IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: 2026 - 167220
In the matter between:
KAMAL CAPE TOWN IRON AND STEEL COMPANY (PTY) LTD Applicant
and
SERKAN CAYDAVUL First Respondent
IBRAHIM KINYAS GURCU Second Respondent
THE SHERIFF OF THE HIGH COURT KUILSRIVER SOUTH Third Respondent
Heard: 21 July 2026
Delivered: This judgment was handed down electronically by uploading on
Caselines; circulation to the parties' legal representatives by
email, and publication on the Labour Court’s website and
SAFLII. The date for hand- down is deemed to be 01 August
2026.
JUDGMENT
TLHOTLHALEMAJE, J
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
01-08-2026
____________ ______________
Signature Date
2
Introduction:
[1] In this urgent application, the applicant, relying on Rule 45 of the Uniform
Rules and the common law , seeks an order interdicting and restraining the
third respondent (Sheriff) from proceeding with the sale in execution
scheduled for 22 July 2026, pursuant to a writ issued under case number
JS619/23. It further seeks to set aside the writ and the attachment of its
movable property effected by the Sheriff, and to direct the latter to release and
restore the attached property to it.
[2] In the alternative, the applicant seeks to interdict and restrain the Sheriff from
proceeding with the sale in execution, pending the determination of an
application brought by another entity, Kamal Steel Limited (Tanzania) on 8
July 2026, to declare the judgment and order under case number JS619/23
null and void.
[3] Central to the applicant’s contention in seeking the above relief is that during
the Labour Court proceedings under JS619/23, the Court had substituted it
with another entity, Kamal Steel Ltd (Tanzania) . It argues that t he judgment
was therefore granted against the latter entity. The application is opposed by
the first and second respondents (Herein referred to as ‘Respondents’).
Background:
[4] The Respondents instituted a claim for unpaid salaries against the applicant in
December 2023. The matter came before Daniels J, who delivered j udgment
on 9 June 2025 in favour of the Respondents, and ordered the Applicant to
pay amounts of R1 676 428, 76 and R4 020 376, 32 respectively to each of
the individual Respondents.
[5] Upon delivery of the judgment, it is common cause that attempts by the
applicant to overturn the judgment through a leave to appeal, petitions to the
Labour Appeal and the Constitutional Court s all failed. The Constitutional
Court’s order putting the matter to rest was according to the Applicant, issued
3
in May 2026. The Respondents contend that it was issued in April 2026. A
copy of the order was, however, not attached to the pleadings.
[6] In between attempts at overturning the judgment, the Respondents obtained a
writ of execution on 8 December 2025, directing the Sheriff to attach and
execute against the applicant’s movable property. Pursuant to the writ, the
Sheriff on 15 January 2026 attached the movable property of the a pplicant at
its premises . The Sheriff had scheduled a sale in execution of the attached
property for 22 July 2026. In light of the dates of the hearing of this application
and that of the scheduled execution, the Court had , at the conclusion of the
proceedings, issued an interim order to halt the execution pending delivery of
this judgment.
The Applicant’s primary submissions:
[7] The essence of the a pplicant’s case is that it had undergone a process of
business rescue, and that its business was ultimately acquired by Kamal Steel
Ltd (Tanzania) as a going concern in terms of section 197 of the Labour
Relations Act. Thereafter, the company operated under the name of Kamal
Cape Town Iron and Steel.
[8] The applicant submitted that at the commencement of the trial proceedings
before Daniels J, the parties had agreed that the correct D efendant was
Kamal Steel Ltd (Tanzania) since it had acquired Kamal Cape Town as a
going concern, and that the judgment recorded that the citation of the parties
was accordingly amended. According to the a pplicant, the agreement came
about after the Respondents had also pleaded in their claim that the business
of the Applicant had been transferred to Kamal Steel (Tanzania) as a going
concern. In light of the agreement, it was submitted that the Respondents had
secured a substitution, and could not now seek execution against the original
company that they had agreed was not the proper defendant at the trial
proceedings.
[9] The applicant attributed its continuous citation in the judgment and
proceedings.
[9] The applicant attributed its continuous citation in the judgment and
subsequent legal processes to a clerical error or administrative oversight,
which it contended did not change the substance of that judgment. It
4
contended that its previous legal representatives failed to appreciate the legal
consequences of the alleged substitution as recorded in the judgment. It was
contended that despite the substitution and amendment of the citation, neither
the applicant nor its previous legal representatives had realised that this
meant that the judgment was against Kamal Seel (Tanzania), rather than the
applicant. It was submitted that , based on that misunderstanding and further
legal advice from its former attorneys, the applicant had continued to pursue
various legal processes in its own name.
