Ncube v Maxi Strategic Alliance (Pty) Ltd and Others; In re: Ncube v Maxi Strategic Alliance (Pty) Ltd (JS868/10) [2021] ZALCJHB 383 (19 October 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JS 868/10

In the matter between:

AUSTIN NCUBE Applicant

and

MAXI STRATEGIC ALLIANCE (PTY) LTD First

Respondent

MAXISURE (PTY) LTD Second

Respondent

MAXI PHUMELELE (PTY) LTD Third

Respondent

In re:

Delivered: 19 October 2021 (In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be 19 October 2021)

JUDGMENT

MAHOSI J

Introduction

[1] This is an application brought by the applicant, following his failure to execute the order against the first respondent, for an order to join the second and the third respondents (the respondents) to the proceedings and once joined to hold them jointly and severally with the first respondent liable for the amounts owing to him by the first respondent as a result of the contempt of court order.

[2] The second and the third respondents opposed the application and brought an application to condone the late filing of their answering affidavit. Having regard to the submissions, I am of the view that the interests of justice require a full determination of this matter and I, therefore, grant condonation.

Background

[3] The applicant referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), citing the first respondent as his former employer. On 30 July 2010, the CCMA issued an award in terms of which it was found that the applicant’s dismissal was procedurally and substantively unfair and ordered the first respondent to reinstate the applicant within 14 days of receipt of the award. In March 2011, the first respondent was liquidated.

[4] In September 2016, almost five years after the above order was granted, the applicant obtained a writ of execution. On 17 November 2011, the applicant obtained a contempt of court order against the first respondent, which was granted in the following terms:

‘IT IS ORDERED THAT:

1. The respondent is found in contempt of court for breaching the CCMA’s certified award of the 30th of July 2010 and that an appropriate penalty within this Honourable Court’s discretion be imposed.

2. In addition or in the alternative to prayer 1 that the respondent is ordered to pay the following amount to the applicant:

2.1 the sum of R 46 062. 50 (Forty-Six Thousand, Sixty Two Rands and Fifty Cents).

2.2. The sum of R 11 000.00 (Eleven Thousand Rand)

3. The costs of this application on attorney and client scale alternatively party and party scale.’

[5] Following his failure to execute the aforementioned order against the first respondent, the applicant launched this application.

Submissions and analysis

[6] The basis on which the applicant seeks to join the second and third respondents was that he signed an employment contract with the first, second and third respondents, who were jointly referred to as “Maxi Group of Companies”. The applicant submitted that he erroneously cited the first respondent, as he was incorrectly advised by his attorneys of record.

[7] According to the applicant, the respondents are one and the same because they all have same directors and share the same registered addresses. The applicant further submitted a document, which he obtained from the Private security industry Regulatory Authority (PSIRA) showing that he was employed by the third respondent, at the time of his dismissal.

[8] The applicant further submitted that he always regarded himself as the employee of Maxi Group of Companies even though his salary was paid by the first respondent. In addition, the applicant submitted that the conduct of representative of the respondents at the arbitration made it clear that the identity of a particular respondent was irrelevant and it was not an issue during and after the arbitration.

[9] In opposition, the respondents raised three points in limine. The first point was that the applicant has already brought a joinder application against, inter alia the first, second and third respondents which has not been finalised. The second point was that to an extent that the second and third respondents were not provided with an opportunity to conciliate the dispute at the CCMA, this Court lacks jurisdiction to hear any dispute brought by the applicant against them. The third point was that the applicant failed to join the liquidators of the first respondent’s estate.

[10] The respondents further disputed the authenticity of the written agreement of employment that the applicant seeks to rely on and the averments relating to the conclusion thereof. In this regard, the respondents submitted that the agreement and the allegations were fabrication and forgery. In addition, the respondents submitted that the joinder cannot be made after the judgment was delivered.

[11] Furthermore, the respondents argued against the applicant’s attempt to bring new contentions, which were not raised in the founding affidavit, in a replying affidavit. In the first place, the applicant abandoned his reliance on the agreement in his replying affidavit, but maintained that he was employed by the respondents due to the fact that all three respondents traded “under the umbrella of the Maxi Group”.

[12] The respondents further argued that the applicant’s reliance on differing causes of action was unclear in that he conflates the principles in each cause of action which makes it difficult for them to ascertain which specific cause of action he relies on, or whether he ostensibly relies on an amalgamation of these causes of action. In his replying affidavit, the applicant disavows himself of placing any reliance on the piercing of the corporate veil in order to obtain the relief that he seeks. However, in contradiction to his disavowal, the applicant alleges that the respondents have acted in an unconscionable manner. This is also raised for the first time in reply.

[13] Further, despite the applicant’s previous assertions that he always regarded the “Maxi Group of Companies” as his employer, in his replying affidavit he states that he never knew who his employer was and the respondents are alleged to have misused the entities and blurred the lines of which entities he worked for. In contradiction to what is stated in the founding affidavit and elsewhere in the replying affidavit, the applicant states that he seeks merely to “extend the relief ordered against one part of the Maxi Group of Companies to other members…” However, the applicant goes on to state that a contractual nexus did exist between him and the second respondent prior to his dismissal.

[14] In his heads of argument, the applicant states that the first respondent’s liquidation “constitutes an abuse of corporate identity and was made in an attempt to escape liability from the first respondent’s obligations and used the companies “interchangeably as and when it suited them”. As such, the applicant contends that the Court is entitled to “lift the corporate veil and grant the relief sought…” This is the first instance in which the applicant attempts to place reliance on the lifting of the corporate veil, or distinguish a lifting of the corporate veil as this does not appear in any of the applicant’s papers.

[15] In addition, the applicant did not state in his founding or replying affidavits whether he intended to rely on statute or the common law for a lifting of the corporate veil. Instead, he referred the court to the case of Ex-parte: Gore and Others[1] in his heads of argument. In this case, Binns-Ward J deals with the lifting of the corporate veil in terms of the Companies Act[2], specifically section 20(9). Despite not being canvassed in his papers, it appears that the applicant intends on relying on this

section to advance his argument.

[16] It is trite that in application proceedings, the notice of motion and affidavits define the issues between the parties and the affidavits represent their evidence. The respondents correctly submitted that if an issue is not cognisance or derivable from these sources there is little or no scope for reliance on it. It is a fundamental rule of fair civil proceedings that parties should be appraised of the case which they are required to meet. The desired result of the rule is that he who relies on a particular section and the statute must either state the number of the section and the statute, or formulate his case sufficiently clearly so as to indicate what he is relying on.

[17] The respondents referred the court to the judgment in Government of the Province of KwaZulu Natal and Another v Ngwane[3], where Nienaber JA said:

‘Had the point been spelt out in the application papers the respondent, duly alerted, could have responded on fact and on law’.

[18] In the current matter, the requirements for joinder have not been pleaded by the applicant in his founding affidavit. Instead, it is only in the replying affidavit that the applicant attempts to make out a case for joinder by stating that the respondents have an interest in the order granted against the first respondent.[4]

[19] The respondents submitted that having a mere interest is not sufficient to support a case for joinder. To an extent that the applicant pleaded that the respondents have an interest, he ostensibly seeks a joinder of necessity. Rule 22 of the Rules of the Labour Court provides for the joinder of parties and states:

‘(1) The court may join any number of persons, whether jointly, jointly and severally, separately, or in the alternative, as parties in proceedings, if the right to relief depends on the determination of substantially the same question of law or facts.

(2)(a) The court may, of its own motion or on application and on notice to every other party, make an order joining any person as a party in the proceedings if the party to be joined has a substantial interest in the subject matter of the proceedings.

(b) When making an order in terms of paragraph (a), the court may give such directions as to the further procedure in the proceedings as it deems fit, and may make an order as to costs.’

[20] The respondents referred the Court to a judgment in International Trade Administration Commission v SCAW South Africa (Pty) Ltd,[5] wherein the Constitutional Court stated that:

‘In considering where the interests of justice lie, the question whether the party seeking to be joined has a direct and substantial interest in the subject matter of the proceedings will rank highly along other relevant considerations. These would include the stage at which the application for joinder is made; whether the party has furnished adequate explanation for the delay, if any, in seeking to be joined; and the nature of the relief or opposition the intervening party puts up. Whether the intervention would materially prejudice the case of any of the other parties to the litigation is also a relevant factor.’

[21] The respondents correctly submitted that none of the aforementioned requirements were addressed by the applicant, other than to state that the respondents have interests in the matter. Further that a joinder for convenience cannot find application as the question of law and facts have already been determined in the contempt order. Similarly, any substantial interest in the subject matter of proceedings cannot find application in contempt proceedings as contempt orders are provided for and are necessary in cases where the wrongdoer deliberately and maliciously embarks on a pattern to undermine the worth, integrity and standing of a court and its order.[6]

[22] Contempt of court is an issue between the court and the party who failed to comply with a court order, not an issue between parties. This cannot have a bearing on the respondents and therefore, they cannot be joined.

[23] What makes the applicant’s case even more difficult is that, as the matters stand, the proceedings before this court are complete and the order has already been made. I agree with the respondents that a joinder in this case is precluded. This is so, because the purpose of a joinder is to allow participation in proceedings that are still live. In other words the proceedings before the court must still be pending and/or there must be no final judgment.

[24] The relief sought by the applicant, of joining the respondents to the proceedings in which there is already an order, would have an effect of holding the respondents liable on the basis of an order without them ever been heard. As such, the applicant has failed to make out a case for relief sought and his case stand to be dismissed on this ground alone. This makes it unnecessary for the Court to consider the preliminary issues and issue relating to the lifting of the corporate veil.

Costs

[25] With regard to costs, it is my view that the requirements of law and fairness dictate that there should be no order as to costs.

[26] Accordingly, the following order is made:

Order

1. The application is dismissed.

2. There is no order as to costs.

D. Mahosi

Judge of the Labour Court of South Africa

Appearances

For the Applicant: Advocate

P. Belger

Instructed by Beneke

Gantley Incorporated

For the First Respondents: Advocate K. Naidoo

Instructed by C

De Villiers Attorneys

[1] [2013] 2 All SA 437 (WCC)

[2] Act 71 of 2008, as amended.

[3] 1996 (4) SA 943 (SCA).

[4] Replying affidavit, para 75.

[5] 2012 (4) SA 618 (CC).

[6] Fakie N.O v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) at para 41.