IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J1299/2023
In the matter between:
THE MINISTER OF HIGHER EDUCATION AND
TRAINING First Applicant
EKURHULENI EAST TVET COLLEGE Second Applicant
and
VOICE OF WORKERS OF SOUTH AFRICA CIVIL RIGHTS
UNION o.b.o ERIC MNYAMEZELI SHABALALA First Respondent
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING COUNCIL Second Respondent
ADV. ITUMELENG KGATLA N.O. Third Respondent
PRETORIA CENTRAL SHERIFF Fourth Respondent
Heard: 04 October 2023
Delivered:22 January 2024 (This judgment was handed down electronically by circulation t
2024.)
REASONS FOR ORDER
PHEHANE, J
Introduction
2
[1] On 4 October 2023, I issued an order dismissing with costs, the applicants’
urgent application to stay the execution of an arbitration award. The applicants seek
the reasons for my order. Brief reasons follow.
Background
[2] An arbitration award under the auspices of the second respondent ordered
that the first respondent (Mr. Shabalala) be reinstated following a finding of an unfair
dismissal. The second applicant advised Mr. Shabalala that it intended to launch an
application to review and set aside the arbitration award. Mr. Shabalala applied for a
certification of the award in terms of section 143 of the Labour Relations Act
1 (LRA).
[3] The arbitration award was certified on 30 August 2021. A review application
was launched under case number JR1925/21 on 9 September 2021.
2 A writ of
execution was issued on 5 November 2021.
[4] A similar urgent application was launched in this Court under case number
J115/21 by the first applicant against the same respondents as in the present case,
to stay the enforcement of the arbitration award. The application served before
Lagrange J, in which he ordered on 23 September 2021 as follows:
‘1. The applicant [is] exempted from non- compliance with the forms and service
provided for in the Labour Court …this matter is disposed of as urgent in terms of
Rule 8 of the Labour Court Rules.
2. The enforcement of the award issued by the third respondent under case
number GPBC1024/2016 dated 26 April 2021 and certified by the second
respondent as binding is stayed pending the outcome of the review application under
case number JR1925/21.
3. The applicant must furnish security as required by s 145(7) and (8) of the
Labour Relations Act, 66 of 1995 by 30 October 2021.
4. The applicant must file a condonation application for the late filing of the
review application by 7 October 2021.
1 Act 66 of 1995, as amended.
2 Founding affidavit, at para 13, on p 13.
3
5. The order made in terms of paragraph 2 above shall automatically lapse if the
applicant fails to comply with the provisions of this order, or fails to prosecute the
review application from the date of this judgment onwards in accordance with the
Labour Court Rules and the Labour Court Practice Manual insofar as the stipulated
time periods for the performance of steps in the prosecution of the review
application.
6. …’
(Emphasis added).
[5] On 5 November 2021, the second respondent issued a writ of execution. At
this stage, the applicant had clearly not heeded the warning in the order by Lagrange
J that failure to prosecute the review application in accordance with the provisions of
the Rules and Practice M anual, would result in the stay of execution lapsing
automatically.
[6] The applicant filed a bond of security on 2 December 2022. This non-
compliance with the order of Lagrange J in respect of furnishing security is
unexplained.
[7] It was only on 12 September 2023 when the fourth respondent arrived at the
applicants’ premises to attach its assets, that the applicants woke up from their deep
slumber and approached this Court on an urgent basis for similar, if not identical
relief (insofar as the alternative prayer in the notice of motion is concerned).
[8] This matter was initially heard on 21 September 2023 by Rabkin -Naicker J,
who postponed the matter to 4 October 2023 and ordered Mr. Shabalala to file an
answering affidavit by 26 September 2023 and stayed the enforcement of the writ
pending the finalization of this application. The applicants take issue with Mr.
Shabalala not complying with the court order by Rabkin- Naicker J and only filing his
answering affidavit on 3 October 2023, after which the applicants filed their replying
affidavit on the same date.
4
[9] Mr. Shabalala sought condonati on for the late filing of his answering affidavit .
He avers that due to financial constraints, he was unable to file the affidavit timely.
The applicants aver that Mr. Shabalala was already granted an indulgence by the
Court on 21 September 2023 for the same reason and the matter should proceed on
an unopposed basis. In the interests of justice and in order that the matter be fully
ventilated, I granted Mr. Shabalala condonation for the late filing of his answering
affidavit.
[10] When met with the challenge that they had not complied with the order by
Lagrange J, the applicants simply state that they have complied with the order, 3 in
that security was furnished. They offer no explanation why they did not furnish
security by 30 October 2021 and only filed a bond of security more than a year later.
The applicants further state that condonation for the late filing of the review
application was delivered- they offer no elaboration whether this condonation
application was delivered as per the C ourt order by Lagr ange J. The applicants also
aver that an application to reinstate the review application was launched. Despite
stating in their founding affidavit that the reinstatement application is attached (and is
ready to be heard), it is in fact, not attached – only the index is attached and I add,
the case number, being JR2084/21, is a different case number than the review
application. It gets worse for the applicant - the index records that the reinstatement
application and its supporting affidavit are dated 9 September 2021 and 6
September 2021 respectively. It simply makes no sense that the review application
and reinstatement application can be launched on the s ame date.
4 Mr. Shabalala
states that the case number JR2084/2021 does not exists. 5 The applicants do not
respond to this allegation in their replying affidavit.
[11] It would appear that the applicants filed an application under the same case
number as the review application in September 2022, in terms of section 11.2.3 of
the Practice Manual for an extension to file the record. The applicant does not state
what the progress of this application is. 6 In any event such application was not made
within the time frame as prescribed in item 11.2.3 of the Practice Manual. On the
3 Replying affidavit at para 14, on p 108.
4 See paragraph [3] of this judgment.
5 Answering affidavit at para 11.8 on p 85.
6 Founding affidavit at para 21 on p 15.
5
applicants’ own admission, to date, the reconstruction of the record is near
impossible and they are still considering to bring an application to compel the second
and third respondents to complete the reconstruction of the record. 7 No such
application has been delivered to date. Pertinent to the order by Lagrange J, no
steps were taken by the applicants in terms of the provisions of item 11.2.4 of the
Practice Manual when reconstruction was a challenge.
[12] I n the absence of an order reinstating the review application t here i s
effectively no “live” review pending before this Court. Section 145(3) of the LRA
provides that this Court may stay the enforcement of an arbitration award pending its
decision. In the premises, the application to stay the execution of the arbitration
award cannot succeed as there is no review application pending before this Court.
The belated filing of security does not help the applicants either, as at the time of its
filing, there was no live review application before this Court. Security cannot be
furnished where the review application is deemed withdrawn.
[13] The stay imposed by this Court per Lagrange J lapsed automatically. In the
circumstances, the attachment by the fourth respondent is by no means unlawful or
null and void.
[14] It is for the aforesaid reasons that the application was dismissed.
Costs
[15] The applicants are legally represented. They approached this Court two year s
ago and obtained an order staying the enforcement of the arbitration award. They
failed to comply with the provisions of the rules and Practice Manual of this Court,
fully aware of the consequences as this was spelt out in the order by Lagrange J.
They failed to comply with the Court order. They approach this Court yet again,
seeking effectively the same relief in circumstances where they failed to prosecute
the review application.
7 Founding affidavit at para 38 on p 19.
6
[16] Mr. Shabalala makes serious allegations against the applicants in respect of
case numbers that do not exist, as a ploy to bamboozle him. This is not dealt with by
the applicants.
[17] The case numbers referenced by the applicants leave a lot to be desired. It is
expected of legal practitioners who draft and settle pleadings to acquaint themselves
with the content. The allegations by Mr. Shabalala are not off the mark.
[18] It is due to the conduct of the applicants in proceeding with this application
that this Court made an order for the payment of costs.
M. T. M. Phehane
Judge of the Labour Court of South Africa