Summary of Judgment

1. Introduction

The matter concerned an application brought in the Labour Court in terms of section 158(1)(c) of the Labour Relations Act 66 of 1995 to have an arbitration award issued under the auspices of the South African Local Government Bargaining Council (SALGBC) made an order of court.

The applicants were SAMWU (the trade union) and J. Madonsela (the employee). The respondent was the Umlalazi Municipality (the employer). The application was set down on the basis that it was unopposed, although on the day of the hearing counsel appeared for the respondent and sought to advance submissions without having filed opposing papers.

The procedural history arose from the employee’s dismissal in August 2007, the referral of an unfair dismissal dispute to the SALGBC, and the subsequent issuing of an arbitration award on 6 October 2008 ordering retrospective reinstatement and payment of arrear wages. After receiving the award, the respondent instituted review proceedings in the Labour Court and obtained, on an urgent basis, a rule nisi staying enforcement of the award pending finalisation of the review. The stay was extended on several occasions but was ultimately discharged when the parties failed to appear on the final return date.

The general subject-matter of the dispute before the Labour Court was whether, in circumstances where the review had not progressed and the award had been stayed for a period, the award should be made an order of court so that it could be enforced.

2. Material Facts

It was common cause on the papers that the respondent charged the second applicant with misconduct framed as a failure to conduct himself with honesty and integrity, that a disciplinary hearing followed, and that the employee was dismissed in August 2007.

It was also undisputed that the applicants referred an unfair dismissal dispute to the SALGBC, and that the appointed arbitrator (panelist) found the dismissal to be unfair. The arbitrator ordered the respondent to reinstate the employee retrospectively and to pay arrear wages of R94 877,20 in terms of an award dated 6 October 2008.

Following receipt of the award, the respondent instituted a review application in the Labour Court (under case number D771/2008), which the applicants opposed. On 31 October 2008, the respondent obtained an urgent rule nisi staying enforcement of the award pending the review’s determination. The return date was set for 5 December 2008 and was later extended to 23 March 2009, and thereafter again to 15 June 2009.

On 15 June 2009, none of the parties appeared in court and the rule nisi was discharged. From the applicants’ version (the only version properly before the court), the applicants had agreed to prior extensions to allow time for the respondent to compile the review record, and they had repeatedly requested the record from the respondent’s attorneys without success. The court recorded that, as at the hearing of this application, there was no explanation on affidavit from the respondent as to why the review had not progressed beyond the filing of a founding affidavit.

The court drew a clear distinction between what was properly before it on affidavit and what was not. The respondent’s representative sought to raise issues from the bar on the day of hearing, but the court did not accept these as evidence, given the absence of filed opposing papers and sworn explanations.

3. Legal Issues

The central question was whether the applicants had established a basis for relief under section 158(1)(c) of the Labour Relations Act 66 of 1995, namely that the SALGBC arbitration award should be made an order of court, notwithstanding the existence of pending review proceedings that had not been pursued to finality.

A related procedural issue was whether the application was defective because the founding affidavit had been deposed to by the trade union’s provincial secretary rather than by the second applicant, which the respondent’s representative characterised as an inadmissible hearsay presentation of facts.

The dispute primarily concerned the application of legal principles to established procedural facts, together with an evaluative assessment of unexplained delay and the fairness implications of keeping an employee’s award “on hold” while review proceedings remained stalled.

4. Court’s Reasoning

The court approached the matter on the basis that the only admissible factual version before it was that contained in the applicants’ papers. While the respondent’s representative appeared at the hearing and raised various issues, the court treated these as amounting to attempts to give evidence from the bar. In the court’s view, in the absence of a properly filed opposition, those assertions could not be used to contradict the applicants’ factual account or to provide a justification for the delay in prosecuting the review.

On the objection that the founding affidavit had not been deposed to by the employee, the court rejected the contention that this rendered the application defective. The court accepted that it is within the ordinary function of a trade union to litigate on behalf of its members and held that the facts in issue were objective in nature. These included the dismissal, the issuing of the award, the existence of the review, the prior stay arrangements, and the absence of the review record. The court therefore regarded the union official’s affidavit as an acceptable vehicle for placing those material facts before the court.

A substantial part of the court’s reasoning addressed the impact of delay in review proceedings where an award is effectively suspended. The court stated that where an employee’s entitlement to relief under an arbitration award is held in abeyance pending a review, the steps required to finalise the review must be taken without undue delay, and if delay occurs, a proper explanation is required. In the matter before it, there was no explanation on affidavit as to why the review had progressed no further than a founding affidavit even though more than a year had passed since the review was launched (on the papers, it was at least between receipt of the award and the urgent stay, or thereafter).

The court also considered it significant that on the final return date, 15 June 2009, the respondent did not appear to seek a further extension of the stay. This absence suggested, in the court’s assessment, a lack of diligence in pursuing the review process and meant that from that date the respondent no longer enjoyed the protection of the earlier stay. The court concluded that it would be unfair to require the employee to bear the consequences of an unexplained and extended delay.

The court further expressed concern that permitting such unexplained stasis could operate unfairly against employees and could facilitate the abuse of review proceedings by employers unwilling to accept arbitration outcomes. Although the court acknowledged that the respondent might ultimately succeed in the review and face practical difficulties if payments had already been made, it treated this as a consequence that the respondent ought to have considered given its failure to advance the review or provide an explanation for the lack of progress.

On costs, the court reasoned that although the application had been enrolled as unopposed, the respondent attended and sought to resist the relief at the hearing. The court also considered that if the respondent had diligently pursued the review, the enforcement application would likely not have been necessary. These considerations supported an order of costs against the respondent.

5. Outcome and Relief

The Labour Court made the SALGBC arbitration award (case number KPD 100703, dated 6 October 2008) an order of court under section 158(1)(c).

The court ordered the respondent to pay the applicants’ costs in the application.

Cases Cited

No cases were cited in the judgment.

Legislation Cited

Labour Relations Act 66 of 1995, section 158(1)(c).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, in the absence of any properly presented opposition or sworn explanation from the respondent, and in circumstances of an unacceptable and unexplained delay in progressing the review (with the stay having been discharged after non-appearance), it was unfair to keep the employee’s arbitration relief in abeyance. The court accordingly made the arbitration award an order of court and awarded costs against the respondent.

LEGAL PRINCIPLES

An application under section 158(1)(c) of the Labour Relations Act 66 of 1995 permits the Labour Court to make an arbitration award an order of court, enabling enforcement in accordance with the court’s processes.

Where enforcement of an award is stayed pending review, the review process must be pursued without undue delay, and any material delay should be supported by a proper explanation placed before the court on affidavit. In the absence of such an explanation, prolonged stasis may justify making the award an order of court to prevent unfair prejudice to the employee.

A trade union may, consistent with its representative role, depose to affidavits and litigate on behalf of its members where the material facts relied upon are objective and do not require personal evidence uniquely within the knowledge of the member.