IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NO: J3977/99
652002
In the matter between:
MAROBENG JOHNNY SETONA Applicant
and
JACOBUS GERRIT NIEUWOUDT First Respondent
KING PIE POTCHEFSTROOM (PTY) Second Respondent
LIMITED
RANJEET CHOUHAN Third Respondent
AUM SOUNDS (PTY) LIMITED t/a Fourth Respondent
KING PIE POTCHEFSTROOM
_______________________________________________________
JUDGMENT
_______________________________________________________
LANDMAN J:
1. Commissioner Eric Louw made an award in favour of the applicant,
Mr Setona. The Commissioner found that King Pie Potchefstroom
(Pty) Ltd had unfairly dismissed him. The award was made an order
of this court on 20 June 2000. Mr Setona has tried unsuccessfully
to obtain his reinstatement and the satisfaction of the order.
2. On this occasion, two applications serve before me. The first is an
application by Mr Setona to join the following persons as
respondents to the proceedings which have culminated in the order
set out above. These persons are:
1. Mr J G Nieuwoudt.
2. Mr D van der Merwe Viljoen.
3. Dr S G van Niekerk.
4. Mr Ranjeet Singh Chouhan.
The first three persons are directors of King Pie Potchefstroom (Pty)
Ltd, the judgment debtor. The fourth is a director of Aum Sound
(Pty) Ltd t/a King Pie Potchefstroom. It is simply not competent to
join any of these persons as respondents to an application which has
been finalised and which has resulted in an order.
3. The first three persons, assuming that they, as directors, are in
charge of the judgment debtor, could be cited for contempt of court if
they fail to ensure that the judgment debtor reinstates Mr Setona. In
fact, such an application has been brought and I shall deal with it
later.
4. As far as Mr Chouhan is concerned, there is no factual or legal
link between him and the judgment debtor. The fact that he is a
director of a company that purchased a King Pie franchise from a
company called "King Pie Potch (Pry) Ltd" (which is not the
judgment debtor) is of no consequence. The application for his
joinder may be borne out of Mr Setona's frustration but there is
no legal basis for the application. No reliance is placed on
section 197 of the Labour Relations Act 66 of 1995. The deed of
sale between the judgment debtor and King Pie Potch (Pty) Ltd
was apparently concluded before the dismissal of Mr Setona.
5. Mr Oosthuizen, who appeared on behalf of the judgment debtor
and Mr Nieuwoudt, tendered the deed of sale for Mr Setona's
perusal. Mr Setona, however, declined my suggestion that he
look at it.
6. I turn to the second application which is for all four of the persons
mentioned above to be found guilty of contempt of court and to
be sanctioned accordingly. There is no case against Mr
Chouhan. The application against him is vexatious and the
application must be dismissed.
7. As far as the other three persons are concerned, they are all
directors of the judgment debtor. They were not served with the
application for their committal. It came to the attention of the
judgment debtor and Mr Nieuwoudt after being served at Aum
Sounds’ pie shop in Potchefstroom.
8. Are the directors of the judgment debtor guilty of contempt of
court? It has not been shown that any of them was aware of the
court order of 20 June 2000. Nor, save for Mr Nieuwoudt, they
were not served with notice of this application. As far as the
judgment debtor is concerned, it is in default of its obligation to
satisfy the debt. But, here too, there is no proof that the
company was aware of the judgment. It is also said, by Mr
Nieuwoudt, that the company is dormant. Whether this means
that the judgment debtor has no assets and does not trade is
something which I need not decide on these papers. The
application therefore must fail.
9. If Mr Setona believes that the judgment debtor has assets and
has a business in respect of which he can be reinstated, then he
must apply for an enquiry to be instituted. He must, however, be
aware that if the judgment debtor has no assets then the debt
cannot be satisfied and that is the end of the road. This court
cannot extract performance from a judgment debtor which has
no means to satisfy the judgment.
9. In the premises:
1. Both applications are dismissed.
2. The applicant is to pay the costs of King Pie Potchefstroom (Pty)
Ltd and Mr J G Nieuwoudt.
3. The applicant is to pay the costs of R S Chouhan and Aum Sounds
(Pty) Ltd on an attorney and client basis.
SIGNED AND DATED AT BRAAMFONTEIN THIS 14 TH DAY OF MAY
2002.
______________
AA Landman
Judge of the Labour Court of South Africa
In person
For the first and second respondents: Mr Oosthuizen of Viljoen & Meek Attorneys.
For the fourth respondent: Adv P Roopa instructed by De Villiers Attorneys.
6 May 2002.
14 May 2002.