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[2015] ZALCPE 15
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Nosilela v Transport and Allied Workers Union of South Africa (P83/11) [2015] ZALCPE 15 (6 March 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Case NO: P 83/11
DATE: 06 MARCH 2015
Not Reportable
In the matter between:
MPUMELELO
NOSILELA
....................................................................................................
Applicant
And
TRANSPORT AND ALLIED WORKERS
UNION OF SOUTH
AFRICA
.....................................................................................
First
Respondent
Heard: 31 July 2014
Delivered: 06 March 2015
Summary: An applicant seeking payment
of remuneration he would have earned had he or not been prevented by
the respondent from resuming
his duties in terms of an arbitration
award which ordered his reinstatement, may not move an application
for an order that a writ
of execution be issued for payment of the
remuneration.
JUDGMENT
LALLIE J
[1] The applicant seeks an order
directing the registrar to issue a writ of execution in the amount of
R223 431.72 as the amount
due to the applicant from 22 July 2010, the
date of his reinstatement in terms of an arbitration award to 7 May
2013, the date
of his actual reinstatement, with interest at the
legal rate as at 31 December 2013, and such further interest as maybe
due by
the respondent to the applicant and costs or such other amount
or terms as the court may determine. The application is opposed by
the respondent.
[2] The background to this application
is that the applicant was employed by the respondent as a regional
organiser. He was dismissed
on 18 January 2010 and referred an unfair
dismissal dispute to the Commission for Conciliation Mediation and
Arbitration (the CCMA).
The CCMA found his dismissal substantively
and procedurally unfair and ordered the respondent to reinstate him
and pay him an amount
of R25 000.00. The applicant was ordered to
report for duty on 22 July 2010 but the respondent precluded him from
resuming his
duties and alleged that it intended having the
arbitration award rescinded. The application for rescission was never
launched and
the applicant enforced the award resulting in the
register issuing a writ of execution against the respondent for the
payment of
the R25 000.00 due to the applicant in terms of the award.
The respondent eventually paid the applicant the amount of R25
000.00.
In this application the applicant seeks an order directing
the register to issue a writ of execution for the respondent to pay
the applicant an amount of R223 431.72 which is equivalent to
remuneration he would have earned had the respondent allowed him to
resume his duties on 22 July 2010 and 7 May 2013 the date on which he
was actually reinstated.
[3] The respondent opposed this
application on the basis that a writ of execution can only be issued
if its purpose is to enforce
a judgement that has been obtained by a
judgement creditor. In this regard it relied on Ras en Andere v Sand
River Citrus Estate
(Pty) 1972 (4) SA T 504. It was further argued
that no judgement exists in favour of the applicant which requires
the respondent
to pay the amount of R223 431.72. The cause of action
which the applicant relies on is different from the one which forms
the basis
of the arbitration award. I have considered the arguments
on behalf of the applicant as well as the authority he referred to.
He
disclosed no legal basis for the order that he is seeking. I could
find no legislation which enables the Labour Court to grant the
relief sought by the applicant. Enforcement of arbitration awards is
governed by the Labour Relations Act 66 of 1995 (the LRA).
It
excludes the relief the applicant is seeking. His application can
therefore not succeed.
[4] I have considered the arguments on
behalf of the parties on the question of costs as well as the
provisions of section 162 of
the LRA. The applicant is an individual
who approached this court in an endeavour to enforce his rights in
terms of an arbitration
award. I am not convinced that considerations
of both the law and fairness justify the granting of a costs order in
the circumstances.
[5] In the premises the following order
is made:
5.1 The application is dismissed.
Lallie J
Judge of the Labour Court of South
Africa
Appearances
For the Applicant: Advocate Memani
Instructed by: Lennon Molele &
Partners
For the Third Respondent: Mr Unwin
of Chris Unwin Attorneys