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[2015] ZALCJHB 461
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MBS Transport CC v South African Municipal Workers Union (SATAWU) and Others (J1807/2015) [2015] ZALCJHB 461 (6 November 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case No: J 1807/2015
In
the matter between:
MBS
TRANSPORT
CC
APPLICANT
And
SOUTH
AFRICAN MUNICIPAL WORKERS
UNION
(SAMWU)
FIRST RESPONDENT
MS
C SEBUDI
SECOND RESPONDENT
HELEN
HLATSHWAKO
N.O
THIRD RESPONDENT
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL (SALGBC)
FOURTH RESPONDENT
Date
heard: 10 July 2015
Date
delivered: 06 November 2015
Summary
:
Permission
to file the explanatory and confirmatory affidavits. Review- the
Commissioner did not take into consideration of fairness
and did not
act reasonably in her heavy-handed approach
.
JUDGMENT
Phatshoane
AJ
[1] In the recent past
there has been a growing number of applications to this Court to stay
writs termed “enforcement of
award” issued by the
Commission for Conciliation Mediation and Arbitration (the CCMA).
These two unopposed applications:
MBS Transport CC vs CCMA and
Three Others
(the MBS Application) and
Bheka Management
Services vs Kekana
and Two Others
(the Bheka application)
are in point. They came before me in the Urgent Court of 08 and 10
September 2015. They concern the stay
of the writs in execution of
the arbitration awards made by the CCMA, pending the review of those
awards by this Court in terms
of s 145 of the Labour Relations Act,
66 of 1995, (the LRA).
[2] In the MBS
application a
rule nisi
is sought calling upon the CCMA and
its assigned commissioner, the employee in whose favour the award had
been issued, and the
Sheriff to show cause on the return date why the
“enforcement award” dated 22 April 2015 should not be
stayed pending
the review and setting aside of the award. In the
Bheka application a final order to stay the enforcement of the award
is sought.
In addition, the applicant brought an application that it
be absolved from furnishing security in terms of ss 145(7) and 145(8)
of the LRA.
[3] The brief factual
milieu in respect of the MBS application is as follows. On 23 April
2015 the CCMA issued an award in favour
of Mr Dustin Julius, the
third respondent, for the payment of compensation in the amount of
R59 200.00 (fifty nine thousand
two hundred rand) for his
unfair dismissal by MBS Transport CC, the applicant. On 03 July
2015 MBS filed an application
to review the award in issue under Case
No JR 1208-15. Messrs M.B Tshabangu, for Mr Julius, instructed the
sheriff on 07 August
2015 to attach and take in execution the movable
goods of MBS. On the strength of the enforcement award issued by the
CCMA under
case No GATW79/15, the Sheriff attached the goods on 31
August 2015. MBS sought an undertaking from Messrs Tshabangu to hold
over
the execution process pending the final determination of the
review proceedings. The request for an undertaking came to naught.
[4] MBS explained that
the position is untenable because, at any given moment, Mr Julius
could cause the sheriff to remove its good
merely on his say-so. In
respect of the status of the review application MBS stated that on 27
July 2015 the CCMA informed it that
the record of proceedings had
been dispatched to the Registrar of this Court. The record is
still being transcribed at this
stage with a view to prosecuting the
review application.
[5] The summary of the
factual background in the Bheka application is as follows. Following
a claim for the alleged unfair dismissal
by Mr Jonathan Kekana, the
first respondent, against Bheka Management Services, the applicant,
the CCMA issued an award on 19 June
2015 in terms of which Mr Kekana
was retrospectively reinstated and awarded an arrear amount of
R11 600.00 as compensation.
On 03 August 2015 the CCMA issued an
“enforcement award” under case No: GAEK1491-15 in terms
of which the sheriff was
instructed to attach and take into execution
the movable property of Bheka and realise, by public auction, the sum
of R11 600.00
together with interest thereon. The sheriff
executed the writ on 20 August 2015. Bheka filed an application to
review the arbitration
award on 25 August 2015, thus within the
statutory time-limit.
[6]
These twin applications raise an important question whether this
Court has jurisdiction to stay the writs issued by the CCMA.
If it
does, then
cadit
quaestio.
