TODAY'S ALERTS

Facts and issue: The applicant approached the court to rescind the judgment granted in favour of the respondent. The applicant seeks further relief in the form of an order setting aside the warrant of delivery that was issued. The applicant entered into a credit agreement with the respondent for the financing and purchasing of a motor vehicle. Prior to the payment of the outstanding balloon payment, the applicant received a letter reflecting a settlement amount of R62,646.04 as per his request. Notwithstanding this settlement proposal, the applicant remained obligated to settle the outstanding balloon payment in accordance with the terms of the original Agreement.

Discussion: The applicant alleges that in 2020, without prior notice or warning, individuals arrived at his workplace intending to repossess the motor vehicle. He claims that he never received a summons or any notification in terms of a section 129 notice of the National Credit Act, 34 of 2005 and as a result, he was unaware of the outstanding debt. Furthermore, the applicant states that since the respondent ceased debiting the monthly instalments, he assumed that there were no outstanding amounts due and payable. This assumption, so he claims, led him to believe that his obligation under the agreement had been fulfilled. The balloon payment was never explained to him. Following this explanation, the repossession of the motor vehicle was halted. The respondent vehemently denies the applicant's claims of not receiving the summons and section 129 notice. Furthermore, the respondent claims that despite the applicant’s allegations that the terms and conditions of the balloon payment were not adequately explained to him, he failed to provide a satisfactory explanation for his own failure to carefully read and understand the Instalment Sale Agreement before signing it.

Findings: The argument that the applicant was unaware of the balloon payment is without merit. The agreement he signed is unequivocal, and its contents are not in dispute. As a responsible consumer, it was incumbent upon him to ensure that arrangements were made to settle the remaining debt after the debit order collection had lapsed. Regrettably, he failed to take the necessary steps, thereby neglecting his obligation under the agreement. The respondent subsequently tendered an additional proposal for settling the outstanding ballon payment, even after the judgment had been obtained by the applicant. Regrettably, this overture was not reciprocated by the applicant. The applicant concedes that the sheriff’s return indeed indicates that the summons was served on him, yet he vehemently denies the receipt of the summons. In the absence of clearest evidence to rebut the sheriff’s return, the return of service constitutes conclusive proof that the papers were indeed served on the litigant, thereby establishing prima facie evidence of the service.

Order: The application for rescission of default judgment is dismissed with costs.

Facts and issue: The applicant, Glencore, a Swiss company, seeks security for costs from the respondent, Atakas, a Turkish company and a plaintiff in an action for delictual damages against Glencore, second respondent and third respondent, as defendants. The application is brought in terms of s 5(2)(b) of the Admiralty Jurisdiction Regulation Act 105 of 1983, read with Uniform rule 47. Glencore issued a notice in terms of rule 47 calling for security for its costs in an amount of R1,2 million. The notice was premised on the ground that Atakas is a peregrinus of the court with no known assets of value within the Republic of South Africa, and secondly, that Glencoe has a genuine and reasonable need for security for its costs.

Discussion: The essence of Glencore’s contention is that it would be extremely expensive and time consuming for it to enforce its costs order in a foreign jurisdiction. It is common cause that, Atakas is a peregrinus of the court and is not possessed of assets within the Republic. It was not disputed that Atakas is in a sound financial position and that it conducts considerable trade with Glencore. It is however crucial that Glencore’s contention that it will suffer financial hardships and long delays in executing its costs order in a foreign jurisdiction be given due consideration and weight. In considering factors adduced by Atakas, it is noted that even though it disputes its liability to provide security, upon receiving the notice in terms of rule 47, it did not contest its liability or allege that it cannot afford the amount demanded. Instead, it offered an amount up to USD75,000 which is more than R1,2 million demanded by Glencore as security. Its averment that the impediment to providing security is Glencore’s insistence on a bank guarantee from a South African Bank, is evidence that it merely contests the form of security to be provided, not affordability.

Findings: Glencore has made out a case that it may, in due course, be entitled to an order for costs and that it has a genuine and reasonable need for security. Atakas is a peregrinus of the court and does not have assets within South Africa. The probabilities are that Glencore will incur further legal costs, and long delays should it have to execute its costs orders in Turkey or a foreign jurisdiction whereas Atakas, as evidenced by its financial statements can afford to provide security for Glencore’s costs as demanded without experiencing any hardships. The merits of the disputes in the action or the bona fides of the parties are irrelevant to the current application for security.

Order: The first respondent is directed to provide security for the applicant’s costs in the amount of R1,2 million.

Facts and issue: All the appellants were convicted on charges of kidnapping, assault with intent to do GBH and murder. This is an appeal against their convictions. The body of the deceased was found at a taxi rank, hanging from a ledge below in the ceiling of a container by a belt tied around his neck. The deceased’s hands were found tied together in front with his shoelaces. The deceased was last seen alive an hour or so before the discovery of his body when he was taken away from his home by the appellants and accused one. He was alive when the appellants brought and placed him inside the container at the taxi rank. The question is whether the court a quo was correct to find that the hanging of the deceased was homicidal and not suicidal.

Discussion: The Regional Court found that the version of suicide was inherently improbable and rejected it as false because a short time elapsed between the time the deceased was taken and the time he was found hanging; according to the version of the appellants, the appellant tried to escape  and did not want to be taken to the police and it is senseless that the deceased would bind his hands frustrating his attempt to commit suicide. The appellants made much of the manner the hands of the deceased were tied. Amongst others it was contended on appellant’s behalf that the way the hands of the deceased were tied suggests that the deceased might have been able to manoeuvre his hands to hang himself. The tying of the hands was one of the factors that was there for the court a quo to determine whether the deceased died by suicide or homicide. The court a quo did not assess this factor in isolation. The fact that the hands of the deceased were tied cannot be a random act. Moreover, Doctor Anthony who also visited the crime scene also observed that the hands of the deceased were tied tightly together.

Findings: It is inherently improbable to the point of being impossible that the deceased who wanted to kill himself would tie his hands before he hangs himself. Though the wrists were not tired together, but it is evident from the photographs that the hands were tied tightly together. Based on the evidence led, it would also be ludicrous to say the least, to suggests or believe that the tying of the hands was an act meant by the deceased to frame others. If the deceased wanted to take his life, why would he make it difficult for him by tying his hands tightly together. Most importantly, the photographs of the scene reveal that the hanging of the deceased was well executed. The photographs don’t indicate a clumsy process. There is nothing on the facts that warranted it to be considered a suicide. The tying of hands does not correlate with the theory of suicide. There is nothing that gives an appearance of suicide. The court a quo cannot be faulted for rejecting theories suggested by the appellants and accepting the evidence of Doctor Anthony.

Order: The appeal in respect of all appellants is dismissed.

Facts and issue: The applicant brings an application to review and set aside the award issued by the commissioner in which she found that the applicant (company) had dismissed the respondent (Ms Van Rensburg) and that the dismissal was substantively and procedurally unfair and thus awarded her five months’ salary as compensation.

Discussion: In terms of section 192(1) of the Labour Relations Act 66 of 1995, Ms Van Rensburg bore the onus of proving on a balance of probabilities that she was dismissed by Mr Chetty. The commissioner found that the probabilities were in favour of Ms Van Rensburg having been dismissed, with this being based on essentially three things: firstly, Ms van Rensburg’s WhatsApp to Mr Chetty on 18 April 2023; secondly, Ms van Rensburg’s WhatsApp to Ms Fraser on 18 April 2023; and thirdly, Mr Chetty’s failure to respond to Ms Van Rensburg’s WhatsApp or follow up with her. Ignored by the commissioner were these facts which cast serious doubt on the veracity of Ms Van Rensburg’s version that she was dismissed, rather than having walked out. Firstly, going into the meeting on 18 April 2023, the state of the employment relationship between the parties was tenuous. Since having been placed on so-called short time, the only activity that Ms Van Rensburg undertook was to accompany Ms Fraser for a single day’s training. There was accordingly no prospect of her receiving any salary in April, this after having received less than half of her salary in March. Allied to this, Ms Van Rensburg’s relationship with Mr Chetty had broken down. Secondly, if one compares Ms Van Rensburg’s WhatsApps about her salary, one gains the distinct impression (as mentioned by Mr Chetty in evidence) that she was attempting to set up Mr Chetty.

Findings: There exists every possibility that Ms Van Rensburg’s WhatsApps to Mr Chetty and Ms Fraser relied on by the commissioner were contrived to build a case of dismissal. Equally unreliable was the commissioner’s reliance on Mr Chetty’s failure to respond to Ms Van Rensburg’s WhatsApp – this in circumstances where he knew that she would speak to her sister and was awaiting (and received) feedback from her. Ms Van Rensburg claimed to have been expressly dismissed by Mr Chetty, a version that is open to serious doubt and improbable. Ms Van Rensburg failed to acquit herself of the onus of proving that she was dismissed by Mr Chetty, with the result that the commissioner’s finding that she was dismissed is wrong and thus reviewable.

Order: The arbitration award issued by the second respondent is reviewed and set aside and replaced with an order that the first respondent was not dismissed by the applicant.

Facts and issue: This is an application to review and set aside an arbitration award made by the commissioner. The commissioner found that the applicant (Empact) was obliged to pay one month’s notice pay to its employees represented by NUMSA.

Discussion: Section 37 of the Basic Conditions of Employment Act 75 of 1997 creates a statutory entitlement to notice not only for employees but also for employers. Nothing in section 37 addresses payment during a notice period and the section does not create any statutory right to be paid during the notice period. This is because payment during notice would be governed by normal contractual principles. Although the commissioner refers to the common law evolving, suggesting that the contractual defence of impossibility of performance has changed, she refers to no authorities in this regard. In any event it is clear from her award that it is based on her finding that the provisions of section 37 and 38(1) of the BCEA “trump” the common law, and not some finding that impossibility of performance is no longer a defence in contractual law.

Findings: The commissioner has misconstrued the provisions of section 37 of the BCEA. Section 37 does not create a statutory right to be paid during a notice period. Payment during a notice period is governed by normal contractual principles, provided an employee tenders their services they are entitled to payment. An employee’s entitlement to payment during a notice period arises out of a contractual obligation to pay in response to a tender of services, not by operation of law in terms of section 37 of the BCEA. It is for that reason that an employee who has tendered their services during a notice period, but has not been paid, can claim payment unless the employer has a contractual defence, such as supervening impossibility of performance.

Order: The arbitration award is reviewed, set aside, and substituted. The claim for payment is dismissed.

Facts and issue: The applicant (ICASA) seeks an order reviewing and setting aside the arbitration award issued by the commissioner, acting under the auspices of the CCMA. In the award, the commissioner had found that ICASA had committed an unfair labour practice in that it failed to pay performance and merit bonuses to qualifying members of NEHAWU (employees) for the 2019/2020 financial year. ICASA was ordered to pay to the employees such bonuses. ICASA seeks a substitution of the commissioner’s award, or in the alternative, that the dispute between the parties be remitted to the CCMA for a re-hearing before another commissioner.

Discussion: The parties agreed that central to the dispute before the commissioner was the exact performance target set by ICASA in the APP for the 2019/2020 financial year. That dispute revolved around whether the target was 80% as alleged by the employees, or 90% (94.5%) as alleged by ICASA. Molapo as a person who was party to the drafting of that APP was correct in pointing out that the foreword to it is not where the actual targets are to be found. The APP is a voluminous document, and the relevant portions are from page 41, and to be read with the Addendum from its page 94, where the targets and baselines are set out according to six organised programmes. Some of the programmes such as Administration are made up of eight sub-programmes, with each being allocated a baseline performance, and targets. There are different targets (desired performance) set for each programme whether quarterly as or yearly, ranging between 80% and 100%, and with different baselines.

Findings: The conclusion to be reached is that as indicated in the APP and its contents, it is apparent that the 80% mentioned in the foreword to the APP cannot be the actual target upon which any entitlement to performance bonuses were to be based or calculated. That figure was applicable to the goal of improving organisational service delivery and organisational performance as a whole over 2015/16 to 2019/2020 FY. The commissioner’s reliance on the 86.8% target indicated in the Annual Report, and her conclusion that the 80% target was exceeded based solely on the 80% mentioned in the foreword of the APP, was not supported by the evidence before her. In the light of the evidence before the commissioner, an even-handed assessment of that evidence reveals that the commissioner’s conclusions are untenable. The commissioner’s conclusions do not fall within a band of reasonableness.

Order: The arbitration award is reviewed and set aside. The commissioner’s award is substituted with an order that the failure by the applicant (ICASA) not pay to the employees a performance bonus did not constitute an unfair labour practice.

Facts and issue: In this review application, the applicants seek to review and set aside the CCMA ruling. The ruling in question dismissed the applicants’ request for re-enrolment. The applicants are now seeking an order to remit their part-heard dispute to the CCMA for final adjudication, ensuring a fair and complete resolution of the matter.

Discussion: The applicants argue that the commissioner ruling effectively deprives them of their right to have the arbitration re-enrolled and brought to a conclusion. They assert that this decision undermines and directly conflicts with sections 136 and 195 of the Labour Relations Act 66 of 1995 which safeguard their entitlement to a fair and final resolution of disputes. The Constitution guarantees the right to fair labour practices. The LRA gives effect to those rights. The dismissal of the applicants’ re-enrolment application effectively prevents the arbitration from being rescheduled, thereby prematurely terminating the process. As a result, the merits of the case remain unexamined and unresolved, denying the applicants the opportunity for a fair adjudication.

Findings: The commissioner was obligated under section 138(1) of the LRA to consider the merits of the dispute. This duty is especially critical given that the arbitration had already commenced and was part-heard. The dismissal of the re-enrolment application, which effectively deprives the applicants of concluding their dispute, amounts to a reviewable irregularity. Although the commissioner’s ruling is under review, he is already seized with the matter and has a comprehensive understanding of its background and history.

Order: The ruling of the commissioner is reviewed and set aside. The CCMA is directed to set down the part-heard unfair dismissal dispute referred to it by the applicants for arbitration before the same commissioner, unless the commissioner is no longer in the employ of the CCMA, in which case before a commissioner other than the second respondent.

Facts and issue: This is an urgent application in terms of which the applicant seeks to interdict the respondents from resorting to self-help in making deductions from her salary. The applicant member, Mqoni, applied for a cash bonus after having obtained a postgraduate diploma in public administration. Her application was considered and approved by the respondent. Mqoni received a letter from the respondent indicating that she did not qualify to be paid the cash bonus, and that the respondent intended to recover the cash bonus paid to her. Mqoni was informed that 13 instalments would be made from her salary.

Discussion: Mqoni discovered that the respondent deducted an amount of R2,614.95 from her salary. The applicant avers that the deductions from her salary offend against the rule of law, infringe on her right to fair labour practice as enshrined in section 23 of the Constitution and are ongoing in view of the respondent’s intention to deduct monies from her salary in instalments over 13 months despite her refusing to consent to such deductions. The applicant has not consented to any deduction from her salary. There exists is no collective agreement, arbitration award or court order permitting or ordering any deduction from her salary. The applicant alleges that the unlawful conduct by the respondents in continuing to deduct the repayments from her salary is an affront to the rule of law. The applicant further contends that there is no alternative remedy but to approach the court for the relief that she seeks.

Findings: The applicant has made out a case for urgency, as the harm she complains of is ongoing. She has approached the court for relief without delay and has demonstrated that should an injunction not be granted on an urgent basis, the harm will continue, and she will not obtain substantial relief if the matter is heard in the ordinary course. The respondents’ reliance on section 34(5) of the Basic Conditions of Employment Act 75 of 1997 for the deduction of the cash bonus paid over to Mqoni undermines the clear pronouncement by the Constitutional Court against self-help and offending the rule of law. In addition, the reliance by the respondents on section 34(5) of the BCEA does not assist them as the cash bonus was not a result of an error in calculating Mqoni’s remuneration. It is not disputed that Mqoni was not entitled to the cash bonus, thus the amount paid over to her is not remuneration as defined in section 1 of the BCEA.

Order: The application is heard as urgent. The respondents are interdicted and restrained from unilaterally effecting deductions from the salary of Mqoni until there is compliance with the provisions of section 34 of the Basic Conditions of Employment Act 75 of 1997. The respondents are to repay all deductions from the salary of Mqoni.

