Sneller Verbatim/JduP
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J2742/02
2002.12.12
In the matter between
OCEAN BASKET, WAVERLEY Applicant
and
SHERRIF PRETORIA NORTH
EAST - A VAN NIEKERK NO 1st Respondent
2nd Respondent
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J U D G M E N T
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REVELAS, J:
1. In this matter the applicant, the Ocean Basket of
Waverley, has approached the court on an urgent basis,
seeking the following relief:
"2. That an order be made instructing the second respondent to
release the applicant's goods attached in terms of a writ of
execution issued on 28 November 2002 under case number
J2741/02 pending finalisation by the Honourable Court of the
rescission application launched by the applicant under the
abovementioned case number on 10 October 2002."
2. Mr Savvas Nicholas deposed to an affidavit that Mr Louw
was a person whose full and further particulars were
unknown to him. Furthermore he states that on 7 March
2002 he attended at the offices of the Commission for
Conciliation Mediation and Arbitration in Marshalltown,
Johannesburg at approximately 08h15 and proceeded to
the thirteenth floor, where it was discovered that the
applicants were absent, and the matter was dismissed.
That, Mr Nicholao says, was what he thought was the
last of the matter. He makes no mention of the reasons
which led to him having to appear at the CCMA, e.g.
that Mr Louw was a previous employee and what the
dispute was about.
3. On 9 December 2002 the sheriff apparently arrived at
his premises to attach and remove the assets of the
Ocean Basket ostensibly, he says, in accordance with
the court order issued in the applicant's absence on 19
November 2002. There is such an order granted by Mr
Justice Modise.
4. He further states (under oath) that the applicant did
not receive any notice from the respondents regarding
the filing of any papers with the Labour Court, and
therefore he was unaware of any proceedings held on 19
November before Modise AJ.
1. 5. An application in terms of section 165(a) of the
Labour Relations Act, 66 of 1995, to rescind the order
of Modise AJ was brought on 10 December 2002. Since the
deputy sheriff, (“the second respondent”), has attached
goods in terms of the court order and refuses to
release such goods, which consists mainly of tables and
chairs and which were removed on 9 December, this
urgent application is brought.
6. I have no quarrel with the urgency of the matter. The
applicant has however made out no case on the merits to
entitle it to the relief it seeks, on any basis, let
alone on an urgent basis. I say this for the following
reasons.
7. From the respondent's answering affidavit the following
facts emerged, about which Mr Nicholao remained
entirely silent.
8. Subsequent to the confusion regarding the time
scheduled on 7 March 2001 by the CCMA, the matter was
rescheduled for 14 March 2001. On this day the
applicant failed to attend the arbitration proceedings,
and a default award was made by a commissioner of the
CCMA, Miss Kate Savage. A copy of the award is
attached to the papers of the respondent supporting out
that fact. This award was then faxed to the applicant
on 16 March 2001. This fact is supported by a copy of
the covering letter from the Commissioner for
Conciliation Mediation and Arbitration to the
respondent's business address.
1. 9. On 20 March 2001 the applicant applied for
rescission of the award in terms of section 140 of the
Act. The award was rescinded on 3 August 2001 by
another commissioner of the CCMA, namely a Mr Ian
MacGregor. His rescission ruling is attached to the
answering papers as annexure E. The rescission ruling
therefore confirms that the applicant had been in
contact with the CCMA, and that it did receive notices
from the CCMA at the correct address and responded to
them. There must have been some kind of correspondence
then.
10. The matter was then rescheduled for arbitration on 2
May 2002. On this day the applicant once again failed
to attend the proceedings. It appears from the notice
of set down that it document was only faxed to the
applicant's business fax number in Pretoria and not the
fax number of the applicant's representatives given as
a chosen address in the rescission application. The
matter was therefore postponed. A copy of the notice of
set down is attached to the answering papers as
annexure F.
11. A further rescheduling took place, and the matter was
ultimately set down for 4 June 2002. The notice of set
down was faxed to the applicant's fax number in
Pretoria and that of its representative in
Johannesburg. There could surly be no complaint about
proper service of the notice of set down in this
instance. The notice of set down is attached to the
papers as annexure G.
1. 12. Annexures H and I to the answering papers reflect
that the representative of the respondents at that
stage already notified the applicant of the date of
hearing. The notice of set down for the application in
terms of section 158(1)(c) of the Act heard on 11
November, was also duly served on the applicant. An
affidavit in support of proof of service was also
placed before the court in those proceedings. This is
annexure I. Herein the deponent makes reference to the
fax number for service as being the number which
appears on the applicant's own Notice of Motion in the
rescission application it had brought before the CCMA.
13. It appears that the applicant had not been frank with
its representatives. Otherwise they would never have
approached this court and omitted to state all these
facts in the supporting affidavit or perused this type
of relief.
14. In the circumstances, the application should be
dismissed. Since this application was based on untruths
and it is vexatious and frivolous in the circumstances.
Consequently a punitive costs order is clearly
indicated.
15. I make the following order:
1. The application is dismissed.
2. The applicant is to pay the respondent's costs on a
scale as between attorney and client.
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E. Revelas
ON BEHALF OF THE APPLICANT: Mr. VAN LOGGENBERG
form the NATIONAL
ASSOCIATION OF PRIVATE EMPLOYERS
ON BEHALF OF THE RESPONDENT: Riki Anderson form
ANDERSON & KLOPPERS ATTORNEYS