IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: 2026/208356
In the matter between:
KAMAL CAPE TOWN IRON AND STEEL CO (PTY) LTD Applicant
and
SERKAN CAYDAVUL First Respondent
ERAHIM KINYAS GURCU Second Respondent
THE SHERIFF OF THE HIGH COURT
KUILS RIVIER SOUTH Third Respondent
Heard: 10 September 2026
Delivered: 16 September 2026
JUDGMENT
BEKKER AJ
(1) Reportable: No
(2) Of interest to other Judges: No
(3) Revised
____________ ______________
Signature Date
2
Nature of application
1. This is an urgent application brought by the Applicant seeking to interdict and
restrain the Third Respondent Sheriff from proceeding with a sale in execution
of property attached pursuant to a writ of execution being issued, resulting from
a judgment handed down by this Court under case number JS619/23.
2. The Applicant seeks an urgent interim interdict pending the determination of an
application brought by the Applicant on 25 August 2026, seeking to rescind the
judgment and order of Daniels J under case number JS619/2023, delivered on
9 June 2025.
3. In accordance with the judgment handed down by Daniels J, the First and
Second Respondents (“the employees”) succeeded with a contractual claim for
unpaid remuneration. As per paragraph 26 of that judgment, the Applicant was
ordered to pay the employees the amounts of R1, 676,426.76 and
R4,020,376.32 respectively as outstanding remuneration for the period 26 May
2020 to 12 December 2023 (excluding the period from 17 November 20209 to
10 December 2021).
4. The application was opposed by the First and Second Respondent employees.
Timeline and Applicant’s case:
5. Messrs. Gurcu and Cayduval are erstwhile employees of the Applicant. Mr.
Cayduval was employed as a divisional manager and Mr. Gurcu as the
Applicant’s raw materials manager.
6. It is apparent that the Applicant is engaged in the metal and engineering
industries.
7. As per the judgment of Daniels J, the respondent employees were placed on a
lay-off at the end of March 2020 due to financial difficulties.
8. This was during the time of the Covid- 19 pandemic where the Metal and
Engineering Industries Bargaining Council’s main collective agreement
3
provided for a maximum period of eight weeks’ layoff. This period lapsed on
26 May 2020, and the employees did not agree to an extension thereof.
9. Despite no agreement, the employees’ lay-off continued until they were notified
of their dismissal for operational reasons, effective 12 December 2023.
10. In the meantime, the Applicant was placed under business rescue for the period
November 2020 to December 2021. During this period, the employees were
not required to work, but were remunerated.
11. It is for this period ( excluding the period of business rescue) that the
Respondent employees brought a claim in terms of s77(3) of the Basic
Conditions of Employment Act.1
12. Daniels J concluded that the Plaintiff had no defense on the substance of the
claims, but forced the Respondent employees to come to court to vindicate their
rights, thereby justifying a costs order against the Applicant as per the
mentioned judgment.
13. The amounts ordered as per the judgment were payable within 30 days of the
date thereof, failing which it will attract interest at the prescribed rate of interest.
14. Dissatisfied with the judgment of Daniels J, the Applicant did not comply.
Instead, an entity by the name of Kamal Steel Tanzania ( ‘Kamal Tanzania’)
claimed that it substituted Kamal Cape Town in the action resulting in the
judgment by Daniels J , and that for this reason the judgment runs against
Kamal Tanzania and not against the Applicant. As held in a later judgment by
this Court referenced hereunder, there was no substitution, but merely a
correction of the citation as requested by Kamal Cape Town.
15. Be that as it may, in paragraph 15 of the Applicant’s founding affidavit for urgent
relief the deponent clearly states that “however, for purposes of this application,
the Applicant accepts that the judgment and order run against itself ...’.
1 75 if 1997 (as amended) (‘the BCEA’)
4
16. The Applicant now alleges that Kamal Tanzania substituted Kamal Cape Town,
but Kamal Cape Town ( the current Applicant) unsuccessfully sought leave to
appeal the judgment of Daniels J. Daniels J dismissed the application for leave
to appeal, whereafter the Labour Appeal Court was petitioned, which petition
met the same fate.
