South African Transport and Allied Workers Union (SATAWU) v Mbelwane and Others (J 563/20) [2020] ZALCJHB 100 (29 June 2020)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: J 563/20

In the matter between:

SOUTH AFRICAN TRANSPORT & ALLIED WORKERS

UNION (SATAWU)

Applicant

and

MONGEZI DANIEL MBELWANE First

Respondent

SHERIFF, JOHANNESBURG NORTH

Second Respondent

STANDARD BANK OF SOUTH AFRICA Third

Respondent

Heard:

23 & 26 June 2020 (In Chambers via Webex meetings)

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date and time for hand-down is deemed to

be 13h:00 on 29 June 2020.

JUDGMENT

TLHOTLHALEMAJE, J

[1] The applicant (SATAWU), seeks interim relief to stay the enforcement of an arbitration award dated 3 June 2019 issued by the Commission for Conciliation Mediation and Arbitration (CCMA) under case number FSBF 1477/19, pending the final determination of a rescission application that is before the CCMA.

[2] This application was initially placed on the roll on 23 June 2020 and was postponed by agreement between the parties to 26 June 2020 in order to afford the first respondent an opportunity to file an answering affidavit and for the applicant to file a reply. An interim order was also issued uplifting the attachment pending the hearing of this matter and the delivery of judgment, with wasted costs occasioned by the postponement being reserved.

[3] SATAWU is a trade union registered in terms of the provisions of the Labour Relations Act (LRA)[1]. There is a dispute in respect of the status of the first respondent (Mbelwane) as at the stage of these proceedings. SATAWU contends that Mbelwane is its ex-employee, who used to occupy the position of local organiser in its Bloemfontein office in the Free State. In opposing the application, Mbelwane however contends that as far as he was concerned, he was merely suspended, which suspension he had referred to the CCMA, resulting in the issuing of a default arbitration award. The award formed the subject matter of the writ of execution and subsequent attachment by the second respondent (Sheriff) of the applicant’s bank account held with the third respondent (Standard Bank).

[4] This dispute emanates from the charges of misconduct preferred against Mbelwane in October 2018. SATAWU contends that Mbelwane had on more than one occasion, failed to attend the disciplinary hearings convened, and that a decision was taken to hold the enquiry in his absence, resulting in his dismissal on 1 February 2019. Mbelwane however denies having refused to attend any disciplinary enquiry, and contends that any postponement or delay in proceeding with the disciplinary enquiry was occasioned by both parties. His version of events was that flowing from the last postponement of the hearing scheduled for 25 January 2019, SATAWU had confirmed that postponement and further advised him in an email on 1 February 2019 that the postponement was until further notice. He averred that he never heard anything thereafter, hence he had referred a dispute to the CCMA.

[5] The dispute surrounding whether Mbelwane was dismissed or not is not specifically pertinent to the ultimate determination of the application before the Court. It is however important to point out that certain of SATAWU’s versions in regard to the dismissal of Mbelwane do not add up, particularly since it alleged that he was informed of his dismissal in a letter dated 1 February 2019, whilst at the same time Mbelwane contends that he had received an email on the same date from SATAWU’s Provincial Administrator, advising him of the postponement of the inquiry until further notice. In the end however, SATAWU in its replying affidavit appears to accept that indeed the inquiry was postponed prior to the commencement of the hearing, but does not address how the alleged dismissal of Mbelwane in his absence took place.

[6] Mbelwane had obtained a default award in his favour on 3 June 2019, in terms of which SATAWU was ordered to pay him an amount in the sum of R 65 460.34, which included compensation calculated at three months’ remuneration and back-pay on the thirteenth cheque ‘entitlement’.

[7] SATAWU avers that it had on 20 June 2019, filed an application to rescind the default award. That award was however certified on 2 October 2019, and it is common cause that the Sheriff attended to SATAWU’s principal place of business in Braamfontein to execute the writ on 12 December 2019. A Return of Service by the Sheriff dated 6 January 2020

indicates that the inventoried disposable assets were as per instructions, not removed.