Facts and issue: The plaintiff instituted an action against the defendants for damages suffered due to injuries sustained when the plaintiff tripped, stumbled and fell in Mega City Shopping Mall. It is not disputed that the plaintiff was at Mega City, she tripped and fell in the passageway where construction in respect of tiling was taking place. The dispute relates to negligence. The plaintiff’s case is that the defendants were negligent in failing to secure the area where the fall occurred. The defendants plead contributory negligence that the plaintiff failed to take cognisance of the warning signs erected at the entrance of Mega City and around the area where the fall occurred.

Discussion: The evidence for the plaintiff is to the effect that there was no indemnity notice and no cones warning of the repairs to the tiles. The floor where there were no tiles was black like the black tiles that were already installed. The plaintiff’s husband corroborated her evidence that there was no indemnity notice and no cones. The warning tape was only placed after the plaintiff fell. The are two conflicting versions in relation to whether there were warning and indemnity notices. The defendant testified that at the time of the fall indemnity notices were put up at all the entrances. The only witness who testified to that effect was Makhubela and that the notices were put up in 2017. The incident happened in 2019. According to Makhubela, he left the cones at 13h00 when he went for lunch. In addition to the cones there was a bucket and an electric cord. When the plaintiff fell, he was not present and as such cannot testify as to the position of the cones at the time of the fall. Both the plaintiff and her husband testified that the cones were not there. It is improbable that the plaintiff could not have noticed the cones, and the equipment left on site.

Findings: The defendants should have foreseen the reasonable possibility of someone being injured because of the missing tiles on the floor. The version that there was an indemnity notice is unsubstantiated and rejected. The same goes for the evidence of the cones and working equipment left at the site. It is found to be improbable and speculative. The defendants failed to place warning signs to secure the place where there were no tiles. The floor was the same colour as the black tiles and the plaintiff could not have been able to differentiate the area where there were no tiles. The defendants wrongful conduct of not putting up warning signs where there were no tiles resulted in the loss suffered by the plaintiff.

Order: The defendants are liable for 100% of the plaintiff’s proven damages jointly and severally.

Facts and issue: This application concerns an immovable property (the Kriel property). The applicant seeks an order interdicting the respondents from alienating or passing transfer of the property, including all movable property in the deceased estate. The issue in dispute appears to be whether the respondent, as an executor of the estate, is statutorily obliged and entitled to dispose of the property in order to satisfy the claims against the estate and to distribute in accordance with the will.

Discussion: The applicant argues that the application was instituted because the deceased left a will in terms of which he disposes his 50% share of the estate to his three children. The primary reason for the interdict appears to be that the applicant is an old person who stands to be homeless if her 50% of the Kriel property is sold. The applicant further contends that as a result of her being a joint owner in the property, her consent is required before the deceased estates property can be sold. The respondent contends that as the Kriel property also forms part of the estate, he is entitled to dispose of it in order to satisfy the claims of the creditors against the estate and to distribute the estate according to the will executed by the deceased. An executor is vested with the authority and powers to deal with the assets of a deceased estate in a representative capacity and this includes to the property in the manner and subject to the conditions which the heirs who have an interest therein approve and subject to the approval of the Master.  The applicant contends that as a result of her being a joint owner in the property, her consent is required to sell the deceased estates property. This assertion clearly impugns the executor’s rights and obligation conferred on him in terms of the Administration of Estates Act 66 of 1965.

Findings: The applicant as the surviving spouse does not become the owner of half of the assets of the estate but merely has a right against the executor in respect of half of the net balance. The applicant does not make any specific allegations to justify the basis for the interdict. The contention by the applicant suggests that the provisions of the Administration of Estates Act and the law thereon be ignored without any justification. There is no justification for the statutory obligations and duties bestowed on an executor to be taken away or ignored. The applicant has not succeeded in establishing that she has any prima facie right based on which the executor’s rights and duties can be excluded. Despite being the surviving spouse, the applicant has no legal standing to interfere with the respondent’s statutory obligations.

Order: The application is dismissed with costs.