17. A further petition to the Constitutional Court was unsuccessful.
18. A Writ in Execution was then issued under case number JS619/23 and directed
the Third Respondent Sheriff to attach and execute against the Applicant’s
property.
19. A sale in execution was scheduled for 22 July 2026. Undeterred, and as a
result of what the Applicant calls ‘Kamal Tanzania’s application’, the Applicant
brought an urgent application to set aside the Writ of Execution on the basis
that the incorrect party was cited on the w rit (and according to the Applicant it
should have been Kamal Tanzania) and, secondly, to stay the sale in execution
pending a determination of Kamal Tanzania’s application. On 1 August 2026,
that application (brought by Kamal Tanzania) was equally dismissed.
20. The Applicant’s goods remain so attached by the Sheriff. The Applicant then
in mid -August 2026 decided that it would be prudent to subpoena the
Respondent employees’ bank statements for the period May 2020 to December
2023. Based on the contents thereof, it sought a rescission of the judgment by
Daniels J on the basis that the two Respondent employees earned some or
other form of income that may have been in the form of a salary and that the
fact that the income was so earned and/or received, was not disclosed to the
Labour Court in the action brought in terms of s77(3) of the BCEA,
21. This, the Applicant contends, may have or would have prompted the Court not
to grant the relief eventually granted to the Respondent employees by Daniels
J. The Applicant describes this as a matter where the Court should exercise its
J. The Applicant describes this as a matter where the Court should exercise its
discretion to avoid a substantial and real injustice, or where an injustice may
result. It relies on the common law ground of fraud in bringing the rescission
application.
5
22. In summary, the Applicant is alleging that the judgment was obtained
fraudulently by the Respondent employees and stands to be rescinded. It
alleges that the party cannot benefit from misrepresenting material facts, which
facts, had the Court been alive to it, would have resulted in the claim being
dismissed.
23. It further describes the attack on the judgment as genuine and bona fide.
The Respondent employees’ version:
24. Apart from taking issue with urgency, the employees’ opposition centres
around the Applicant’s continuous attempts to avert complying with the terms
of Daniels J’s judgment and order. With leave to appeal having been refused,
the Labour Appeal Court refused the petition on 24 March 2026 and the
Constitutional Court followed suit on 29 May 2026.
25. Tlhotlhalemaje J dismissed the application brought by Kamal Tanzania on 1
August 2026, with costs.
26. A pertinent matter raised is how the Applicant indeed gained access to the
Respondent employees’ bank statements for accounts held with FNB. The
employees alleged in the answering affidavit that the bank statements were
transmitted to the Applicant’s Cape Town attorneys (Dev Maharaj Inc
Attorneys) on 6 an 29 July 2026 respectively. The rescission application was
brought on 25 August 2026 and the current application on 27 August 2026.
27. The employees maintained that they were at all times materially employed by
the Applicant between the period May 2020 and December 2023 and during
this whole period of time tendered their services.
28. The subpoena issued to FNB provides:
‘Kindly inform the witness that he/she is herewith ordered to personally appear
before the High Court, Johannesburg, on Monday the 22 nd of June 2026 at
10:00 and to stay present until he is excused by the Court, in order to provide
the information requested below regarding matters of which he has knowledge
regarding the above application that is now pending in the above Honourable
6
Court, instituted by the Plaintiff against the Defendants in which proceedings
the Plaintiff seek judgment of alleged outstanding salaries, whilst the Defendant
was in business rescue.’
29. The Respondent employees pointed out that the subpoena may have been
improperly obtained since as at June 2026 (being the date of issue of the
subpoena) there was no pending application at all between the parties.
30. As to the merits of the allegation by the Applicant that the order was fraudulently
obtained since the Respondent employees earned some form of income or
salary during the relevant period, it was not denied that some form of income
was derived by the employees. What remains is that it is undisputed that
throughout the period between May 2020 until December 2023 they have
tendered their services to the Applicant.
