Sneller Verbatim/ASS
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J2007/02
2003-02-24
In the matter between
Applicant
and
NATIONAL ENTITLED WORKERS UNION obo
MADALA MNISI AND 4 OTHERS 1st Respondent
NATIONAL ENTITLED WORKERS UNION 2nd Respondent
3rd Respondent
_________________________________________________________
J U D G M E N T
__________________________________________________________
LANDMAN J:
At the outset of this judgment I should record that there was
no opposition to the joinder of Madala Mnisi, Petrus Mabilo,
Richard Khumalo, Justice Mkhize and Ruth Choma and they
were consequently joined as parties to this matter. The
application to join the National Entitled Workers Union was in
dispute. There are no good grounds for joining this party and
that part of the application is refused.
On 24 April 2002 this court granted an order against
Biscuit King under case no JS7101 for certain relief. The order
was granted at the instance of the persons that I have just
mentioned. A warrant of execution was issued on 29 April
2002. The judgment creditors attempted to attach the funds
of Biscuit King Benoni CC trading as Biscuit King Brakpan. On
14 May the sheriff attached movable property at the premises
of Biscuit King Benoni in Brakpan. Biscuit King Benoni CC
alleges that the attached property belongs to Marlodo
Enterprises CC. However, Biscuit King Benoni CC, decided to
seek an interdict against the four judgment creditors, the
National Entitled Workers Union and the sheriff of Brakpan for
an order declaring that the writ be set aside.
The application is brought at the instance of Biscuit King
Benoni CC. This means that the issue which I must decide is
primarily whether this CC is the proprietor of Biscuit King
against which judgment has been granted. It does not, in the
first instance, require that I decide who is the proprietor of
Biscuit King (the judgment debtor), but it probably comes
down to the same thing.
The judgment creditors say that on 27 October 1996
Gideon Christoffel Nel and Gert Nel formed and registered a
close corporation Nelbis Ondernemings BK to carry on the
biscuit business trading as Biscuit King Benoni (well-known as
Biscuit King.) It commenced the biscuit business on 18
November 1996. Gert Nel senior was also present on
18 November when his sons G C Nel and G Nel commenced
the business.
The applicants were employed, they say, in the biscuit
business in Benoni. Nelbis Ondernemings BK trading as Biscuit
King Benoni also employed the other judgment creditors at
different dates. On 21 January 1998, G C Nel and G Nel, the
members of Nelbis Ondernemings BK converted the trading
name of Nelbis Ondernemings BK from Biscuit King Benoni into
a new close corporation namely Biscuit King Benoni CC to take
over the biscuit business, employees, assets, equipment,
vehicles, machinery, tools and goods of Nelbis Ondernemings
BK. Thereafter Biscuit King Benoni CC continued with the
business of Nelbis Ondernemings BK without interruption.
The founding affidavit goes on to say that on 8 March
2001, Gideon Christoffel Nel and Gert Nel, the owners of
Biscuit King Benoni ceased to be the members of that CC and
Gert Nel senior became the new member of Biscuit King
Benoni CC and took over the business as a going concern.
The applicant, Biscuit King Benoni CC, in a founding
affidavit by its member says:
"I wish to point out that the deponent is correct in stating
that he and the four others referred to in paragraph 4, were
employed by Nelbis Ondernemings CC t/a Biscuit King Benoni.
The deponent is, however, wrong in the submission that my
sons G C Nel and G Nel and Gert Nel 'converted the trading
name' of Nelbis Ondernemings CC into Biscuit King Benoni CC.
What in fact happened is that the business, Nelbis
Ondernemings CC trading as Biscuit King Benoni at 65 Princess
Avenue, Benoni, had strenuous competition from Biscuit King
Brakpan. As a result my sons’ business (Nelbis Ondernemings
CC) was no longer a viable enterprise and as a result was
closed down during September 2000. (Approximately when
the four employees were retrenched.)
