Mabaso v Enicker and Another (J2205/18) [2018] ZALCJHB 337 (18 September 2018)

Mabaso v Enicker and Another (J2205/18) [2018] ZALCJHB 337 (18 September 2018)

The court found that a joinder is not permissible where the party sought to be joined was not cited in the original proceedings that resulted in the award, and no proceedings are currently pending. However, given the applicant's lack of remedy and the respondents' refusal to accept liability, the court exercised its discretion under section 158(1)(a)(iii) of the LRA to order the second respondent to show cause why he should not be held jointly and severally liable for the execution of the award. The court emphasized the need to afford the second respondent an opportunity to be heard before any liability is imposed, in line with established principles of joinder and procedural fairness.

Citation
[2018] ZALCJHB 337
Parties
Applicant: Thandiwe Zukiswa Mabaso; Respondent: Tatum Enicker; Respondent: Ebrahim Boda
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
18 September 2018
Case Number
J2205/18
Procedural Posture
Joinder Application / Unopposed Application for Joinder Under Rule 22; Post Arbitration Award Enforcement
Outcome
The second respondent is ordered to file an affidavit to show cause why he should not be held jointly and severally liable for the execution of the default award. Further procedural directions are given for affidavits and a court appearance.
Judges
Tlhotlhalemaje
Legal Topics
Joinder of Parties, Unfair Dismissal, Default Award Enforcement, Substantial Interest, Res Judicata
Labour Law Civil Procedure Joinder of Parties Unfair Dismissal Default Award Enforcement Substantial Interest Res Judicata

Case Brief

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Parties

Thandiwe Zukiswa Mabaso

Applicant

Tatum Enicker

Respondent

Ebrahim Boda

Respondent

Procedural Posture

Joinder Application / Unopposed Application for Joinder Under Rule 22; Post Arbitration Award Enforcement

Legal Issues

  1. 1 Whether a party not cited in the original proceedings may be joined for purposes of enforcing an arbitration award.
  2. 2 Whether the second respondent has a direct and substantial interest in the subject matter of the proceedings.
  3. 3 Whether the applicant is entitled to execute the award against the second respondent.

Ratio Decidendi

The court found that a joinder is not permissible where the party sought to be joined was not cited in the original proceedings that resulted in the award, and no proceedings are currently pending. However, given the applicant's lack of remedy and the respondents' refusal to accept liability, the court exercised its discretion under section 158(1)(a)(iii) of the LRA to order the second respondent to show cause why he should not be held jointly and severally liable for the execution of the award. The court emphasized the need to afford the second respondent an opportunity to be heard before any liability is imposed, in line with established principles of joinder and procedural fairness.

Court Disposition

The second respondent is ordered to file an affidavit to show cause why he should not be held jointly and severally liable for the execution of the default award. Further procedural directions are given for affidavits and a court appearance.

Orders

  • The second respondent (Ebrahim Boda) is ordered to file an affidavit to show cause why he should not be found jointly and severally liable under the execution of the default award granted against the first respondent (Tatum Enicker) in favour of the applicant.
  • The affidavit must be filed and served within 21 days from the date of this order; the applicant may file an answering affidavit.