Kamal Cape Town Iron and Steel Company (Pty) Ltd v Caydavul & others [2026] ZALCJHB 361

Date of Judgment & Seat of Court: 16 September 2026, Labour Court, Johannesburg

Case No: 2026/208356

Name of Judge(s): Bekker AJ

Summary of Factual Matrix:

On 9 June 2025 Daniels J ordered the applicant to pay two former employees, Mr Caydavul and Mr Gurcu, R1,676,426.76 and R4,020,376.32 respectively in unpaid remuneration for the period 26 May 2020 to 12 December 2023, during which they had been on an unextended lay-off. Leave to appeal was refused by Daniels J, the Labour Appeal Court and the Constitutional Court, and an application by a related company, Kamal Steel Tanzania, to set aside the writ was dismissed on 1 August 2026.

After a sale in execution was scheduled, the applicant obtained the employees' bank statements, which reflected monthly income from a third party during the lay-off. On 25 August 2026 it applied to rescind the judgment at common law on the ground of fraud and, on an urgent basis, sought to interdict the sheriff from selling its attached property pending that application. The employees opposed, disputing urgency and alleging abuse of process, and sought condonation for their late answering affidavit.

Summary of Findings:

[34] ‘Whether the rescission application is late or not, is neither here nor there. That may be ultimately for the Court hearing the rescission to determine. A rescission application must be brought within a reasonable period. What is of importance is whether the Applicant has made out a case for the stay of the enforcement of the order by Daniels J.’

[40] ‘In Gois t/a Shakespeare’s Pub v. Van Zyl & Others[4] the Court dealt with an application to stay the execution of a court order. It was confirmed that the ‘the Court is not concerned with the merits of the underlying dispute – the sole inquiry is simply whether the causa is in dispute’.’

[41] ‘In Stoffberg N.O. v. Capital Harvest (Pty) Ltd[5] reference was made to Shakespeare’s Pub, supra. It was held that it is for the Court to decide on the facts of each given case whether considerations of real and substantial justice are sufficiently engaged to warrant suspending the execution of a judgment, and, if they are, on what terms any suspension it might be persuaded to allow should be granted.’

[43] ‘In essence then, the Court will grant a stay of execution when the underlying causa is being disputed or no longer exists.’

[44] ‘In Dalrymple v. Riach & Others[8] it was confirmed that: ‘The correct threshold is a possibility that the underlying causa may ultimately be removed, in which event irreparable harm will invariably result if the stay of execution is not granted. The sole inquiry being simply whether or not the causa is in dispute. In this regard, and to the extent that the bulk of the first respondent’s oral and written argument was dedicated to the merits of the rescission application, this approach is incorrect. It is legally unsustainable and therefore unhelpful to the first respondent’s defense’.’

[45] ‘In casu it is so that the underlying causa of Daniels J’s order is disputed and should that rescission be successful (as brought on the common law ground of fraud), it would materially alter such causa.’

[51] ‘Although there is nothing that serves before this Court that indicates that the employees were not at liberty to earn an income or at least attempt to earn an income whilst being on unpaid unilateral lay-off as instituted by the Applicant, this is not for this Court to decide in the current application.’

[54] ‘One of the four questions to be answered in order to succeed in a claim that a judgment be set aside on the ground of fraud, is that the Applicant needs to allege and prove that ‘that it diverged to such an extent from the true facts that the Court would, if the true facts had been placed before it, had given a judgment other than that which it was induced by the incorrect evidence to give’.[12]’

[55] ‘It was further confirmed that the parties seeking a rescission must be able to show that because of the fraud, the Court was misled to pronounce a judgment which, but for the fraud, it would not have issued. There has to be a nexus between the fraud and the judgment to be set aside.[13]’

[56] ‘Importantly, it was further confirmed that fraud can consist not only in the willful making of incorrect statements, but also in the withholding of material information with a fraudulent intent. The mere circumstances that certain material facts were not disclosed, does not in itself establish that there has been willful concealment. A fraudulent intent must be affirmatively proved.[14]’

[57] ‘Although one may at first glance express doubt as to whether the Applicant may ultimately be successful in its quest for rescission, the fact of the matter remains that the Court hearing the rescission may well rule in favour of the Applicant, thereby removing the causa on which the sale of execution is based. The Applicant has established a prima facie right. Although unfortunate for the employees, this is the law as it stands.’

[59] ‘The Applicant may also have been well-served to approach Daniels J to vary his order taking into account the amounts allegedly so received by the employees from a third party. That wasn’t done, but the fact remains that if the sale in execution isn’t sought to be halted by this application, the harm to be suffered by the Applicant is evident. Its goods will be sold in execution whilst there is a pending rescission application. Its business operations will come to a halt. The alternatives that may be available to the Applicant would be insufficient to avert or cure the imminent threat.’

[60] ‘They will suffer prejudice should the stay be granted, but in the Court’s assessment the prejudice to be suffered by the Applicant should the stay not be granted outweighs the prejudice to be suffered by the employees. The balance of convenience favours the Applicant.’

[62] ‘Although reservations may have been expressed by the employees as to whether this matter is genuinely urgent, the Court is entertaining the matter on urgent basis, especially seen in the light of the fact that the writ of execution stands to be executed by the Sheriff. It thus exercises its discretion to dispose of the matter on an urgent basis.’

[70] ‘I am satisfied that as proper explanation has been made out for the delay. The delay is not excessive and the interest of justice militates against refusing condonation. Condonation is thus granted for the late filing of the answering affidavit.’

[73] ‘Since this Court has a wide discretion on the issue of costs, it exercises its discretion having regard to the principles of law and fairness by making no costs order.’

[75] ‘A rescission application is pending in this Court on the common law ground of fraud. It is for the Court hearing the rescission to deal with the merits of that matter, which may ultimately remove the underlying causa.’

[77] ‘That being said, the Applicant has the right to institute a rescission application, as it did. It has established sufficient grounds for the order sought.’

Relief: The matter was heard as one of urgency and the late answering affidavit was condoned. The sheriff was interdicted from proceeding with the sale in execution, and the writ was stayed pending determination of the rescission application. The parties were directed to approach the Judge President jointly to request that the rescission application be expedited. No order as to costs was made.

Judgment on SAFLII