If
not, then what are litigants, faced with the “enforcement
award” or writs issued by the CCMA, pending the determination
of review application, to do in order to vindicate their rights. This
question was not anticipated by counsel. They were hamstrung
in that
they had not researched the issue to support their submissions with
authority, understandably because the issue may be
considered a
res
nova
.
[7] In light of the
appreciable urgency manifest in the suspension of the writs, I made
an order in terms of which the writs of
execution were stayed pending
this judgment. Section 143 of the LRA sets out the statutory
framework in respect of the effect and
the enforcement of arbitration
awards. It provides:
“
143
Effect of arbitration awards
(1)
An arbitration award issued by a commissioner is final and binding
and it may be enforced as if it were an order of the Labour
Court in
respect of which a writ has been issued, unless it is an advisory
arbitration award.
(2)
If an arbitration award orders a party to pay a sum of money, the
amount earns interest from the date of the award at the same
rate as
the rate prescribed from time to time in respect of a judgment debt
in terms of section 2 of the Prescribed Rate of Interest
Act, 1975
(Act 55 of 1975), unless the award provides otherwise.
(3)
An arbitration award may only be enforced in terms of subsection (1)
if the director has certified that the arbitration award
is an award
contemplated in subsection (1).
(4)
If a party fails to comply with an arbitration award certified in
terms of subsection (3) that orders the performance of an
act, other
than the payment of an amount of money, any other party to the award
may, without further order, enforce it by way of
contempt proceedings
instituted in the Labour Court.
(5)
Despite subsection (1), an arbitration award in terms of which a
party is required to pay an amount of money must be treated
for the
purpose of enforcing or executing that award as if it were an order
of the Magistrate's Court.
(6)
Subsections (1), (4) and (5), as amended by the Labour Relations
Amendment Act, 2014, takes effect on the date of commencement
of the
Labour Relations Amendment Act, 2014, and applies to an arbitration
award issued after such commencement date.” (my
emphasis)
[8]
The settled practice that obtained over the years has been that the
writs of execution in respect of the arbitration awards
made by the
CCMA were issued by the Registrar of this Court prior to their
execution by the sheriffs of this Court. The Labour
Court has in
terms of s 145(3)
[1]
judiciously exercised its discretion to stay these writs in
instances where there had been a pending review which may lead
to the
underlying
causa
for
the issuing of a writ being removed. In the wake of the 2014
amendments to s 143 of the LRA the situation has somewhat changed.
At
present the CCMA issues writs or the “enforcement awards”
in respect of its own arbitration awards.
[9]
In general, the Court has a wide discretion to stay the writs of
execution of its own orders. Any decision, judgment or order
of the
Labour Court may be served and executed as if it were a decision,
judgment or order of the High Court
[2]
.
The certification of an award by a director of the CCMA in terms of s
143(3) does not convert the award into an order of the Labour
Court
[3]
.
If
this was the position it follows that the powers of the Court to
review the award would have been stymied because the decisions
of
this Court are not subject to any review. What is clear from the
language of s 143 is that the award of the CCMA may be enforced
as
if it were
an order of the Labour Court provided a writ has been issued in
respect thereof
[4]
.
[10] Section 143(5),
which provides that an arbitration award in terms of which a party is
required to pay an amount of money must
be treated, for the purpose
of enforcing or executing that award, as if it were an order of the
Magistrates’ Court is not
a model of clarity. This is so
because the section does not expressly set out how the enforcement or
execution of the award
as
if it were
an order of
the Magistrates’ Court is to be carried out.
[11] In terms of Rule 40
(2) of the Rules for the conduct of proceedings before the CCMA,
published under GN R223 in GG 38572 on
17 March 2015, any arbitration
award that has been certified in terms of s 143 of the LRA that
orders the payment of an amount
of money may be enforced by execution
against the property of the employer party by the Sheriff of the
Court in the Magisterial
district where the employer party resides,
or conducts business. If the award orders the performance of an act
other than the payment
of money it may be enforced by way of contempt
proceedings instituted in the Labour Court.
[12]
Clause 19.1.8 of the CCMA’s Practice and Procedure Manual, 7th
Edition, issued in November 2014 stipulates:
“
19.1.8
Once an award is certified, it can be executed upon delivery to the
Sheriff. In terms of the LRAA of 2014 there is no need
to approach
the Labour Court for a writ to be issued first. An award ordering the
performance of any other act, once certified
is to be enforced by way
of contempt proceedings instituted in the Labour Court.”
