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[2018] ZALCJHB 387
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Fidelity Security Services (Pty) Ltd v The Sheriff: Roodepoort and Another (J4002/2018) [2018] ZALCJHB 387 (22 November 2018)
IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: J4002/2018
In the matter between:
FIDELITY SECURITY SERVICES (PTY) LTD
Applicant
and
THE SHERIFF, ROODEPOORT
First Respondent
MTWU obo S.
KHOZA
Second Respondent
Heard: 20 November 2018
Delivered: 22 November 2018
JUDGMENT
MAHOSI. J
[1]
This is an opposed urgent application for an order in which the
applicant seeks the order in the following terms:
‘
1.
That this application be treated as one of urgency as provided for in
terms of Labour Court Rule 8 and that the applicant’s
failure
to comply with the normal time periods, forms and services as
provided for in terms of the Labour Court Rule 7 be condoned.
2. That the writ of execution
issued by the Labour Court on the 8
th
of March 2018 under
case number JS832/16 be stayed, pending the rescission application
under case number J3112/2017 and/or Review
Application under case
number JS832/16.
3. That the respondents be
ordered to pay the costs of the application, only in the event that
it is opposed.
4. That the applicant be granted
such further and/or alternative relief as the above Honourable Court
deem necessary.’
[2]
Prior to outlining the applicant’s case in detail and
considering the issues that gave rise to the claim, it is necessary
to summarise the facts that form relevant background to the dispute
between the parties.
[3] The applicant employed the third respondent’s member, Mr S
Khoza (employee), on 23 June 2012. Following his dismissal
on 8 June
2016, the second respondent referred an unfair dismissal dispute
relating to retrenchment to the Commission for Conciliation,
Mediation and Arbitration (CCMA). The matter was conciliated
unsuccessfully after which the matter was referred to this Court for
adjudication. Subsequently, the second respondent applied for default
judgment and on 22 August 2017, this Court issued a court
order in
favour of the employee. On the strength of the court order, the
second respondent obtained a writ of execution and instructed
the
first respondent to attend to the premises of the applicant to attach
its property.
[4] On 13 June 2018, the first respondent arrived at the premises of
the applicant in order to attach property in terms of the
writ of
execution. It was on this day that the applicant was allegedly served
with the court order. On 2 November 2018, the first
respondent
contacted the applicant to inform it they would be returning to
remove the attached property on 5 November 2018. On
7 November 2018,
the applicant filed this application together with the application
for rescission of the court order.
[5]
The second respondent opposed this application on the basis that the
urgency claimed in this matter is self-inflicted as the
applicant
became aware of the order on 13 June 2018.
[6] The explanation proffered by the applicant for the delay in
bringing this application was that following the first respondent’s
visit, it instructed its attorneys to obtain a copy of the Court file
to determine what had occurred in the matter. It then instructed
its
attorneys to proceed with this application. However, for the
attorneys to proceed with the application they had to obtain further
information and documents from the applicant which were archived with
metro file in a warehouse in Midrand. The applicant alleges
that this
took time as it had search through many boxes to obtain the records.
[7] The applicant further submitted that while searching for
documents and information, there was an attempt to settle the
dispute.
Further that while settlement was being considered and
discussed, the applicant did not proceed with its rescission
application
nor this application. The second respondent denies
knowledge of any settlement negotiations. In its replying affidavit,
the applicant
submitted that it was in a process of attempting to
settle the matter by leaving numerous messages for the employee’s
representative
to contact it back. Further that the first
respondent’s attempt to remove the applicant’s property
on 2 November 2018
satisfies the requirement of urgency.
[8]
The requirements for urgency are trite.
[1]
Rule 8 of the Rules of this Court requires a party seeking urgent
relief to set out the reasons for urgency and to show why the
rules
of this Court relating to forms and service should be dispensed with.
In
Maqubela v SA Graduates Development
Association and Other
s,
[2]
considerations for urgency were set out as
follows:
‘
Whether
a matter is urgent involves two considerations. The first is whether
the reasons that make the matter urgent have been set
out and
secondly whether the applicant seeking relief will not obtain
substantial relief at a later stage. In all instances where
urgency
is alleged, the applicant must satisfy the court that indeed the
application is urgent. Thus, it is required of the applicant
adequately to set out in his or her founding affidavit the reasons
for urgency, and to give cogent reasons why urgent relief is
necessary.’
[9]
In the current case,
the
applicant seems not to appreciate the responsibility that rests on it
as a litigant that seeks an indulgence from this Court,
that is to
set out reasons that make this matter urgent. A reading of its
submission in respect of urgency exhibits tardiness and
lack of due
haste in bringing this matter. This Court must caution against the
applicant that the latitude extended to parties
to dispense with the
rules of the court in circumstances of urgency is not available to
parties who are dilatory to the point where
their very inactivity is
the cause of the harm on which they rely on to seek relief.
[3]
[10]
The reasons advanced by the applicant as to why the matter is urgent
are far from being reasonable. On its version, it became
aware of the
court order it seeks to rescind on
13
June 2018 but brought this application together with the rescission
application only after the first respondent’s attempt
to remove
its property on 2 November 2018
.
The explanation that it took about four months to search for the
employee’s details amounts to no explanation at all. The
attitude exhibited by the applicant is that which would ordinarily
have the consequence of its matter struck off the roll for lack
of
urgency. However,
having had regard
to the pleadings before me, and in keeping with the tenets of the
Labour Relations Act
[4]
(LRA), to resolve labour disputes speedily, I am of the view that the
matter deserves full determination.
[11]
This Court may, in terms of section 145(3) of the LRA, stay the
enforcement of the arbitration award pending its decision.
It is
common cause that a rescission application has since been launched in
respect of the court order, although this
was done some
four months after the court order was granted. To an extent that
the
underlying
causa
for the
writ is still the subject matter of an ongoing dispute between the
parties and further that the applicant has no alternative
remedy that
will provide the similar relief it seeks in this application and that
it requires to protect its rights, I am of the
view that
the
interests of justice combined with quest for finality on this matter
requires that a discretion be exercised in favour of the
applicant.
[12]
I have had regard to the issue of costs.
In terms of section
162 of the Labour Relations Act
[5]
,
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
[6]
that costs orders should be made in accordance with the requirements
of law and fairness. In this matter,
I am of the
view that the requirements of law and fairness dictate that there
should be no order as to costs.
[13] In the premise, I make the following order:
Order
1.
This application is treated as one of urgency as provided for in
terms of Labour Court Rule 8 and the applicant’s failure
to
comply with the normal time periods, forms and services as provided
for in terms of the Labour Court Rule 7 is condoned
.
2. The writ of execution issued by the Labour Court on 8 March 2018
under case number JS832/16 is stayed pending the rescission
application under case number JS832/16.
2.
There is no order as to costs.
D Mahosi
Judge
of the Labour Court of South Africa
Appearances:
For the applicant:
Ms L.
Foot of Crawford Attorneys
For the first respondent:
Advocate
Mosala
Instructed
by:
Matlatle Attorneys
[1]
See:
Luna
Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin's
Furniture Manufacturers)
1977 (4) SA 135 (W).
[2]
(2014) 35 ILJ 2479 (LC) at para 32
.
[3]
Transport And Allied Workers Union of South Africa v
Algoa Bus Company (Pty) Ltd and Others
[2015]
7 BLLR 738
(LC).
[4]
Act 66 of 1995 as amended.
[5]
66 of 1995, as amended.
[6]
(2018) 39 ILJ 523 (CC)