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IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

CASE NO: J432/09

In the matter of:

AFRIGUARD (PTY) LTD Applicant

and

JOHANNES RATAU NTSANE Respondent

JUDGMENT

TODD AJ:

1. This is an application brought on an urgent basis to interdict the attachment and removal of assets pursuant to a writ issued by this Court under case number J1890/08.

2. The application was defective in a number of material respects which have the consequence that it must be dismissed. I mention these defects briefly:

1. The founding affidavit was not properly signed, not being initialled by the either the deponent or commissioner of oaths on any of its pages preceding the signature page.

2. The notice of motion sought to stay the execution of a writ under case number J1890/08, but the writ of execution attached to the founding papers stated a different case number, being J1888/08.

3. There is no evidence in the papers before me of any pending execution under case number J1890/08, and consequently no case is in any event made out for this Court’s urgent intervention in the matter.

4. I am conscious of the fact that the proceedings have been instituted by lay persons representing or being employed by the Applicant. Nevertheless, the matters that I have referred to above preclude this Court from intervening in the manner in which the Applicant seeks to persuade it to do so.

3. I should mention, however, that this does not preclude the Applicant from approaching this Court on another occasion to stay the execution, if any, under case number J1890/08, or to seek to rescind and set aside orders of this Court under case numbers J1890/08 or J1888/08. It may be advisable for the Applicant to seek the assistance of a legal representative if it chooses to adopt this course of action.

4. Regrettably, this litigation appears to stem from a practice on which this Court has commented in other judgments. In short, the Second Respondent employee appears to have instituted at least two separate applications in this Court. In the first, he sought an order that the employer pay certain outstanding remuneration in the amount of R3,753.93. In the second, he sought an order directing the employer to provide him, despite the fact that his employment terminated several months previously, with particulars of employment contemplated in section 29 of the BCEA. Both orders were granted by default on 5 November 2008, together with orders that the Applicant pay costs.

5. It seems to me that the provisions of section 29 of the BCEA, and the obligations this places on the employer, do not constitute a basic condition of employment as defined in the BCEA and that on that basis alone this Court may have lacked jurisdiction to grant the relief that it granted by default in this regard.

6. Of greater concern is the fact that it appears from the inadequate papers before me that the Applicant’s attorneys, having secured an order for payment of an amount of R3,753.93, and in separate proceedings an order directing the employer to provide written particulars of employment, then prepared a bill of costs in only one of those two matters in an amount (as yet untaxed) of R27,680.08. In the answering papers the Second Respondent admits that a bill has been drafted in that amount, and asserts that this is only in respect of case number J1888/08. That is the case which concerned payment of an amount of R3,753.93.

7. That costs in that amount should have been incurred in an unopposed matter of that nature appears to me to be shockingly inappropriate. I reiterate the concern that this Court has expressed in the Bartmann v De Lange judgment (unreported, case no J441/09) over the practice that appears to have developed in this Court of parties seeking the assistance of this Court, in many instances on an unopposed basis, where:

1. A range of separate applications are instituted which could have been brought in a single application.

2. Relief is sought in circumstances where this Court in fact lacks jurisdiction and where it would have been appropriate for the Applicant to have used instead the enforcement mechanisms available under the provisions of Chapter 10 of the BCEA.

3. Costs are sought in an amount that is totally disproportionate to the nature of the application and the issues in respect of which relief is sought.

8. The Bartmann judgment makes it clear what attitude this Court is likely to take towards litigation of this kind in the future.

9. In the circumstances, the application is dismissed. There is no order as to costs.

10. I direct that a copy of this judgment be sent to the Taxing Master.

Date of hearing: 12 March 2009

Date of judgment: April 2009

For the Applicant: unrepresented

For the Respondent: W Scholtz of Jansens Incorporated

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