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[2019] ZALCJHB 299
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Joe Singh Group of Companies v Commission for Conciliation, Mediation and Arbitration and Others (J2127/19) [2019] ZALCJHB 299 (1 November 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: J 2127/19
In the matter between:
JOE SINGH GROUP OF
COMPANIES
Applicant
And
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION First
Respondent
COMMISSIONER KENEILWE
MOLWELANG
N.O
Second
Respondent
SCHALK WILLEM
KRUGEL Third
Respondent
Heard: 31 October 2019
Delivered:
1 November 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
With this urgent application, the applicant seeks what can loosely be
referred to as ‘
One-Stop-Shop’
interim/final
relief in the following terms;
“
1.
…
2.
That the Execution Process embarked on by the Third Respondent
pending the Finalisation
of the Main Review Application be declared
Unlawful, and accordingly set aside.
3.
That the Third Respondent be, furthermore, restrained and Interdicted
from embarking
upon any further Execution Process pending the
finalisation of the Main Review Application.
4.
That the Main Review be reinstated after it was “
deemed to
be withdrawn”
in terms of Rule 7A (5) of the Rules of the
Labour Court of South Africa (Sic)
5.
Condonation for the late filing of the record of proceedings before
the CCMA
after a full and proper reconstruction thereof be granted.
6.
That the Applicant’s supplementary affidavit in the Review
Application
is to be filed within Twenty-One (21) Court days of the
filing of the Reconstructed CCMA Record.
7.
In the event of an inability to reconstruct the CCMA record within 45
days of
this Order being handed down, the matter is to be referred
back to the First Respondent for a hearing de novo before a different
Commissioner.
8.
…
[2]
Clearly prayers 2 – 3 are of an interim nature, whilst prayers
4
– 7 are of a final nature. The third respondent (Krugel),
opposed the application on a variety of grounds, primary of which
was
that it lacked urgency. In the end however, he seeks that the
application be dismissed.
[3]
The background and timeline to this application, to the extent that
it
is averred by Krugel is as follows;
3.1
An arbitration award, following a referral of an unfair dismissal
dispute was
issued in favour of Krugel on 30 September 2018.
In terms of the award, the applicant was ordered to pay to Krugel, an
amount of R540.000.00 as compensation and an award of costs.
3.2
A demand for payment in accordance with the award made by Krugel’s
attorneys
of record (Brandmuller) on 8 October 2018 went
unanswered.
3.3
Krugel on 29 October 2018 made an application to have the
award certified
and enforced, and the award was duly certified on
12 December 2018. The certified award was then sent to the
Sheriff
for service, and upon such service, the applicant indicated
intention to launch review proceedings, which it then did on
20 December 2018.
The application was filed in Court on
21 December 2018.
3.4
A Notice in terms of Rule 7A(3) read with Rule 7A(2)(b) of the Rules
of this
Court is dated 20 December 2018 and was served by
the Commission for Conciliation Mediation and Arbitration (CCMA) on
the applicant and Brandmuller.
3.5
In correspondence from Brandmuller dated 19 March 2019, the
applicant
was advised that the review application was deemed to have
been withdrawn as a record of arbitration proceedings had still not
been filed and served. There appears to have been no response to this
correspondence.
3.6
On 4 April 2019, Brandmuller again forwarded the
enforcement of the
award to the Sheriff. The Sheriff was advised that
he could not proceed with enforcement in the light of the pending
review application.
3.7
On 11 June 2019, the applicant filed and served the record
of arbitration
proceedings. Two days later, Brandmuller advised the
applicant that the record could not be accepted as it was filed
outside of
the time frames and further since the review application
had not been reinstated.
3.8
On 16 July 2019, Brandmuller again directed the Sheriff to
act in
enforcing the arbitration award. On 13 August 2019,
the applicant through its attorneys of record advised Brandmuller
that the transcribed record of arbitration proceedings was
incomplete. In a response dated 15 August 2019, Brandmuller
advised that this Court ought to be approached for an order condoning
the late filing of the record failing which the review application
remained lapsed, and that the Sheriff was again instructed to proceed
with execution.