[10] The applicant attributed the same mistake , or misunderstanding to the
Respondents, whom it alleged also failed to raise the issue of substitution in
the appeal proceedings. It contended that it lacked any standing to challenge
a judgment granted against Kamal Steel (Tanzania). The Applicant viewed the
error as common on both sides and a bona fide mistake, rather than a
deliberate attempt to delay enforcement of the judgment . It was against this
background that it was submitted that the writ authorising execution against
the assets of the applicant had no legal basis.
[11] Following the failed attempts at overturning the judgment of Daniels J as
already pointed out, it is common cause that on 8 July 2026, Kamal Steel
(Tanzania), which is also represented by the applicant’s attorneys of record,
launched separate proceedings . In that pending application, it seeks a
declaratory order that the judgment of Daniels J is null and void, on the basis
that it was never properly notified of the substitution and was not afforded an
opportunity to defend the claim upon being substituted, in violation of its rights
to be heard. The applicant contends that this signifies the contention that the
issue of substitution was only properly recognised at that stage, prompting
both this urgent application and the Kamal Steel (Tanzania) application to
declare the judgment a nullity.
The Respondents’ opposition:
declare the judgment a nullity.
The Respondents’ opposition:
[12] The Respondents’ contention in opposing the application was that the
application raised no genuine legal disputes and constituted an abuse of
process. They submitted that the application was frivolous and constituted an
5
attempt to avoid compliance with the judgment after multiple appeals had
failed. They deny that any substitution took place during the trial proceedings,
specifically since no formal application was launched under Rule 52(5) of the
Rules of this Court for a substitution.
[13] They relied on the transcript of the trial proceedings , as referred to and
attached to the answering affidavit , and conceded that discussions did take
place at the commencement of the proceedings regarding the proper citation
of the defendant. They , however, deny that there was any agreement that
Kamal Steel Ltd (Tanzania) would substitute the applicant as the defendant.
They contended that the only agreement reached was in respect of an
amendment and addition to the defendant’s name, by the inclusion of
‘Company’ in the applicant’s citation which was initially omitted, to reflect it as
‘Kamal Cape Town Iron and Steel Company’. They, however, denied that this
amendment to the citation in any manner reflected a substitution of the parties
to the claim.
[14] The Respondents further submitted that despite the a pplicant’s denials that it
was not the employer, or that it had ceased to be a party to the proceedings,
its conduct nonetheless belied this contention, and was inconsistent with its
argument that Kamal Steel Ltd (Tanzania) was the true defendant . They
referred to the a pplicant’s conduct of having conducted a full defence at the
trial, presented evidence through its witnesses, pursued multiple appeals,
engaged with them in settlement discussions before and after the judgment
was delivered, and also engaged in settlement discussions with other
employees in different disputes brought against it.
[15] The Respondents further pointed out that even if it were found that some form
of substitution took place, the Applicant’s conduct over thirteen months since
the judgment was delivered amounted to unequivocal acceptance of that
judgment and was therefore bound by the doctrine of peremption. This was
judgment and was therefore bound by the doctrine of peremption. This was
evinced by its actions of defending the action, pursuing appeal s in which it
had consistently confirmed that it was the employer and proper defendant . It
was pointed out that as late as March 2026, the applicant’s former attorneys
had merely threatened urgent proceedings to stay the execution, and had also
6
entered into settlement discussions with them, thus understood itself to be the
judgment debtor. In this regard, it was submitted that the Applicant lost the
right to challenge its status as the judgment debtor , after having consistently
acted as though it were properly before the Court.
[16] To the extent that the Applicant sought to blame its former legal
representatives for not realising the purported mistake, the Respondent’s
submissions were that the history of litigation demonstrated that the Applicant
and its successive representatives consistently accepted that it was the
correct defendant and judgment debtor. This was demonstrated by its
challenge to the judgment on the merits of the dispute in multiple appeal
processes, and by not raising at any stage any contention that it had ceased
to be a party.
[17] They argued that, notwithstanding attempts to blame the former attorneys, the
applicant had not attached any confirmatory affidavit to verify the alleged
mistake or misunderstanding of the legal effect of the alleged substitution.
They further submitted that even if the former attorneys did make a mistake,
the applicant was generally bound by the conduct and legal advice of its
chosen legal representatives.
Preliminary points:
(i) Authority to institute the application
[18] The Respondents challenged the authority of Mr Ashok Kumar Singh to
institute the application. They submit that even though Singh alleged that he
was a director of Kamal Cape Town, the CIPC documents and search
attached to the founding affidavit did not reflect his name as a director, and
therefore he failed to establish the authority to litigate on behalf of the
applicant.
