THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case N o: JR2609/22
In the matter between:
ADELE VAN DEN HEEVER Applicant
and
MAKGAKANTSHE MINING COMMODI TIES (PTY) LTD First Respondent
GLENCORE MERAFE VENTURE EASTERN
CHROME MINES Second Respondent
FIRST NATIONAL BANK Third Respondent
Heard: 20 November 2024
Delivered: 16 January 2025
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JUDGMENT
___________________________________________________________________
ORR, AJ
Background
[1] In this application , the applicant seeks the following orders:
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‘a) Hearing this matter on an ex -parte basis /executing non -service on the First
Respondent;
b) That the provisions of Rule 45(8) of the Rules of the High Court be invoked
and applied to this matter;
c) That the Court direct the CCMA to amend/reissue the Applicant’s writ of
Execution/Enforcement … as issued by the CCMA to include/reflect the
vendor number for the attachment of any invoices issued to the Second
Respondent;
d) That the Court direct the CCMA to amend/reissue the Applicant ’s writ of
Execution/Enforcement … as issued by the CCMA to include/reflect the bank
account details of the First Respondent;
e) That the sheriff be ordered/directed to effect an attachment of the invoices
under the vendor number and bank account/s of the First Respondent and to
take into execution sufficient proceeds in the First Respondent ’s bank
account/s and invoices to be paid out by the Second Respondent and Third
Respondent .’
[2] The application is opposed only by the second respondent (Glencore). As is
apparent from the relief sought in the notice of motion , no service has been
effected on the First Respondent (Makgakantshe). The third respondent has
indicated that it does not oppose the application.
[3] The background facts, which are all common cause on the papers before me
are as follows:
3.1. On 26 September 2019 , the CCMA issued an award in terms of which
Makgakantshe was found to have unfairly dismissed the applicant and
was ordered to pay her an amount of R133 000 in compensation;
3.2. The applicant applied to have the award certified as contemplated in
section 143(3) of the Labour Relations Act1 (LRA). The certification was
issued by the CCMA on 6 November 2019 along with an enforcement
1 Act 66 of 1995, as amended.
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order which instructed the Sherriff to attach and take into execution the
movable goods of Makgakantshe to the value of the award;
3.3. The sheriff attempted to execute on the certified award but found no
property which could be attached at the given address. A nulla bona
return was issued on 14 October 2022;
3.4. The applicant’s attorneys approached the CCMA seeking to amend the
enforcement order to reflect Makgakantshe’s vendor number in order to
attach invoices submitted by Makgakantshe to Glencore. These
attempts were unsuccessful . On 5 October 2020 , Ben Baloyi of the
CCMA sent an email to the applicant’s attorneys stating as follows:
‘The CCMA does not have the jurisdiction to issue warrant of
execution to attach invoices . We can only help in means of attaching
the moveable goods of the respondent not documents like invoices .’
3.5. As result , the current application was brought .
[4] After argument was heard in this matter and as I was preparing this judgment
it appeared to me that given the relief sought required me to make orders
directly against the CCMA and given that the CCMA was not cited as a party,
an issue of non-joinder may arise. I accordingly requested the parties to make
written submission in this regard. I received submissions from both the
applicant and Glencore, and I am grateful for the assistance of the parties in
this regard.
[5] Before addressing the issue of jo inder I can dispose of prayer a sought in the
notice of motion. No service of this application has been effected on
Makgakantshe. The applicant explains that to do so will in all probability
defeat the object for which the application was brought. Given the refusal of
Makgakantshe to comply with the arbitration award thus far there is a strong
likelihood that knowledge of this application may cause Makgakantshe to
change its banking details and/or vendor numbers. I am satisfied that this has
been established, and I accordingly rule that this matter may proceed wi thout
any service being effected on Makgakantshe.
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Joinder
[6] The principles of joinder are well established. In Matjhabeng Local
Municipality v Eskom Holdings Ltd and others; Mkhonto and Others v
Compensation Solutions (Pty) Ltd2, the Constitutional Court stated:
‘[91] At common law, courts have an inherent power to order joinder of
parties where it is necessary to do so even when there is no
substantive application for joinder. A court could, mero motu , raise a
question of joinder to safeguard the interest of a necessary party and
decline to hear a matter until joinder has been effected . This is
consistent with the Constitution .
[92] The law on joinder is well settled. No court can make findings adverse
to any person’s interests, without that person first being a party to the
proceedings before it .’
[7] As is apparent from what is set out above , the CCMA is of the view that
certification of an award in terms of section 14 3 of the LRA permits only the
attachment of movable goods. The applicant holds a contrary view. The
applicant is of the view that a certification of an arbitration award in terms of
section 143 permits the attachment of incorporeal goods , and that an
enforcement order can make provisions to that effect . The order sought from
this Court is to direct the CCMA to amend its enforcement order issued in
terms of section 143 to include incorporeal property. The order sought by the
applicant would be adverse to the view of the CCMA that it has no power to
do so , and would direct the CCMA to act in a manner which it is of the view it
is not entitled to do.