3.9
The Sheriff effected attachment on 27 September 2019. This
urgent
application was served on Brandmuller on 21 October 2019
and filed the following day.
[4]
The applicant in its replying affidavit disputes the accuracy of the
above
summarised timeline. This is despite correspondence being
attached as annexures to the substantiate that timeline. It merely
contends
that Krugel loses sight of the fact that the urgency
claimed stems from the fact that if it (applicant) sits back and does
nothing, he will proceed and seek to execute the arbitration award
despite not having obtained an order in terms of Rule 11 of
the Rules
of this Court declaring the review application to have been
withdrawn, and further that he had adopted an obstructive
posture
against it insofar as the reconstruction of the arbitration record is
concerned. I will deal with this contentions at a
later stage of this
judgment.
[5]
In opposing
the application, the first consideration is that Krugel raised a
preliminary point to the effect that the founding affidavit
and the
application as a whole was defective on account of the affidavit not
being in compliance with the provisions of the Regulations
issued in
terms of Section 10 of the Justices of Peace and Commissioner of
Oaths Act.
[1]
The basis of this
objection was that the deponent did not sign the affidavit before the
Commissioner of Oaths. Annexure ‘K1’
to the answering
affidavit, which is exactly the same page as with the application
before the Court, illustrates that the last
page of the founding
affidavit was not signed and dated by the deponent, whilst a
Commissioner of Oaths had signed, dated and affixed
his/her stamp.
The founding affidavit filed with the Court however is signed but not
dated by the deponent, even though it is commissioned.
[6]
The applicant through the deponent to the founding affidavit, Ramesh
Singh,
explained the defect as being due to the fact that the
Commissioner of Oaths could not have commissioned an unsigned
affidavit
as alleged, and that annexure ‘K1’ to Krugel’s
answering affidavit was merely the last page of a duplicate affidavit
which was erroneously filed with the application. He further
explained that he has since ensured that a correctly attested
affidavit
was before the Court.
[7]
The
procedure for the attestation of oaths is set out in the regulations
which are of delegated legislation. The regulations are
directory
only, and it has also been held that where an affidavit has not been
properly attested, it may still be valid provided
there has been
substantial compliance with the formalities in such a way as to give
effect to the purpose of the legislation. In
the end, a Court has a
discretion to refuse or to receive an affidavit attested otherwise
than in accordance with the regulations
[2]
.
[8]
In this case,
clearly there is an
anomaly which the applicant attempted to explain. First, it is
unexplained how the duplicate copy referred to
was in any event
commissioned without the deponent having signed it, and secondly,
even the so-called correctly attested affidavit
which the applicant
relies on is not dated by the deponent. Significant with the
applicant’s approach is that having failed
to notice that the
initial affidavit filed and served was not properly commissioned, it
had without even seeking an indulgence,
simply filed what it deemed
to be a corrected version when attending to the indexing and
pagination on 30 October 2019.
The issue however is that to
the extent that is necessary, it can be accepted that the ‘corrected
affidavit’ is in
substantial compliance with the provisions of
the regulations.
[9]
The
applicant however still has another hurdle to surmount. This relates
to whether this application, in the light of the timeline
summarised
elsewhere in this judgment, deserves the urgent attention of this
Court. The principles applicable to urgent applications,
and more
particularly in this Court flowing from the provisions of Rule 8 of
the Rules of this Court
[3]
are
trite. An applicant instituting an urgent application must justify
the necessity to circumvent the ordinary time periods set
out in the
Rules of this Court, and is therefore required to set out explicitly
the circumstances and objective facts which it
contends renders the
matter urgent. Of equal importance is that an applicant must further
explain and demonstrate why it is said
that it cannot obtain
substantial redress at a hearing in due course. Further
considerations as to whether a matter should be accorded
any urgency
is whether the urgency claimed is not self-created, and the
expedition exercised when approaching the Court.
