166336IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NO: J1929/99
In the matter between:
LOUIS ANTHONY ROTHSCHILD Applican
t
and
AMT CONSTRUCTION Respon
dent
JUDGMENT
STELZNER AJ
1. This matter came before me in terms of the provisions of
section 158(1)(c) of the Labour Relations Act 66 of 1995 (“the
Act”). The applicant sought to have the arbitration award
granted in his favour by the CCMA on 3 May 1999 made an order
of this court.
2. The arbitration award was made in the absence of the
respondent party. The Commissioner, in her award, indicates
that on the day of the hearing two telephone calls were made to
“the employer party”. The award states further that neither a
person by the name of Tony, a contractor, or Mr Marco Tavares, a
director, could explain satisfactorily why they had failed to arrive
except for alleging that they were not aware of the proceedings.
It does not appear from the face of the award but one assumes
that the Commissioner, in accordance with normal CCMA
practice, would have satisfied herself that the notice of set down
of the arbitration proceedings had been properly served. In any
event, I am not being called upon to review the decision of the
CCMA to proceed in the absence of the employer party nor was
an application for rescission of the award brought on that basis.
3. The Commissioner went on to consider the applicant’s
evidence and found his dismissal to have been both substantively
and procedurally unfair. Applicant was awarded compensation in
the sum of R96 000.00 being the equivalent of 12 months’
remuneration. The amount was to be paid within 14 days of the
date of the award.
4. In his application in terms of section 158(1)(c) of the Act the
applicant made use of the standard form notice of motion and
supporting affidavit (apparently supplied by the Registrar of the
Court or by the CCMA to assist parties who seek to have
arbitration awards made an order of this court). In the
application the respondent is simply cited as AMT Construction
without any further description of the nature or status of the
entity. It would appear that these further particulars were
unknown to the applicant. The applicant supplied a physical
address, a telephone number and a telefax number for the
respondent and annexed an affidavit in support of proof of
service of both the arbitration award and the founding papers in
respect of the section 158(1)(c) proceedings.
5. The respondent as cited in these proceedings has not filed any
opposition thereto. An answering affidavit was, however, filed by
one Alberto Jose de Oliviera Tavares, who states that he is a
director of AMT Placements (Pty) Limited, a company duly
incorporated in terms of the laws of South Africa. Without stating
so overtly Tavares, on behalf of AMT Placements (Pty) Limited,
seeks leave to intervene in these proceedings on the basis that it
has an interest therein. Tavares indicates that AMT Placements
(Pty) Limited has been served with the arbitration award granted
by the CCMA on 3 May 1999 and has also been served with a
copy of the application to make that arbitration award an order of
court, the application before me in these proceedings.
6. Tavares goes on to say that at no time was AMT Placements
(Pty) Limited the employer of the applicant. (This accords with
what the applicant says in his founding papers where he avers
that the respondent is an entity known as AMT Construction. The
arbitration award was also issued against AMT Construction, cited
as “the employer party”.) Tavares states further that to the
knowledge of AMT Placements (Pty) Limited there is no such
entity as AMT Construction and certainly no such entity sharing
premises with AMT Placements (Pty) Limited. He does not deny
that such an entity could exist, a denial which it appears could
not have been made in the absence of some form of proper
search to that end. Tavares, however, expresses concern on
behalf of AMT Placements (Pty) Limited that, given that both the
arbitration award and the section 158(1)(c) papers have been
served on AMT Placements (Pty) Limited, there is a risk that
should this application be granted an attempt might be made by
the Sheriff to attach property belonging to AMT Placements (Pty)
Limited in executing such order ostensibly against AMT
Construction, the respondent in this matter.
7. Tavares also avers that although he was overseas at the time
he is aware that AMT Placements (Pty) Limited was contacted on
the morning of the arbitration of 3 May 1999. Because he,
Tavares, was overseas at the time he could not attend at the
CCMA to clarify the confusion regarding the identity of the
applicant’s employer.
8. Tavares then argues in his affidavit, as was argued by Mr
Leech, appearing for AMT Placements (Pty) Limited, that it is the
duty of the applicant in legal proceedings to ensure the correct
citation of all parties. He submits that should this court grant the
application in terms of section 158(1)(c), AMT Placements (Pty)
Limited as well as its directors could be severely prejudiced and,
in the circumstances, requests that the application be dismissed.
