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[2018] ZALCJHB 144
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Boost Property Management v BIFAWU obo Mabotja and Others (J2010/17) [2018] ZALCJHB 144 (28 March 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable/Not
Reportable
Case
No: J 2010/17
In
the matter between
BOOST
PROPERTY
MANAGEMENT
Applicant
and
BIFAWU
obo R MABOTJA
First Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
Second Respondent
SHERIFF
OF COURT: JOHANNEBURG
NORTH
Third Respondent
Heard:
1 September 2017
Ex-tempore
judgment: 1 September 2017
Date
Edited: 28 March 2018
EX-TEMPORE
JUDGMENT
VAN
NIEKERK, J
[1]
This is an application to stay the execution of a writ, more
accurately in terms of prayer 2 of the notice of motion to stay the
enforcement of a default arbitration award issued under case number
GAJB24886/16, pending the outcome of a rescission application
filed
by the applicant on 31 July 2017.
[2]
What the court has before it is a copy of the application for
rescission that is dated 26 July 2017. That application was clearly
served on the sheriff. The third respondent is a stamp to that
effect. What the first respondent contends is that the rescission
application was never filed on it or its members.
[3]
Now, it is not the function of this court in an application to
stay a writ to make decisions either substantive or procedural in
relation to the rescission application. That is the concern of the
CCMA and the commissioner must make a decision within 14 days
on the
merits of that application; whether those merits go to substance or
whether they go to issues such as proper service
.
[4]
The applicant has put up a security bond in circumstances
where strictly in terms of section 145(8) it is not obliged to do so
in
response to an application for rescission. But be that as it may,
security has been furnished. My reading of section 145(8) is that:
where a security bond is furnished, the execution of enforcement of
an arbitration award ought to be stayed. There is no reason
in
principle why the same should not apply in relation to a pending
application for rescission.
[5]
There is no real prejudice to the first respondent, the union and its
members. The stay is granted for a very limited period,
pending the
outcome of the rescission application. Should the application for
rescission be dismissed, then the union and its members
would be
entitled to satisfaction of the arbitration award.
[6]
What an application such as this contemplates is a balancing
of the parties’ competing interests. In my view, given that the
stay is for an extremely limited period, given the fact that security
has been provided for the satisfaction of the default award,
the
interest of the applicant in the present instance must prevail, for
those reasons, I make the following order:
1.
The enforcement of the default arbitration
award issued under case number GAJB24886/16 is stayed, pending the
outcome of the rescission
application filed by the applicant on 31
July 2017.
2.
There is no order for costs.
___________________________
André
Van Niekerk
Judge of the Labour Court