[10]
The grounds upon which the applicant alleges urgency are that;
10.1
Despite Krugel being advised during the course of August 2019 of
the fact that the applicant’s
attorneys of record sought to
reconstruct the record of arbitration proceedings, Brandmuller viewed
such attempts at reconstructing
the record as opportunistic and had
threatened to proceed with the execution of the award.
10.2
The arbitration award was never made an order of this Court and
Krugel has not obtained an order
in terms of Rule 11 of the Rules of
this Court declaring the review to have been withdrawn.
10.3
The Sheriff attended to the premises of the applicant on
4 October 2019 with the purpose
of attaching movable
property, and had proceeded to make an inventory in the form of a
truck worth a lot more than what was reflected
in the inventory.
10.4
The applicant’s attorneys of record had proceeded in their
attempts to reconstruct the
record, and Krugel or Brandmuller had
refused to cooperate in any reconstruction process.
10.5
On 17 October 2019 the Sheriff again attended to the
premises of the applicant with
a view of effecting attachment of
assets indicated in the inventory, and has indicated intention to
come back to remove the assets.
10.6
Krugel is angry and hellbent on causing the applicant irreparable
harm and was going to proceed
and execute.
[11]
Krugel in
his answering affidavit contends that the urgency claimed in this
case is self-created. He seeks that the application
be dismissed. His
contentions clearly have merit. Other than the urgency being
self-created, the application ought to be dismissed
on account of the
prima
facie
right not having been established, as there is no pending underlying
causa,
[4]
which underpins a determination of whether a stay of execution should
or should not be granted. My conclusions in this regard are
fortified
by the following considerations;
11.1
As early as December 2018, the award was certified, which
ordinarily meant that there were
dire implications for the applicant,
especially after the Sheriff made it aware of the intention to
proceed with execution during
that period. Before then, no attempt
had been made to launch review proceedings and when the applicant
ultimately did, that application
was outside of the statutory six
weeks’ period. It is appreciated that the application for
condonation was incorporated in
that review application. Be that as
it may, that condonation still needs to be determined.
11.2
Upon the review application having been launched, and prior to the
record of arbitration proceedings
being filed, the applicant was
advised in March 2019 that its review application was deemed to
have been withdrawn, and it
is at that point that it becomes apparent
that the urgency claimed is self-created, particularly insofar as
prayer 4 is sought.
11.3
The
applicant appears to seek to downplay the importance and binding
nature of the provisions of the Practice Manual of this Court.
Clause
11.2.3 of this Manual are applicable in instances where a record of
arbitration proceedings has not been timeously filed
in circumstances
where the record was made available to the parties.
[5]
In this case, the applicant simply seeks to blame Krugel for the fact
that the transcribed record was either filed out of time
or that it
is still in an incomplete state.
11.4
In line with the provisions of clause 11 of the Practice Manual, all
that was required of the
applicant, to the extent that it had
realised that the filing of the record was long over-due, was to
first, seek an indulgence
from Krugel for an extension within which
to file the record. Where that consent was not granted, or where even
the record was
incomplete, the applicant ought to have approached the
Judge President of this Court to seek an extension or even a
directive.
11.5
To the extent that the applicant failed to take any of these steps,
it cannot base its urgency
on the fact that Krugel was
‘obstructionist’ as it alleges. There was no obligation
on Krugel to agree to any reconstruction
of the record process
initiated by the applicant in the absence of an order or directive
from this Court. The contentions that
the applicant sought to resolve
the issue amicably with Krugel prior to approaching the Judge
President is indeed lame in the extreme.
11.6
Further to
the extent that the applicant did not avail itself to the above
provisions, the review application remained deemed withdrawn,
(irrespective of whether it was ‘
moribund
or in
ICU’ as the applicant’s counsel referred to it), which
meant that it could only again be properly before the Court
once an
application for a reinstatement together with an application for
condonation for the late filing was launched and granted
[6]
.
