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[2020] ZALCJHB 100
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South African Transport and Allied Workers Union (SATAWU) v Mbelwane and Others (J 563/20) [2020] ZALCJHB 100 (29 June 2020)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: J 563/20
In the matter between:
SOUTH AFRICAN
TRANSPORT & ALLIED WORKERS
UNION
(SATAWU)
Applicant
and
MONGEZI DANIEL
MBELWANE First
Respondent
SHERIFF, JOHANNESBURG
NORTH
Second
Respondent
STANDARD BANK OF SOUTH
AFRICA
Third
Respondent
Heard:
23 & 26 June 2020 (In Chambers
via Webex
meetings)
Delivered:
This judgment was handed down electronically by circulation to the
parties'
legal representatives by email and publication on the Labour
Court’s website. The date and time for hand-down is deemed to
be 13h:00 on 29 June 2020.
JUDGMENT
TLHOTLHALEMAJE, J
[1]
The applicant (SATAWU), seeks interim
relief to stay the enforcement of an arbitration award dated
3 June 2019 issued
by the Commission for Conciliation
Mediation and Arbitration (CCMA) under case number FSBF 1477/19,
pending the final determination
of a rescission application that is
before the CCMA.
[2]
This application was initially placed on
the roll on 23 June 2020 and was postponed by agreement
between the parties to
26 June 2020 in order to afford the
first respondent an opportunity to file an answering affidavit and
for the applicant
to file a reply. An interim order was also issued
uplifting the attachment pending the hearing of this matter and the
delivery
of judgment, with wasted costs occasioned by the
postponement being reserved.
[3]
SATAWU
is a trade union registered in terms of the provisions of the Labour
Relations Act (LRA)
[1]
. There is
a dispute in respect of the status of the first respondent (Mbelwane)
as at the stage of these proceedings. SATAWU contends
that Mbelwane
is its ex-employee, who used to occupy the position of local
organiser in its Bloemfontein office in the Free State.
In opposing
the application, Mbelwane however contends that as far as he was
concerned, he was merely suspended, which suspension
he had referred
to the CCMA, resulting in the issuing of a default arbitration award.
The award formed the subject matter of the
writ of execution and
subsequent attachment by the second respondent (Sheriff) of the
applicant’s bank account held with
the third respondent
(Standard Bank).
[4]
This dispute emanates from the charges of
misconduct preferred against Mbelwane in October 2018. SATAWU
contends that Mbelwane
had on more than one occasion, failed to
attend the disciplinary hearings convened, and that a decision was
taken to hold the enquiry
in his absence, resulting in his dismissal
on 1 February 2019. Mbelwane however denies having refused
to attend any disciplinary
enquiry, and contends that any
postponement or delay in proceeding with the disciplinary enquiry was
occasioned by both parties.
His version of events was that flowing
from the last postponement of the hearing scheduled for
25 January 2019, SATAWU
had confirmed that postponement and
further advised him in an email on 1 February 2019 that the
postponement was until
further notice. He averred that he never heard
anything thereafter, hence he had referred a dispute to the CCMA.
[5]
The dispute surrounding whether Mbelwane
was dismissed or not is not specifically pertinent to the ultimate
determination of the
application before the Court. It is however
important to point out that certain of SATAWU’s versions in
regard to the dismissal
of Mbelwane do not add up, particularly since
it alleged that he was informed of his dismissal in a letter dated
1 February 2019,
whilst at the same time Mbelwane contends
that he had received an email on the same date from SATAWU’s
Provincial Administrator,
advising him of the postponement of the
inquiry
until further notice
.
In the end however, SATAWU in its replying affidavit appears to
accept that indeed the inquiry was postponed prior to the
commencement
of the hearing, but does not address how the alleged
dismissal of Mbelwane in his absence took place.
[6]
Mbelwane had obtained a default award in
his favour on 3 June 2019, in terms of which SATAWU was
ordered to pay him an
amount in the sum of R 65 460.34, which
included compensation calculated at three months’ remuneration
and back-pay
on the thirteenth cheque ‘
entitlement
’.
[7]
SATAWU avers that it had on 20 June 2019,
filed an application to rescind the default award. That award was
however certified
on 2 October 2019, and it is common cause
that the Sheriff attended to SATAWU’s principal place of
business in
Braamfontein to execute the writ on 12 December 2019.
A Return of Service by the Sheriff dated 6 January 2020
indicates that the inventoried disposable assets were as per
instructions, not removed.
[8]
SATAWU further avers that in circumstances
of the (a) national state of disaster, (b) the lack of
communication from the CCMA
in respect of further conduct in regard
to its rescission application, and (c), Mbelwane’s failure to
report for duty in
line with the award, its view was that the matter
had died a natural death.
[9]
Mbelwane however contended that he had made
attempts to report for duty on 24 June 2019 as per the
default award, but
he could however not enter SATAWU’s premises
as they were locked. He further denied having been served with the
rescission
application and contended that he had proceeded with the
application in terms section 143 of the LRA to certify the award and
proceeded
with its execution.
[10]
At these proceedings, SATAWU had produced a
copy (Annexure’R1’) to the replying affidavit which
purport to demonstrate
that a copy of the rescission application was
served on Mbelwane via email on 20 June 2019. On the
strength of this purported
proof of service, Ms Louw acting on behalf
of Mbelwane had still insisted that no such copy was received, but
had conceded that
she could not take the matter any further.
Irrespective of these disputes however, the Court is prepared to
accept that the rescission
application was delivered to the CCMA.
[11]
On 19 June 2020 SATAWU had
received an email from Standard Bank informing it of the Notice of
Attachment dated 18 June 2020
delivered by the Sheriff. In
that regard SATAWU contended that this was the first time it became
aware of the enforcement of the
award.
[12]
Mbelwane denies that SATAWU only became
aware of the execution processes on 19 June 2020 and
insisted that SATAWU at the
very least, should have been aware of the
existence of the execution processes as early as 3 September 2019,
when it
was served with the application for an enforcement award in
terms of the provisions of 143 of the LRA, and on 12 December 2019,
when attachment was proceeded with by the Sheriff, as evident from
the Return of Service dated 6 January 2020.
[13]
This application was brought before the
Court on 19 June 2020. The requirements to be met where
interim relief is sought
are trite. Thus, SATAWU must demonstrate the
following; (i) the existence of a
prima
facie
right, (ii) the apprehension of
irreparable harm, (iii) the absence of alternative relief, and (iv)
the balance of convenience
.
[14]
SATAWU asserts that it has a right to a
hearing of the rescission application that is before the CCMA, and
that the stay ought to
be granted pending the determination of that
application. It further asserts that there was a reasonable
apprehension of imminent
irreparable harm resulting if relief was not
granted, as its bank account that was attached, was utilised for a
variety of payments,
including that of its staff salaries and its
creditors.
[15]
SATAWU holds the view that there are
reasonable prospects that it will obtain the rescission order at the
CCMA despite the inordinate
delay in finalising that application. It
avers that the certification and enforcement of the award was
erroneously obtained
because had the CCMA been aware that there was a
pending rescission application, it would have not granted its order.
[16]
Mbelwane in opposing the application denied
that there was any basis to grant the interdictory relief sought, and
contends that
SATAWU’s version before the Court was misleading,
as it had been aware that execution process had been initiated as far
back
12 December 2019 when the Sheriff attached its movable
assets, and that it was misleading to suggest that it only became
aware of the execution processes on 19 June 2020.
[17]
Mbelwane contended that granting the
interdictory relief would be prejudicial to him particularly since he
has been unemployed and
without an income since the start of 2019. He
further contended that an attachment of SATAWU’s bank account
was pursued in
view of inventoried assets not being sufficient to
meet the judgment debt. He denied that there was a reasonable
prospect that
the rescission application would succeed, in view of
the casual manner with which SATAWU had prosecuted that application.
He contends
that the material facts of the rescission application
occurred prior to the announcement of the national state of disaster,
and
that there was therefore no merit in SATAWU’s contention
that the prosecution of the rescission application was interrupted
by
that announcement.