Reply:
31. In reply, the Applicant points to the Respondent employees’ assertion in the
answering affidavit that even if they have received income during the relevant
period under review from other entities, this would not change the fact that the
Respondent employees were contractually entitled to unpaid salaries from the
Applicant over the very same period. This the Applicant describes as
attempting a sale in execution of the Applicant’s assets to satisfy ‘ debts
obtained through fraud and deceit’.
32. The Applicant advanced that it is for the court hearing the rescission application
to decide on the different legal conclusions advanced by the parties.
Assessment:
33. The Respondent employees take the point that the rescission application was
brought late. The Applicant takes issue with that contention. The Applicant’s
view is that it only accessed bank statements of the Respondent employees on
29 July 2026 and thereafter attempted to obtain information from ‘Sweet Mart’,
an entity that paid amounts to both Respondent employees during the relevant
period and as per the bank statements.
7
34. Whether the rescission application is late or not, is neither here nor there. That
may be ultimately for the Court hearing the rescission to determine. A
rescission application must be brought within a reasonable period. What is of
importance is whether the Applicant has made out a case for the stay of the
enforcement of the order by Daniels J.
35. The requirements to succeed with interim relief are well settled. In Setlogo v.
Setlogo
2 it was held that those requirements are:
35.1 A prima facie right;
35.2 A well-grounded apprehension of irreparable harm if interim relief is not
granted and the ultimate relief is eventually granted;
35.3 The balance of convenience is in favour of the granting of the interim
relief; and
35.4 The absence of any other ordinary remedy.
36. To establish this prima facie right an applicant is required to provide prima facie
proof of facts that establishes the existence of a right in terms of the substantive
law. Further, it must be shown that a well- grounded apprehension of
irreparable harm (if interim relief is not granted and it ultimately succeeds in
establishing its right) is present.
37. With regards to the requirement of the balance of convenience, it is required
that the prejudice to the Applicant if the interdict is refused must be weighed
against the prejudice to the Respondent if it is granted.
38. Since the quest is for an interim interdict, the Applicant should satisfy all the
requirements for an interim interdict as set out hereinabove.
2 1914 AD 221 at 227
8
39. With regards to a prima facie right, it may arise out of contract, delict or it may
be founded in the common law or on some statute. This right need not be
established on a balance of probabilities.3
40. In Gois t/a Shakespeare’s Pub v. Van Zyl & Others 4 the Court dealt with an
application to stay the execution of a court order. It was confirmed that the ‘the
Court is not concerned with the merits of the underlying dispute – the sole
inquiry is simply whether the causa is in dispute’.
41. In Stoffberg N.O. v. Capital Harvest (Pty) Ltd 5 reference was made to
Shakespeare’s Pub, supra. It was held that it is for the Court to decide on the
facts of each given case whether considerations of real and substantial j ustice
are sufficiently engaged to warrant suspending the execution of a judgment,
and, if they are, on what terms any suspension it might be persuaded to allow
should be granted.
42. With regards to prospects of success (in the current rescission application) it
was held in the matter of Denel SOC Ltd v. NUMSA obo Petersen & Another
6
that:
‘I still agree with Gois that in a stay, the merits play no role.’
43. In essence then, the Court will grant a stay of execution when the underlying
causa is being disputed or no longer exists.
‘As a general rule, courts acting in terms of this rule will suspend the execution
of an order where real and substantial justice compels such action.’7
44. In Dalrymple v. Riach & Others8 it was confirmed that:
3 Evander Goldmines & 1 Other v. AMCU obo S.D. Shabangu & 54 Others, unreported judgment of
the Labour Court, case no. 2026/160506, delivered by Prinsloo J on 23 July 2026 at paragraph 36
4 2011(1) SA 148 LC at paragraph 37
5 2021 JDR 1644 (WCC) at paragraph 26
6 2022 43 IJ 2302 LC paragraph 4
7 Van Rensburg & Another NNO v. Naidoo & Others NNO, 2011(4) SA 149 (SCA) at paragraph 52
8 2026 JOL 73621 (WCC) at paragraphs 18 to 19
9
‘The correct threshold is a possibility that the underlying causa may ultimately be
removed, in which event irreparable harm will invariably result if the stay of
execution is not granted.