These conclusions clearly have ramifications for the orders sought
under prayers 2 and 3 in the Notice of Motion, in that in the
absence
of a pending review application before the Court (
i.e
.,
a pending
underlying
causa
),
there can be no basis upon which to grant any stay of enforcement or
execution of the arbitration award.
11.7
Equally so,
there was no need for Krugel, contrary to the submissions made on
behalf of the applicant, to first have had the review
application
dismissed in terms of a Rule 11 application before he could seek to
enforce the arbitration award. In
CCMA
v MBS Transport CC and Others, CCMA v Bheka Management Services (Pty)
Ltd and Others,
[7]
it was
held that a certified arbitration award may be enforced in the same
way that it would be if it was an order of the Labour
Court in
respect of which a writ was issued.
11.8
Thus, the fact that Krugel seeks to enforce the award and that the
Sheriff is ready to execute
cannot on its own be a basis of urgency,
if the applicant did nothing from the moment it became aware of the
intention to enforce
and execute. The urgency can only be determined
by an assessment of any expeditious steps taken to mitigate any harm
at the time.
In this case, to the extent that the arbitration award
was certified as early as 12 December 2018, a fact which
the applicant
was clearly aware of at the time, it follows that any
attempt at staying the execution some 10 months later is clearly
belated,
and it therefore ought to be concluded that the urgency
claimed is indeed self-created.
11.9
It nonetheless gets worse for the applicant, to the extent that a
conclusion was reached that
there is no live or proper review
application before the Court. The provisions of section 145(7) of the
Labour Relations Act (LRA)
are such that the institution of review
proceedings does not on its own suspend the operation of an
arbitration award, unless the
applicant furnishes security to the
satisfaction of the Court in accordance with subsection (8). The
issue of security was raised
with the applicant’s counsel in
Court, and it was confirmed that indeed no such security was
furnished.
11.10
A security
in compliance with the provisions of section 145(7) of the LRA can be
provided in the form of a payment into the Court’s
or the
Sheriff’s trust account. Further, the issuing of a security
bond by a legal practitioner or a registered banking institution
would also qualify as the requisite provision of security.
[8]
It is appreciated that there is no provision in section 145(7) of the
LRA as to how the security should be furnished. However,
the
submission made on behalf of the applicant that it did not know how
or where to furnish the requisite security does not avail
it. All it
needed to do was to enquire with the office of the Registrar as to
how to go about furnishing such security, rather
than simply ignoring
to do so.
[12]
In the light of the above conclusions, it needs to be pointed out
that other than prayers
2 and 3 in the Notice of Motion, the other
prayers sought by the applicant are indeed extraordinary and
demonstrates an abuse of
this Court’s processes. I have
referred to these prayers as ‘
one-shop-stop’
for
the simple reason that in the end, despite all the minefields that
the review application has to surmount, and the conclusions
reached
as to why a stay of execution cannot be granted, what the applicant
ultimately seeks is a final order which will dispose
of all those
hurdles, and eventually end with the matter being remitted back to
the CCMA.
[13]
The above approach cannot be countenanced in circumstances where no
urgency was established
whatsoever in regards to why the deemed
withdrawn review application ought to be reinstated in circumstances
where the applicant
did nothing since 19 March 2019, after
it was advised of that deemed withdrawal. It is not clear from the
papers as to
when the applicant knew that the transcribed record was
incomplete. However, to the extent that the record was filed in
June 2019,
and where the clear provisions of the Practice Manual
were completely ignored, an attempt to have the late filing of that
record
be condoned on an urgent basis clearly constitutes an abuse of
this Court’s processes, and in particular, the urgent roll.