[8] SATAWU further avers that in circumstances of the (a) national state of disaster, (b) the lack of communication from the CCMA in respect of further conduct in regard to its rescission application, and (c), Mbelwane’s failure to report for duty in line with the award, its view was that the matter had died a natural death.

[9] Mbelwane however contended that he had made attempts to report for duty on 24 June 2019 as per the default award, but he could however not enter SATAWU’s premises as they were locked. He further denied having been served with the rescission application and contended that he had proceeded with the application in terms section 143 of the LRA to certify the award and proceeded with its execution.

[10] At these proceedings, SATAWU had produced a copy (Annexure’R1’) to the replying affidavit which purport to demonstrate that a copy of the rescission application was served on Mbelwane via email on 20 June 2019. On the strength of this purported proof of service, Ms Louw acting on behalf of Mbelwane had still insisted that no such copy was received, but had conceded that she could not take the matter any further. Irrespective of these disputes however, the Court is prepared to accept that the rescission application was delivered to the CCMA.

[11] On 19 June 2020 SATAWU had received an email from Standard Bank informing it of the Notice of Attachment dated 18 June 2020 delivered by the Sheriff. In that regard SATAWU contended that this was the first time it became aware of the enforcement of the award.

[12] Mbelwane denies that SATAWU only became aware of the execution processes on 19 June 2020 and insisted that SATAWU at the very least, should have been aware of the existence of the execution processes as early as 3 September 2019, when it was served with the application for an enforcement award in terms of the provisions of 143 of the LRA, and on 12 December 2019,

when attachment was proceeded with by the Sheriff, as evident from the Return of Service dated 6 January 2020.

[13] This application was brought before the Court on 19 June 2020. The requirements to be met where interim relief is sought are trite. Thus, SATAWU must demonstrate the following; (i) the existence of a prima facie right, (ii) the apprehension of irreparable harm, (iii) the absence of alternative relief, and (iv) the balance of convenience.

[14] SATAWU asserts that it has a right to a hearing of the rescission application that is before the CCMA, and that the stay ought to be granted pending the determination of that application. It further asserts that there was a reasonable apprehension of imminent irreparable harm resulting if relief was not granted, as its bank account that was attached, was utilised for a variety of payments, including that of its staff salaries and its creditors.

[15] SATAWU holds the view that there are reasonable prospects that it will obtain the rescission order at the CCMA despite the inordinate delay in finalising that application. It avers that the certification and enforcement of the award was erroneously obtained because had the CCMA been aware that there was a pending rescission application, it would have not granted its order.

[16] Mbelwane in opposing the application denied that there was any basis to grant the interdictory relief sought, and contends that SATAWU’s version before the Court was misleading, as it had been aware that execution process had been initiated as far back 12 December 2019 when the Sheriff attached its movable assets, and that it was misleading to suggest that it only became

aware of the execution processes on 19 June 2020.

[17] Mbelwane contended that granting the interdictory relief would be prejudicial to him particularly since he has been unemployed and without an income since the start of 2019. He further contended that an attachment of SATAWU’s bank account was pursued in view of inventoried assets not being sufficient to meet the judgment debt. He denied that there was a reasonable prospect that the rescission application would succeed, in view of the casual manner with which SATAWU had prosecuted that application. He contends that the material facts of the rescission application occurred prior to the announcement of the national state of disaster, and that there was therefore no merit in SATAWU’s contention that the prosecution of the rescission application was interrupted by that announcement.

[18] The starting point with such applications is whether SATAWU had met the requirements of urgency as contemplated in Rule 8 of the Rules of this Court, which inter alia requires that the founding affidavit in support of the application must contain- (a) the reasons for urgency and why urgent relief is necessary; and (b) the reasons why the requirements of the rules were not complied with. Whether a matter is urgent involves two considerations. The first is whether the reasons that makes the matter urgent have been set out and second, whether the applicant

seeking relief will not obtain substantial relief at a later stage. It is equally trite that an Applicant is not entitled to rely on urgency that is self- created when seeking a deviation from the rules. Thus, the latitude extended to parties to dispense with the rules of the court in circumstances of urgency is not be available to parties who are dilatory to the point where their very inactivity is the cause of the harm on which they rely on to seek relief[2].

[19] In this case, it was submitted on behalf of SATAWU by Ms Malope, that even if it was aware of the attachment that took place on 12 December 2019, it took no further steps to approach the Court at the time, on the basis that from that date and into March 2020, several discussions were held with Mbelwane and his attorneys of record. Arising from those discussions, an impression was created that the execution of the writ would not be pursued in the light of the rescission application before the CCMA. It was further submitted that the urgency arose from 19 June 2020 when SATAWU was informed by Standard Bank that its account had been attached. Furthermore, it was submitted that the attachment appears to have taken place in accordance with a new writ, which SATAWU was not aware of, especially since only movable assets had been attached as per the Return of Service of 6 January 2020.

[20] Ms Louw on behalf of Mbelwane had refuted any allegation that the attachment occurred in terms of a new writ as no new writ was issued. She further submitted that the Sheriff was instructed as far back as 27 January 2020 and on 12 March 2020 to proceed and remove the goods. She further refuted that there were any discussions between the parties after 12 December 2020 that would have given SATAWU an impression that Mbelwane was not proceeding with the execution.

[21] The validity or otherwise of the writ or the process followed by the Sheriff in attaching the bank account was not specifically pleaded. Insofar as that execution is concerned however, and for the purposes of determining whether the urgency claimed is self-created or not, the issue is whether that execution was effected in accordance with the old or ‘new’ writ. To the extent that it is found that the old writ was used in effecting execution, arising therefrom is whether it could be used to levy execution against the bank account.

[22] In terms of the default award, a total amount of R65 460.00 was due and payable to Mbelwane. The approximate value of the property attached as per the Sheriff’s Return of Service dated 6 January 2020 is R72 020.00. A Notice of Attachment in terms of Rule 45(8) and Rule 45(12) of the Uniform Rules was issued by the Sheriff on 18 June 2020 with interest on that amount.

[23] In Windybrow Theatre v Maphela and Others[3], it was held that;

‘[9] Service and execution of orders of the Labour Court takes place in accordance with the process applicable in the High Courts. Section 44 of the Superior Courts Act requires service by the Sheriff of process (including writs of execution) on the affected person (in this case the appellant as judgment debtor) either in person, by service on its address, or by telefax or other electronic e-mail. Rule 45 of the Uniform Rules of the High Court regulates execution against movables of a judgment debtor. Rule 45 (3) provides that:

‘Whenever by any process of the court the sheriff is commanded to levy and raise any sum of money upon the goods of any person, he shall forthwith himself or by his assistant proceed to the dwelling-house or place of employment or business of such person (unless the judgment creditor shall give different instructions regarding the situation of the assets to be attached) and there;

(a) demand satisfaction of the writ and failing satisfaction;

(b) demand that so much movable and disposable property be pointed out as he may deem sufficient to satisfy the said writ …’

[10] In executing the writ and in performing his functions generally, the Sheriff acts as an officer of the law and not as the agent of the judgment creditor or his attorney. It is not for the judgment creditor to elect in what form or manner execution should take place, or which particular assets should be attached. Execution can only proceed to attachment, sale and distribution, once there is proper service of the writ of execution on the judgment debtor. Failure to do so will render the execution invalid. There will not be an attachment where neither the writ nor the notice of attachment have been served on or brought to the notice of the owner…”

[24] In this case, it can be accepted that since 12 December 2019, and even if on Mbelwane’s version the Sheriff was instructed to proceed with the attachments, no further steps were taken by the Sheriff in that regard until 18 June 2020. The intervening circumstances related to the declaration of the national state of emergency and the subsequent Lockdown even if material to the ultimate execution, cannot serve as the only excuse as to the reason that no form of action was taken in effecting attachment from 12 December 2019.

[25] Significant however, is that it is apparent that the Notice of Attachment of 18 June 2020 is based on the original writ of execution, and clearly there is no basis to hold that the attachment was effected through a new writ as there was none. This is so in that for the purposes of attachment under Rules 45(8) and 45(12), there would have been no need for Mbelwane to make a different application or obtain an order of Court prior to proceeding to attach the bank account[4].

[26] The difficulty however arises to the extent that there is a difference between the assets inventoried as per the Return of Service and what the Sheriff sought to attach through the Notice of Attachment of 18 June 2020. It is not clear from the papers as to what the basis for not attaching the inventoried assets was in accordance with the Return of Service, especially since those assets at the time that they were inventoried were more than the judgment debt. It is appreciated that at the time that the Notice

of Attachment was issued, the judgment debt had increased as a result of the applicable interest rate. Be that as it may, in line with the principles enunciated in Windybrow Theatre as highlighted above, fairness would have dictated that SATAWU as an interested party be properly informed by the Sheriff prior to the attachment (in respect of assets not originally envisaged), particularly in view of the consequences of that attachment to the operations of the Union. This is so even if on Mbelwane’s version, there were no assts to attach as at June 2020.

[27] In the light of the above, it is my view that even if the initial attachment took place on 12 December 2019, and to the extent that it took the Sheriff six months prior to issuing the Notice of Attachment, and further given the nature of the attachment as opposed to what was originally envisaged to be attached, I am in agreement with the contentions made on behalf of SATAWU that it was entitled to act only after 18 June 2020. To the extent that this application was brought before the Court on 19 June 2020, and the reasons proffered in that regard, I am satisfied that the requirements of urgency have been met.

[28] The general approach when determining whether the writ of execution should be stayed was reiterated in Gois t/a Shakespeare’s Pub v van Zyl & Others[5] as follows;

“(a) A court will grant a stay of execution where real and substantial justice requires it or where injustice would otherwise result.

(b) The court will be guided by considering the factors usually applicable to interim interdicts, except where the applicant is not asserting a right, but attempting to avert injustice.

(c) The court must be satisfied that:

i. the applicant has a well-grounded apprehension that the execution is taking place at the instance of the respondent(s); and

ii. irreparable harm will result if execution is not stayed and the applicant ultimately succeeds in establishing a clear right.

(d) Irreparable harm will invariably result if there is a possibility that the underlying causa may ultimately be removed, i.e. where the underlying causa is the subject-matter of an ongoing dispute between the parties.

(e) The court is not concerned with the merits of the underlying dispute-the sole enquiry is simply whether the causa is in dispute.”

[29] In this case, and to the extent that it has been concluded that there is indeed an application for rescission before the CCMA which was timeously filed, I am satisfied that there is a pending underlying cause of action arising from the arbitration award. The merits or otherwise of that application are not pertinent for the purposes of this application, and to this end, I am satisfied that SATAWU has established a prima facie right to the relief that it seeks.

[30] It further follows that to the extent that it has been concluded that there is an application for rescission before the CCMA, and further to the extent that SATAWU is currently not in a position to access its bank account held with Standard Bank, irreparable harm will result if execution is not stayed and the application for rescission ultimately succeeds. The Court is further satisfied that SATAWU has no other alternative remedies readily available to it, and it would clearly not be in the interests of justice to deny it an opportunity to challenge and have the default arbitration award set aside.

[31] The only issue that remains to be determined is that of costs. In making an award of costs, the Court in accordance with the provisions of section 162(1) of the LRA must take into account the requirements of law and fairness. In this case, inasmuch as it has been established that SATAWU had sought to rescind the default award, there can be no doubt that its shoddy and tardy prosecution of that application had resulted in the bringing of this application, which had in turn compelled Mbelwane to oppose it. As dominus litis before the CCMA, the obligation was on SATAWU to not only to file its rescission application, but to also ensure that it was finally

determined, rather than merely folding its arms. Its contention that in the absence of the CCMA having reverted back to it on its own application, it had merely assumed that the matter would die a natural death cannot be sustainable. Matters at the CCMA do not just die a natural death. The obligation at all material times remains on applicants to follow up on their matters up to finality. Had SATAWU taken steps to ensure that the rescission application was finally determined, Mbelwane would not have been in a position where he would have been compelled to oppose this application. To this end, it is my view that it cannot be in the interests of law and fairness, that Mbelwane, who remains unemployed and prejudiced by SATAWU’s nonchalance in regards to its rescission application before the CCMA, should be burdened with the costs of this application. Accordingly, even if SATAWU is successful with this application, it should be burdened with its costs.

[32] In regards to wasted costs occasioned by the postponement of 23 June 2020, it is my view that to the extent that this application was launched on 19 June 2020, and since Mbelwane had failed to file his answering affidavit by 22 June 2020 in accordance with the time frames set out in the Notice of Motion, it is my view that further in the light of an agreement on that postponement, each party must carry its own costs.

[33] Accordingly, the following order is made;

Order:

1. The applicant’s non-compliance with the rules of this Court pertaining to the time periods and manner of service are condoned and this matter is heard as one of urgency in terms of rule 8 of the Rules of this Court.

2. The enforcement of the award dated 3 June 2019 issued under case number FSBF 1477-19, and the order granted in terms of section 143 of the Labour Relations Act dated 2 October 2019, is stayed pending the final determination of the rescission application before the Commission for Conciliation Mediation and Arbitration.

3. Each party must pay its own costs occasioned by the postponement of this matter on 23 June 2020.

4. The Applicant is ordered to pay the costs of this application.

___________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

REPRESENTATION:

For the Applicant:

Ms. D. Malope, of Masondo Malope Attorneys Incorporated

For the Third Respondent:

Ms. E.M.J. Louw, of Lovius Bloc Incorporated

[1] Act 66 of 1995, as amended

[2] See Jiba v Minister: Department of Justice and Constitutional Development and Others (2010) 31 ILJ 112 (LC) at para 18; National Police Service Union and others v National Negotiating Forum and others (1999) 20 ILJ 1081 (LC) para [39]

[3] (JA47/15) [2016] ZALAC 27; (2016) 37 (ILJ) 2641 (LAC)

[4] See also Anand -Nepaul v Citibank NA and Others (366/2005) [2005] ZAKZHC 25 (13 December 2005)

[5] 2011 (1) SA 148 (LC) At para 37. See also Chillibush Communications (Pty) Ltd v Michelle Gericke & others (2010) 31 ILJ 1350 (LC) at para 18, where the Court held that; ‘In terms of section 145(3) of the LRA, the Court has the discretion to stay the enforcement of the arbitration award pending the outcome of the review application. This discretion which is very wide has to be exercised judicially taking account certain factors. The most important consideration in the exercise of the discretion is whether there is a pending underlying cause of action arising the arbitration award or in certain instances arising from the Court order. There is a wide range of factors which the Court will take into account in considering whether or not to order a stay of the execution of an arbitration award, the most important of which is whether the interest of justice supports the stay of execution pending the finalization of the review or rescission application.’

[5] 2011 (1) SA 148 (LC) At para 37. See also Chillibush Communications (Pty) Ltd v Michelle Gericke & others (2010) 31 ILJ 1350 (LC) at para 18, where the Court held that;

‘In terms of section 145(3) of the LRA, the Court has the discretion to stay the enforcement of the arbitration award pending the outcome of the review application. This discretion which is very wide has to be exercised judicially taking account certain factors. The most important consideration in the exercise of the discretion is whether there is a pending underlying cause of action arising the arbitration award or in certain instances arising from the Court order. There is a wide range of factors which the Court will take into account in considering whether or not to order a stay of the execution of an arbitration award, the most important of which is whether the interest of justice supports the stay of execution pending the finalization of the review or rescission application.’