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[2018] ZALCJHB 178
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Seriti Coal (Proprietary) Limited v National Union of Metalworkers obo Moyake and Others (J1425/18) [2018] ZALCJHB 178 (11 May 2018)

IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
C
ase
no: J 1425/18
In the matter between
SERITI COAL
(PROPRIETARY) LIMITED

Applicant
and
NATIONAL UNION OF
METALWORKERS
OBO KHOLISILE WILLIAM
MOYAKE

First Respondent
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION

Second Respondent
COMMISSIONER SMITH
N.O
Third Respondent
SHERIFF OF
SASOLBURG

Fourth Respondent
Heard:
26 April 2018
Delivered:
11 May 2018
JUDGMENT
MAHOSI J
Introduction
[1]
This is an urgent application for an order to set aside the writ of
execution issued by the registrar of this Court on 13 April
2018
under case number GAJB20525-12 and to stay the execution thereof. The
writ of execution is for the recovery of the loss of
income resulting
from the
delay
in the implementation of the reinstatement order. The delay is
associated with the applicant’s review and appeal process.
[2]
The issue is whether the claim for a period between
the
date of the award and the actual date of implementation
is
covered by reinstatement. If not, whether the writ issued by the
registrar to recover such a claim is defective.
[3] I am of the view that
the matter ought to be dealt with as one of urgency.
Material background
facts
[4] The first
respondent’s member (Mr Moyake) was employed by the applicant
in December 2007 and was dismissed on 27 June
2012. At the time of
his dismissal, Mr Moyake occupied the position of an Engineering
Assistant, and he was earning a basic salary
of R10 287.79 per month.
Mr. Moyake was dismissed after being found guilty of charges relating
to breach of the applicant’s
Golden Safety Rules.
[5] Aggrieved by his
dismissal, Mr Moyake referred an unfair dismissal dispute to the
second respondent (CCMA). The dispute was
conciliated unsuccessfully
and it was then referred to arbitration. On 15 April 2013, the third
respondent (the arbitrator) issued
an arbitration award in terms of
which the following order was made:
‘
25.
The dismissal was substantively unfair.
26.
The respondent, New Vaal Colliers must reinstate the applicant, Mr.
Moyake to his former
position, on the same terms and conditions that
existed prior to the dismissal, without the loss in benefits or years
of service.
27.
The applicant must report again for duty on 2
nd
May 2013. I make no order regarding back pay as the applicant’s
hands aren’t entirely clean in this instance either.’
[6] On 18 June 2013, the
applicant instituted an application before this Court under case
number JR 1263/2013 to review and set
aside the award. The review
application was dismissed on 18 May 2017 by Judge Cele. The
applicant’s application for leave
to appeal application was
also dismissed. The Labour Appeal Court also dismissed the
applicant’s petition on 6 December 2017.
It is common cause
that Mr. Moyake reported for duty in January 2018.
[7]
On 09 February 2018 the employee’s representatives (NUM) sent a
correspondence to the employer’s attorneys requesting
the
employer to pay the employee his back pay and lost remuneration for
57 months. On a letter dated 14 February 2018, the applicant’s

attorneys indicated that the loss of income for the period between 2
May 2013 and January 2018 does not fall within the scope of
the award
but instead arose out of the employment contract, which had been
revived by the reinstatement order in the award.
[8]
On 15 February 2018, NUM sent a letter to the applicant’s
attorneys indicating that unless the employer proposes alternative

amount to the NUM’s calculation of the amounts allegedly owed
to Mr Monyake, NUM will bring an application to certify the