[14]
In the end, to the extent that there is no underlying pending
causa
,
the applicant has no basis for a claim of a clear or
prima facie
right. Furthermore, the irreparable harm that the applicant is to
endure is clearly self-inflicted, and the balance of convenience
cannot favour the granting of the orders sought in circumstances
where the applicant had not done everything (and timeously so)
in
asserting its rights in respect of its review application. On the
other end of the spectrum, Krugel is in possession of a favourable
award which he is entitled to enforce in circumstances where the
provisions of section 145 of the LRA and those of the Practice
Manual
of this Court were not been complied with.
[15]
It is my view that an applicant in urgent proceedings cannot in the
face of imminent calamity,
complain of a lack of alternative
remedies, in circumstances where such remedies have always been at
its disposal and where they
were not properly utilised. As already
indicated, the provisions of section 145 of the LRA and those of the
Practice Manual have
always been at the applicant’s disposal,
to ensure that the execution of the arbitration award was stayed.
Krugel and the
Sheriff are ready to execute simply because the
applicant failed to utilise those remedies.
[16]
Having had regard to the broad discretion conferred on this Court by
the provisions of
section 162 of the LRA, it is my view that the
interests of law and fairness dictate that the Applicant be burdened
with the costs
of this application.
[17]
Accordingly, the following order is made;
Order:
1. The Applicant’s
application is dismissed with costs.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
P.W Makhambeni, instructed by SMS Attorneys.
For
the Third Respondent:
AP Brandmullers of Brandmullers Attorneys
[1]
Act
16 of 1963
[2]
See
S
v Munn
1973
(3) 734 (NC)
at
737H;
S
v Msibi
1974
(4) 821 (T);
Lohrman
v Vaal Ontwikkelingsmaatskappy
1979
ALL SA 416
(T) at 423
[3]
8
Urgent relief
(1)
A party that applies for urgent
relief must file an application that
complies with the requirements of rules 7(1), 7(2), 7(3) and, if
applicable, 7(7).
(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.
[4]
See
Transport
and Allied Workers Union of South Africa v Algoa Bus Company (Pty)
Ltd and Others
[2015] 7 BLLR 738
(LC); (2015) 36 ILJ 2148 (LC) at paragraphs 25 -
27
[5]
Clause 11.2 of the 2013 Practice Manual of the Labour Court reads as
follows:
“
11.2.1
Once the registrar has notified an applicant in terms of Rule 7A (5)
that a record has been received
and may be uplifted, the applicant
must collect the record within seven days.
11.2.2
For the purposes of Rule 7A (6), records must be
filed within 60 days of the date on which the applicant
is advised
by the registrar that the record has been received.
11.2.3
If the applicant fails to file a record within
the prescribed period, the applicant will be deemed to
have
withdrawn the application, unless the applicant has during that
period requested the respondent’s consent for an extension
of
time and consent has been given. If consent is refused, the
applicant may, on notice of motion supported by affidavit, apply
to
the Judge President in chambers for an extension of time. The
application must be accompanied by proof of service on all other
parties, and answering and replying affidavits may be filed within
the time limits prescribed by Rule 7. The Judge President
will then
allocate the file to a judge for a ruling, to be made in chambers,
on any extension of time that the respondent should
be afforded to
file the record.”
[6]
See
Sol
Plaatjie Local Municipality v South African Local Government
Bargaining Council and Others
(PR192/15) [2017] ZALCPE 11 (13 June 2017) at para 27
[7]
[2016] ZALAC 34
;
[2016] 10 BLLR 999
(LAC); (2016) 37 ILJ 2793 (LAC)
at para 39, where it was held;
“
The
CCMA does not issue writs in the conventional way. The certified
award is the equivalent of a Labour Court order in respect
of which
a writ has been issued. The certified award is therefore not only
assumed to be an order of the Labour Court but it
must also be
assumed that a writ was issued in respect of that order. The
certified award is therefore the writ…”
[8]
Rustenburg
Local Municipality v South African Local Government Bargaining
Council and Others
[2017] ZALCJHB 261; (2017) 38 ILJ 2596 (LC);
[2017] 11 BLLR 1161
(LC) at para 18