The sole inquiry being simply whether or not the causa is in dispute. In this
regard, and to the extent that the bulk of the first respondent’s oral and written
argument was dedicated to the merits of the rescission application, this approach
is incorrect . It is legally unsustainable and therefore unhelpful to the first
respondent’s defense’.
45. In casu it is so that the underlying causa of Daniels J’s order is disputed and
should that rescission be successful (as brought on the common law ground of
fraud), it would materially alter such causa.
46. The requirement of a prima facie right is indispensable for the granting of an
order as sought. Where the interim relief is sought pendente lite (as in casu)
the Applicant is required to furnish proof which, if uncontested and believed at
trial, would establish his or her right.
9
47. It is not immediately obvious whether the Applicant is attempting to frame the
alleged fraudulent conduct by the Respondent employees as a breach of
contract and whether the applicant then suffered any damages due to the
alleged conduct by the Respondent employees, i.e. them receiving certain
payments during the period of unpaid lay-off instituted by the Applicant.
48. The Applicant alleges that the First Respondent received what can be termed
a salary a from June 2020 virtually every month until December 2023. The
amount reflected on the bank statement ranged from R14,620.00 in 2020 to
R18,700.00 per month during 2022.
49. In respect of the Second Respondent, the Applicant alleges that he received an
income of between R12,500.00 an R15,202.00 per month virtually monthly until
December 2023.
9 City of Johannesburg Metropolitan Municipality v. Mphefo & Others, Case No. J787-2024 delivered
on 30 July 2024 at paragraph 19
10
50. Although on the one hand the Applicant apparently does not take issue with the
fact that it is indeed indebted to the employees as per the judgment of Daniels
J, but on the other hand alleges that due to certain payments received from
what appears to be some form of employment by the Respondent employees
from, inter alia, Sweet Mart, it maintains that Daniels J would not have issued
the order that he did was he aware of this alleged fraudulent conduct.
51. Although there is nothing that serves before this Court that indicates that the
employees were not at liberty to earn an income or at least attempt to earn an
income whilst being on unpaid unilateral lay -off as instituted by the Applicant ,
this is not for this Court to decide in the current application.
52. I had regard to the Applicant’s heads of argument in support of his application.
It relies on a number of judgments in support of the common law ground of
fraud in justifying the rescission application as brought. The applicant
referenced Mabuza v. Nedbank Ltd & Another
10 confirming that the Court has
inherent jurisdiction in terms of the common law to set aside a judgment on the
ground of fraud. It was confirmed in that judgment that a final judgment of a
Court of law being res judicata is not to be lightly set aside. On the other hand
it stands to reason that a judgment procured by fraud by one of the parties,
whether by forgery, perjury or in any other way such as fraudulently withholding
material documents, cannot be allowed to stand.
53. In the matter of Imatu obo J Erasmus & ABJ Craukamp v. City of Johannesburg
& Others
11 the Labour Court had occasion to deal with a rescission application
based on exactly this ground.
54. One of the four questions to be answered in order to succeed in a claim that a
judgment be set aside on the ground of fraud, is that the Applicant needs to
allege and prove that ‘that it diverged to such an extent from the true facts that
allege and prove that ‘that it diverged to such an extent from the true facts that
the Court would, if the true facts had been placed before it, had given a
10 2015(3) SA 369 GP
11 2017 38 ILJ 2775 LC
11
judgment other than that which it was induced by the incorrect evidence to
give’.12
55. It was further confirmed that the parties seek ing a rescission must be able to
show that because of the fraud, the Court was misled to pronounce a judgment
which, but for the fraud, it would not have issued. There has to be a nexus
between the fraud and the judgment to be set aside.13
56. Importantly, it was further confirmed that fraud can consist not only in the willful
making of incorrect statements, but also in the withholding of material
information with a fraudulent intent. The mere circumstances that certain
material facts were not disclosed, does not in itself establish that there has been
willful concealment. A fraudulent intent must be affirmatively proved.
14
57. Although one may at first glance express doubt as to whether the Applicant may
ultimately be successful in its quest for rescission, the fact of the matter remains
that the Court hearing the rescission may well rule in favour of the Applicant,
thereby removing the causa on which the sale of execution is based. The
Applicant has established a prima facie right. Although unfortunate for the
employees, this is the law as it stands.
