Passenger Rail Agency of South Africa v Moreki and Another (J1990/15) [2016] ZALCJHB 288 (2 August 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: J1990/15

In the matter between:

PASSENGER RAIL AGENCY OF SOUTH AFRICA Applicant and SHIRLEY MOREKI SHERIFF – PRETORIA EAST First Respondent Second Respondent

Heard: 14 July 2016

Delivered: 2 August 2016

TLHOTLHALEMAJE, J

[1] The applicant seeks an order to stay a writ of execution and any further steps in execution pending the determination of the review

application, together with the determination of a rescission application in respect of an order granted by Mahosi AJ on 23 February 2016.

[2] This matter has a protracted history dating back to 29 October 2014 when the first respondent was dismissed on the grounds of alleged

misconduct. An award reinstating her together with back-pay was issued by the CCMA on 4 September 2015.

[3] On 1 October 2015, the first respondent approached the Court in terms of section 158 (1) (c) of the LRA to make the award an order of court. That application was unopposed. The Applicant filed an application to review the award under case number JR2361/15 on 30 November 2015, which application the first respondent opposed. In the absence of opposition to the section 158 (1) (c) application, Mohosi AJ accordingly granted it on 23 February 2016, making the arbitration award an order of court.

[4] The applicant launched an urgent application on 19 April 2016 to stay the enforcement of the order of Mahosi AJ as granted on 23 February 2016. That application was heard on 28 April 2016, and struck off the roll on 3 May 2016 on account of lack of urgency. On 3 June 2016, the applicant launched another application to rescind the order granted by Mahosi AJ on 23 February 2016. On 10 May 2016, the first respondent personally served a writ of execution at the applicant’s premises, and on 13 May 2016, the second respondent (Sheriff), proceeded to attach the assets of the applicant. It is as a result of this attachment that the applicant launched the present application on an urgent basis.

[5] The matter came before me on 10 June 2016, and in the light of my directive, proceedings were postponed to enable the parties to

explore a settlement of all disputes before the court. A meeting between the parties held on 24 June 2016 failed to resolve

the dispute, and on 7 July 2016, the first respondent’s attorneys of record requested that the matter be re-enrolled.

[6] To the extent that the hearing of the urgent application was postponed following my directive, urgency is no longer a consideration in this matter. The first respondent, despite re-enrolling the matter has taken cognisance of the fact that a rescission application has since been filed, and the issue that remains is whether this application should not be granted.

[7] In opposing the application, reference was made to Bartmann AAC and Bartmann MME t/a Khaya Ibhubesi v De Langer GLC[1], wherein it was held that important considerations in determining the interest of justice is whether the attack on the underlying cause of action was brought on time, and also whether the prospects of success are strong. It was contended that the interests of justice will seldom favour a stay of execution where the attack on the judgment was brought out of time or where the attack on the face of it has little or no prospects of success. To this end, various flaws pertaining to the attack on the causa were pointed out in this case, including the fact that the applicant failed to oppose the application to make the arbitration an order of court; brought the application for a review of the award outside of the time frames prescribed in the LRA; failed to timeously prosecute the review application, and only brought a rescission application in respect of Mahosi AJ’s order only on 3 June 2016.

[8] It is accepted in this case that the rescission application, together with the review applications were filed belatedly. Central to the applicant’s contentions however is that its assets have since been attached, and should the order sought not be granted, the second respondent is ready to remove its assets and sell them. It was contended that a grave injustice would occur if the writ was not stayed as this would result in the first respondent being unjustly enriched, whilst the review application will be rendered academic and the rescission application would have no legal effect. It was further submitted if one weighed up the competing prejudice, it was the applicant that will be substantially prejudiced.

