Deep Blue Ocean Trading 787 CC t/a Avemel and Another v DETAWU on behalf of Six Members and Others (D247/2022) [2022] ZALCD 48 (20 September 2022)

Deep Blue Ocean Trading 787 CC t/a Avemel and Another v DETAWU on behalf of Six Members and Others (D247/2022) [2022] ZALCD 48 (20 September 2022)

The court found that the purported section 197 transfer agreement between the applicants did not comply with statutory requirements, as it failed to specify the values of accrued benefits and did not properly apportion liability. However, the arbitration award was subsequently varied to make only the second applicant liable for payment to the third respondent. The second applicant's argument that payment could not be made without tax directives was rejected, as the payment was to the bargaining council and not directly to employees, and the relevant tax provisions did not apply. The applicants failed to establish a clear right to the relief sought, did not demonstrate irreparable harm,...

Citation
[2022] ZALCD 48
Parties
Applicant: Deep Blue Ocean Trading 787 CC t/a Avemel Logistics CC; Applicant: Big V Holdings (Pty) Ltd; Respondent: DETAWU on behalf of Six Members; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: National Bargaining Council for the Road Freight Logistics Industry; Respondent: Sheriff of the High and Low Court Chatsworth – Ms Hlophe N.O.
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
20 September 2022
Case Number
D247/2022
Procedural Posture
Stay Application / Final Determination of Application for Stay and Interdict
Outcome
Application dismissed with costs.
Judges
Allen-Yaman
Legal Topics
Section 197 Transfer, Joint and Several Liability, Tax Directives, Enforcement of Award, Remuneration, Costs Order
Labour Law Civil Procedure Section 197 Transfer Joint and Several Liability Tax Directives Enforcement of Award Remuneration Costs Order

Case Brief

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Parties

Deep Blue Ocean Trading 787 CC t/a Avemel Logistics CC

Applicant

Big V Holdings (Pty) Ltd

Applicant

DETAWU on behalf of Six Members

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

National Bargaining Council for the Road Freight Logistics Industry

Respondent

Sheriff of the High and Low Court Chatsworth – Ms Hlophe N.O.

Respondent

Procedural Posture

Stay Application / Final Determination of Application for Stay and Interdict

Legal Issues

  1. 1 Whether the first applicant is liable for the indebtedness arising from the compliance order and arbitration award.
  2. 2 Whether the second applicant is entitled to withhold payment pending tax directives for the employees.
  3. 3 Whether the applicants are entitled to a stay of enforcement and interdict against attachment of property.

Ratio Decidendi

The court found that the purported section 197 transfer agreement between the applicants did not comply with statutory requirements, as it failed to specify the values of accrued benefits and did not properly apportion liability. However, the arbitration award was subsequently varied to make only the second applicant liable for payment to the third respondent. The second applicant's argument that payment could not be made without tax directives was rejected, as the payment was to the bargaining council and not directly to employees, and the relevant tax provisions did not apply. The applicants failed to establish a clear right to the relief sought, did not demonstrate irreparable harm,...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed.
  • The first and second applicants are directed to pay the third respondent's costs, including costs reserved on 17 June 2022 and 26 July 2022, jointly and severally, the one paying, the other to be absolved.