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[2019] ZALCJHB 269
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Vuyo Petroleum (Pty) Limited v Ahmed and Another (JR1522/12) [2019] ZALCJHB 269 (20 September 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE
NO: JR1522/12
In the matter between:
VUYO PETROLEUM (PTY) LIMITED
Applicant
and
ABDUL KADER AHMED
First
Respondent
FIROZE
ABOOBAKER KOTWAL
Second
Respondent
Heard
: 18 September 2019
Judgment
delivered: 20 September 2019
JUDGMENT
VAN
NIEKERK J
[1]
This is an application for leave to appeal against an order granted
by this court on 15
August 2019 when the court ordered that the
applicants be permitted to take possession of and dispose of the
respondent’s
immovable property and to perfect the bond of
security under general notarial bond number 2001/018774/07.
[2]
The matter has a long history. It has its roots in an arbitration
award issued on
8 June 2012 when an arbitrator acting under the
auspices of the motor industry bargaining council held that the
applicants in the
present proceedings had been unfairly dismissed and
awarded them each equivalent of five months’ remuneration in
compensation.
On 12 September 2018, an application by the respondent
in the present proceedings to review and set aside the arbitration
award
was dismissed.
[3]
The present application came before the court on 8 August 2019. On
that date, the
court issued order in terms of which the matter was
postponed to 15 August 2019 with the respondent (the applicant in the
present
proceedings) or to file an answering affidavit on or before
13 August 2019. The applicant failed to file an affidavit timeously.
When the matter was called on 15 August 2019, the applicant sought a
further postponement of the proceedings, which was refused.
The
reason for refusing the postponement included, amongst other things,
the fact that the application had been postponed to 15
August 2019 by
agreement between the parties, and that affidavit was filed out of
time and with no application for condonation.
[4]
After having been satisfied that a proper case had been made out in
the founding affidavit
(and which was not seriously disputed in the
answering affidavit), the court granted an order in terms of the
draft order submitted
by the applicants’ counsel.
[5]
The applicant seeks leave to appeal on a number of grounds. I do not
intend to for
the purposes of present proceedings to canvas them all.
The applicant contends amongst other things, that the court erred in
not
allowing the applicant enough time to obtain legal
representation. As I have indicated, the matter was postponed to a
specific
date by agreement between the parties and the fact that the
applicant’s legal representative had failed to attend at court
was no reason to further delay an already protracted matter. The same
consideration applies to the applicant submission that the
court
erred in treating the matter is one of urgency when the application
was not urgent. In the answering affidavit filed by the
applicant, it
was not seriously disputed that the amounts reflected in the
arbitration award, together with interest, were payable.
The sheriff
had filed a
nulla bona
return, and the application in essence
was one in which the respondents in the present proceedings sought to
perfect the security
that they held. No cogent reason was proffered
to deny them that right.
[6]
The arbitration award concerned was issued more than seven years ago
and the applicant
has made no attempt to make payment of the
compensation to which the respondents are entitled. In short, none of
the grounds for
appeal have any merit and in my view, the present
application is yet another attempt by the applicant to prevent the
enforcement
of the arbitration award issued in favour of the
respondents.
[7]
In my view, another court would not come to a different conclusion on
the same facts.
The application for leave to appeal thus stands to be
dismissed. Finally, there is no reason to deny the respondents the
costs
that they have incurred in opposing this application. The
applicant’s conduct, in seeking further delays of the matter on
the basis of the unavailability of a legal representative, is
consistent with the pattern of seeking to avoid the enforcement of
the arbitration award in question, and deserve sanction.
I make the following order:
1.
The application for leave to appeal
is dismissed, with costs.
Andre van Niekerk
Judge
REPRESENTATION
For the applicant:
For the respondent: