One Asset Professional Engineering Services (Pty) Ltd t/a GE Power (JS926-18) [2021] ZALCJHB 112 (27 May 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JS926-18

In the matter between:

ONE

ASSET PROFESSIONAL ENGINEERING

SERVICES (PTY) LTD Applicant

and

SLIMANE

BOUKTAB First Respondent

ALSTOM S&E AFRICA (PTY) LTD t/a GE

POWER Second Respondent

Heard: 27 May 2021

Delivered: This judgment was handed down electronically by circulation to the parties’ representatives by email and release to SAFLII. The date and time for hand-down is deemed to be 10h00 on 27 May 2021.

Summary: Condonation joinder and security for costs

JUDGMENT

COETZEE, AJ

[1] The applicant seeks condonation for the late filing of heads of argument, the joinder of a second respondent in the main application and security for its costs.

[2] The applicant also requests the admission into evidence of a supplementary affidavit in which it calculated its expected costs of the litigation.

[3] The applicant explains the late filing of the heads of argument in the joinder application and the application for security for costs. I accept the explanation and grant condonation.

Security for costs

[4] The respondent, Slimane Bouktab, concedes that he is a peregrinus of this Court and that it is obliged to provide security for the applicant's costs. The respondent tendered R50 000 as security. The applicant claims R200 000.

[5] The dispute is only about the quantum of the security for costs. The Labour Court held that it has a wide discretion to be exercised by having regard to all relevant facts, including considerations of equity and fairness to both parties in the consideration of directing security.[1]

[6] In Ganga the Court ruled that as the respondent was a peregrinus, it was not necessary or appropriate to address the merits in any detail. The issue between the parties may be more complex than a simple interpretation of the fixed term contract and is dealt with below when considering the joinder application.

[7] As to considerations of fairness and equity the applicant needs protection in the form of security for its costs.

[8] The applicant requests permission to introduce a supplementary affidavit regarding the computation of the expected costs. There is no reason why it should not be done. Leave is granted. The applicant sets out in detail the computation of the amount of costs it requires. I cannot find any indication that the computation is inflated.

[9] The respondent, through the deponent to the answering affidavit, avers that the respondent would not be able to raise R200 000 as security. The respondent does not give any indication of his financial position or any figures in support thereof for the Court to consider.

[10] It is directed that the respondent provides security in an amount of R200 000.

Costs

[11] The application for security is an interlocutory matter where the applicant is successful. Having regard to the relevant factors, however, there is no reason to make a costs order.

The joinder application

[12] The second respondent, to be joined, issued a statement of work in favour of the applicant as a service provider to the second respondent.

[13] The applicant undertook in terms of a task order to provide the services and agreed that the first respondent be assigned to the project. The first respondent would perform the role of a supervisor for the second respondent.

[14] The applicant and the first respondent executed an assignment contract in terms where of the applicant employed the first respondent as a supervisor to be based at Kusile site for a period of 12 months.

[15] The second respondent paid the applicant who in turn remunerated the first respondent.

[16] Part of the arrangement was that if the contract was terminated within 12 months, that the second respondent would pay the first respondent an amount equal to 6 months' salary.

[17] The agreement terminated within 12 months.

[18] There is a dispute as to whether the amount became payable. The second respondent refused to pay the amount stating its grounds. The first respondent disputed the grounds for the refusal.

[19] The applicant consequently also refused to pay the first respondent.

[20] It is clear that the second respondent has a direct and substantial interest in the subject matter of the main proceedings between the first respondent and the applicant.

[21] The second respondent does not oppose the application.

[22] There are no considerations of fairness that demand a cost order in this interlocutory application.

[23] The following order is hereby made:

Order

1. The applicant is granted leave to supplement the founding affidavit with a supplementary affidavit.

2. The first respondent Slimane Bouktab is ordered to furnish the applicant with security for costs in the amount of R200 000.

3. The first respondent is directed to pay the amount of R200 000 (two hundred thousand Rand) into the trust account of the applicant's attorneys by not later than 30 June 2021 and to provide the Registrar with proof that he has done so.

4. The proceedings in the main application are stayed until the respondent has complied with the order.

5. In the event that security is not furnished as per this order, the applicant is granted leave to apply on the same papers, amplified as may be necessary, for the dismissal of the main proceedings.

6. The second respondent is joined as the second respondent in the proceedings between the applicant and the first respondent as instituted by the first respondent in this court under the case number JS 926/18.

7. The second respondent is afforded all procedural rights available to the parties in the main proceedings and all further proceedings as between the parties are stayed until the relevant time periods for the exercise of the second respondent's procedural rights have expired.

8. There is no order as to costs.

F. Coetzee

Acting Judge of the Labour Court of South Africa

Appearances:

The matter has been determined on paper.

[1] Ganga v St John's Parish (2014) 35 ILJ 1294 (LC)