I bought the Biscuit King franchise in Brakpan which
started trading, during 2001, as Biscuit King Benoni CC trading
as Biscuit King Brakpan. The Biscuit King Brakpan enterprise
was bought for a price of R210 000,00 for equipment, goodwill
etcetera which is paid in instalments by way of a lease
agreement to Marlodo Enterprise CC, the owner of Biscuit King
Brakpan. I am the only member of Biscuit King Benoni CC. I
was an employee and manager in Biscuit King Benoni (Nelbis
Ondernemings CC trading as Biscuit King Benoni.)
As my sons business did not make it, I offered them
employment in my business i.e. Biscuit King Benoni CC trading
as Biscuit King Brakpan.
The CC, Biscuit King Benoni, was a shelf CC and during
2001 I became the only member of Biscuit King Benoni. As a
result, my sons, G C Nel and G Nel were simply employees in
the employ of Biscuit King Benoni CC. My sons never traded
any business in Biscuit King Benoni CC.
I am informed by my sons G C Nel and G Nel, that the
shop fittings or equipment on the premises of Nelbis
Ondernemings CC t/a Biscuit King Benoni at 65 Princess Road,
Benoni was sold to Bakery and Catering Supplies for an
amount of R7 000,00. (See the confirmatory affidavit of G C
Nel, G Nel and John Jordaan annexed hereto as annexures A, B
and C respectively.) I am also advised that the amount of
R7 000,00 was utilised by Nelbis Ondernemings CC to pay
outstanding rent and was the rented property painted before it
was vacated by Nelbis Ondernemings CC.
As referred to in the founding affidavit Nelbis
Ondernemings CC trading as Biscuit King Benoni is dormant
since September until this day. The business enterprise at
Biscuit King Benoni CC t/a Biscuit King Brakpan is a totally
separate entity and none of the shop fittings or equipment in
Biscuit King Brakpan belongs to or was transferred from Biscuit
King Benoni.
I refer the honourable court to the affidavit of Marthinus
Gysbert Botha of Marlodo Enterprises CC who is still the owner
of all the movable assets in Biscuit King Brakpan. The
ownership of the movable assets will only be transferred to
Biscuit King Benoni CC when the last lease payment is paid to
Marlodo Enterprises.”
The judgment creditors were employed by their
employer who used the name Biscuit King as part of its trading
name. Biscuit King Benoni CC carries on business at Shop 16
Checkers Centre, Kritzinger Avenue, Brakpan. There is no
proof that Nelbis Ondernemings CC was converted into Biscuit
King Benoni CC. The evidence is that Biscuit King Benoni CC
was created at a time when Nelbis Ondernemings CC was still
in operation.
When an applicant sues and obtains judgment against a
firm and then seeks to enforce the judgment against that firm,
the judgment creditors must prove, on a balance of
probabilities, who the proprietor of that firm is. It is not
permissible to attach the assets of another party who may be
using that name. I assume that the judgment debtor in terms
of the judgment should be (or should have been) described as
Biscuit King Benoni. This is most probable. However, the
judgment debtors have not shown that Biscuit King Benoni CC
was the proprietor of Biscuit King Benoni when the judgment
was granted. The judgment creditors did not make use of Rule
20 of the Rules of this Court. Had they done so the onus, as a
matter of substantive law, would have rested upon them to
prove who the proprietor of the business was. The onus does
not change when a respondent applies for relief denying that it
is the true proprietor.
In the premises, therefore:
1. The writ issued by the Registrar and the Sheriff Brakpan under
case no JS71/01 of 14 May 2002 is set aside.
2. The 1st, 2nd, 3rd, 4th and 5th respondents are interdicted
from executing further writs under case no JS71/01 against
Biscuit King Benoni CC (98/003108/23 trading as Biscuit King
Benoni.)
3. The 1st, 2nd, 3rd, 4th and 5th respondents are ordered to pay
the applicant’s costs jointly and severally.
SIGNED AND DATED AT BRAAMFONTEIN ON ........ APRIL
2003
___________________
A A LANDMAN
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA