Petersen v Meltrade 123 CC t/a Silvertree Restaurant and Another (C804/12) [2016] ZALCCT 13 [2016] 7 BLLR 667; (2016) ILJ  1932 (LC) (31 March 2016) per Steenkamp J.

In this unusual matter the Labour Court held that it had the jurisdiction and power to order the attachment of a debt against a garnishee provided a writ of execution had been granted against the judgment debtor.  The applicant had failed to do so.  The applicant was employed as a banqueting manager by Silvertree Restaurant and  obtained a default judgment for  R16, 614. 23.  But as the restaurant stopped trading the applicant wanted to recover the debt from Jenni Jones (trading as PIE Events Management) as garnishee.  The applicant had dealing with Ms Jones and PIE as a customer of the restaurant to organise events.  PIE owes Silvertree about R27 000 and was willing to pay the monies directly to the applicant.

Excerpts without footnotes

Evaluation

[5]     Neither the Labour Relations Act nor the rules of the Labour Court deal with this issue directly. It seems to me that it cannot be said that the Labour Court has “exclusive jurisdiction” to do so in terms of s 157(1) as neither the LRA nor any other law gives it exclusive jurisdiction to do so.  Depending on the amount owing, the High Court or the Magistrate’s Court also has jurisdiction.  But this debt arises from the employment relationship and, more specifically, from a court order obtained against Silvertree in this Court.  It appears that the order was granted in terms of s 77(3) of the Basic Conditions of Employment Act.  And in terms of that subsection:

“The Labour Court has concurrent jurisdiction with the civil courts to hear and determine any matter concerning a contract of employment, irrespective of whether any basic condition of employment constitutes a term of that contract.”

[6]     It seems to me that, in those circumstances, this Court does have concurrent jurisdiction to deal with the dispute. And s 158(1)(b) of the LRA gives the Court the power to order compliance with the any provision of the LRA “or any employment law”.

[7]     The Rules of the Labour Court do not deal with garnishee orders. The High Court Rules[3]  High Court rule 45(12)(a) provides that:

Whenever it is brought to the knowledge of the sheriff that there are debts which are subject to attachment, and are owing or accruing from a third person to the judgment debtor, the sheriff may, if requested thereto by the judgment creditor, attach the same, and thereupon shall serve a notice on such third person, hereinafter called the garnishee, requiring payment by him to the sheriff of so much of the debt as may be sufficient to satisfy the writ, and the sheriff may, upon any such payment, give a receipt to the garnishee which shall be a discharge, pro tanto, of the debt attached.

[8]     Labour Court rule 26 provides that:

“In terms of section 163 of the [Labour Relations] Act, service and execution of the court’s decisions, judgments or orders must take place in accordance with the procedure for service and execution of decisions, judgments or orders of the High Court of South Africa.”

[9]     And s 163 determines:

“Any decision, judgment or order of the Labour Court may be served and executed as if it were a decision, judgment or order of the High Court.”

[10]     Read together, it seems to me that this Court does have jurisdiction to order the attachment of a debt as against a garnishee. The applicant obtained a judgment in this Court against the judgment debtor and seeks to enforce that judgment debt.

[11]     But she faces a further hurdle. She has not asked the Registrar of this Court to issue a writ of execution.  The question then arises whether the debt is “subject to attachment”.

[12]     I think the meaning of the words “subject to attachment” in High Court rule 45(12)(a) necessarily means that a writ of execution should already have been issued.  The rule goes on to say that the sheriff may, “if requested thereto by the judgment creditor, attach the same, and thereupon shall serve a notice on such person, hereinafter called the garnishee, requiring payment by him [sic] to the sheriff of so much of the debt as may be sufficient to satisfy the writ.”

Conclusion

[13]     I find that this Court does have jurisdiction to order attachment of a debt against a garnishee. However, it is a prerequisite to obtain a writ of execution against the judgment debtor.  The applicant (the judgment creditor) has not done that.  In those circumstances, the order cannot be granted.