[18]
The
starting point with such applications is whether SATAWU had met the
requirements of urgency as contemplated in Rule 8 of the
Rules of
this Court, which
inter
alia
requires
that the founding affidavit in support of the application must
contain- (a) the reasons for urgency and why urgent relief
is
necessary; and (b) the reasons why the requirements of the rules were
not complied with. Whether a matter is urgent involves
two
considerations. The first is whether the reasons that makes the
matter urgent have been set out and second, whether the applicant
seeking relief will not obtain substantial relief at a later stage.
It is equally trite that an Applicant is not entitled to rely
on
urgency that is self- created when seeking a deviation from the
rules. Thus, the latitude extended to parties to dispense with
the
rules of the court in circumstances of urgency is not be 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
[2]
.
[19]
In this case, it was submitted on behalf of
SATAWU by Ms Malope, that even if it was aware of the attachment that
took place on
12 December 2019, it took no further steps to
approach the Court at the time, on the basis that from that date and
into
March 2020, several discussions were held with Mbelwane and
his attorneys of record. Arising from those discussions, an
impression
was created that the execution of the writ would not be
pursued in the light of the rescission application before the CCMA.
It
was further submitted that the urgency arose from 19 June 2020
when SATAWU was informed by Standard Bank that its account
had been
attached. Furthermore, it was submitted that the attachment appears
to have taken place in accordance with a new writ,
which SATAWU was
not aware of, especially since only movable assets had been attached
as per the Return of Service of 6 January 2020.
[20]
Ms Louw on behalf of Mbelwane had refuted
any allegation that the attachment occurred in terms of a new writ as
no new writ was
issued. She further submitted that the Sheriff was
instructed as far back as 27 January 2020 and on
12 March 2020
to proceed and remove the goods. She further
refuted that there were any discussions between the parties after
12 December 2020
that would have given SATAWU an impression
that Mbelwane was not proceeding with the execution.
[21]
The validity or otherwise of the writ or
the process followed by the Sheriff in attaching the bank account was
not specifically
pleaded. Insofar as that execution is concerned
however, and for the purposes of determining whether the urgency
claimed is self-created
or not, the issue is whether that execution
was effected in accordance with the old or ‘new’ writ. To
the extent that
it is found that the old writ was used in effecting
execution, arising therefrom is whether it could be used to levy
execution
against the bank account.
[22]
In terms of the default award, a total
amount of R65 460.00 was due and payable to Mbelwane. The
approximate value of
the property attached as per the Sheriff’s
Return of Service dated 6 January 2020 is R72 020.00.
A Notice
of Attachment in terms of Rule 45(8) and Rule 45(12) of the
Uniform Rules was issued by the Sheriff on 18 June 2020
with
interest on that amount.
[23]
In
Windybrow
Theatre v Maphela and Others
[3]
,
it
was held that;
‘
[9]
Service and execution of orders of the Labour Court takes place in
accordance with the process applicable
in the High Courts. Section 44
of the Superior Courts Act requires service by the Sheriff of process
(including writs of execution)
on the affected person (in this case
the appellant as judgment debtor) either in person, by service on its
address, or by telefax
or other electronic e-mail. Rule 45 of the
Uniform Rules of the High Court regulates execution against movables
of a judgment debtor.
Rule 45 (3) provides that:
‘
Whenever
by any process of the court the sheriff is commanded to levy and
raise any sum of money upon the goods of any person, he
shall
forthwith himself or by his assistant proceed to the dwelling-house
or place of employment or business of such person (unless
the
judgment creditor shall give different instructions regarding the
situation of the assets to be attached) and there;
(a)
demand satisfaction of the writ and failing satisfaction;
(b)
demand that so much movable and disposable property be pointed
out as he may deem sufficient to satisfy the said writ …’
[10]
In executing the writ and in performing his functions generally, the
Sheriff acts as an officer of the law and
not as the agent of the
judgment creditor or his attorney. It is not for the judgment
creditor to elect in what form or manner
execution should take place,
or which particular assets should be attached. Execution can only
proceed to attachment, sale and
distribution, once there is proper
service of the writ of execution on the judgment debtor. Failure to
do so will render the execution
invalid. There will not be an
attachment where neither the writ nor the notice of attachment have
been served on or brought to
the notice of the owner…”
[24]
In this case, it can be accepted that since
12 December 2019, and even if on Mbelwane’s version
the Sheriff was
instructed to proceed with the attachments, no
further steps were taken by the Sheriff in that regard until
18 June 2020.
The intervening circumstances related to the
declaration of the national state of emergency and the subsequent
Lockdown even if
material to the ultimate execution, cannot serve as
the only excuse as to the reason that no form of action was taken in
effecting
attachment from 12 December 2019.
