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[2003] ZALCJHB 11
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AST Holdings v Wright (R662/03) [2003] ZALCJHB 11 (26 May 2003)
[COMMENT1]
Sneller
Verbatim/PJ
IN THE LABOUR COURT OF
SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: JR662/03
DATE:
2003-05-26
In the matter between
AST
HOLDINGS Applicant
and
WRIGHT
A
TAZMAN Respondent
J U
D G M E N T
REVELAS
J:
The applicant, AST
Holdings, brought proceedings in the Labour Court in Port Elizabeth
that a written execution issued by the CCMA
be stayed, pending the
outcome of a review of an arbitration award made by an arbitrator
appointed by the fourth respondent (the
Commission for Conciliation,
Mediation and Arbitration, or "the CCMA")
The first respondent was
dismissed by the applicant for alleged poor performance. The
first respondent then referred the dispute
to the CCMA about an
alleged unfair dismissal. The arbitrator who eventually
arbitrated the matter found that the dismissal
was both procedurally
and substantively unfair, basing his observations in this regard on
certain concessions made on behalf of
the representative for the
applicant in this matter.
A certificate was issued
in terms of which the arbitration award obtained the status of a
court order. The first respondent
then proceeded to execute in
terms of the award and the applicant now seeks to stay these
execution proceedings.
The award was issued and
received by the applicant on 5 December 2002. The applicant therefore
should have filed its review application
by 20 January 2003, but only
did so on 17 March 2003. Therefore, the application for review was
brought well out of time. A condonation
application was filed
thereafter and the explanation given for the late filing of the
application was
inter alia,
that the deponent struggled to
find a commissioner of oath to attest to the affidavit. The
attorney of record for the applicant
also blames his personal
assistant in his office for the late filing of the application.
The applicant has to date
hereof, neither indexed nor paginated the court file. The Labour
Court on a previous occasion, required
a substantive application for
the condonation for the late filing of the heads of argument which I
have condoned. I do however
take this further delay into account in
assessing the overall laxity of the applicant.
The first respondent
argued that at 20 March 2003, the date on which the arbitration award
was certified, no review application
of the award existed, due to the
fact that the application was not issued prior to service, and was
not supported by an affidavit
since the document attached to the
notice of motion was not signed and the applicant failed to file the
original document to court.
It was also argued that
the arbitration award may only be enforced as if it were an order of
the Court, provided that the arbitration
award certified by the
CCMA and is final and binding. It was then argued that I do not
have the power to review the
CCMA award since once it has been
certified, the arbitration award has the status and is for all
intents and purposes
regarded as an order of Court and therefore may
not be reviewed by a Labour Court judge on review.
It was further submitted
that an arbitration award is only capable of being reviewed by the
Labour Court once the certificate has
been rescinded or set aside
which has not been done in this case. It may be doubtful
whether the court order status of an
award elevates it to a court
order and judgment
per se
, which is only subject to appeal by
the Labour Appeal Court. That seems to be contrary to the whole
purpose of the amendment.
In
this particular matter, the applicant has brought no application to
have the certificate rescinded or set aside. Whereas,
this is a
further indication of the applicant’s lax attitude, it is
doubtful whether is failure to do so is an absolute bar
to review.
However this question is still open to debate, since the recent
amendment, in my view, does introduce new questions
about the powers
of the Labour Court to review awards.
However the answer to
this application before me lies in the many delays, and not a failure
to have the certificate set aside first.
The first respondent has
put forward facts to demonstrate that the applicant was
afforded a fair and proper opportunity to
oppose the application for
certification of the award but failed to do so and he argues further
that, at this late stage, the applicant
should not be afforded such
an opportunity under the guise of these proceedings.
With regard to the
argument that there was no proper review application before this
Court, I believe that the arguments advanced
in respect of those
propositions are somewhat over- technical and
per se,
do not
preclude me from granting the applicant the relief it seeks. However,
there are other factors present which tend to support
a view that the
applicant was never serious in complying with the award and in this
regard I refer to the allegations made by the
applicant in its
founding affidavit.
The applicant has not put
forward an adequate explanation for the delay in launching the review
proceedings. It was eight
months out of time which is a
substantial period of time. I have read the award and I do not
believe that the applicant's
prospects of success are very good.
Review proceedings do not automatically have the effect of delaying
the enforcement of
arbitration awards.
The very purpose behind
the amendment introducing the certification was to enable parties to
execute without having to approach
the Labour Court, thus giving
effect to the main object of the Act, namely the speedy resolution of
disputes.
The application in terms
of section 143(3) of the Act was served on the CCMA and at the Port
Elizabeth offices of the applicant,
as well as on the applicant's
appointed representative as early as 10 February 2003. The
application was served under cover
of a letter by the CCMA advising
the applicant that it had 14 days within which to oppose the
application and that is the application
for the certification of the
award and the issue of the writ of execution in terms of
section
143(3)
of the
Labour Relations Act, 66 of 1995
as amended ("the
Act").
On 16 March 2003 the
application for review was served on the first respondent's
attorneys, but was not served on the Director of
the CCMA charged
with certifying the award and the Director, accordingly had no
knowledge of the application. The award was
then certified by
the Director of the CCMA.
The applicant alleges
that on 27 March 2003 it served and filed opposing papers in
section
143(3)
application. These papers were only received by the first
respondent's attorneys by registered mail on 9 April 2003 subsequent
to the issue of the writ of execution. The first respondent
complained that to date the applicant has failed to proffer any
explanation
in support of the allegation that it only became aware of
the
section 143(3)
application in the third week of March 2003.
The first respondent's
attorney also deposed to an affidavit wherein she stated that the
applicant was alerted to the existence
of the writ by way of a
courtesy letter from her dated 9 April 2003, advising the applicant's
attorneys of the first respondent's
intention of executing the writ.
The first respondent
argued that the applicant was afforded due process and had the
opportunity to object to and oppose the certification
of the award in
the normal course of events, but had not done so for reasons best
known to itself. The first respondent has
also placed into
question the applicant's allegation that it was unaware of the writ.
He contends that the applicant was
aware of the existence of the
section 143(3)
application as early as February 2003 when the
application was served on it. The applicant should therefore have
been aware by
the time it sought to oppose the application by the end
of March 2003, some four and a half weeks later, the award may then
have
been certified.
The applicant has clearly
delayed in launching the review application. I have already stated
what I have observed in respect of
the applicant's prospects of
success. The applicant also made much of the allegation that
the first respondent refused to
accept an offer of payment of the
amount due in terms of the writ. However, from the papers it is
apparent that the offer
was made to the deputy sheriff and not to the
first respondent.
I have considered all
these factors and most important of all, the position of the first
respondent. He obtained an award
in his favour. On the face of
it the award seems to be unassailable. In my view, this review
application was brought with the sole
purpose of stalling
proceedings. The applicant did not impress me as a litigant who
pursued its case with any vigour. Only
at the last minute, and all
too often, too late, it acted.
It also did not paginate
and index the court file as mentioned.
In
the circumstances the application is dismissed with costs.
___________________
E.
Revelas
[COMMENT1]
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