58. On the issues of irreparable harm, alternative remedy and balance of
convenience, it is so that the employees may have stated during the trial
process before Daniels J that they have not been employed or earned income
during this period. As pointed out by the Respondent’s representative, Mr.
Ngobeni, the applicant has the alternative remedy available to it to institute a
claim for damages against the employees should they be of the view that they
have suffered any loss.
59. The Applicant may also have been well -served to approach Daniels J to vary
his order taking into account the amounts allegedly so received by the
employees from a third party. That wasn’t done, but the fact remains that if the
12 Imatu, paragraph 25
13 Imatu paragraph 26
14 Imatu, paragraph 27
12
sale in execution isn’t sought to be halted by this application, the harm to be
suffered by the Applicant is evident. Its goods will be sold in execution wh ilst
there is a pending rescission application. Its business operations will come to
a halt. The alternatives that may be available to the Applicant would be
insufficient to avert or cure the imminent threat.
60. In casu, the Respondent employees were on a unilaterally imposed unpaid lay-
off due to no fault of their own. Although they have tendered duty, those duties
were not accepted and the Applicant steadfastly refused to pay them their
remuneration. They will suffer prejudice should the stay be granted, but in the
Court’s assessment the prejudice to be suffered by the Applicant should the
stay not be granted outweighs the prejudice to be suffered by the employees.
The balance of convenience favours the Applicant.
61. The employees have an order in their favour and it would remain payable
should the rescission not be successful. The Applicant has also indicated in
the application that the goods so attached would remain attached by the Sheriff
pending the rescission application. Any further prejudice to the employees may
also be ameliorated by expediting the current rescission application, as per this
Court’s Rules. The Applicants aver that it seeks to bring the matter to a close.
For this reason there would be no impediment in approaching the Judge
President of the Labour Courts to request (with a relevant motivation) to
expedite the adjudication of the pending rescission application.
Urgency:
62. Although reservations may have been expressed by the employees as to
whether this matter is genuinely urgent, the Court is entertaining the matter on
urgent basis, especially seen in the light of the fact that the writ of execution
stands to be executed by the Sheriff. It thus exercises its discretion to dispose
of the matter on an urgent basis.
Condonation:
of the matter on an urgent basis.
Condonation:
63. The Respondent employees were afforded approximately five calendar days
(and approximately three Court days) to serve and file its opposing affidavit. It
13
served and filed the opposing affidavit two days late on the employees’ version
and three days late on the Applicant’s version.
64. The employees applied for condonation for the late filing of the a nswering
affidavit. Although this was opposed by the Applicant, a reasonable explanation
was furnished by the employees for the lateness.
65. The employees averred that since the rescission application incorporated their
banking statements, they needed to verif y with FNB whether they indeed
furnished the Applicant with the relevant banking statements, and a letter to this
effect was directed to FNB on 31 August 2026.
66. A response from FNB was only received in the afternoon of 1 September 2026
and that is when the employees’ representative commenced with the drafting
of the opposing affidavit.
67. Further, the employees aver that considering the history of the matter, it was
important that the answering affidavit properly addresses the matters raised.
68. In its opposition to the condonation application, it stated that the employees
would have gathered no new information from the response of FNB as received
on 1 September 2026, since it only then confirmed the dates on which FNB
delivered the banking statements to the Applicant’s attorney.
69. The Applicant also took issue of the fact that it took roughly one day from the
time that a draft a nswering affidavit was prepared (Thursday, 3 September
2026), but it was only served towards the end of the day on Friday, 4 September
2026. It also took issue with the number and length of the annexures to the
answering affidavit, describing it as an abuse. The annexures (although
lengthy) assisted the Court in providing the relevant background to this matter.
There is no merit in this point raised by the Applicant.
70. I am satisfied that as proper explanation has been made out for the delay. The
delay is not excessive and the interest of justice militates against refusing
delay is not excessive and the interest of justice militates against refusing
condonation. Condonation is thus granted for the late filing of the a nswering
affidavit.