[25]
Significant
however, is that it is apparent that the Notice of Attachment of
18 June 2020 is based on the original writ
of execution,
and clearly there is no basis to hold that the attachment was
effected through a new writ as there was none. This
is so in that for
the purposes of attachment under Rules 45(8) and 45(12), there would
have been no need for Mbelwane to make a
different application or
obtain an order of Court prior to proceeding to attach the bank
account
[4]
.
[26]
The difficulty however arises to the extent
that there is a difference between the assets inventoried as per the
Return of Service
and what the Sheriff sought to attach through the
Notice of Attachment of 18 June 2020. It is not clear from
the papers
as to what the basis for not attaching the inventoried
assets was in accordance with the Return of Service, especially since
those
assets at the time that they were inventoried were more than
the judgment debt. It is appreciated that at the time that the Notice
of Attachment was issued, the judgment debt had increased as a result
of the applicable interest rate. Be that as it may, in line
with the
principles enunciated in
Windybrow
Theatre
as highlighted above, fairness
would have dictated that SATAWU as an interested party be properly
informed by the Sheriff prior
to the attachment (in respect of assets
not originally envisaged), particularly in view of the consequences
of that attachment
to the operations of the Union. This is so even if
on Mbelwane’s version, there were no assts to attach as at June
2020.
[27]
In the light of the above, it is my view
that even if the initial attachment took place on 12 December 2019,
and to the
extent that it took the Sheriff six months prior to
issuing the Notice of Attachment, and further given the nature of the
attachment
as opposed to what was originally envisaged to be
attached, I am in agreement with the contentions made on behalf of
SATAWU that
it was entitled to act only after 18 June 2020.
To the extent that this application was brought before the Court on
19 June 2020,
and the reasons proffered in that regard, I
am satisfied that the requirements of urgency have been met.
[28]
The
general
approach when determining whether the writ of execution should be
stayed was reiterated in
Gois
t/a Shakespeare’s Pub v van Zyl & Others
[5]
as
follows;
“
(a)
A court will grant a stay of execution where real and substantial
justice requires
it or where injustice would otherwise result.
(b)
The court will be guided by considering the factors usually
applicable
to interim interdicts, except where the applicant is not
asserting a right, but attempting to avert injustice.
(c)
The court must
be satisfied that:
i.
the applicant has a well-grounded
apprehension that the execution is taking place at the instance of
the respondent(s); and
ii.
irreparable harm will result if execution
is not stayed and the applicant ultimately succeeds in establishing a
clear right.
(d)
Irreparable harm will invariably result if there is a possibility
that
the underlying
causa
may ultimately be removed, i.e.
where the underlying
causa
is the subject-matter of an ongoing
dispute between the parties.
(e)
The court is not concerned with the merits of the
underlying dispute-the
sole enquiry is simply whether the
causa
is in dispute.”
[29]
In this case, and to the extent that it has
been concluded that there is indeed an application for rescission
before the CCMA which
was timeously filed, I am satisfied that there
is
a pending underlying cause of action arising from the
arbitration award. The merits or otherwise of that application are
not pertinent
for the purposes of this application, and to this end,
I am satisfied that SATAWU has established a
prima facie
right
to the relief that it seeks.
[30]
It further follows that to the extent that it has been
concluded that there is an application for rescission before the
CCMA, and
further to the extent that SATAWU is currently not in a
position to access its bank account held with Standard Bank,
irreparable harm will result if execution is not
stayed and the application for rescission ultimately succeeds.
The Court is further satisfied that SATAWU has no
other alternative remedies readily available to it, and it would
clearly not be
in the interests of justice to deny it an opportunity
to challenge and have the default arbitration award set aside.