Clause
19.4 thereof provides:
“
19.4
How is an award to be enforced?
19.4.1
Once the award has been certified or made an order of the Labour
Court and the other party still fails to comply with the
award/order,
the applicant may request the sheriff to execute.
19.4.2
The applicant may require the sheriff to attach property belonging to
the other party and, if necessary, to sell it in execution.
The
sheriff’s fees will however be for the applicant’s
account.
[13]
On the plain reading of s 143 and Rule 40 of the CCMA, it is apparent
that the CCMA has not been statutorily assigned the authority
to
issue writs. To the extent that the practice manual suggests that
once an award is certified, it can be executed upon delivery
to the
Sheriff, without a writ having been issued by this Court, the
stipulation must be
ultra
vires
.
The
sheriffs are appointed by the Minister of Justice and Correctional
Services for the lower or superior courts
[5]
.
They perform functions within the area of jurisdiction of those
courts for which they have been appointed by or under any law.
[6]
[14]
It has been held in a long line of authorities that the CCMA is not a
court of law
[7]
. Brassey,
Employment and Labour Law: Commentary on the
Labour Relations Act Vol
3 (Juta & Co Ltd Kenwyn 2006) at A7-1-A7-2 states the following
on the status of the CCMA:
“
Unlike
the Labour Court, it enjoys none of the status of a court of law and
so has no judicial authority within the contemplation
of the
Constitution. It is an administrative tribunal in the same way as the
industrial court was and, being an organ of state
under s 239 of the
Constitution, is directly bound by the Bill of Rights. It is also
subject to the basic values and principles
governing public
administration.”
The
above comments by Brassey were endorsed in
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
2008
(2) SA 24
(CC) at 54 para 86.
[15]
An application to set aside a writ can only be made to the Court that
issued the writ.
[8]
Concomitantly, logic dictates that the application to stay the writ
should similarly be made to the Court that issued the writ.
The
CCMA is a creature of statute and is not clothed with the
jurisdiction to set aside or stay its own writs.
This
creates an anomalous situation in that the Labour Court has
jurisdiction only in respect of such matters as are specifically
assigned to it by the LRA and other statutes. More pertinently, s
157(1) of the LRA specifies matters over which the Labour Court
has
exclusive jurisdiction whereas s 157(2) confers upon it concurrent
jurisdiction with the High Court in respect of the matters
set out
therein.
[16]
A stay of a writ issued by the CCMA or by the Magistrates’
Court falls outside the ambit of this Court’s powers.
Seen in
this context, the litigants are non-suited to set aside the writs
issued by the CCMA which are the subject of impending
review
proceedings before the Labour Court. Put differently, they are
without any form of relief afforded to them. Clearly, this
legal
conundrum could not have been contemplated or intended by the
Legislature.
To
my mind, clarification of the practical effect of s 143 is not a
judicial task but a
legislative
competence in view of the fact that it may necessitate some public
debate and possible amendments to the existing statutory
scheme.
[17] This brings me to
question whether, in the circumstances outlined, the litigants are
completely barred from filing the applications
to stay “enforcement
award”/writs issued by the CCMA pending the envisaged review in
this Court. In terms of s 171
of the Constitution all Courts function
in terms of national legislation, and their rules and procedures must
be provided for in
terms of national legislation. In
SA
Broadcasting Corp Ltd v National Director of Public Prosecutions &
others
[2006] ZACC 15
;
2007 (1) SA 523
(CC) at 540B-D paras 36 and 37, the
Constitutional Court pronounced as follows on the Courts’
inherent power to protect and
regulate their own processes:
'[36]
The power recognised in s 173 is a key tool for courts to ensure
their own independence and impartiality. It recognises that
Courts
have the inherent power to regulate and protect their own process. A
primary purpose for the exercise of that power must
be to ensure that
proceedings before courts are fair. It is therefore fitting that the
only qualification on the exercise of that
power contained in s 173
is that courts in exercising this power must take into account the
interests of justice.
