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[2008] ZALCJHB 90
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Metallon Corporation (Pty) Ltd v Maans and Others (J2833/07) [2008] ZALCJHB 90 (24 January 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO J2833/07
In
the matter between:
METALLON
CORPORATION
(PTY)
LTD
APPLICANT
AND
SOLOMON
MAANS
1
ST
RESPONDENT
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
2
ND
RESPONDENT
RONELDA JURIES N.O
3
RD
RESPONDENT
DEPUTY SHERIFF DANIE
BUZUIDENHOUT
4
TH
RESPONDENT
REASONS
FOR THE ORDER
MOLAHLEHI
J
Introduction
[1]
The Applicant has requested reasons arising
from an order issued on the 18 December 2007, in terms of which this
Court dismissed
its urgent application. The application which was
dismissed for lack of urgency sought to interdict the Writ of
Execution issued
on 2
nd
November 2007, pending the review application that was filed by the
First Respondent (the employee) under case number JR 2309/07.
[2]
The Writ of Execution was as a result of
the Applicant having failed to effect the implementation of the
arbitration award issued
by the Third Respondent (the Commissioner)
under case number GAJB 8848/07 dated 11
th
August 2007. In terms of this arbitration award, the Commissioner
found the dismissal of the employee to be procedurally unfair
and
ordered compensation in the amount of R41 164.20. The dismissal
was however found to be substantively fair.
[3]
The employee sought to enforce the
compensation award in terms of section 143 of the Labour Relation act
66 of 1995 (the LRA) and
also filed a review challenging the
conclusion of the Commissioner that the dismissal was substantive
fair.
[4]
As concerning the enforcement of the
award the employee, faxed a notice in terms of section 143 of the LRA
to the Applicant on the
2
nd
October 2007. It is apparent that the Applicant did not oppose the
application and the award was certified as if it was an order
of this
Court.
[5]
The applicant avers in its founding
affidavit that its application was urgent because; “
...
the Applicant did not create its own urgency. The applicant only
served with the Writ of Execution on the 10
th
December 2007.”
[6]
The Applicant argued in its founding
affidavit that the review application must be heard first before it
can effect payment ordered
by the arbitrator in particular because
the employee in its review papers contended that the Commissioner
committed a gross irregularity
or misconduct in relation to her
duties as a Commissioner. In this regard the Applicant further
contended that the employee could
not enforce an arbitration award
based on gross irregularity.
[7]
The other argument advanced by the
Applicant in support of its case was that it would suffer irreparable
harm if the Writ of Execution
was not stayed because if the award was
reviewed and set aside the applicant would not be able to recover the
amount paid to the
employee because he is “
a
man of straw.”
[8]
Mr Thabethe, for the Applicant contended
that the Applicant intended bringing an application to review the
arbitration award and
challenge conclusion of the Commissioner
regarding both the substantive and procedural fairness of the
dismissal. He further indicated
that the reason why the Applicant has
not yet filed its review application was because it was still
awaiting the record that would
be produced arising from the review
application of the employee. It is only once the record of the
arbitration award is received
from the employee that the Applicant
would institute its review application.
[9]
The case of the Applicant as indicated
earlier is that its application was urgent because it only received
that Writ of Execution
on the 10
th
December 2007. It is however, not the case of the Applicant that it
did not receive the arbitration award. It is evidently clear
that the
Applicant did not do anything to challenge the award once it was
issued. The case of the Applicant is that it was
contemplating
bringing an application to review the award when it received the
employee’s review application on the 2
nd
October 2007. On the same day the employee served its
application in terms of section 143 of the LRA. The Applicant did not
oppose the application. The Applicant only reacted on receipt of the
Writ of Execution.
[10]
In my view, the Applicant has failed to
discharge its duty of proving the existence of urgency in its case.
At best if urgency existed,
it was self created by the Applicant.
[11]
In the light of the above I came to the
conclusion that the matter was not urgent and accordingly issued the
following order:
1.
The application dismissed for lack of urgency.
2.
There is no order as to costs.
_____________
Molahlehi
J
Date
of Hearing and the Order: 18 December 2007
Date
of Reasons for the Order: 24 January 2008
Appearances
For
the Applicant: Adv Thabethe
Instructed
by: Ramushu Morare Inc.
For
the Respondent: D Gobile of Obuntu Labour Organisation of South
Africa