[31]
The only issue that remains to be
determined is that of costs. In making an award of costs, the Court
in accordance with the provisions
of section 162(1) of the LRA must
take into account the requirements of law and fairness. In this case,
inasmuch as it has been
established that SATAWU had sought to rescind
the default award, there can be no doubt that its shoddy and tardy
prosecution of
that application had resulted in the bringing of this
application, which had in turn compelled Mbelwane to oppose it. As
dominus litis
before the CCMA, the obligation was on SATAWU to not only to file its
rescission application, but to also ensure that it was finally
determined, rather than merely folding its arms. Its contention that
in the absence of the CCMA having reverted back to it on its
own
application, it had merely assumed that the matter would die a
natural death cannot be sustainable. Matters at the CCMA do
not just
die a natural death. The obligation at all material times remains on
applicants to follow up on their matters up to finality.
Had SATAWU
taken steps to ensure that the rescission application was finally
determined, Mbelwane would not have been in a position
where he would
have been compelled to oppose this application. To this end, it is my
view that it cannot be in the interests of
law and fairness, that
Mbelwane, who remains unemployed and prejudiced by SATAWU’s
nonchalance in regards to its rescission
application before the CCMA,
should be burdened with the costs of this application. Accordingly,
even if SATAWU is successful with
this application, it should be
burdened with its costs.
[32]
In regards to wasted costs occasioned by
the postponement of 23 June 2020, it is my view that to the
extent that this application
was launched on 19 June 2020,
and since Mbelwane had failed to file his answering affidavit by
22 June 2020
in accordance with the time frames set out in
the Notice of Motion, it is my view that further in the light of an
agreement on
that postponement, each party must carry its own costs.
[33]
Accordingly, the following order is made;
Order:
1.
The applicant’s non-compliance with
the rules of this Court pertaining to the time periods and manner of
service are condoned
and this matter is heard as one of urgency in
terms of rule 8 of the Rules of this Court.
2.
The enforcement of the award dated
3 June 2019 issued under case number FSBF 1477-19, and the
order granted in terms of
section 143 of the Labour Relations Act
dated 2 October 2019, is stayed pending the final
determination of the rescission
application before the Commission for
Conciliation Mediation and Arbitration.
3.
Each party must pay its own costs
occasioned by the postponement of this matter on 23 June 2020.
4.
The Applicant is ordered to pay the costs
of this application.
___________________
Edwin Tlhotlhalemaje
Judge
of the Labour Court of South Africa
REPRESENTATION
:
For the
Applicant:
Ms. D. Malope, of Masondo Malope Attorneys Incorporated
For
the Third Respondent:
Ms. E.M.J. Louw, of Lovius Bloc Incorporated
[1]
Act
66 of 1995, as amended
[2]
See
Jiba
v Minister: Department of Justice and Constitutional Development and
Others
(2010) 31 ILJ 112 (LC) at para 18;
National
Police Service Union and others v National Negotiating Forum and
others
(1999) 20 ILJ 1081 (LC) para [39]
[3]
(JA47/15)
[2016] ZALAC 27
; (2016) 37 (ILJ) 2641 (LAC)
[4]
See
also
Anand
-Nepaul v Citibank NA and Others
(366/2005)
[2005] ZAKZHC 25
(13 December 2005)
[5]
2011
(1) SA 148
(LC)
At
para 37. See also
Chillibush
Communications (Pty) Ltd v Michelle Gericke & others
(2010)
31 ILJ 1350 (LC) at para 18, where the Court held that;
‘
In
terms of section 145(3) of the LRA, the Court has the discretion to
stay the enforcement of the arbitration award pending the
outcome of
the review application. This discretion which is very wide has to be
exercised judicially taking account certain factors.
The most
important consideration in the exercise of the discretion is whether
there is a pending underlying cause of action arising
the
arbitration award or in certain instances arising from the Court
order. There is a wide range of factors which the Court
will take
into account in considering whether or not to order a stay of the
execution of an arbitration award, the most important
of which is
whether the interest of justice supports the stay of execution
pending the finalization of the review or rescission
application.’