Corpco 280 CC T/A Richmond Coffin Manufacturers v Kunene and Others (D462/11) [2011] ZALCD 47 (28 October 2011)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, DURBAN

JUDGMENT

Not Reportable

Case no: d462/11

In the matter between:

CORPCO 280 CC t/a

RICHMOND COFFIN MANUFACTURERS

Applicant

and

P KUNENE

First Respondent

COMMISSION FOR CONCILIATION

MEDIATION AND

ARBITRATION

Second Respondent

KUSHY RAMJATHAN

Third Respondent

THE SHERIFF RICHMOND

Fourth Respondent

Heard:

10 June 2011

Delivered: 10 June 2011

Date hereof: 28 October 2011

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

GUSH J

[1] The applicant in this matter sought an urgent stay of a sale in execution issued pursuant to an arbitration award made in favour of the respondent on 24th June 2005. On 10th June 2011 when the application was heard I dismissed the application with costs in an ex tempore judgment in which judgment I set out my reasons for making that order. The applicant now applies for leave to appeal against the dismissal of its application.

[2] Immediately after the judgment was handed down the applicant filed an application for leave to appeal against my judgment and at the same time brought yet another urgent application for the same relief as it had applied for in its earlier dismissed application pending the outcome of its application for leave to appeal.

[3] The background to the matter is as follows:

3.1 On 24 June 2005 the CCMA made an award under CCMA case number KNPM 846/05. In none of the applicants numerous applications to this court does the applicant attach a copy of the order. The 1st respondent in his replying affidavit however avers that the award was for an amount of R6000 which amount was to be paid within 15 days of the award.

3.2 According to the first respondent, the applicant did not comply with the award and he caused a warrant of execution and attachment to be served on the applicant on 9 December 2005.. As a consequence the applicant filed an application for rescission of the award with the second respondent which application was refused on 10 May 2006.

3.3 On 7 June the applicant purported to launch an application to review the award of the second respondent. The applicant states in its affidavit that this application was filed under labour court case number D 353/06 and “is still pending and has not been finalised”. What the applicant disingenuously failed to disclose in its application for the stay of the warrant was that it never filed the notice of motion with the court and has not pursued the review despite the second respondent having complied with Rule 7A (3) and the court having served the applicant with a Rule 7A(5) notice on third August 2006.

3.4 In its application for rescission of the award before the CCMA (the second respondent) the applicant averred that there was no “legal entity” Richmond Coffin Manufacturers CC but that that was its trading name.

3.5 The first respondent recorded that he again caused a writ of attachment to be executed on 14 May 2009, which caused the applicant to again aver and advise the first respondent’s attorneys that Richmond Coffin Manufacturers CC was not a legal entity.

3.6 On 13 May 2010 the first respondent applied to the second respondent to change the citation of the applicant to Corpco 280 CC t/a Richmond Coffin Manufacturers and a fresh writ was issued on 5 November 2010 which application was granted on 27 September 2010.

3.7 On 10 December 2010 the 4 Respondent attached goods belonging to the applicant.

3.8 On 25 January the applicant filed a second application to review the award of the second respondent this time the award substituting Corpco 280 CC t/a Richmond Coffin Manufacturers for Richmond Coffin Manufacturers, of the second respondent under case number D55/11. The applicant on this occasion, however, deigned to file a notice of motion. In this application, as in the urgent application, the applicant repeated the averment that the 2006 review is still pending and had not been finalised. As with the 2006 review the applicant has made no effort whatsoever to prosecute this second review application.

3.9 On 3 June 2011 an advertisement appeared in a local newspaper advertising the sale in execution in respect of the attachment.

3.10 This caused the applicant to launch the urgent application to stay the sale pending the outcome of the review application it is the order of this court in this application that the applicant seeks leave to appeal against. The application was opposed by the first respondent.

[4] It is abundantly clear from the papers that the applicant at no stage has entertained any serious intention of pursuing its applications to review either of the awards of the second respondent. Apart from disingenuously not taking the court into its confidence regarding the true circumstances surrounding both its review applications and its failure to pursue either the 2006 or the 2011 review, it is obvious that the applicant only reacts when the enforcement of the award is imminent.

[5] The applicant offers no cogent explanation why it seemingly abandoned finalising the review applications or at very attempting to prosecute them. This and the applicant’s dilatoriness in no manner whatsoever justifies dealing with the application as a matter of urgency.

[6] Not only is the matter not urgent but there is no cogent reason offered by the applicant, given the circumstance of this matter, why it should be required to satisfy the award pending the outcome of the review it insists is still pending but which it has taken no steps to finalise. The only reason the applicant offers is that there is a danger the first respondent will not be able to reimburse the applicant if the review is successful. This does not in all the circumstances constitute a sound reason for staying the sale in execution.

[7] Having carefully considered the appellant’s grounds of appeal I am not satisfied that another court would come to a different decision.

[8] Accordingly I make the following order:

[9] The applicant’s application for leave to appeal is dismissed with costs.

_______________________

D H Gush

Judge

THE APPLICANT: Moosa Desai: Managing member of the applicant

FIRST RESPONDENT: Govindasamy and Pillay Attorneys