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[2020] ZALCJHB 55
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Daleen Van Wyk Occupational Therapist (Pty) Ltd and Another v Sinclair and Others (J1673/19) [2020] ZALCJHB 55 (3 March 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: J 1673/19
In the matter between:
DALEEN VAN WYK
OCCUPATIONAL
THERAPIST (PTY)
LTD
First Applicant
DALEEN VAN
WYK Second
Applicant
and
ANITA
SINCLAIR
First Respondent
MARTIE ELIZABETH
VENTER
Second Respondent
ALEXANDRA
MULLER
Third Respondent
MELISSA DE
BEER
Fourth Respondent
THE REGISTRAR OF THE
LABOUR COURT Fifth
Respondent
THE SHERIFF OF THE
HIGH COURT, PRETORIA EAST Sixth
Respondent
Heard:
6
August 2019 (Order Granted)
Reasons for
Order:
03 March 2020
REASONS FOR THE ORDER
TLHOTLHALEMAJE,
J
[1]
On 1 August 2019, the first and second applicants
approached
the Court on an urgent basis to seek an order staying the
enforcement of arbitration awards and sale of execution issued under
case number GATW15494-18 and GATW14024-18 in favour of the first to
fourth respondents.
[2]
The matter was set down for a hearing on 6 August 2019. On
the
same date that the application was launched, a notice of
withdrawal in respect of the first applicant, as well as the
withdrawal
of its attorneys of record was filed and served. The
application was opposed by the first – fourth respondents. At
the conclusion
of the hearing of the matter, an order was issued in
terms of which the application was struck off the roll on account of
lack
of urgency. The second applicant was further ordered to pay the
costs of the application. What follows below are reasons for that
order.
[3]
The second applicant is an Occupational Therapist and Director of the
first applicant. The first – fourth respondents were employed
by the first applicant in different capacities. The first –
third respondent had referred a constructive dismissal dispute to the
Commission for Conciliation Mediation and Arbitration (CCMA)
under
case number GATW15494 – 18. An arbitration award was issued on
29 January 2019 in the absence of the first
or second
applicants, in terms of which an order of compensation in varying
amounts was issued in their favour. In terms of the
award, the
amounts due were payable on no later than 28 February 2019.
[4]
The fourth respondent had separately referred an alleged constructive
dismissal dispute to the CCMA under case number GATW14024-18. Both
the first and second applicants failed to attend the arbitration
proceedings, and an award was issued in favour of the fourth
respondent, in terms of which she was also awarded a compensation
amount.
[5]
The two
arbitration awards in favour of the first – fourth respondents
were certified in terms of section 143 of the Labour
Relations Act
(LRA)
[1]
on 16 and 18 March 2019
respectively. A Notice of Attachment in Execution was subsequently
issued on 18 April 2019.
[6]
On 18 July 2019, a notice was issued by the sixth
respondent
(Sheriff) confirming that a sale of execution was to take
place on 6 August 2019. On or about 22 July 2019,
the second applicant launched an application for rescission/variation
at the CCMA in respect of the two awards issued in default
against
her in her personal capacity.
[7]
In these proceedings, the first – fourth respondents raised two
central preliminary points which if successful, would dispose of the
matter. The first related to a lack of
locus standi
on the
part of the second applicant to pursue the application in the name of
or on behalf of the first applicant. The second related
to whether
the second applicant had satisfied the requirements of urgency.
[8]
In regards to a lack of
locus standi
on the part of the second
applicant to bring this application as a director of the first
applicant, it was common cause that the
first applicant was at the
time that the matter was heard, already under liquidation. An
affidavit deposed to by Mr Adriaan Willem
van Rooyen, the joint
liquidator of the first applicant, was attached to the answering
affidavit. Van Rooyen further confirmed
that he had not given any
permission nor instruction for the institution of any litigation in
the name of the first applicant,
as the powers of the liquidators
were not extended by an order of a competent court in that regard. It
was submitted that in those
circumstances, and to the extent that
this application was neither with the blessing of the liquidators nor
was it served on them,
it could not be properly before the Court
insofar as the first applicant was concerned.
[9]
This preliminary point was however disposed of when the application
in
respect of the first applicant was withdrawn. Further to the
extent that the awards were issued against the second applicant in
her personal capacity, I see no reason in law why the entire
application should be considered not to be properly before the Court.
[10]
A second
preliminary point however is what led to the matter being struck off
the roll. In matters that are brought on an urgent
basis before the
Court, the starting point is a determination of whether a case has
been made out for the urgent intervention sought.
The requirements of
urgency in this Court as contemplated in Rule 8 of its Rules are well
known
[2]
.
The applicant such as in this case is required to set out explicitly
the circumstances and objective facts which it is contended
renders
the matter urgent. It is further trite that any self-created urgency
will not constitute acceptable urgency, for the purposes
of Rule 8 of
the Rules of this Court to justify the determination of a matter on
an urgent basis
[3]
.
Aligned to that enquiry is a further need to explain in the founding
affidavit, why substantial redress at a hearing in due course
cannot
be obtained
[4]
.