[8] On this basis , Glencore argues that the CCMA should have been joined to
these proceedings as the interests of the CCMA are directly affected. The
applicant contends to the contrary. I must confess that I have had some
difficulty in following the applicant’s arguments in this regard. The applicant
refers to Commission for Conciliation, Mediation and Arbitration v MBS
2 [2017] ZACC 35; 2017 (11) BCL R 1408 (CC) at paras 91 – 92.
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Transport CC and Others3 a case which dealt with the legal fictions created by
the operation of section 143. The case sets out at some length how a legal
fiction is created that a certification of an award by the CCMA is to be treated,
for the purposes of execution, as if a writ has been issued by the Labour
Court even though this is not the case. The Court found that this was done by
the legislature in order to circumvent the cumbersome existing enfor cement
provisions , which required that an arbitration award be made an order of the
Labour Court so that a writ could be issued for the attachment of property.
[9] The case does not address the issue before me , which is the CCMA’s view
that incorporeal property may not be included in a n enforcement order issued
in terms of section 143 of the LRA and whether this Court should hear the
CCMA on this issue before making an order to the contrary.
[10] The applicant ’s supplementary heads of argument conclude that the CCMA
has no jurisdiction to issue or “enforce a writ of execution of this nature ” (this
nature presumably being a writ to attach incorporeal property) and that the
joinder of the CCMA is therefore not necessary . However , this begs the
question of why the applicant then seeks an order requiring the CCMA to
amend its certification if the CCMA has no powers to do so. I fail to
understand how it can possibly be argued that the CCMA should not be
joined, and heard on this issue, before an order potentially adverse to its
views be made against it.
[11] This is not for a moment to suggest that I accept the CCMA’s position in
respect of incorporeal property is correct in relation to enforcement orders .
Rather they should be joined to be heard on this issue prior to it being
decided, because , as the Constitutional Court put it in De Lange v Smuts NO
and Others4:
‘Everyone has the right to state his or her own case, not because his or her
version is right, and must be accepted, but because in evaluating the cogency
of any argument, the arbiter, still a fallible human being, must be informed
about the points of view of both parties in order to stand any real chance of
3 [2016] ZALAC 34; [2016] 10 BLLR 999 (LAC).
4 [1998] ZACC 6 ; 1998 (7) BCLR 779 (CC) at para 131.
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coming up with an objectively justifiable conclusion that is anything more than
chance .’
[12] Having found that the CCMA should be joined as a party in this matter all that
remains is for me to decide what orders I should make consequent on this
finding. In their supplementary heads of argument , Glencore contend that I
can either dismiss the matter for non-joinder or postpone the matter and order
that the CCMA be joined in the proceedings. They urge me in either event to
dismiss “ the relief sought against the second re spondent ”. However, there is
no relief sought directly against Glencore for me to dismiss . Glencore is cited
because it has a direct interest in the relief sought not because relief is sought
against it. I understand that what Glencore really seeks is a determination, on
the merits, of the relief sought by the applicant in prayer c) of the notice of
motion as well as prayer e) insofar as it relates to Glencore .
[13] I am sympathetic to Glencore’s desire to have the question of its invoice
numbers disposed of so as not to incur further costs in the proceedings.
However , in order to address this issue , on the merits, I would need to make
assumptions that the CCMA may issue enforcement orders which include
incorporeal property and then determine whether an attachment of vendor
numbers falls under the category of incorporeal property which may be
attached. Having determined that the CCMA must be heard before it can be
decided whether incorporeal property can be referred to in a n enforcement
order at all, I don’t think it is appropriate for me to make any assumptions in
this regard, particularly when this issue is likely to be determined by a Judge
other than myself.
[14] I am of the view that the entire question of whether enforcement orders can
include incorporeal property is one of some importance and will almost
certainly affect persons beyond just the applicant in this matter. I am
accordingly of the view that this matter should be postponed and that the
CCMA should be joined as a party.
[15] As far as costs are concerned, I take Glencore’s point that they have been put
to unnecessary costs as a result of the applicant’s failure to join the CCMA as
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a party. However, I think a determination on costs is premature at this point.
Costs will therefore be reserved.
[16] In the premises, I make the following orders:
Order
1. This application may proceed without service being effected on the first
respondent;
2. The matter is postponed sine die ;
3. The CCMA is joined as the fourth respondent in these proceedings;
4. The applicant is directed to effect service of an amended notice of
motion, reflecting the CCMA as the fourth respondent, as well as all the
existing papers in this matter on the CCMA within ten days of this
order;
5. Costs occasioned by the postponement are reserved.
____________________
C Orr
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Adv R Orr
Instructed by: Bailie J anke Snyman Attorneys
For the Second Respondent: Adv L Bhima
Instructed by: Harris Marcus Mahlangu Attorneys