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Costs:
71. As with the previous attempts made by the Applicant and its related company,
the Applicant seeks to avoid the implementation of Daniels J’s order. It has
instituted an urgent application against the Respondents, which they were
justified in opposing. The Respondent employees have a judgment in their
favour and their attempts at executing it is historically hampered by the
Applicant. The Respondent employees argued that the current application is,
yet again, an attempt to avoid the execution of the Labour Court’s order and
that the application is vexatious.
72. The Applicant attempted to make much of the fact that the annexures to the
answering affidavit filed by the employees were voluminous and is in abuse of
process. As set out hereinabove, this Court does not share this view and the
annexures indeed assisted the Court in properly assessing what served before
it.
73. Since this Court has a wide discretion on the issue of costs, it exercises its
discretion having regard to the principles of law and fairness by making no costs
order.
Conclusion:
74. A stay of execution is indeed an extraordinary remedy, as held in Nedbank Ltd
v. Msomi & Others (2026 ZAGPJHC 613 delivered on 5 June 2026:
‘A successful litigant is ordinarily entitled to the fruits of its judgment and the
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 require intervention.’
75. A rescission application is pending in this Court on the common law ground of
fraud. It is for the Court hearing the rescission to deal with the merits of that
matter, which may ultimately remove the underlying causa.
15
76. It is indeed unfortunate that the employees have been denied their relief due to
the various applications brought by the Applicant and its rel ated company,
Kamal Tanzania. The Applicant was unsuccessful in all its attempts to avoid
compliance with the judgment and order of Daniels J.
77. That being said, the Applicant has the right to institute a rescission application,
as it did. It has established sufficient grounds for the order sought.
78. On 15 September 2026 I issued the following order:
1. The application is heard as one of urgency in terms of Rule 58 of these
Labour Court Rules and the forms and service provided for in the Rules are
dispensed with;
2. The late filing of the First and Second Respondents’ Answering Affidavit is
condoned;
3. The Third Respondent (the Sheriff of the High Court (Kuils River South) is
interdicted and restrained from proceeding with the sale of execution of the
attached property of the Applicant as scheduled for Tuesday, 16 September
2026 pursuant to a writ of execution issued (as a consequence of the
judgment and order of Daniels J dated 9 June 2025 under case nr JS 619 /
23), and the effect of the order is stayed pending the determination of the
rescission application by this Court (as brought by the Applicant on 25
August 2026) seeking to rescind and set aside the judgment and order; and
4. There is no order as to costs.
79. It was indicated to the parties that the judgment would be handed down on 16
September 2026. In the order as granted on 15 September 2026, I omitted to
include therein that the parties may jointly approach the Judge President of the
Labour Court with a request (properly motivated) to expedite the adjudication
of the recission application. I include that order hereunder and vary the order
granted on 15 September 2026 to that extent.
Order:
80. In the premises I make the following order:
16
1. The application is heard as one or urgency in terms of rule 38 of the
Labour Court Rules and the forms and service provided for in the Rules
are dispensed with;
2. The late filing of the First and Second Respondents’ answering affidavit is
condoned;
3. The Third Respondent (the Sheriff of the High Court (Kuils River South) is
interdicted and restrained from proceeding with the sale of execution of
the attached property of the Applicant as scheduled for Tuesday, 16
September 2026 pursuant to a writ of execution issued (as a consequence
of the judgment and order of Daniels J dated 9 June 2025 under case nr
JS 619 / 23), and the effect of the order is stayed pending the
determination of the rescission application by this Court (as brought by
the Applicant on 25 August 2026) seeking to rescind and set aside the
judgment and order; and
4. The parties are directed to jointly approach the Judge President of the
Labour Courts jointly with a request (properly motivated) to expedite the
adjudication of the rescission application, seeking to rescind the order
under case nr JS 619 / 23; and
5. There is no order as to costs.
___________________
BEKKER AJ
Acting Judge of the Labour Court of South Africa
17
Appearances:
For the Applicant: Adv M Naidoo
Instructed by: DMA Attorneys
For the First and Second Respondents: Mr. T Ngobeni of Ngobeni Attorneys