[19] Even though the Respondents had not properly raised the issue through a
formal Rule 7 of the Uniform Rules application, it is my view that based on the
grounds upon which the authority of Singh is challenged, this point lacks merit
7
in light of the principles set out in Ganes and Another v Telecom Namibia
Ltd1.
[20] In the present instance, attached to the replying affidavit deposed to by Singh
was a confirmatory affidavit deposed to by a Mr Santosh Malay Gupta, a
director of the a pplicant. He confirmed Singh’s authority to institute the
proceedings. The issue of the belated filing of the resolution on the matter is
neither here nor there. On the approach in Ganes, Singh did not need to be
authorised to depose to the founding affidavit . In this case, any challenge to
the authority to institute and prosecute the proceedings cannot be sustainable
in the light of Gupta’s confirmatory affidavit. It follows that this preliminary
point must fail.
(ii) Urgency:
[21] The requirements to be met when urgent relief is sought are trite , emanating
from now familiar authorities 2. Under Rule 38 of the Rules of this Court, an
applicant seeking urgent relief must , in the founding affidavit, set out the
reasons for urgency; why urgent relief is necessary; and the reasons why the
requirements of the rules were not complied with. Aligned to these
requirements is that an applicant cannot claim urgent relief where, on the
facts and circumstances of the case, it is apparent that the urgency claimed is
self-created.
[22] Further considerations the Court must take into account are the interests of
the respondent party, and any prejudice it may suffer if the matter is disposed
of on an urgent basis. Equally so, an applicant must also explicitly advance
1 (608/2002) [2003] ZASCA 123; [2004] 2 All SA 609 (SCA); 2004 (3) SA 615 (SCA); (2004) 25 ILJ
995 (SCA) at para 19, where it was stated that;
‘In my view it is irrelevant whether Hanke had been authorised to depose to the founding
affidavit. The deponent to an affidavit in motion proceedings need not be authorised by the
party concerned to depose to the affidavit. It is the institution of the proceedings and the
party concerned to depose to the affidavit. It is the institution of the proceedings and the
prosecution thereof which must be authorised. In the present case the proceedings were
instituted and prosecuted by a firm of attorneys purporting to act on behalf of the
respondent.’
2 See Jiba v Minister: Department of Justice and Constitutional Development and Others (2010) 31
ILJ 112 (LC) at para 18 ; Tshwaedi v Greater Louis Trichardt Transitional Council [2000] 4 BLLR 469
(LC) at para 11; Dynamic Sisters Trading (Pty) Limited and Another v Nedbank Limited [2023]
ZAGPPHC 709 (21 August 2023) ; Luna Meubel Vervaardigers v Makin and Another 1977 (4) SA 135
(W) at 136H-137F); Ntozini and Others v African National Congress and Others [2018] ZAGPJHC 415
at para 10.
8
the reasons why it claims that it will not be afforded substantial redress in due
course if it had brought the matter to Court by way of an ordinary non- urgent
procedure. T he question of whether a matter is sufficiently urgent to be
enrolled is underpinned by the issue of the absence of substantial redress in
an application in due course. Where an applicant fails to establish that
substantial redress is not available in due course, the matter must be struck
from the roll3.
[23] The Respondents argue that the urgency in this matter is self -created since
the applicant knew of the judgment in June 2025; the attachment since
January 2026; and the intended execution once the appeal processes were
exhausted. It was contended that despite threatening urgent proceedings to
stop the execution in March 2026, the applicant only approached the Court on
13 July 2026, a few days before the execution. It was contended that the
urgent application was merely an afterthought.
[24] The applicant contends that the attachment or original judgment did not
trigger the urgency. It submits that urgency only arose when the applicant
realised the legal consequences of the judgment on 8 July 2026, when Kamal
Steel Ltd Tanzania) served its application to have that judgment nullified. It
contended that there was no delay once it appreciated the legal basis of the
relief sought by Kamal Steel.
[25] It is accepted without reference to t he application for nullity by Kamal Steel
Ltd, that the applicant could only have approached the Court once it had
exhausted its rights of appeal against the judgment. This is further buttressed
by the general rule that the execution of a court order is suspended pending
an appeal. Of course, to the extent that this application was only served on 14
July 2026, there was a delay since the dismissal of the petition by the
Constitutional Court (whether it was issued in April or May 2026). No attempt
was made to explain this delay , other than the contention that the legal
was made to explain this delay , other than the contention that the legal
consequences of the judgment were allegedly only realised on 8 July 2026 ,
when Kamal Steel Ltd (Tanzania) served its nullity application.
