Government Employees Pension Fund v Maureen and Others (J2079/14) [2014] ZALCJHB 339 (5 September 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case No: J2079/14

In the matter between:

GOVERNMENT EMPLOYEES PENSION FUND

Applicant

and

MAUREEN SITHOLE

First Respondent

SHERIFF: JOHANNESBURG CENTRAL

Second Respondent

REGISTRAR: LABOUR COURT Third Respondent

Heard: 2 September 2014

Delivered: 5 September 2014

Summary: Interdict- writ of execution; failure to oppose an application leading to an order giving rise to a writ; effect of an application for leave to appeal where such application is not directed at the order giving rise to the writ

JUDGEMENT

MOOKI, AJ

[1] The applicant approached the court for urgent relief to declare a writ of execution null and void.

[2] A dispute ensued among the first respondent, the Premier of the Province of Mpumalanga, the MEC for the Department of Agriculture and Land Administration in that province and the Director-General in that province. The dispute pertained to pension and other benefits payable to the first respondent. The dispute made its way to the Labour Appeal Court. The applicant was cited as the fourth respondent in the matter before the Labour Appeal Court.

[3] The Labour Appeal Court made an order on 22 January 2010 that the respondents in that matter pay the first respondent pension benefits that had accrued to her. The order by the Labour Appeal Court remains undisturbed.

[4] The applicant did not play any active role leading to the order by the Labour Appeal Court. The parties to that order did not comply with the terms of the order. The first respondent then brought an application before this Court to compel performance of the order made on 22 January 2010.

[5] The application referred to above was served on the applicant on 9 December 2010. The applicant did not oppose the application. The relief against the applicant was formulated in paragraph 3 of the notice of motion, namely:

‘3. That the fourth respondent, in compliance with the court order mentioned in the foregoing paragraphs, pay the applicant, within 15 (fifteen) days from the date of the order, an amount of R1,727,565.29 as well as interest at the rate of 15.5% calculated from 31 August 2010 to the date of payment, in respect of the pension benefits.’

[6] This Court granted the relief sought against the applicant, and made the order on 3 December 2013. The other respondents have since brought an application for leave to appeal the order of 3 December 2013. Paragraph 3 of that order, which pertains to the applicant, is not the subject of the application for leave to appeal. The applicant has not challenged the order of 3 December 2013.

[7] The first respondent subsequently issued a writ against the applicant for the amount of R1,727,565.29. The first respondent has since attached the bank account of the applicant pursuant to that writ. The applicant launched this application because of the attachment.

[8] The applicant seeks urgent declaratory relief that the writ is void. The applicant invokes Rule 49(11) of the Uniform Rules of Court, read with section 163 of the Labour Relations Act 66 of 95. The applicant contends that the application for leave to appeal has suspended the operation of the order of 3 December 2013; with the result that it is unlawful for the first respondent to have issued a writ on that order.

[9] The applicant seeks alternative relief that the writ be stayed pending finalisation of the application for leave to appeal in case number J2454/2010 (i.e. the judgement in respect of which the order of 3 December 2013 was made). The applicant seeks further alternative relief because it intends to institute rescission proceedings in case number J2454/2010.

[10] The applicant has not made out a case for the court to interfere with the writ issued by the first respondent.

[11] The applicant is a stranger to the application for leave to appeal. The applicant will not benefit from that application even if the application succeeds. The parties to the application for leave to appeal are not appealing that part of the order directing the applicant to pay the first respondent the amount of R1,727,565.29.

[12] The applicant was served with the application leading to the order that underpins the writ that is now being challenged. The applicant did not oppose the application. The applicant was aware of the court order of 3 December 2013. I would still not be persuaded to disturb the writ even if the applicant were not aware of the order. The applicant was supine in the application leading to the making of that order.

[13] I am also not persuaded that the writ should be disturbed for purposes of the alternative relief sought by the applicant. The alternative relief strikes me as a belated attempt by the applicant to “do something”.

[14] It was submitted on behalf of the applicant that the first respondent has funds that the applicant paid into an account on her behalf at Old Mutual. This submission was made to counter the assertion by the first respondent in her answering affidavit (the assertion is not challenged), that she runs the risk of losing her home. It was also submitted that the balance of convenience favours the applicant because the applicant may not recover the money paid to the first respondent should the applicant succeed in its intended applications.

[15] I am not moved by the submissions on behalf of the applicant. The applicant was lackadaisical in its dispute with the first respondent. The relevant officials at the applicant will have to account for their conduct in ignoring court processes. Court orders are an important instrument in the administration of justice. The authority of the courts ultimately stems from compliance with orders made by the courts. Such authority is rendered hollow when court orders are unenforceable or are ignored.

[16] Those against whom a court order is made are duty-bound to comply with such an order. The applicant has not satisfied the court that the respondent should be denied the benefit of an order made in her favour.

[17] I make the following order:

17.1. The application is dismissed.

17.2. The applicant is ordered to pay costs.

_____________

O Mooki

Judge of the Labour Court (Acting)

Appearances:

For the Applicant: S. Khumalo

Instructed by:

Bowman Gilfillan Inc.

For the First Respondent: Mr Ndumiso Voyi of Ndumiso Voyi Attorneys