1439 (SCA)
[4]
See
Transvaal
Agricultural Union v Minister of Agriculture and Land Affairs &
others
2005 (4) SA 212 (SCA)
[5]
See
Ex
Parte Body Corporate of Caroline Court 2001
(4) SA 1230 (SCA) at para [9], where it was held that;
“…
It is a
principle of our law that interested parties should be afforded an
opportunity to be heard in matters in which they have
a direct and
substantial interest. In Amalgamated Engineering Union v Minister of
Labour 1949(3) SA 637 (A) (at 651) the following
is stated:
‘
It was rather a
subtle reasoning, which helped the Court to do what it no doubt
regarded as substantial justice in the peculiar
circumstances of the
case, while at the same time enabling it to stand firm on the two
essential principles of law that had to
be borne in mind, viz.(1)
that a judgment cannot be pleaded as res judicata against someone
who was not a party to the suit in
which it was given, and (2) that
the Court should not make an order that may prejudice the rights of
parties before it.’
[6]
See
Bowring
NO v Vrededorp Properties CC
2007 (5) SA 391
(SCA) at para [21]
[7]
(
2015)
36 ILJ 1943 (LC)
[8]
(2012) 33 ILJ 681 (LC) at para 22