[11]
A variety of factors emanating from the pleadings and submissions
made in Court were taken
into account in striking the matter off the
roll on account of lack of urgency, including the following;
11.1
In the founding affidavit, no attempt was made whatsoever by the
second applicant to demonstrate
or set out objective facts as to in
what manner this application deserved the urgent attention of the
Court. The only issues raised
were that there was a pending
rescission application before the CCMA which had prospects of
success; that an attachment had already
been effected on the entire
assets of the second applicant; that severe prejudice would be
suffered if the application was not
treated as urgent in that the
applicants would be deprived of an opportunity to prosecute the
rescission application; and that
the granting of the order sought
would prevent damages calculated in monetary value.
11.2
In
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite and
Others
,
[5]
it was held that the fact that the applicant wants to have the matter
resolved urgently does not on its own render it urgent. The
applicants’ averments, in respect of why the matter ought to be
treated as urgent are thin in detail and lacking in substance.
The
fact that a rescission application was launched cannot form the basis
of urgency, especially in circumstances where that application
was
brought before the CCMA some four months since the awards were
issued. In this regard, it is not even necessary to dwell into
the
submissions made on behalf of the first – fourth respondents in
regards to the weak merits of that application.
11.3
To the extent that no objective facts were set out in the founding
affidavit, the invariable
conclusion as submitted on behalf of the
first – fourth respondents, is that the urgency claimed was not
established, and/or
at worst, is self-created.
11.4
To the extent that urgent relief is sought, an applicant must satisfy
the Court that the he/she
acted with the necessary haste in
addressing the source of the complaint. If ever there is any doubt
about the self-created nature
of the urgency claimed, one only needs
to examine the history of this matter, which reveals that the second
applicant’s conduct
throughout from when the arbitration awards
were issued, was that of nonchalance, and a failure to act with due
haste, until the
sale of execution was advertised.
11.5
The sale of execution was scheduled to take place on 6 August 2019,
and this application,
despite its alleged urgency, was filed and
served on 01 August 2019, setting it down on the date that
the sale was to
proceed.
11.6
The arbitration awards forming the subject of the sale of execution
were issued in default in
January and March 2019. This was in
circumstances where there can be no doubt that the second applicant
was fully aware of
the set-down notices after they were personally
delivered to her. To the extent that the second respondent wanted to
raise a dispute
in regards to the notice of set-down, on her own
version as reflected in the rescission application, the first
applicant had received
the copies of the arbitration awards on
30 January 2019 and 5 March 2019. As to the
reason a rescission of
those awards was not sought at the time is
unclear.
11.7
Those arbitration awards were then certified in March 2019, and
an attachment was effected
on 18 April 2019. It cannot
therefore be correct that the second applicant only knew of the sale
of execution on 18 July 2018
as she alleged in the replying
affidavit. The Sheriff served copies of the certified awards on
18 April 2019, when an
attachment was effected, and it was
at that time that she ought to have approached the Court for a stay
of execution, specifically
after being warned by the Sheriff to do so
in order to prevent the execution.
11.8
Subsequent to the attachment, the second applicant’s first set
of attorneys sought to have
the dispute resolved by contacting the
first-fourth respondents’ attorneys of record. In that regard
Acknowledgements of
Debts were drafted by the second applicant’s
erstwhile attorneys of record for further discussions. Those
discussions however
faltered.
11.9
The sale of execution was advertised on 18 July 2019, and
despite the Sheriff’s
earlier warnings in April 2019 when
attachment was effected, the second applicant had still not deemed it
prudent to approach
the Court for an order to stay the execution.
[12]
The essence of the above factors is that the conduct of the second
applicant early as March 2019
when she became aware of the two
arbitration awards obtained by default was that of lack of concern in
the light of the consequences
that were to flow from those awards and
process of attachment. She failed to take any measures to mitigate
the harm or prejudice
she was now complaining of, if the application
was not granted. She only woke up from her slumber when reality hit
her after the
sale of execution was advertised on 18 July 2019
by launching applications for rescission at the CCMA on the same day
the sale was advertised, and approaching this Court a few days later
with this application. In these circumstances, and given the
several
opportunities the second applicant had rebuffed in order to mitigate
any prejudice or harm arising out of the arbitration
awards and their
execution, the only invariable conclusion to be reached was that the
urgency claimed was self-created.
[13]
To this end, the Court cannot come to the assistance of an applicant
where there is no
evidence of maximum expedition on her part. It can
therefore not be doubted that given the background to this
application, any
urgency that the second applicant claimed was indeed
self-created, and it was under those considerations that the Court
had issued
its order on 6 August 2019.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: Ms
C Bench of Steenkamp Van Niekerk Attorneys
For
the1st – 4
th
Respondents: Adv HF Geyer
with Adv, JT Roos, instructed by Roos van Dyk Attorneys
[1]
Act 66 of 1995 (as amended)
[2]
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.
[3]
See
Police
and Prisons Civil Rights Union v Minister of Correctional Services
and Another,
[2014]
5 BLLR 481(LC)
at par [6];
Workforce
Group (Pty) Limited v National Textile Bargaining Council and
Another,
[2011]
11 BLLR 1136
(LC) at par [13].
[4]
See
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty)
Ltd and Others
[2012] JOL 28244
(GSJ) (11/33767); [2011] ZAGPJHC 196 (23 September
2011) at para 6.
[5]
Ibid