[37]
When courts exercise the power to regulate their own process it is
inevitable that that power will affect rights entrenched
in Chapter 2
of the Constitution. A court must regulate the way proceedings are
conducted and this will inevitably affect both
the right to a fair
trial (s 35 of the Constitution) and the right to have disputes
resolved by courts (s 34). Courts are bound
by the provisions of the
Bill of Rights and therefore bear a duty to respect those rights. In
exercising the power, therefore,
they must take care to ensure that
those rights are not unjustifiably attenuated.' (My emphasis)
[18]
The powers of the Labour Court are set out in 158 of the LRA. Amongst
these powers is to grant,
inter
alia
,
urgent interim relief and orders directing the performance of any
particular act which order, when implemented, will remedy a
wrong and
give effect to the primary objects of this Act.
[9]
Section 3 of the LRA commands an interpretation that gives effect to
its primary objects, compliance with the Constitution and
public
international law obligations. One of the primary objects of the LRA
is to give effect to and regulate the fundamental rights
conferred by
s 23 of the Constitution and to promote the effective resolution of
labour disputes. Insofar as no specific power
has been assigned to
this Court in terms of s 158, to set aside writs issued by the CCMA,
this could arguably be viewed to be a
casus
omissus.
However
,
caution
should be exercised not to import or surmise words in the statute
which the Legislature has omitted.
[19]
In
Stafford
v Special Investigating Unit
1999
(2) SA 130
(E)
the
Court held:
“…
There
is a presumption that the Legislature has dealt exhaustively with the
subject of the enactment and that it is therefore not
for the courts
to supply omissions in the provisions of a statute … As a
Court cannot act upon mere conjecture and speculate
as to whether or
not the Legislature might have overlooked something, it cannot
supplement a statute by providing what it surmises
the Legislature
omitted. The Court therefore must give effect to what the Act says
and not to what it thinks it ought to have said
- see, for example,
Ex
parte Slater, Walker Securities (SA) Ltd
1974
(4) SA 657
(W)
at 662. As a result, in the words of Maasdorp JA in
Union
Government (Minister of Mines) v Thompson
1919
AD 404
at 425, a
casus
omissus
'cannot be supplied by the Court, whose sole duty is to construe the
Act as it stands'. That approach has been consistently followed
in
this country”. –
[20] In
Rennie NO v
Gordon and Another NNO
1988 (1) SA 1
(A) at 22E–G the Court
pronounced:
“
Over
the years our Courts have consistently adopted the view that words
cannot be read into statute by implication unless the implication
is
a necessary one in the sense that without it effect cannot be given
to the statute as it stands (see eg
Germiston
Municipality v Rand Cold Storage Co Ltd
1913 TPD 530
at 539;
Taj
Properties (Pty) Ltd v Bobat
1952 (1) SA 723
(N) at 729E – H;
S
v Van Rensburg
1967 (2) SA 291
(C) at 294C – D;
The
Firs Investments (Pty) Ltd v Johannesburg City Council
1967
(3) SA 549
(W) at 557B – C;
DEP
Investments (Pty) Ltd v City Council, Pietermaritzburg
1975
(2) SA 261
(N) at 265G – H;
Hamman
en 'n Ander v Algemene Komitee, Johannesburgse Effektebeurs, en 'n
Ander
1984 (2) SA 383
(W) at 391H).”
[21] I am of the view
that the powers of the Court as circumscribed in s 158 of the LRA are
clear and that effect can be given thereto
without reading into the
section. As already alluded to, the legal quagmire created by s 143
does not clothe the CCMA with the
requisite jurisdiction to issue
writs of execution. In the final analysis the proper course to
follow is for litigants to
issue the writs of execution in
satisfaction of the arbitration awards in this Court.
[22] Returning to the
applications. There appears to be no reason why the writs issued by
the CCMA should be stayed pending review
in circumstances where they
are a nullity for lack of jurisdiction. They fall to be set aside.
[23] In the Bheka
application an order was sought that it be absolved from furnishing
security as required in terms of ss 145(7)
and 145(8) of the LRA. The
applicant explained that it is a small business with insufficient
liquidity to satisfy the security
bond in the amount of R69 600.00,
equivalent to 24 months compensation. It explained that the payment
of security will have
a direct and material effect on its cash flow
and ability to remain profitable. It further maintained that it will
not be in a
position to afford the payment of its own legal fees
incidental to the prosecution of the review application if it is
ordered to
put up security.
[24]
I share the remarks by Rabkin-Naicker J in
Free
State Gambling and Liquor Authority vs Commission for Conciliation
Mediation and Arbitration and Others
Case No J773/15 handed down on 26 June 2015 that the Court has a
discretion to order that the security be furnished or dispensed
with.