9. The applicant then filed a replying affidavit. Given that the
founding papers were really nothing more than pro forma
documents and having read the answering affidavit filed by AMT
Placements (Pty) Limited, the applicant seeks to cast further light
on the situation. This court was called upon to consider the
attitude which it ought to take regard to evidence tendered in
reply in similar circumstances in Jeremiah v National Sorghum
Breweries (1999) 20 ILJ 1055 (LC), in particular at 1058I to
1059B, where it was held as follows:
“While it is normally so that an applicant must make out its case
in the founding papers, and may deal with new issues only if the
respondent raised them in answer, the facts of this case are
somewhat peculiar. It is customary for applicants to approach
this court using the pro forma affidavit issued by the CCMA.
While this would not excuse an applicant from making essential
disclosures, applicants can perhaps generally be forgiven if they
assume that the bare allegations in the pro forma affidavit will
suffice, at least until the respondent files its detailed answer.
While I am aware that this court must generally treat pleadings
as they are treated in other superior courts, I am of the view that
in the present circumstances it would not be in accordance with
the objectives of the Act to place undue technical hurdles before
the applicant. I accordingly deal with the matter on the basis of
the factual contentions contained in all the pleadings presently
before me, but applying the usual principles to determine which
averments I should accept.”
I agree with this approach and propose deciding this matter on
the same basis.
10. In the replying affidavit applicant, inter alia , confirms
that when he was employed by AMT Construction this took place
after he responded to an advertisement placed in the newspaper,
a copy of which advertisement is attached to the replying
affidavit. The advertisement clearly identifies the potential
employer as AMT Construction and contains the telefax and
telephone contact numbers which have been used by applicant
throughout his proceedings against the respondent. He also
confirms that he has on numerous occasions telephoned
respondent at that telephone number and has never been told
that he has the incorrect telephone number. Furthermore, he
has on many occasions attended at the offices at the physical
premises cited by him in these proceedings and was at all times
under the impression that he was attending at the premises of
the respondent. Tavares in his answering affidavit, however,
indicates that all of the documentation in regard to this matter
has, in fact, been received by AMT Placements (Pty) Limited. Of
course he does not deny that the documents have or may have
also been received by an entity known as AMT Construction,
being the respondent. Indeed, as he states that he is unaware of
the existence of such an entity it seems that he cannot state on
behalf of that entity whether it has or has not received such
documentation.
11. As a result it is apparent that (at least after the filing of
the answering affidavit by AMT Placements (Pty) Limited) the
impression has been created in the mind of the applicant that
AMT Construction, the respondent, and AMT Placements (Pty)
Limited are at the very least connected or, as he puts it, are “one
and the same” in that AMT Placements (Pty) Limited is trading as
AMT Construction from the cited premises. In his replying
affidavit he sought to suggest therefore that an order be made
against AMT Placements (Pty) Ltd and its directors.
12. Mr Kujawa, who appeared on behalf of the applicant in
the proceedings before me, conceded that, on the papers as they
stand, the applicant is not entitled to an order against any entity
other than the respondent as cited, being AMT Construction,
despite the averments made to the contrary by the applicant in
his replying affidavit and whether the respondent and AMT
Placements (Pty) Ltd are in fact one and the same entity or not.
The respondent and AMT Placements (Pty) Limited may or may
not be one and the same entity but I am not required to make a
finding on that issue in dealing with the application before me
nor, in my view, does this dispute affect my ability to make the
order sought in these proceedings.
13. Mr Kujawa submitted, and I accept, that there was no
fatal defect in regard to the citation of respondent as it is
permitted in terms of rule 20 of the Rules of this Court to cite a
partnership, firm or association without alleging the names of the
partners or owners. Indeed, rule 20(3)(a) provides that “ at any
time after a partnership or firm becomes a party to any
proceedings, the party acting against it may notify the
partnership or firm to provide it with the names and addresses of
the partners or owners, within 7 days of service of the notice. ”
Rule 20(4) provides that if a partnership has been dissolved then
the proceedings continue against the persons who were partners
at the time of service of the document initiating the proceedings
against the partnership. Rule 20(5)(a) makes a provision similar
to that contained in rule 20(3)(a) in respect of proceedings
against an association.