3SARS v Hawker Air Services (Pty) Ltd [2006] ZASCA 51; 2006(4) SA 292 (SCA)
9
[26] Of course, very little can be attached to the applicant’s contention that it only
realised the consequences of the alleged substitution and impact of Daniels
J’s judgment on 8 July 2026 for the purposes of determining urgency. This is
especially so since it had had the judgment from June 2025, and thereafter
pursued several appeal processes . The Court, however, accepts that a delay
on its own cannot deny an applicant an urgent hearing, and that the ultimate
test when considering urgency is whether the applicant will be denied
substantive redress in due course if the application is not heard on an urgent
basis4.
[27] In this regard, despite the failure to explain the delay , regard must be had to
the importance of this case, the prejudice to respective parties and the
dictates of the interests of justice. In this regard, it is accepted that once the
sale of execution takes effect, one cannot seriously speak of substant ial
redress in due course which may be available to the a pplicant. It is not far -
fetched to assume that once the payments resulting from the execution are
made, the applicant may have difficulties recovering its property to the extent
that it may be successful in its application in the ordinary course. Against
these conclusions, the Court deems it appropriate to treat the matter as
urgent.
The merits and legal approach:
[28] In the main, the a pplicant seeks a final order to interdict and restrain the sale
in execution of its property attached pursuant to the writ of execution, and to
set aside the writ and the attachment. The requirements for final interdict are
trite. These are that the applicant must establish a clear right, an injury
actually committed or reasonably apprehended, and absence of a satisfactory
remedy.
5
410 & 10a Kenmere CC v Ndebele and Others (2018/31110) [2019] ZAGPJHC 199 (19 June 2019) at
para 17
5 Hotz and Others v University of Cape Town 730/2016) [2016] ZASCA 159; [2016] 4 All SA 723
5 Hotz and Others v University of Cape Town 730/2016) [2016] ZASCA 159; [2016] 4 All SA 723
(SCA); 2017 (2) SA 485 (SCA) at para 29 where it was held that;
‘The law in regard to the grant of a final interdict is settled. An applicant for such an order
must show a clear right; an injury actually committed or reasonably apprehended; and the
absence of similar protection by any other ordinary remedy. Once the applicant has
established the three requisite elements for the grant of an interdict the scope, if any, for
refusing relief is limited. There is no general discretion to refuse relief. That is a logical
10
[29] The applicant contends that it had established a clear right that the judgment
was not against it and therefore the writ lacks its causa and validity, and thus
fell to be set aside. To the extent that the sale was set down for 22 July 2026,
it contended that the injury it would face was imminent , and that the sale itself
would breach its clear right to have the writ set aside. It contended that it had
no alternative remedy to protect its rights , and that o nce its property was sold
at auction to a third party, it would have no recourse to regain ownership of the
said property.
[30] The principles applicable where a stay of execution is sought are equally trite.
This Court has the inherent power, in its discretion, to stay the execution of a
writ or judgment 6. In Gois t/a Shakespeare’s Pub vs Van Zyl7 it was held that
a court will grant a stay of execution where real and substantial justice
requires it or where injustice would otherwise result . The court will be guided
by the factors usually applicable to interim interdicts, except where the
applicant is not asserting a right, but attempting to avert injustice.
[31] Against the above principles, it is accepted that a stay would ordinarily be
granted where, inter alia, on the facts, it is apparent that the writ pursuant to
the order or judgment is n on-compliant with the original judgment , or where
there are errors regarding the parties named in the order or judgment. In this
case, the applicant’s principal contention is that at the commencement of
proceedings before Daniels J, it was substituted by Kamal Steel Ltd
(Tanzania), following an agreement between the parties. It therefore contends
that the judgment and order run against the latter, and not it.
corollary of the court holding that the applicant has suffered an injury or has a reasonable
apprehension of injury and that there is no similar protection against that injury by way of
apprehension of injury and that there is no similar protection against that injury by way of
another ordinary remedy. In those circumstances, were the court to withhold an interdict that
would deny the injured party a remedy for their injury, a result inconsistent with the
constitutionally protected right of access to courts for the resolution of disputes and
potentially infringe the rights of security of the person enjoyed by students, staff and other
persons on the campus.
