Kwazulu-Natal Tourism Authority v Wasa and Others (D1204/2014) [2014] ZALCJHB 493 (23 December 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: D1204/2014

KWAZULU-NATAL TOURISM AUTHORITY.....................................................................Applicant

and

NALELI WASA............................................................................................................First Respondent

NCHUPETSANG ATTORNEYS............................................................................Second Respondent

FIRST NATIONAL BANK........................................................................................Third Respondent

THE SHERIFF: INANDA DISTRICT TWO........................................................Fourth Respondent

Heard: 22 December 2014

Delivered: 23 December 2014

TLHOTLHALEMAJE, AJ

Introduction:

[1] On 15 December 2014, this Court (Per Basson J) gave an order in the following terms;

“1.1 That the applicant’s non-compliance with the Rules regarding service and time periods be condoned and that this matter be enrolled and heard as a matter of urgency in terms of the provisions of Rule 8;

1.2 That a rule nisi be and is hereby issued calling upon the first, second, third and fourth respondents (‘the respondents’) to show cause if any, on the 20th day of February 2015 at 10h00 or so soon thereafter as the matter may be heard why an order should not be granted in the following terms;

1.2.1 That the first respondent, NALELI WASA, be and is hereby interdicted and prevented from dissipating or, save as stated in prayer 2.3 below, in any other way dealing with the sum of R1 294 870.47 (ONE MILLION TWO HUNDRED AND NINETY FOUR RANDS EIGHT HUNDRED AND SEVENTY RANDS, FORTY SEVEN CENTS) or any lesser amount held in account number 563 1003 5435, an account held with the third respondent, received or to be received from the second respondent in respect of the execution of the Labour Court judgment under case number J 1374/2012

1.2.2 That the second respondent, NCHUPETSANG ATTORNEYS, be and is hereby interdicted and prevented from dissipating and/or paying over to the first respondent, or save as stated in prayer 2.3 below, in any other way dealing with the amount of R1 294 870 (ONE MILLION TWO HUNDRED AND NINETY FOUR RANDS EIGHT HUNDRED AND SEVENTY RANDS, FORTY SEVEN CENTS) held in account number 623 723 08505. An account held with the Main Street Branch of the third respondent, received from the fourth respondent in respect of the execution of the judgment in the Labour Court case number J1374/2012;

1.2.3 The first, second, and fourth respondents, jointly and severally are directed to repay the sum of R1 294 870. 47 (ONE MILLION TWO HUNDRED AND NINETY FOUR RANDS EIGHT HUNDRED AND SEVENTY RANDS, FORTY SEVEN CENTS) to the applicant’s account number 508 412 00012 (the account), an account held at the Umhlanga Branch of the third respondent being the proceeds of the execution of the Labour Court judgment under case number J1374/2012.

1.2.4 That the third respondent is directed to ensure that no monies which were the proceeds of the execution of the Labour Court judgment under case number J1374/2012, are paid to or for the benefit of the first respondent by the second respondent from the second respondent’s said account number 632 08505 to the first respondent’s said account number 563 1003 5435 or any other account of the first respondent;

1.3 Directing the first and second respondents to pay the costs of this application, jointly and severally, the one paying to be absolved. The third respondent and fourth respondent, jointly and severally, with the other respondents, be ordered to pay the costs of this application only in the event of their opposition to the application.

1.4 That pending the final determination of this application, the above orders shall operate forthwith as interim order”

[2] The first and second respondents had given notice for anticipation of a return date, in terms of which an order was sought to discharge the rule nisi as above; directing the third respondent to unfreeze or remove any hold on the second respondent’s Attorneys Trust Account number 623 732 08505, and for the applicant to pay costs de bonis propriis, alternatively cost on attorney and own client scale, or further alternatively, cost on party and party.

Background:

[3] The following facts are fairly common cause;

On or about 8 June 2012, the first respondent instituted proceedings against the applicant in terms of section 77 (3) and 77 (A) (e) of the Basic Conditions of Employment Act under case number J1374/2012. The application was opposed and Baloyi AJ had found in favour of the first respondent and directed the applicant to inter alia, pay her the sum of R1 159 132.34 and to further refund to her, the sum of R40 057.89 within ten days.

[4] The applicant had sought leave to appeal against the whole of the judgment of Baloyi AJ, and the application was dismissed on or about 20 October 2014. Aggrieved at the outcome, the applicant had then filed a petition for leave to appeal. It contents that both the petition for leave to appeal and an application for condonation in terms of Rule 12 were filed, and that the matter is still pending before the Labour Appeal Court.

[5] On 20 November 2014, a Writ of Execution was issued by the Registrar of this Court, and the fourth respondent had accordingly attached the bank account of the applicant on 26 November 2014. The third respondent had paid the amount over to the fourth respondent in terms of the attachment, and these amounts were paid over to the second respondent in a form of three cheques written out to the second respondent’s Trust Account on 8 December 2014. These cheques were duly deposited into the Trust Account of the second respondent on 9 December 2014.

[6] On 15 December 2014, the applicant had filed and served its urgent application under the present case number seeking the order as above. The matter was heard by Basson J on an unopposed basis over the telephone in the Johannesburg Court, whilst the applicant’s

legal team was in the Durban Court, resulting in the granting of the order.

[7] Having issued the application in respect of the notice of anticipation, and despite the fact that the first and second respondents had in their own application made reference to the order issued on 15 December 2014, an issue was raised that it is not clear as to which order was properly issued by Basson J. This issue will be dealt with in due course.

The submissions:

[8] On the anticipated return date, which matter was also heard over telephonic conferencing, the applicant had raised a preliminary point in regard to the notice. In this regard, it was submitted that the first and the second respondents had delivered the notice on

17 December 2014, setting the matter down for a hearing on less than 48 hours’ notice on 18 December 2014. Despite the matter being opposed, it did not proceed on 18 December 2014 as anticipated.

[9] On the 20 December 2014 at 17h26, the first and second respondents had sent the filing sheet together with the “Answering

Affidavit: Counter-Application”, in which they not only sought an order to discharge the rule nisi, but also introduced new issues which were not part of their notice of anticipation.

[10] It was submitted on behalf of the applicant that the first and second respondents have failed to comply with the provisions of Rule 8(10)[1] of the Labour Court Rules which require the anticipation of the return date to be done on not less than 48 hours notice to the applicant and the Registrar. The applicant lamented the fact that the respondents served the document, on it at 17h26 on Friday 19 December 2014 setting down the matter on Monday 22 December 2014 at 10h00, and on less than 2 hours’ when account is taken of the provisions of Rule 2(3)[2].

[11] It was pointed out that the respondents have not, in their affidavits, provided any reason for deviation from the 48 hours’

notice required by Rule 8(10); that there is no Court order attached to the respondents’ papers ordering a shorter period of service; and further that there was no relief sought in the respondents’ papers dispensing with the 48 hours’ notice

to anticipate. On this ground, it was submitted that the respondents’ anticipation should be dismissed with costs on an attorney and client scale and such costs to include the costs of employment of two Counsel.

[12] It was submitted on behalf of the first and second respondent that there are three Court orders issued in respect of the said urgent application on three different dates being 12, 15 and 18 December 2014. The first one was issued under case number D1204/13 which has the case number as that reflected on the draft order which was made an order of Court. The second one bears the case number D1204/14. The third one was also issued by Basson J, but did not bear a case number. The first and second respondents had further on the anticipated date, raised an issue in respect of the short notice relating to the filing and service of the urgent application leading to the granting of the rule nisi on 15 December 2014.

Evaluation:

[13] In regards to the issues raised by the first and second respondents, it was common cause as already pointed out that the urgent

application brought by the applicant in the Durban Court was heard over telephone conferencing by the Honourable Basson J sitting in the Johannesburg Court. That matter despite the application not being ex parte was heard in the absence of the respondents. What the first and second respondents appear to be concerned with is the manner with

which the order was granted and issued. In my view, the complaint is more about form rather than substance in that it appears that there was some form of administrative errors on the part of the office of the Registrar in the Durban Court after the order was granted by Basson J in the Johannesburg Court.

[14] It was common cause that the matter was heard on 15 December 2014. The file in regard to this matter as endorsed by Basson J sitting in the Johannesburg Court reflects that the matter was heard on 15 December 2014, resulting in the order granted. It is therefore clear that any order dated 12 December 2014 as issued and served on the parties in the Durban Court is as a result of an administrative error on the part of the office of the Registrar in the Durban Court. The Court order stamped and dated 18 December 2014 clearly indicates that it was issued on 15 December 2014 and nothing turns on the fact that it is post dated, more particularly in view of the complications that arise when urgent applications are heard during Court recess and conducted over the telephone. Nothing further turns on the fact that one court order bears the case number D1204/13, as clearly there was an administrative error on the part of the office of the registrar in allocating the case number. It is common cause that the current case number is D1204/14/, which is the correct case number. There is therefore no merit in the first and second respondents’ submissions that the order of 15 December 2014 could have been obtained by nefarious or other untoward means.

[15] Inasmuch as the applicant on the anticipated date complained about short notice, the first and second respondent also raised the same issue in regards to the short notice leading to the granting of the order on 15 December 2014. As it was correctly pointed out on behalf of the applicant, this issue is clearly moot and the submissions in that regard lack merit for the simple reason that in its notice of motion, the applicant had sought and was granted condonation in respect of its non-compliance with the Court Rules regarding service and time periods, resulting in the matter being enrolled and heard as one of urgency in terms of Rule 8 of the Court Rules.