14. At common law unless each individual member of an
association, firm or partnership was cited and joined in
proceedings, a summons would be bad for misjoinder. Rule 20,
however, enables the association, firm or partnership to be cited
in its own name or “the name which the body normally bears and
which is descriptive of it ”. The fact that an association, firm or
partnership may be cited as such in terms of the rule does not
mean that the substantive law relating to the liability of
members, proprietors or partners has been affected. (See
Landman & Van Niekerk : Practice in the Labour Courts, 1998
edition, the annotation which appears at pD-59 thereof). The
same authors in the annotation in regard to sub-rule (3) at page
D-60 consider the question of whether a notice can be issued to a
partnership or firm in terms of the Labour Court rules after a
judgment by the court, and conclude that there is nothing either
in the wording of the rule or in its context that limits the issue of
such a notice to pending proceedings. They comment further
that presumably a party who disputes the status of partner or
owner which is sought to be conferred by the notice would have
to bring an application in terms of rule 11 to set it aside.
Alternatively, if it appears in due course that there is in fact no
such association, firm or partnership as AMT Construction then
application could be made in due course on notice to have the
citation amended or the correct party substituted as respondent
in terms of the provisions of Rule 22.
15. On the facts of the matter before me and on the basis
that the applicant seeks an order against the respondent as
cited, being AMT Construction, it would appear that the applicant
has made out a case for the granting of an order in terms of
section 158(1)(c). This court has a discretion in deciding whether
or not to grant such an order but has previously tended to
exercise that discretion in favour of granting an order in the
absence of good reason not to do so.
“The court has a discretionary power when considering an
application in terms of section 158(1)(c). One of the purposes of
the Act is the effective resolution of labour disputes. An
important facet of this object is finality. It seems that it might be
contrary to the purposes of the Act if this court was simply to
refuse to make an award an order of the court and not refer it
back to the CCMA for any reason. ” ( Ntshangane v Speciality
Metals CC (1998) 19 ILJ 584 (LC) at 588I-J)
And:
“The power to make an award an order of court is a discretionary
power. This power is exercised judicially. Generally this court
will be in favour of lending enforceability to an award. Inherent
in the power to make an award an order of court is the power not
to make an award an order of court either for a limited or
unlimited period. A court will however generally be disinclined to
let an award hang in the air. ” (Deutsch v Pinto & another (1997)
18 ILJ 1008 (LC) at 1016E-F)
16. Nothing which has been stated by Tavares on behalf of
AMT Placements (Pty) Limited in the affidavit in which AMT
Placements (Pty) Limited seeks to intervene in these proceedings
persuades me that I should exercise my discretion against
making the award an order of court as against the respondent.
An order against AMT Construction cannot in law be executed
against the corporate entity of AMT Placements (Pty) Limited
unless and until a proper application for substitution of AMT
Placements (Pty) Limited as the respondent in these proceedings
were brought and granted. This has not been done. If such an
application were to be brought AMT Placements (Pty) Limited
would have the opportunity of opposing such an application.
17. AMT Placements (Pty) Limited sought leave to intervene
in these proceedings when, on its version, it had in fact and in
law nothing to do with the proceedings. It sought to justify its
intervention on the basis that it has an interest in seeking to
avoid an erroneous attempt to execute an order against it in the
event of such order being granted against respondent, AMT
Construction. Were such an erroneous attempt to be made in
due course AMT Placements (Pty) Limited would then be able to
exercise its rights in law. The conduct of AMT Placements (Pty)
Limited in intervening in these proceedings has resulted in an
opposed application and the appointment by the applicant of an
attorney to assist him. Until such time as AMT Placements (Pty)
Limited filed an answering affidavit it is apparent that the
applicant was representing himself. In my view having sought
leave to intervene, and having in fact intervened, in the
proceedings AMT Placements (Pty) Limited lays itself open to the
possibility of a costs order being granted against it.
18. In the circumstances I am satisfied that I ought to grant
the application in terms of section 158(1)(c) and that AMT
Placements (Pty) Limited should be ordered to pay applicant’s
costs occasioned as a result of the intervention by AMT
Placements (Pty) Limited in the proceedings.
19. Accordingly I make the following order:
19.1 The arbitration award of 3 May 1999 under case
number GA42154 in terms of which the respondent was ordered
to pay to the applicant compensation in the sum of R96 000.00
within 14 days of the date of the award, is hereby made an order
of this court.
19.2 The intervening party, AMT Placements (Pty) Limited,
is ordered to pay the costs of the applicant occasioned by its
intervention in the proceedings.
S STELZNER
Acting Judge of the Labour Court of South Africa
DATE OF HEARING: 12 August 1999
DATE OF JUDGMENT: 19 August 1999
APPEARANCE FOR
APPLICANT:
Mr R Kujawa
INSTRUCTED BY: Rossouws
APPEARANCE FOR AMT
PLACEMENTS (PTY) LIMITED:
Mr B Leech
INSTRUCTED BY: