CTP Ltd v Statutory Council of the Newspaper, Printing and Packaging Industry and Others (D 52/2008) [2008] ZALC 228 (22 February 2008)
The applicant failed to establish that it would suffer irreparable harm if the stay was not granted, as payment could be recovered if the review succeeded. The employee was not indigent and had assets. The balance of convenience did not favour the applicant, as the employee had not been reinstated and was without...
Source-derived case information.
- Citation
- [2008] ZALC 228
- 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
- Jurisdiction
- South Africa
- Case Number
- D52/2008
- Procedural Posture
- Urgent Application / Application to Stay Writ of Execution
- Outcome
- Application dismissed with costs.
- Judges
- Pillay D
- Legal Topics
- Stay of Execution, Balance of Convenience, Irreparable Harm, Review of Arbitration Award, Reasonableness Test
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
Urgent Application / Application to Stay Writ of Execution
Legal Issues
- 1 Whether the applicant has established grounds for the urgent stay of the writ of execution.
- 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 applicant failed to establish that it would suffer irreparable harm if the stay was not granted, as payment could be recovered if the review succeeded. The employee was not indigent and had assets. The balance of convenience did not favour the applicant, as the employee had not been reinstated and was without income. The applicant delayed in prosecuting the review, prejudicing the employee. The prospects of success on review were diminished under the reasonableness test established in Sidumo. Accordingly, the application for a stay of execution was dismissed with costs.
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
31 paragraphs
D52/08-LJP/CD 3 JUDGMENT
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:
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.
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.
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.
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.
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
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
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