6Robor (Pty) Ltd (Tube Division) v Joubert and others (J2264/08) [2009] ZALC 38; [2009] 8 BLLR 785
(LC); (2009) 30 ILJ 2779 (LC)
7 2011 (1) SA 148 (LC) At para 37. See also Van Rensburg NO and Another v Naidoo NO and
Others, Naidoo NO and Others v Van Rensburg NO and Others . (155/09, 455/09) [2010] ZASCA 68;
[2010] 4 All SA 398 (SCA) ; 2011 (4) SA 149 (SCA) at para 51 - 52
11
[32] Reliance for the above proposition is premised on paragraph 2 of the judgment
of Daniels J, which reads;
“The parties agreed that the correct citation of the defendant was
Kamal Steel Ltd (Tanzania). The court was informed that the
defendant, against whom the plaintiffs instituted the action, Kamal
Cape Town Iron and Steel Co. (hereafter ‘’CISCO ’’) had been
purchased as a going concern by Kamal Steel Ltd (Tanzania). The
citation was amended accordingly.” (emphasis underlined)
[33] Despite the a pplicant’s contentions that the Court was not called upon to
interpret Daniels J’s judgment, it, however, interpreted paragraph 2 of that
judgment to mean that what was recorded was not merely a correction of a
name but was, in effect, a substitution of the parties . It contended that it was
replaced by the new employer, Kamal Steel Ltd (Tanzania), following
automatically from the principles of section 197 of the LRA.
[34] Section 34 of the Constitution affords everyone the right to have any dispute
that can be resolved by application of law decided in a fair public hearing
before a Court. It is against this principle that Rule 52(5) requires that any
application for a substitution be on notice to all the parties that may be affected
by any Court order in that regard. This is meant not only to ensure continuity of
the proceedings , but also to allow the affected party to be heard in
proceedings that may affect it.
[35] The starting point is whether the amendment to the citation as indicated in
paragraph 2 of the Daniels J’s judgment involved a correction of a mere
misnomer ( i.e., a misdescription of the correct party who is already before
Court) or whether it constituted a substitution of the a pplicant by Kamal S teel
Ltd (Tanzania) as alleged by the applicant. This enquiry is important in view of
the fact that a substitution carries a larger risk of prejudice or injustice than the
correction of a mere misnomer
8. A further distinguishing factor is that once a
correction of a mere misnomer
8. A further distinguishing factor is that once a
8See Essence Lading CC v Infiniti Insurance Ltd Mediterranean Shipping Company (Pty) Ltd
(2022/4024) [2023] ZAGPJHC 676; [2023] 3 All SA 410 (GJ); 2024 (2) SA 407 (GJ) at para 63 where
it was held;
12
party has been substituted for another, it plays no further role in the
proceedings, and the substituted party must now be before the Court.
[36] In further answering the enquiry above, the provisions of Rule 52(5)9 of the
Rules of Court (or the old Rule 22(5) of the Rules of this Court ), together with
the facts of the case as pleaded before Daniels J and the transcribed record10
are of utmost relevance.
[37] It is common cause that no Rule 52(5) application was before the Court to
seek a substitution. It needs to be said that there is an obvious distinction
between a substitution of a party to the proceedings and an amendment of a
citation of parties as already pointed out above. Paragraph 2 of the judgment,
on its plain reading, refers to the correction and amendment to the citation .
Bearing in mind the principles set out in Temba Big Save CC v Kunyuza and
Others11, it is of importance to read paragraph 2 in relation to the body of the
judgment and the record of proceedings rather than piecemeal . It is indeed
unhelpful for a party to merely extract from the judgment or the record what it
believes advances its case, to the exclusion of the essence of the judgment.
[38] A reading of the judgment in conjunction with the transcribed record, which the
Respondents had copiously referred to in the answering affidavit, indicates
how this amendment to the citation came about. At Page 3, lines 10 – 20 of
the transcript, it is apparent that the issue of the correct citation was raised at
the commencement of the proceedings . Mr Du Plessis, who appeared on
behalf of the applicant before Daniels J , had conceded at the trial that the
entity referred to at paragraphs 7-8 of the pre-trial minute referred to the name
‘There is no rule cast in stone in this regard. The applicable general question is whether the
amendment will result in an injustice that cannot be cured, in which event the amendment
amendment will result in an injustice that cannot be cured, in which event the amendment
will be refused. The question whether the error is a mere misnomer, or the amendment is a
substitution, plays a role in determining the possible prejudice. In Tecmed (Pty) Ltd and
Others v Nissho Iwai Corporation and Another it was pointed out that a substitution carries a
larger risk of prejudice or injustice, than the correction of a mere misnomer.’
9 Which reads:
‘If in any proceedings it becomes necessary to substitute a person for an existing party, any
party to such proceedings may, on application and on notice to every other party, apply to
the court for an order substituting that party for an existing party and the court may make
such order, including an order as to costs, or give such directions as to the further procedure
in the
proceedings as it deems fit.’
10 Part 2 – Annexure AA9 to the Answering Affidavit (Caselines 004 – 66 – 004 – 170)
11 (JA40/2015) [2016] ZALAC 36; [2016] 10 BLLR 1016 (LAC); (2016) 37 (ILJ) 2633 (LAC)
13
of Kamal Steel Limited, and that the citation wa s Kamal Cape Town Iron &
Steel (Pty) Ltd, which would be the same citation.
[39] The applicant’s witness at the trial proceedings, Ms Diane Carol Lee, who was
the Human Resources Manager of Kamal Cisco, agreed under examination in
chief that the name of the company that currently owned the business was
Kamal Cape Town Iron & Steel (Pty) Ltd trading as Kamal Cisco 12. Towards
the end of the proceedings , and after the parties ha d closed their respective
cases, the issue arose again after the representatives had a discussion.
Flowing from those discussions, Mr Ngubeni for the Respondents had agreed
that the name of the defendant was correct , save for the need for an
amendment to include ‘Company’ in the citation . Mr du Plessis , upon being
asked by the Court, had confirmed that the correct citation of the defendant
was Kamal Cape Town Iron & Steel Company (Pty) Ltd13.
[40] Effectively, it ought to be concluded that what was amended before Daniels J
following discussions between the parties’ representatives and engagement
with the Court was the description of the a pplicant, which cannot be said to
have constituted a substitution. That amendment to the citation , as can be
gleaned from the record, came about after both Mr du Plessis and Ms Lee had
confirmed that Kamal Cape Town Iron & Steel (Pty) Ltd was the correct
citation. At the time, the applicant had not claimed any prejudice resulting from
that amendment or correction to reflect the true state of affairs14.
[41] I therefore fail to appreciate the basis upon which it can be said that what took
place was in effect a substitution of parties rather than a mere amendment to
the citation as correctly reflected in paragraph 2 of the judgment. A substitution
of the parties could not have taken place in the absence of a proper
application under Rule 52(5). Equally, I fail to appreciate how , in
circumstances where there was a substitution of the parties, any court would
circumstances where there was a substitution of the parties, any court would
have continued with the proceedings as if the same parties were still before it.
Equally so, I fail to appreciate why the applicant would have participated in the
12 At page 57 line 1 – 7 of the transcript.
13 At Line 20 of p86 & p 87 lines 1 - 15
14 See Four Tower Investments (Pty) Ltd v Andre's Motors 2005(3) SA 39 (NPD).
14
proceedings when the alleged substitution had effectively absolved it from the
Respondents’ claim.
[42] It is against the above conclusions that the Respondents’ reliance on the
doctrine of peremption has merit. The principle underlying the doctrine is that a
person cannot be allowed to take up two opposing or inconsistent positions
when considering to pursue or defend litigation
15.
[43] The principle is meant to safeguard the integrity of the judicial process by
preventing litigants from oscillating between contradictory positions and
ensuring judicial consistency and fairness
16. It has further been held that the
principle ensures finality and stability in legal proceedings, which is essential
for maintaining public trust in the justice system17.
[44] In South African Revenue Service v Commission for Conciliation, Mediation
and Arbitration and others 18, it was held that the onus to establish peremption
would be discharged only when the conduct or communication relied on does
“point indubitably and necessarily to the conclusion” that there has been an
abandonment of the right to appeal and a resignation to the unfavourable
judgment or order
19.
[45] In arguing peremption, t he Respondents are correct in pointing out that the
applicant had consistently accepted that it was the correct party . It had
participated in the Court proceedings before Daniels J and opposed the claim
as though it were the defendant even after the alleged substitution . It had not
at any stage during trial contended that Kamal Steel Ltd (Tanzania) was the
15 Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture,
Corruption and Fraud in the Public Sector Including Organs of State and Others [2021] ZACC 28;
2021 (11) BCLR 1263 (CC), at paragraph [101]
16 See Hlatshwayo v Mare and Deas 1912 AD 242, at 259, and also at page 253, where the Court
said:
‘(T)he important question arises as to what is meant by a party to an action acquiescing in
‘(T)he important question arises as to what is meant by a party to an action acquiescing in
the judgment. In my opinion the effect of the authorities on this subject is to show that when
once a party to an action has done an act from which the only reasonable inference that can
be drawn by the other party is that he accepts and abides by the judgment, and so intimates
that he has no intention of challenging it, he is taken to have acquiesced in it.”
17 Minister of Defence and Others v South African National Defence Force Union and Another
(161/11) [2012] ZASCA 110 at para 23
18 (CCT19/16) [2016] ZACC 38; [2017] 1 BLLR 8 (CC); (2017) 38 ILJ 97 (CC); 2017 (1) SA 549 (CC);
2017 (2) BCLR 241 (CC).
