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[2015] ZALCJHB 44
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Royal Bafokeng Platinum Mine Limited v Van Wyk (J 254/15) [2015] ZALCJHB 44 (20 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE
NO: J 254/15
DATE:
20 FEBRUARY 2015
Not
Reportable
In
The Matter Between:
ROYAL
BAFOKENG PLATINUM MINE
LIMITED
..........................................................
Applicant
And
PAUL
VAN
WYK
..........................................................................................................
First
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
......................................................................
Second
Respondent
Heard:
17 February 2015
Delivered:
20 February 2015
JUDGMENT
LALLIE
J
[1]
The applicant approached this court on an urgent basis for an order
to stay the arbitration under case number NWRB 1299 –
14, set
down by the second respondent for hearing on 9, 10, and 11 March
2015, pending finalisation of the application under part
B of this
application. In part B the applicant mainly seeks an order declaring
the arbitration award involving both parties under
case number NWRB
1299 – 14 is to commence
de novo
as agreed between the
parties. The application is opposed by the first respondent.
[2]
The facts of this matter are briefly that pursuant to his dismissal
by the applicant, the first respondent referred an unfair
dismissal
dispute to the Commission for Conciliation Mediation and Arbitration
(the CCMA), Second Respondent. It was arbitrated
by Commissioner
Tsatsimpe (the Commissioner). After a number of witnesses had
testified, the applicant requested the Commissioner
to recuse herself
owing to her omission to make a disclosure. She refused. On 17
November 2014 she issued a ruling rescinding her
ex tempore
recusal ruling in which she refused to recuse herself. She directed
that the arbitration be rescheduled and to be dealt with by
another
commissioner. The applicant and the first respondent agreed
that the arbitration be referred for a hearing
de novo
before
a different commissioner. It is the stay of the hearing of that
de
novo
arbitration that forms the subject matter of this
application. The applicant and the first respondent hold different
views of the
status of the initial arbitration. The former perceives
it to be a nullity and holds the view that the record cannot be
utilised
in the pending arbitration while the latter intends relying
on the record of the proceedings. In part B the applicant seeks,
inter alia
an order declaring the initial arbitration
proceedings a nullity and setting them aside. The applicant seeks, on
an urgent basis,
an order staying the pending arbitration. The
respondent opposes this application mainly on the grounds that it
premature and not
urgent as the purported urgency is self-created.
The applicant has not met the requirements for urgent relief as its
factual basis
for the relief it is seeking is fatally flawed.
[3]
I find the following dictum in
Gois
t/a Shakespeare’s Pub v Van Zyl and other
[1]
with the necessary changes apposite:
“
The
general principles for the granting of a stay in execution may
therefore be summarised as follows:
(a)
A court will grant a stay of execution
where real and substantial justice requires it or where injustice
would otherwise result.
(b)
The court will be guided by considering the
factors usually applicable to interim interdicts, except where the
applicant is not
asserting a right, but attempting to avert
injustice.
(c)
The court must be satisfied that:
(i)
The applicant has a well grounded apprehension that the execution is
taking place at the instance of the respondent (s); and
(ii)
irreparable harm will result in execution is not stayed into the
applicant ultimately succeeds in establishing a clear right.
(d)
Irreparable harm will invariably result if the is a possibility that
the underlying
causa
is the subject matter of an ongoing
dispute between the parties.
(e)
The court is not concerned with the merits of the underlying dispute-
the soul enquiry is simply whether the
causa
is in dispute”.
[4]
The general rule which is subject to the court’s discretion is
that the court has to look at all the circumstances and
the merits of
each case. It would appear that the first respondent recognises the
need to have the pending arbitration stayed.
He however, argued that
the applicant could have applied for a postponement at the CCMA. His
argument loses sight of the reality
that the applicant is not just
seeking a postponement, he is seeking an order to stay the
arbitration proceedings
pendete lite
,
an order which falls outside the jurisdiction of the CCMA. The first
respondent’s argument that the applicant has an alternative
remedy has no merit. The existence of an underlying
causa
which is the subject matter of an ongoing dispute between the
applicant and the first respondent is common cause. The merits of
such
causa
are not before me but constitute the subject matter of part B.
Contrary to the first respondent’s argument, this application
has not been brought prematurely. The applicant acted prudently in
not waiting for the arbitration date but approach this court
on the
basis of urgency. The applicant’s attempts to have the
dispute resolved between the parties before approaching
this court
did not render this matter less urgent. They also do not render the
urgency self-created. The circumstances of this
matter require that I
exercise the discretion in favour of the applicant. The applicant is
not seeking a costs order against the
first respondent.
[5]
In the premises the following order is made:
5.1
The arbitration proceedings set down for 9,10 and 11 March 2015 by
the second respondent under case number NWRB 1299-14 are
stayed
pending finalisation of the application and part B.
5.2
There is no order as to costs.
Lallie
J
Judge
of the Labour Court of South Africa
APPEARANCES
For
the Applicant: Advocate Seleka
Instructed
by: Webber Wentzel Attorneys
For
the first respondent: Advocate Loyson
Instructed
by: LB Attorneys Incorporated
[1]
2011
(1) SA 148
CLC at 155 H to156 B