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[2014] ZALCJHB 164
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Khosa & Associates v Makunga and Others (J372/2014) [2014] ZALCJHB 164 (9 May 2014)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
NOT REPORTABLE
CASE NO: J 372/2014
In
the matter
between:
MISABENI
KHOSA &
ASSOCIATES Applicant
and
SIYABULELA
MAKUNGA First
Respondent
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
Second
Respondent
COMMISSIONER
NELSON
LEDWABA Third
Respondent
SHERIFF
HALFWAYHOUSE-ALEXANDRA Fourth
Respondent
Heard:
25 February 2014
Order:
25 February 2014
Date
edited: 09 May 2014
Summary:
Arbitration award unsuccessfully reviewed by this Court on previous
occasion. The Labour Court does not have jurisdiction
to stay the
award pending a referral of a rescission application of the same
award to the Commission for Conciliation, Mediation
and arbitration.
Urgent application dismissed with costs on an attorney client scale.
JUDGMENT
AC BASSON, J
[1]
This was an urgent application by the
applicant (Misabeni Khosa & Associates) for an order staying the
enforcement of an arbitration
award by the third respondent dated 16
September 2011 pending a rescission application to be filed with the
second respondent (“the
CCMA”).
[2]
The application was opposed. The respondent
also raised two points
in limine
.
I have decided that the first
point in
limine
to be dispositive of the matter.
Before I turn briefly to the first point
in
limine
raised by the first respondent
(Mr Makunga) it is necessary to briefly refer to the history of this
matter.
[3]
The respondent (Mr Kakhunga) resigned from
his employment with the applicant on 1 July 2011. He referred a
dispute relating to his
unfair dismissal to the CCMA. The CCMA
conciliation proceedings were not attended by the applicant. Although
the applicant’s
representative did attend the arbitration set
down for 5 September 2011, he walked out of the proceedings after the
applicant’s
application for a postponement was unsuccessful.
The arbitration thereafter proceeded in the absence of the applicant
and an arbitration
award was issued in favour of the respondent on 16
September 2011.
[4]
The applicant subsequently filed a review
application to the Labour Court seeking, amongst others, an order
reviewing and setting
aside the arbitration award rendered by the
Commissioner. The review was heard by my learned brother Van Niekerk,
J on 28 November
2013 and a judgment was handed down in favour of the
respondent. The applicant was represented by Mr Goldberg when the
judgment
was delivered on this day. In terms of the order of this
Court the review was dismissed with costs and the applicant was
ordered
to pay the respondent a sum of R 442 000.00 together
with costs of the proceedings.
[5]
A warrant of execution was obtained on 23
January 2014 in respect of the capital amount. The applicant’s
bank account was
attached as well as certain property.
[6]
The applicant then served a rescission
application on the respondent on 14 February 2013 in which it sought
to rescind and set aside
the same arbitration award which the
applicant unsuccessfully attempted to review and set aside in the
Labour Court. The rescission
application was also accompanied by a
condonation application as the application is some two and a half
years late.
[7]
Apart from the fact that the rescission
application has no merits in light of the fact that it is clear that
the applicant is in
wilful default as the applicant has conceded in
its papers that it had knowledge of the award since September 2011,
this Court
has already adjudicated on this award: The review was
dismissed and the award was corrected.
[8]
In light of the aforegoing, the first point
in limine
is upheld and the application is dismissed. I have decided to award
costs on a punitive scale in light of the fact that this application
is ill-founded and constitutes an abuse of court processes.
Order:
[9]
I therefore make the following order:
9.1
The application is dismissed with costs on
an attorney client scale.
_______________________
AC BASSON, J
Judge
of the Labour Court
Appearances
For
the applicant
: Mr Matime
of Nkomo Attorneys
For
the first respondent : Mr
Mathaphuna of DMS Attorneys