Donnellly v Davill Recruitment SA (Pty) Ltd and Others (10635/2011) [2011] ZAKZDHC 87 (24 November 2011)

Donnellly v Davill Recruitment SA (Pty) Ltd and Others (10635/2011) [2011] ZAKZDHC 87 (24 November 2011)

The application was dismissed on the basis that it was prematurely launched before the statutory period for salary payment had expired, as provided by section 32(3)(a) of the Basic Conditions of Employment Act. The applicant failed to establish that she had a complete cause of action on 2 November 2011, the date of institution. Furthermore, the evidence did not establish the requisites for a final interdict, namely a clear right, injury, and absence of alternative remedy. The applicant's reliance on provisions of the Companies Act was misplaced, and new claims introduced in the replying affidavit were inadmissible. Costs were awarded against the applicant.

Citation
[2011] ZAKZDHC 87
Parties
Applicant: Melissa Donnelly; Respondent: Davill Recruitment SA (Pty) Ltd; Respondent: David R. Mitchell; Respondent: Jill Mitchell
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
24 November 2011
Case Number
10635/2011
Procedural Posture
Urgent Application / Opposed Application for Final Interdict and Costs
Outcome
Application dismissed with costs.
Judges
McLaren
Legal Topics
Basic Conditions of Employment Act, Final Interdict, Premature Application, Costs Order, Shareholder Dispute
Labour Law Civil Procedure Basic Conditions of Employment Act Final Interdict Premature Application Costs Order Shareholder Dispute

Case Brief

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Parties

Melissa Donnelly

Applicant

Davill Recruitment SA (Pty) Ltd

Respondent

David R. Mitchell

Respondent

Jill Mitchell

Respondent

Procedural Posture

Urgent Application / Opposed Application for Final Interdict and Costs

Legal Issues

  1. 1 Whether the applicant was entitled to an order compelling payment of October 2011 salaries on 2 November 2011.
  2. 2 Whether the application was prematurely launched before the statutory payment period expired.
  3. 3 Whether the applicant established a clear right to a final interdict against the respondents.

Ratio Decidendi

The application was dismissed on the basis that it was prematurely launched before the statutory period for salary payment had expired, as provided by section 32(3)(a) of the Basic Conditions of Employment Act. The applicant failed to establish that she had a complete cause of action on 2 November 2011, the date of institution. Furthermore, the evidence did not establish the requisites for a final interdict, namely a clear right, injury, and absence of alternative remedy. The applicant's reliance on provisions of the Companies Act was misplaced, and new claims introduced in the replying affidavit were inadmissible. Costs were awarded against the applicant.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.
  • The reserved costs of the adjournment on 17 November 2011 are provisionally made costs in the cause, subject to reconsideration on seven days' notice.