Cullinan Diamond Mine (Pty) Ltd v Pienaar NO and Others (JR483/11) [2017] ZALCJHB 256 (4 July 2017)

Cullinan Diamond Mine (Pty) Ltd v Pienaar NO and Others (JR483/11) [2017] ZALCJHB 256 (4 July 2017)

The court found that the third respondent failed to prove the existence of pending litigation between the parties, as required for the defence of lis pendens. The applicant had not exercised its right to appeal, and there was no evidence of a pending appeal. The order dismissing the review application was an obvious error, as the body of the judgment clearly found the arbitration award to be unreasonable. Section 165(b) of the Labour Relations Act empowers the court to correct such errors. Therefore, paragraph 15 of the judgment was varied to reflect the true intention of the court, namely that the arbitration award is reviewed and set aside.

Citation
[2017] ZALCJHB 256
Parties
Applicant: Cullinan Diamond Mine (Pty) Ltd; Respondent: J Le Pienaar N.O; Respondent: Commission for Conciliation Mediation and Arbitration; Respondent: Mamokopi Boroko
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
4 July 2017
Case Number
JR483/11
Procedural Posture
Review Application / Application for Variation of Judgment
Outcome
Application for variation granted; paragraph 15 of the judgment is corrected to set aside the arbitration award.
Judges
Z Lallie
Legal Topics
Variation of Judgment, Lis Pendens, Arbitration Award Review, Section 165 Lra
Labour Law Civil Procedure Variation of Judgment Lis Pendens Arbitration Award Review Section 165 Lra

Case Brief

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Parties

Cullinan Diamond Mine (Pty) Ltd

Applicant

J Le Pienaar N.O

Respondent

Commission for Conciliation Mediation and Arbitration

Respondent

Mamokopi Boroko

Respondent

Procedural Posture

Review Application / Application for Variation of Judgment

Legal Issues

  1. 1 Whether the defence of lis pendens applies when there is no proven pending litigation between the parties.
  2. 2 Whether paragraph 15 of the judgment dated 14 January 2014 should be varied to correct an obvious error in the order.

Ratio Decidendi

The court found that the third respondent failed to prove the existence of pending litigation between the parties, as required for the defence of lis pendens. The applicant had not exercised its right to appeal, and there was no evidence of a pending appeal. The order dismissing the review application was an obvious error, as the body of the judgment clearly found the arbitration award to be unreasonable. Section 165(b) of the Labour Relations Act empowers the court to correct such errors. Therefore, paragraph 15 of the judgment was varied to reflect the true intention of the court, namely that the arbitration award is reviewed and set aside.

Court Disposition

Application for variation granted; paragraph 15 of the judgment is corrected to set aside the arbitration award.

Orders

  • The point in limine is dismissed.
  • Paragraph 15 of the judgment under case number JR483/11 and dated 14 January 2014 is varied and corrected to read: 'The arbitration award is reviewed and set aside.'