[9] Rule 16A[2] of the Rules of this court makes provision for rescission of its own court orders. Section 165 of the Labour Relations Act makes similar provisions in respect of rescissions or variations of court orders. Significant with these two provisions is that neither gives clarity as to the status of court orders pending the determination of a variation or rescission application. Rule 11 (3) of the rules of this Court provides that if a situation for which these rules do not provide arises in proceedings or contemplated proceedings, the court may adopt any procedure that it deems appropriate in the circumstances. In the light of this provision, this Court has overtime, adopted specific Rules of the High Court into its own proceedings.

[10] To the extent that there is a lacuna in Rule 16A and section 165 of the LRA in regards to the status of court orders pending rescission applications, Rule 49 (11) of High Court Rules[3] should find application. Thus ordinarily, in the light of the rescission application in respect of Mahosi AJ’s order, the operation and execution of that order should be suspended, unless this court directs otherwise. This implies that the Court ought to exercise its discretion as to whether it should grant the stay of execution of the writ subsequent to rescission applications[4].

[11] In Gois t/a Shakespeare’s Pub v van Zyl & Others[5], it was held that this court will favourably consider granting the stay of execution when “real and substantial justice requires such a stay or, put differently, where injustice would otherwise result”. Waglay J (as he then was) had added that in exercising its discretion to grant a stay of execution, a court is not required to take the merits of the underlying attack on the causa of the writ into account. It is sufficient that there must be a possibility that the causa underlying the writ may ultimately be removed. An applicant is accordingly not required to satisfy the court of the existence of

prospects of success in the principal dispute and furthermore, an application for a rescission, review or variation of an award

qualifies as an attack on the causa underlying the award.

[12] The principles enunciated in Gois t/a Shakespeare’s Pub as above are in tandem with the plain reading of the provisions of Rule 49 (11), which leads to the conclusion that the delivery of an application for rescission automatically suspends the operation and execution of the order pending the outcome of the rescission

application. Thus the respondents would automatically be precluded from proceeding to give effect to Mahosi AJ’s order. To the extent that the second respondent in this case has attached the applicant’s assets, this court still has the power to stay the execution process which may have commenced.

[13] In applying the provisions of Rule 49 (11), a court in ordering that the operation of the judgment be suspended pending the outcome of an application for rescission need not examine, let alone make a pronouncement on, the merits of that application. The flaws indicated in the applicant’s underlying attack on the causa of the writ are thus issues that will be dealt with at some point when those matters come to court in the normal course. It therefore

follows that in the light of all considerations, and in particular those of substantial justice, the application ought to be granted.

[14] What remains is the nature of the relief to be granted. In its Notice of Motion, the applicant sought the stay of the writ of execution

pending the determination of the relief sought in the review and rescission applications. In the light of the provisions relied upon in staying the writ of execution, and further in the light of the order of this Court on 03 May 2016, it follows that the execution of the writ should only be stayed pending the determination of the rescission application.

[15] In the Notice of Motion, the applicant also sought the consolidation of its various applications that are pending before the court. I am in agreement with this approach as it would assist in bringing the dispute between the parties to an end. Furthermore, to the extent that considerations of law and fairness dictate, it is deemed appropriate that each party should be burdened with its own costs.

Order:

i. The writ of execution issued against the Applicant in favour of the First Respondent is stayed pending the determination of the rescission application.

ii. Matters under the present case number are to be consolidated with those under JR236/15.

iii. Each party is to pay its own costs.

__________________

Tlhotlhalemaje, J

Judge of the Labour Court of South Africa

APPEARANCES:

On behalf of the Applicant: Mr. LP Adonis of Msikinya Attorneys & Associates

On behalf of the Respondent: Mr DM Majare of Majare Attorneys

[1] [2009] ZALC 36 at para 10

[2] Which reads; (1) ion or rescission application. R iurt provides that orders pending the determination of a variation or rescission application. RThe court may, in addition to any other powers it may have- (a) of its own motion or on application of any party affected, rescind or vary any order or judgment (i) erroneously sought or erroneously granted in the absence of any party affected by it; (ii) in which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; (iii) granted as the result of a mistake common to the parties, or (b) on application of any party affected, rescind any order or judgment granted in the absence of that party. “