19 At para 26
15
true defendant or that it lacked standing. It had effectively accepted the
judgment as it was, and pursued various appeal proceedings against it . It is
correct, as pointed out on behalf of the Respondents, that the applicant had
considered itself bound by the position it had consistently adopted.
[46] The applicant’s conduct after the judgment was delivered, including
engagements with the Respondents in settling the dispute up to a point after
the Constitutional Court order was issued, can only point to acquiescence in
the judgment, and it had therefore perempted any right to contend that the
judgment was not binding on it. This unequivocal conduct, contrary to the
applicant’s contention, clearly demonstrated an abandonment of any rights it
had to contest that it was not the true respondent.
[47] The applicant’s contention that it only became aware of the legal significance
of paragraph 2 of Daniels J’s judgment when it was served with Kamal Steel’s
Ltd (Tanzania) nullity application is, in my view, improbable. I fail to appreciate
how the Court can exercise its discretion in its favour when peremption is
clearly applicable, and the Respondents had discharged the onus in that
regard.
[48] The facts of this case, the conduct of the a pplicant at the proceedings before
Daniels J and the concessions made by the a pplicant’s representative and
witness as t o the correct citation, combined with its conduct after delivery of
the judgment as highlighted above, cannot be consistent with a posture that i t
was not the correct party, or that the judgment did not bind it. Its engagements
with the Respondents to attempt to settle the dispute on the first day of the trial
proceedings on 22 April 2025, as can be gleaned from the record, combined
with similar overtures after the delivery of the judgment, belies any contention
that it did not consider itself bound by the judgment. Furthermore, there is
nothing to suggest from the papers that the purpose of any of the appeal
nothing to suggest from the papers that the purpose of any of the appeal
proceedings was to raise the alleged substitution or that the applicant was not
the true judgment debtor. All these factors point to the applicant’s resignation
to the unfavourable judgment , and the fact that it was indeed the true
respondent before Daniels J.
16
[49] The applicant’s primary defence and explanation, in not disputing its legal
standing throughout until this application , is exculpatory and places all the
blame on its erstwhile attorney s. It had contended that it was only after the
nullity application was served by Kamal Steel Ltd (Tanzania) that it and its new
attorneys understood the import of Daniels J’s judgment and its legal position.
[50] Two important considerations come to mind when litigants seek to blame their
own chosen attorneys when they receive an unfavourable outcome. The first is
that in accordance with the principle restated in Edcon Ltd v Steenkamp &
Others20, the fate of a failed legal strategy is doom. The Labour Appeal Court
had added that;
‘…That risk is intrinsic to our system of litigation. Moreover, a fair litigation
system demands that the adversaries know what cases they have to meet.
It is not unknown to commence litigation, whether as a claimant or a
defendant, having designed and formulated a claim or a defence on a given
premise, only to be upended by developments in the law by the end of the
case. This phenomenon is an occupational hazard in litigation. It is
unthinkable that a party can claim a right to bite at the cherry, if the
raspberry, initially chosen, is sour.’
[51] It can only be observed that the applicant’s former attorneys adopted a
strategy to conduct the proceedings before Daniels J, make concessions as
they did, and pursue multiple appeals thereafter. The a pplicant must live with
the consequences thereof , and cannot therefore seek a second bite at the
proverbial cherry, based on spurious grounds.
[52] A second consideration is that , flowing from the established principle in
Saloojee and Another NNO v Minister of Community Development21, there is a
limit beyond which a litigant can escape the result of the conduct of its chosen
representatives in the course of litigation. A litigant cannot be absolved from
the normal consequences of the attorney-client relationship.
the normal consequences of the attorney-client relationship.
[53] A worrying feature of attempts to blame the previous attorneys , as correctly
pointed out on behalf of the Respondents, is that there is no confirmatory or
20 (2018) 39 ILJ 531 (LAC) at para 32
21 1965 (2) SA 135 (A) at 141C – E:
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supporting affidavit deposed to by any of the attorneys that are now being
blamed. There is nothing to confirm th at lack of appreciation of the alleged
substitution or the consequences thereof on the applicant’s liability. There is
nothing to demonstrate how they could have missed an obvious legal
consequence of what took place at the proceedings before Daniels J , if indeed
a substitution took place. Equally so, there is nothing before the Court to
demonstrate that any amendment to the citation before Daniels J was effected
in a manner inconsistent with the constitutional imperative of a fair and just
process embodied in section 34 of the Constitution.
