IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
Case no. J 450/98
In the matter between:
Vela Dlamini and Others Applicants
AND
Savo Sakota 1st
Respondent
Ritso Sakota 2nd
Respondent
Durban Deep Wholesale Meat 3rd
Respondent
Meat ‘n More 4th
Respondent
Dartprops 5th Respondent
JUDGMENT
MLAMBO J.
1. This is an application to join one Ranko Sakota as a respondent in these
proceedings. When the dispute was initially referred to this court for
adjudication the respondents were as follows:
1.1_ Sakota Savo first respondent;
1.1_ 1.2_ Sakota Ritso second respondent
1.3_ Durban Deep Wholesale Meat third respondent ;
1.4_ Meat ‘n More fourth respondent and
1.5_ Dartprops fifth respondent.
2. The first and second respondents are brothers and are cited as
respondents because it is alleged that they are co owners
(and/or partners) of the third to fifth respondents. Ranko Sakota
the person now sought to be joined as sixth respondent is
apparently the father of the first and second respondents . The
basis for joining him is that it is alleged that he is a business
partner of the first and second respondents and also coowner
of the third to the fifth respondents.
3. The parties could not agree on the procedure to be followed and
the court ruled that it would hear evidence from both parties on
the joinder point then make a ruling. Thereafter the matter
would be reenrolled for the trial proper.
4. The applicants main witness on this issue was Laas Vicky
Baloyi (“Baloyi”). He testified that he was employed on 18
February 1997 to vacuum and cut meat. He was employed at
what he called, Durban Deep Meat & More in Roodepoort. He
testified that at some stage he was transferred to Meat ‘n More
Eastgate but later returned to Rodepoort. He confirmed that he
knew Vela Dlamini, one of the individual applicants. He was
referred to Dlamini’s payslips which reflected that on 7 January
1995 he was employed at Meat ‘n More Northgate, on 10
January 1998 he was employed at Durban Deep Wholesale
Meat. He was also referred to a document headed “Durban
Deep Wholesale Meat” dated 12 January 1998 being a letter
confirming that Dlamini had been an employee of the said
Durban Deep Wholesale Meat at a salary of R 425 00 per
week. He confirmed that other individual applicants worked at
the different outlets of Durban Deep Wholesale Meat, Meat
More and Dartprops, at different points in time.
5. Baloyi was also asked to confirm a number of other documents.
These documents bore testimony to the fact that the individual
applicants were policy holders of Anchor Life. The documents
also reflected that premiums were collected by Durban Deep
Wholesale; Durban Deep Bloemfontein; Durban Deep
Dartprops; Durban Deep Alexandra; Durban Deep Dobsonville;
Durban Deep Grobelsdal; Louis Tritchard, Potgietersrus, Cresta
And Burgersfort.
6. Baloyi also confirmed that he and the other individual applicants
were members of the Meat ‘n More Provident Fund. R Sakota
is reflected as the principal employer for purposes of the
provident fund. This R Sakota is also reflected as trading as
Meat ‘n More. Baloyi also testified that he and the other
individual applicants, irrespective of where they were employed
or based were under a single human resource management.
7. Baloyi’s evidence also covered the fact that the Meat ‘n More
logo appeared on the letter head of Durban Deep Wholesale
Meat (third respondent) and on the business card of Dartprops
43 (fifth respondent). He also testified that drivers employed at
Durban Deep Wholesale Meat (third respondent) used to load
meat at Durban Deep Wholesale Meat in Roodepoort
proceeded to Dartprops (fifth respondent) and load more meat
in boxes and then deliver at the various outlets of Meat ‘n More
(fourth respondent).
8. Albert Ndlovu was also called to testify on behalf of the
applicants. He testified that he was employed as a driver on 2
April 1996 by Durban Deep Wholesale Meat (third respondent)
in Roodepoort. He confirmed Baloyi’s evidence that as drivers
they loaded meat at Durban Deep Wholesale Meat then went to
load frozen meat from Dartprops and then delivered the meat to
the outlets of Meat ‘n More. He testified that all drivers and
trucks came from Durban Deep Wholesale Meat and none from
Dartprops. He also confirmed when showed photos of trucks
that they were the trucks they used. These trucks bear the
Meat ‘n More logo.
9. The respondent’s evidence came from Mathys Johannes Swart
who testified that he was an accountant practising for his own
account and that he was the accountant for Durban Deep
Wholesale Meat and Meat ‘n More (third and fourth
respondents). He is also the auditor of a company called
Dartprops 43 (Pty) Ltd. He testified further that : Durban Deep
Wholesale Meat was a partnership of Risto and Savo Sakota,
Meat ‘n More was a partnership of the father (Ranko Sakota)
and five of his children. During December 1998 the Meat ‘n
More outlets were sold to Meat n’ More (Pty) Ltd whose
shareholders are the Sakota brothers and their two sisters i.e
Dragoljub Sakota Milica Bodokouglo and Ranka Zatezaco. He
also testified that the Sakota family was engaged in a number of
business ventures but the administration of the different
businesses was conducted at one central office; he also acted
as auditor of Durban Deep Butchery (Pty) Ltd which was later
converted into Durban Deep Butchery CC whereafter the
interest of the partners or members was then sold. He testified
that there was no relationship or connection between Meat ‘n
More and Durban Deep Wholesale Meat and that separate
books of account are kept for each entity. He testified that the
businesses were totally unrelated in all respects save for the
single administration.