[2] Which reads;

(1) ion or rescission application. R iurt provides that orders pending the determination of a variation or rescission application. RThe court may, in addition to any other powers it may have-

(a) of its own motion or on application of any party affected, rescind or vary any order or judgment

(i) erroneously sought or erroneously granted in the absence of any party affected by it;

(ii) in which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission;

(iii) granted as the result of a mistake common to the parties, or

(b) on application of any party affected, rescind any order or judgment granted in the absence of that party. “

[3] Which provides that: “Where an appeal has been noted or an application for leave to appeal against or to rescind, correct, review or vary an order of a court has been made, the operation and execution of the order in question shall be suspended, pending the decision of such appeal or application, unless the court which gave such order, on the application of a party, otherwise directs.”

[3] Which provides that:

“Where an appeal has been noted or an application for leave to appeal against or to rescind, correct, review or vary an order of a court has been made, the operation and execution of the order in question shall be suspended, pending the decision of such appeal or application, unless the court which gave such order, on the application of a party, otherwise directs.”

[4] See South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) at 545C-G, where the Court stated that: “The Court to which application for leave to execute is made has a wide general discretion to grant or refuse leave and, if leave be granted, to determine the conditions upon which the right to execute shall be exercised (see Voet, 49.7.3; Ruby’s Cash Store (Pty) Ltd v Estate Marks and Another [1961 (2) SA 118 (T)] at p. 127). This discretion is part and parcel of the inherent jurisdiction which the Court has to control its own judgments (cf. Fismer v Thornton 1929 AD 17 at p.19). In exercising this discretion the Court should, in my view, determine what is just and equitable in all the circumstances, and, in doing so, would normally have regard, inter alia, to the following factors: (1) the potentiality of irreparable harm or prejudice being sustained by the appellant on appeal (respondent in the application)

if leave to execute were to be granted; (2) the potentiality of irreparable harm or prejudice being sustained by the respondent on appeal (applicant in the application)

if leave to execute were to be refused; (3) the prospects of success on appeal, including more particularly the question as to whether the appeal is frivolous or

vexatious or has been noted not with the bona fide intention of seeking to reverse the judgment but for some indirect purpose, e.g. to gain time or harass the other party; and (4)where there is the potentiality of irreparable harm or prejudice to both appellant and respondent, the balance of hardship or convenience, as the case may be.”

[4] See South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) at 545C-G, where the Court stated that:

“The Court to which application for leave to execute is made has a wide general discretion to grant or refuse leave and, if leave be granted, to determine the conditions upon which the right to execute shall be exercised (see Voet, 49.7.3; Ruby’s Cash Store (Pty) Ltd v Estate Marks and Another [1961 (2) SA 118 (T)] at p. 127). This discretion is part and parcel of the inherent jurisdiction which the Court has to control its own judgments (cf. Fismer v Thornton 1929 AD 17 at p.19). In exercising this discretion the Court should, in my view, determine what is just and equitable in all the circumstances, and, in doing so, would normally have regard, inter alia, to the following factors:

(1) the potentiality of irreparable harm or prejudice being sustained by the appellant on appeal (respondent in the application)

if leave to execute were to be granted;

(2) the potentiality of irreparable harm or prejudice being sustained by the respondent on appeal (applicant in the application)

if leave to execute were to be refused;

(3) the prospects of success on appeal, including more particularly the question as to whether the appeal is frivolous or

vexatious or has been noted not with the bona fide intention of seeking to reverse the judgment but for some indirect purpose, e.g. to gain time or harass the other party; and

(4)where there is the potentiality of irreparable harm or prejudice to both appellant and respondent, the balance of hardship or convenience, as the case may be.”

[5] (2003) 24 ILJ 2302 (LC) at paragraphs 32 - 36