[16] Section 158 (1) (a) (i) of the LRA empowers this court to grant urgent interim relief, and the Court may in appropriate circumstances, issue a rule nisi. Rule 8 (10) of the Rules of this court acknowledges the provisions of section 158 (1) (a) (i) of the LRA by providing that unless otherwise ordered, a respondent may anticipate the return day of an interim interdict on not less than 48 hours notice.

[17] It is my view that following the granting of a rule nisi, and where a return date is specified, a party that anticipates an earlier date must strictly comply with the provisions of Rule 8 (10), more so since there is potential for these provisions to be abused, and also in the light of the inconvenience caused to the other party.

[18] In this case, it was common cause as further confirmed by the second respondent’s affidavit of service that the first and second respondent filed and served a notice of anticipation on the applicant on 17 December 2012 at 12h50, setting the matter down on 18 December 2014 at 15h00 in Johannesburg. This was notwithstanding that the rule nisi was issued in the Johannesburg Court with the matter having been brought in the Durban Court. This had prompted the applicant to

file its opposing affidavit on 18 December 2014. The matter was not heard on the anticipated date, and the first and second respondents

had then filed an ‘Answering affidavit- Counter application’.

[19] I am in agreement with the applicant’s contentions that when regard is had to the provisions of Rules 2 (3) and 8 (10), the notice to anticipate clearly does not comply with these provisions. No reason was provided for deviation from the 48 hours’ notice and there is no relief sought in the respondents’ papers (i.e., in the notice itself or the answering affidavit - counter application) dispensing with the 48 hours’ notice to anticipate. To the extent that the first and second respondents failed in strictly adhering to the provisions of Rule 10 (8), and further to the extent that not only was the matter not heard on the anticipated return date but also that an answering affidavit coupled with a counter application was filed and served, this was indeed an abuse of the provisions of Rule 8 (10).

[20] Of serious concern to the Court are the averments made in the ‘Counter application’ in respect of the conduct of the office of the Registrar of this Court, without that application citing the Registrar and affording that office an opportunity to respond to some or all of the allegations made. The counter application clearly raises new issues which I need not burden this

judgment with, which both the applicant and the Registrar of this Court were not afforded an opportunity to respond to. These allegations are indeed serious and impacts inter alia on the integrity of the office of the Registrar. It is further trite that a respondent is obliged, on a return day, to show no more than that the order should not have been granted at the outset because there was no proper case made out for that order on the papers[3]. To bring up new issues in a counter application as the first and second respondents had done in this case, is to go beyond their

obligation on the return date, which cannot be countenanced. To this end, the notice of anticipation and the counter application are not in compliance with the Rules of this Court, and ought to be dismissed.

[21] The final issue to be dealt with in respect of the notice to anticipate pertains to the averments made by the second respondent

that its Trust Account has been frozen, thus impeding it in the conduct of its affairs. The rule nisi did not make provision for the Trust Account of the second respondent to be frozen. The first and second respondents were interdicted and prevented from dissipating and in any way dealing with the amounts mentioned. Even though the applicant disputed that the second respondent’s Trust Account was frozen, it needs to be mentioned that to the extent that this Trust Account may have been affected other than in respect of the amounts forming part of the rule nisi, no other amounts in that account should be affected.

[22] In the light of the above conclusions, it is not necessary to deal with the other aspects of this application as raised by the parties, more so in the light of the nature of the rule nisi issued and the implications of any final order that may be made. I have also had regard to the applicant’s contentions in regard to the issue of costs. It is however my view that in the light of matter still to be determined on 20 February 2015, such costs should be in the cause.

Order:

i. The first and second respondent’s application and notice of anticipation is dismissed on account of lack of compliance with the Rules of this Court.

ii. The costs in respect of this application are to be determined on the return date as confirmed in the Court order of 15 December 2014.

__________________________

Tlhotlhalemaje, AJ

Acting Judge of the Labour Court of South Africa

Telephonic conference with:

For the Applicant: MTK Moerane SC with Adv WS Kuboni

Instructed by: Ndwandwe and Associates

For the First and Second Respondents: Adv MS Sebola

Instructed by: Nchupetsang Attorneys

[1] “(10) Unless otherwise ordered a respondent may anticipate the return date of an interim interdict on not less than 48 hours' notice to the applicant and the registrar”.

[2] “The office and branch office of the registrar will be open every Monday to Friday, excluding public holidays, from 8:00 to 13:00 and from 14:00 to 15:30.”

[3] See Lourenco & others v Ferela (Pty) Ltd & others (1) 1998 (3) SA 281 (T), at 289 I-J