arbitration award in order to recover the amount through a writ of
execution.
On
05 March 2018, the applicant sent a letter to NUM indicating that a
claim arising from the date of the award does not fall within
the
scope of the award but constitutes a separate civil contractual
claim.
[9] On 13 March 2018, NUM
brought an application to certify the award in terms of section 143
of the LRA, the employer opposed the
application on 23 March 2018.
The employer reiterated the current legal position that the claim
sought by NUM could not be enforced
through the award by way of a
writ as such a claim does not fall within the scope of the award.
[10] On 24 April 2016,
the deputy sheriff attended the premises of the employer with a
ruling dated 11 April 2018. It is apparent
that the writ had been
certified by the CCMA on 11 April 2018. The Deputy Sheriff requested
the applicant to pay an amount of R
1 350 830.00, failing which he
will execute the writ. The assets listed in the inventory cannot be
encumbered or sold by the applicant
as they are under judicial
attachment.
[11] The applicant
submits that he has no alternative remedy in law but to bring this
application. The sheriff indicated that the
inventory can only be
withdrawn and the execution of the writ can only be stayed if this
application is brought. The applicant
further submitted that the
removal of the assets and the sale on auction will cause irreparable
harm to the applicant and the business
as one of the assets in the
inventory is an ambulance used to transport the applicant’s
employees to hospital in an emergency.
According to the applicant,
there is no harm that will be suffered by NUM and Mr Moyake should
this application be granted as the
claim may be brought in terms of
section 77 of BCEA since the claim arises from Moyake’s
employment contract and not the
award.
[12] The applicant argued
that the writ of execution was improperly issued by the registrar as
the certification of the award was
made in error. The basis of the
applicant’s argument was that it has fully complied with the
award and that the first respondent’s
claim arises from a
separate cause of action.
[13] The first respondent
submitted that the applicant failed and refused to fully reinstate Mr
Moyake to the same terms and conditions
of employment as if he was
never dismissed. The first respondent further submitted that the
applicant must live with the risk it
took by taking the matter on
review because had it complied with the award it would not be in the
situation it finds itself. The
first respondent denied that the
applicant will suffer any irreparable harm, paying a debt or
execution of writ does not cause
harm more than to the person who is
prejudiced by the failure to comply with the order.
Applicable law and
analysis
[14]
The applicant
referred
this Court to the judgment of
Coca-Cola
Sabco (Pty) Ltd v Van Wyk
[1]
to
support its argument that reinstatement order only serves to revive
the contract of employment and that an employee who tenders
his or
her service, while the employee is exercising its review and appeal
remedies to exhaustion, does so in terms of the employment
contract.
In the said judgment, the Labour Appeal Court (LAC) held as follows:
‘
[17]
The money paid to an unfairly dismissed employee consequent to a
retrospective reinstatement order is not compensation. Compensation

and back-pay may only be granted in the alternative and are mutually
exclusive.
T
he
back-pay ordered by the commissioner can therefore only refer to the
period between the date of dismissal and the date of the
order and
does not entitle an employee, without more, to remuneration between
the date of the award and the actual date of implementation.
The
Labour Relations Act does not cater for such relief.’
[15] The LAC further held
as follows:
‘
[28]
When there is a delay in the implementation of the reinstatement
award and the employer refuses to
pay an employee money that may be
due between the period of the award and the implementation thereof,
the
lis
between
them has not been judicially resolved. It is only after a contractual
claim in the civil courts or under section 77
of the Basic Conditions
of Employment Act has been instituted and pronounced upon that it can
be said that the employer is a judgment
debtor against whom a writ
may be issued
.
The
order of reinstatement is not a judgment dealing with the consequent
damages for the breach of the contract.
[29]
The risk that an employer takes relating to the accumulated financial
burden, caused by delays in
the review and appeal process, has
nothing to do with the cause of action. The risk to the employer
remains and the rewards to
the employee would also be intact if the
claim is prosecuted properly and timeously.
[30]
In summary, a reinstatement award does not cover the period between
the award and its implementation.
Should an employer refuse to pay an
employee for the said period then the employee has a contractual
claim - which is a totally
different cause of action - against the
employer.’
[16]
In this case, the arbitrator ordered Mr. Moyake’s reinstatement
without back pay. It is clear that the writ is in respect
of
remuneration that is allegedly due to Mr. Moyake for a period between
the
date of the award and the actual date of implementation.
This
period is clearly not covered by reinstatement. Therefore, there is
no underlying
causa
or
judgment for the writ. It follows that the writ is defective and
should be set aside.
[17]
I have had regard to the issue of costs
taking
into account the requirements of law and equity, I believe this is a
matter in which there should be no order as to costs.
[18]
In the circumstances, I make the following order
Order
1.
The writ of execution issued by the registrar of this Court on 13
April 2018
under case number GAJB20525-12 is set aside.
2.
There is no order as to costs.
______________________
D
Mahosi
Judge
of the Labour Court of South Africa
Appearances:
For the Applicant

Advocate Van As
Instructed by Cliffe
Dekker Hofmeyer
For
the Respondent

Mr
Bongi Zwane (NUM Union Official)
[1]
[2015]
8 BLLR 774
(LAC)