If sheriffs act unreasonably and hastily when executing a writ of execution, they may face adverse costs orders. This is the lesson to be taken from the recent Labour Court judgment in Statistics South Africa v NEHAWU obo Netshivungululu and Others.
In this decision, the Labour Court had to consider an application by Statistics South Africa ("Statistics SA") for an order:
- rescinding an earlier decision of the court making an arbitration award an order of court;
- setting aside writs of execution issued pursuant to this order;
- preventing the sheriff from attaching property; and
- requiring the sheriff to return property already attached.
The facts in the Statistics SA case
In 2010, Statistics SA advertised two vacant positions at salary level 12. Prospective employees applied for these positions. Subsequent to this, the Public Service Co-ordinating Bargaining Council ("PSCBC"), under whose jurisdiction Statistics SA falls, passed a resolution in terms of which salary levels 10 and 12 were abolished. The shortlisted applicants attended interviews, were notified of this change and were offered the positions at salary level 11. The successful applicants accepted Statistics SA's offer on this basis.
Sometime later, the PSCBC passed a further resolution, Resolution 1 of 2012 (the "resolution"), in terms of which the previously abolished salary levels were reinstated. In terms of the resolution, employees employed in salary level 11 had to undergo a job evaluation and grading process before their posts could be upgraded to salary level 12. Some employees who held a position within salary level 11 felt aggrieved by this process.
Two separate disputes were then referred to the PSCBC, in terms of section 24 of the Labour Relations Act, 1995 ("LRA"), dealing with the interpretation and application of the resolution. The first referral was made by the National Education, Health and Allied Workers' Union ("NEHAWU") and three other unions. The only respondent cited in this referral was the Department of Public Service and Administration. This referral led to an award in June 2014, in which the arbitrator prescribed the manner in which the upgrading should take place.
The second referral was made by NEHAWU on behalf of the two Statistics SA employees whose posts had not been upgraded. It was argued that their salary levels should be upgraded and Statistics SA, as their employer, was cited as the only respondent. The referral was dismissed in an award issued in February 2016 on the basis that the resolution was not applicable to the two employees.
The arbitration award granted in the first referral was made an order of court in August 2016. Despite not being cited as a respondent in these arbitration proceedings, Statistics SA was cited as a respondent in this application. Affidavits were then deposed to in which the two employees quantified the amounts they alleged they were entitled to in terms of the arbitration award. They acquired two writs of execution from the Labour Court, notwithstanding the fact that the award and subsequent court order did not create a monetary obligation for any party – all it did was to prescribe a process to be followed. This was also despite the fact that the two employees had been unsuccessful in the second arbitration. On the strength of the writs, the sheriff proceeded to attach Statistics SA's property, despite Statistics SA not having been cited as a party to the first referral. The process that led to the issuing of the writ was also flawed in other respects.
Statistics SA applied to the Labour Court to have the court order rescinded and the writs of execution set aside. These orders were granted. The sheriff was also ordered to release any property that had been attached pursuant to the writs and not to attach further property pursuant to these writs.
In an attempt to prevent the sheriff executing the writs, Statistics SA had informed the sheriff of the irregularities and that it had approached the Labour Court on an urgent basis to have the writs set aside. Despite this, the sheriff insisted on enforcing the writs. Statistics SA argued that this warranted a costs award being granted against the sheriff. The court agreed and issued such an order.
The court motivated this decision as follows:
"This court may make an award of costs in accordance with the requirements of law and fairness. It is my view that given the contentions of [Statistics SA] ..., the [sheriff] acted precipitously and unreasonably in persisting with the execution of the writ and subsequent attachments. Common sense given the circumstances of the case would have dictated that the [sheriff] should have afforded [Statistics SA] an opportunity to contest the writs, especially where he had been informed that an urgent application had already been filed and a hearing date allocated."
However, the court was not prepared to grant a costs order against the two employees, despite the fact that they were, at least to some extent, complicit in the process. It should be noted, however, that Statistics SA had suspended the two employees while it investigated disciplinary charges against them in connection with their conduct in this matter. The employees brought an application to have their suspensions set aside and this application was also considered by the Labour Court, which was not prepared to come to their assistance.
Given the relative ease with which writs of execution can be obtained, this decision is useful for employers when dealing with sheriffs who seek to enforce orders of court in an unreasonable manner.
It should be noted that the court ordered the Registrar of the Labour Court to investigate the circumstances in which the two writs were issued and to report back to the Judge President of the Labour Court on this within 30 days from the date of the court order.
* ENSafrica acted for Statistics SA in this matter.
Aslam Patel is a candidate attorney in ENSafrica's employment department.
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