[54] Obviously, the applicant’s posture to blame its former attorneys without more
is untenable and ought to be rejected. The Court cannot, in the exercise of its
discretion, without any substantiation, accept that there was indeed a genuine
mistake or misunderstanding of the alleged substitution and its implications on
the applicant’s liability. Equally so, there can be no common mistake of the
parties, in circumstances where the Respondents had not during the trial
proceedings or thereafter indicated that they shared the same incorrect belief
that a substitution took place. At the heart of this dispute is whether there was
a substitution, and the parties hold contrasting views.
[55] In Nedbank Limited v Msomi and Others
22, it was held that;
‘…a stay of execution is an extraordinary remedy. A successful litigant is
ordinarily entitled to the fruits of its judgment and a court will not lightly
interfere with that entitlement. A stay is therefore not granted merely
because a judgment debtor wishes to delay execution or because further
litigation is contemplated. Rather, the discretion is exercised where real and
substantial justice requires intervention.’
[56] Against the above principles, on the facts of this case as pleaded, t here is
nothing before the Court, in the exercise of its discretion, to co nclude that
nothing before the Court, in the exercise of its discretion, to co nclude that
considerations of real and substantial justice were sufficiently engaged to
warrant suspending the execution of the judgment. On the opposite end of the
scale, the a pplicant was afforded an opportunity of a fair trial and had
unsuccessfully availed itself of all legal avenues to challenge the judgment.
22 (2024/126147) [2026] ZAGPJHC 613 (5 June 2026)
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[57] The applicant’s attempt to further rely on litigation launched by another entity
to challenge the judgment, when it was not even a party to the proceedings
before Daniels J , is indeed curious and cannot assist it. This is so in light of
the basis and nature of the challenge to the judgment by Kamal Steel Ltd
(Tanzania). It follows that the Respondents are clearly entitled to the benefits
of the order and judgment of Daniels J, and the applicant cannot claim that
any injustice would otherwise result, especially in circumstances where it had
gone through a fair trial before Daniels J, and exercised all its rights in
attempts to overturn the judgment.
[58] In summary, there is no basis for any conclusion to be reached that the
applicant established a clear right that the judgment was not against it and
therefore the writ lacked its causa and validity. There is further no basis to set
aside the writ, since it is indeed compliant with the judgment, and the applicant
was properly identified as judgment debtor , which remained bound by that
judgment. Once it is found that the applicant failed to establish a clear right, it
follows that it ought to be the end of the matter , and the application must be
dismissed.
[59] Further, in the light of the above conclusions, it follows that there is no basis to
grant any interim relief, more specifically in the light of the conclusions made
on the alleged substitution.
Costs:
[60] It is trite that this Court has a discretion upon the consideration of law and
fairness, to make cost orders. In Baloyi
23, it was held that t he purpose
underlying costs is to indemnify the successful litigant against the expenditure
incurred as a result of having been unjustly compelled to either initiate or to
defend litigation.
[61] The Respondents sought a punitive costs order. They submitted that the
application was an abuse of process designed to frustrate or delay
enforcement of the judgment, which had survived multiple appeal processes,
enforcement of the judgment, which had survived multiple appeal processes,
23 At para 51
19
and where the applicant had failed to raise the substitution argument despite
various opportunities.
[62] It was submitted on behalf of the applicant that it had a legitimate basis for
approaching the Court as its application raised genuine disputes regarding
substitution, jurisdiction and the validity of the writ. It denied that the
application was frivolous, speculative or a delaying tactic in respect of the
execution of the writ. Instead, the applicant seeks costs on account of the
Respondents having irregularly filed a supplementary answering affidavit
without the leave of the court.
[63] The basis upon which the applicant sought relief has been rejected. The
applicant, despite its failed attempts to overturn the judgment of Daniels J,
had proceeded with this application when that was not justified. The
application was merely a belated attempt to avoid execution. Despite attempts
to scupper the results of the judgment, the Respondents were again
compelled and unjustly so to defend the judgment in their favour. It is against
these conclusions that the requirements of law and fairness clearly dictate
that they be indemnified against the costs they incurred.
[64] Accordingly, the following order is made;
Order:
1. The applicant's non- compliance with the Rules of this Court relating to
forms, service and time periods is condoned, and the matter is heard
as one of urgency in terms of Rule 38.
2. The interim order issued by this Court on 21 July 2026 is discharged.
3. The applicants’ urgent application is dismissed with costs.
___________________
Edwin Tlhotlhalemaje
Judge of the Labour Court of South Africa
20
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APPEARANCES:
For the Applicant: Adv. M. Naidoo, instructed by Dev
Maharaj and Associates Inc
For the 1st – 2nd Respondents: Mr T Ngobeni of Ngobeni Attorneys