10. According to Swart the only respondent in this matter is Durban
Deep Wholesale Meat (“the third respondent). However
according to the applicants all the respondents including Ranko
Sakota are one and the same employer though trading in
several outlets and in different venues.
11. Rule 22 of the rules of this court provides:
“1 The court may join any number of persons, whether jointly,
jointly or severally, separately, or in the alternative , as
parties in proceedings, if the right to relief depends on the
determination of substantially the same question of law or
facts.
2(a) The court may, of its own motion or on application and on
notice to every other party, make an order joining any
person as a party in the proceedings if the party to be
joined has a substantial interest in the subject matter of the
proceedings.
2. When making an order in terms of paragraph (a), the court may
give such directions as to the further procedure in the
proceedings as it deems fit, and make an order as to costs.”
Herbstein & Van Winsen (Juta) 1997 in “The Civil Practice
of the Supreme Court of South Africa” at page 170 state: “If
a third party has or may have, a direct and substantial
interest in any order the court might make in proceedings
or if such an order cannot be sustained or carried into
effect without prejudicing that party, he is a necessary
party and should be joined in the proceedings,..”. At page
172 a “direct and substantial interest” is described as “an
interest in the right which is the subject matter of the
litigation and not merely a financial interest which is only
an indirect interest in such litigation.”
12. In a dismissal dispute where joinder is in issue a party that may
closely be connected with the employment, supervision and
remuneration of the employee has a direct and substantial
interest in the outcome of the dispute. That party should be
joined and or can demand to be joined in the proceedings.
13. It is clear therefore that Durban Deep Wholesale Meat as a
partnership of Risto and Savo Sakota have a direct and
substantial interest in this matter. They should have been cited
as Risto and Savo Sakota trading as Durban Deep Wholesale
Meat.
14. I am of the view that the proper approach regarding the other
respondents is to consider the business activities of the Sakota
family on the one hand and those of the entities they created to
conduct their businesses and how these affected the
employment of the individual applicants.
15. I accept the evidence of Mr Swart that other than the
partnership of Durban Deep Wholesale Meat and Meat ‘n more
there are other entities such as Durban Deep Butchery(Pty) Ltd,
Dartprops 43 (pty)Ltd. However there are several common
denominators amongst these entities and they are:
15.1 They are all engaged in one trade, i.e. the meat trade.
15.2 They all involve the same family, i.e a father and his sons and
daughters.
15.3 Save for Meat ‘n More (Pty) Ltd they all utilize a single
administration office.
15.4 They all utilize the same marketing logo i.e Meat ‘n More.
16. The entity known as Durban Deep Wholesale Meat is the only
one mentioned by Swart as the employer of the individual
applicants. It is in this regard that the evidence of Baloyi and
Ndlovu becomes crucial. Their evidence that their pay slips
reflected different employers at certain stages must mean
something. For instance if Vela Ndlamini was an employee of
Durban Deep Wholesale meat then that is what his payslip
should reflect. That payslip cannot at a different stage reflect
the name Meat ‘n More and at another stage again reflect
Durban Deep Wholesale Meat as employers. This confirms the
applicants’ evidence that they were employed interchangeably
amongst the different businesses.
17. The applicants’ evidence that they loaded meat at Durban Deep
Wholesale Meat and also at Dartprops and thereafter delivered
it at Meat ‘n More outlets is unchallenged. There was no
evidence from the respondents to the effect that other business
entities had their own employees. More telling is the fact that
the trucks used to load and deliver the meat were driven by the
same employees and the same trucks serviced all the business
entities.
18. I can also not ignore the fact that the trucks bore the same logo
common to all the business entities. I can also not ignore the
fact that a partner in one entity could also be managing director
of one of the other business entities. In my view all the
members of the Sakota family mentioned in these proceedings
as well as the business entities they were involved in were
intimately connected and involved to the employment of the
individual applicants. In my view they all have a direct and
substantial interest in the outcome of the present litigation.
19. In my view all the business entities i.e. Durban Deep Wholesale
Meat; Meat ‘n More; Durban Deep Butchery (Pty) Ltd and/or
Durban Deep Butchery CC; Meat ‘n More (Pty) Ltd; and all the
Sakota family members named in this litigation were all
engaged in the same enterprise. They are for all intents and
purposes one and the same employer of the individual
applicants. The joinder application should therefore succeed
and the court, of its own motion, also joins Durban Deep
Butchery (Pty) Ltd and/or Durban Deep Butchery CC; Meat ‘n
More (Pty) Ltd and Dartprop 43 (Pty) Ltd as respondents in this
matter.
20. The order of the court is therefore:
20.1 The joinder application is upheld.
20.2 Ranko Sakota is joined as a respondent in these proceedings
jointly and severally.
20.3 Durban Deep Butchery (Pty) Ltd and/or Durban Deep Butchery
CC, Meat ‘n More (Pty) Ltd and Dartprops 43 (Pty) Ltd are
joined in these proceedings as respondents jointly and
severally.
20.4 The costs of this application shall be costs in the cause.
Mlambo J.
Date of judgment: 15 April 1999.
For the applicants: Mr Maluleke of National Entitled Workers Union.
For the respondents: Mrs Moyses instructed by Sampson Okes,
Higgings Inc.