CTP Limited v Statutory Council of the Newspaper, Printing and Packaging Industry and Others (D52/20008) [2008] ZALCD 1 (22 February 2008)
The application for a stay of execution was dismissed because the applicant failed to demonstrate irreparable harm, as payment of the award could be recovered if the review succeeded. The applicant did not show that the balance of convenience favoured granting the stay, particularly since the employee remained...
Source-derived case information.
- Citation
- [2008] ZALCD 1
- Parties
- Applicant: CTP Limited; Respondent: Statutory Council of the Newspaper, Printing and Packaging Industry; Respondent: Kojane, Bonsile NO; Respondent: South African Typographical Union; Respondent: Narainsamy, Jayseelan
- Court
- Labour Court Durban
- Jurisdiction
- South Africa
- Case Number
- D52/2008
- Procedural Posture
- Stay Application / Urgent Application to Stay Writ of Execution Pending Review
- Outcome
- Application dismissed with costs.
- Judges
- Pillay D
- Legal Topics
- Stay of Execution, Balance of Convenience, Irreparable Harm, Review of Arbitration Award, Costs Order
Source-derived case record
Summary, issues, holding and outcome
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Parties
CTP Limited
Applicant
Statutory Council of the Newspaper, Printing and Packaging Industry
Respondent
Kojane, Bonsile NO
Respondent
South African Typographical Union
Respondent
Narainsamy, Jayseelan
Respondent
Procedural Posture
Stay Application / Urgent Application to Stay Writ of Execution Pending Review
Legal Issues
- 1 Whether the applicant has satisfied the requirements for an urgent stay of execution of the arbitration award.
- 2 Whether the applicant will suffer irreparable harm if the stay is not granted.
- 3 Whether the balance of convenience favours granting the stay.
Ratio Decidendi
The application for a stay of execution was dismissed because the applicant failed to demonstrate irreparable harm, as payment of the award could be recovered if the review succeeded. The applicant did not show that the balance of convenience favoured granting the stay, particularly since the employee remained unemployed due to the applicant's refusal to reinstate him. The applicant's delay in prosecuting the review and failure to file the arbitration record prejudiced the employee. Furthermore, the prospects of success on review were diminished under the reasonableness test established in Sidumo. The court exercised its discretion against granting the stay and ordered costs against the...
Court Disposition
Application dismissed with costs.
Orders
- The urgent application to stay the writ of execution is dismissed.
- The applicant is ordered to pay the costs of the application.
Full Case Text
Judgment text and source record
75 paragraphs
IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN DURBAN
CASE NO D52/2008
HEARD AND DELIVERED ON 22.02.2008
IN THE MATTER BETWEEN:
CTP LIMITED
Applicant
and
THE STATUTORY COUNCIL OF THE NEWSPAPER,
PRINTING AND PACKAGING INDUSTRY First
Respondent
KOJANE, BONSILE NO Second
Respondent
THE SOUTH AFRICAN TYPOGRAPHICAL UNION Third
Respondent
NARAINSAMY, JAYSEELAN Fourth
Respondent
JUDGMENT
PILLAY D,J This urgent application to stay a writ of execution is dismissed for the following reasons:
1. Urgent applications for staying writs of execution is not there for the asking. The Court has a discretion, exercised judicially, to grant or refuse urgent applications.
2. The applicant employer has failed to satisfy the Court that it will suffer irreparable harm if the application is not granted. The applicant can stop the sale in execution by paying the amount of R57 893,30 awarded to the fourth respondent employee on condition that the employee refunds it if the review application is successful. The employee has invested his provident fund of R307 428,57 and owns a house with his wife. He is not a person of straw.
3. The applicant has failed to satisfy the Court that the balance of convenience favours the granting of the application. The award reinstated the employee, but as the applicant has not employed him, he does not earn a living.
4. The applicant has failed to date to file the record of the arbitration. The review was filed on 21 November 2007; however the applicant does not say when before the 1st of February 2008 it demanded production of the record. The delay in prosecuting the review is prejudicial to the employee and an order dismissing this application is more likely to expedite the review as the applicant would want to recover its payment as soon as possible.
5. In reaffirming the difference between review and appeal the judgment in Sidumo & Another v Rustenburg Paltinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC) has raised the bar against granting review. The applicant’s ground of review is that the arbitrator
committed a gross irregularity in “not properly, adequately or satisfactorily consider(ing) the entirety of the evidence presented before her”. Whereas the application had better prospects of succeeding when the test for
6. review was the rationality and justifiability of the award, those prospects have diminished under the reasonableness test.
In the circumstances the application is dismissed with costs.
______________
Pillay D, J
Date Edited: 3 August 2008
Appearances:
ON BEHALF OF APPLICANT :
P T BUSH
ON BEHALF OF RESPONDENTS :
M BINGUM
IN THE LABOUR COURT OF SOUTH AFRICA
DURBAN AND COAST LOCAL DIVISION
HELD AT DURBAN
CASE NO
:
D52/08
DATE
:
22.02.2008
CTP GRAVURE (PTY) LTD
versus
J NARAINSAMY & 3 OTHERS
BEFORE THE HONOURABLE MADAM JUSTICE PILLAY
ON BEHALF OF RESPONDENTS :
M BINGUM
INTERPRETER
:
NOT REQUIRED
REPORT ON RECORDING Clear recording.
SNELLER RECORDINGS (PTY) LTD
DURBAN
TEL: 031 – 266 5452
FAX: 031 – 266 5459
TRANSCRIBER’S CERTIFICATE
This is, to the best abilities of the transcriber, a true and correct transcript of the proceedings, where audible, recorded by means of a mechanical recorder in the matter:
CTP GRAVURE (PTY) LTD v J NARAINSAMY & 3 OTHERS
COURT OF ORIGIN
: DURBAN LABOUR COURT
TRANSCRIBER
:
MS L J PICKLES
DATE COMPLETED
:
19.05.2008
NO OF TAPES/CD
:
CD
NO OF PAGES
:
4