I am of the view that in exercising its discretion the Court should
balance the competing interest of the parties. It has
been held in
several decisions of the Courts that labour disputes must be resolved
and finalized expeditiously
[10]
.
[25] As matters stand, it
cannot be said that there are dilatory tactics at play in the
prosecution of the review application. Regard
being had to the
circumstances outlined in its application Bheka appears to be an
impecunious company. The amount of compensation
as set out in an
arbitration award earns interest from the date of the award at the
rate prescribed from time to time in respect
of a judgment debt in
terms of section 2 of the Prescribed Rate of Interest Act, 55 of
1975. This militates against any prejudice
which the respondent
employee may suffer should Bheka delay finalising the review.
[26] Nothing has been
placed before me suggesting that should Bheka be unsuccessful in its
application to review and set aside the
award of the CCMA it would be
unable to satisfy the award. In my view, dictates of equity and
fairness would require that security
be dispensed with. I can
conceive of no prejudice.
[27] On the question of
costs. I am of the view that it will not be in accordance with the
requirements of the law and fairness
that any of the respondents pay
the costs of the applications because they did not oppose the relief
sought. Therefore, no order
as to costs would be made.
[28]
In the result:
Order:
1.
It
is declared that the Commission for Conciliation Mediation and
Arbitration (the CCMA) does not have jurisdiction to issue writs
of
execution in respect of the arbitration awards issued by it.
2.
In
respect of
MBS
Transport CC v CCMA and others
Case No: J1807/15:
2.1
That
the writ of execution or the enforcement award dated 22 April 2015
issued under Case No GATW79-15 pursuant to
s 143
of the
Labour
Relations Act, 66 of 1995
, against the movable property of MBS
Transport CC, be and is hereby set aside.
2.2
No
order is made as to costs.
3.
In
respect of
Bheka
Management Services v Kekana and others
Case No: J1706/15:
3.1
That
the writ of execution or the enforcement award dated 03 August 2015
issued under Case No GAEK1491-15 pursuant to
s 143
of the
Labour
Relations Act, 66 of 1995
, against the movable property of Bheka
Management Services be and is hereby set aside.
3.2
That
the application by Bheka Management Services (Pty) Ltd to be absolved
from furnishing security succeeds.
3.3
No
order is made as to costs.
_______________
Phatshoane AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES FOR CASE
NO: 1807/2015.
For the
Applicant:
Mr MC Vermeulen
Instructed
by:
Vermuelen Attorneys
For the
Respondent:
No Appearances
APPEARANCES FOR CASE
NO: 1706/2015.
For the
Applicant:
Mr
R Atcheson
Instructed
by:
Lee & McAdam Attorneys
For the Respondent:
No
Appearances
[1]
Section 145(3)
provides that: “The Labour
Court may stay the enforcement of the award pending its decision.”
[2]
See
s 163
of the LRA read with
Rule 26
of Rules
for the conduct of proceedings in the Labour Court as promulgated by
GN 1665 in GG 17495 of 14 October 1996.
[3]
See
Gois t/a
Shakespeare's Pub v Van Zyl & others
(2003)
24 ILJ 2302 (LC) at 2308 para 19.
[4]
See
s 143(1)
of the LRA.
[5]
See ss 2, 5, 6, 6A and 6B of the Sheriffs Act, 90
of 1986, as amended.
[6]
See s 3(1) of the Sheriffs Act, 90 of 1986.
[7]
Sidumo & another v Rustenburg Platinum
Mines Ltd & others
2008 (2) SA 24
(CC); (2007) 28 ILJ 2405 (CC) at 2434 para 85;
Palaborwa
Mining Co Ltd v Cheetham & others
(2008) 29 ILJ 306 (LAC) at 312 para 6.
[8]
See
Shandling v
Southern Union Manufacturing
Co Ltd
1933 CPD 607
[9]
See s 158(1)(a)(i)(iii)
[10]
National
Education, Health and Allied Workers Union v University of Cape Town
and Others
2003
(3) SA 1
(CC) at 18 para 31
,
National Union of Metal Workers of SA and Others v Fry’s
Metals (Pty) Ltd
2005 (5) SA 433
(SCA) 448 at para 36