About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2018
>>
[2018] ZALCJHB 322
|
|
City of Tshwane Metropolitan Municipality v Maree NO and Others (J2098/18) [2018] ZALCJHB 322 (29 July 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
CASE
No: J2098/18
In
the matter between:
CITY
OF TSHWANE METROPOLITAN
MUNICIPALITY
Applicant
and
E
MAREE
N.O
First
Respondent
SEKGALA
AND OTHERS [2003 GROUP] AND MACHETE
AND
OTHERS [2012
GROUP]
Second
Respondent
SHERIFF
OF THE HIGH COURT FOR THE DISTRICT
OF
PRETORIA (FREDDY BATT
N.O)
Third
Respondent
Heard:
28 June 2018
Delivered:
29 June 2018
Summary:
Urgent application-section 145(7) and (8) of the LRA-
JUDGMENT
MABASO,
AJ
[1]
The applicant approached this Court, on an urgent basis, seeking an
order,
inter
alia,
that: the writ of execution/enforcement of award dated 8 May 2018
issued in favour of the second respondents (the employees) be
declared to have been unlawfully and irregularly issued and therefore
be the set aside , that it has no force and effect; that
it be
exempted from furnishing security
[1]
in terms of the
Labour Relations Act
[2]
and/or
alternatively be ordered to pay an amount of security (if any) that
is sufficient in the Court’s discrection.
[3]
This application
is opposed by the employees.
The
parties
[2]
The applicant is the City of Tshwane Metropolitan Municipality (the
municipality), the first respondent is Commissioner Maree
NO
(the
commissioner), the Second Respondents are the employees of the
applicant. The fourth respondent is the Sheriff of the High
Court.
The Fourth Respondent is the South African Local Government
Bargaining Council (the Council).
[3]
Some of the points that have been raised in this case are the
following,
3.1 The employees assert
that, as the founding affidavit is commissioned by an administrative
clerk in the office of the Director
of Public Prosecutions, “
dispute that an admin clerk has delegation of authority to
commission and deny that an admin clerk has a Commissioner of Oath
authority
in terms of the Regulations
…”.
3.2 The employees further
contend that the review application has no merit as it has lapsed and
during argument they submitted that
since the arbitration award has
been certified ,it cannot be reviewed as it is now “ an order
of court” in terms of
section 143 of the LRA.
3.3 That the provisions
of section 145(7) and (8) do not apply to review applications which
are not about an arbitration award that
orders neither reinstatement
nor compensation .
Brief
Background
[4]
I deem it necessary to sketch out the history of this matter, before
dealing with the preliminary points as raised by the parties,
as I do
so below.
[5]
The employees are employed by the applicant in its Emergency Services
Department which comprises of two groups. The employees
declared a
dispute, to the Council, relating to the interpretation and
application of the collective agreement. The Commissioner
was
appointed to arbitrate the dispute, whereafter, on 20 August 2017 she
issued the arbitration award wherein she concluded that:
“…
[The applicant], must
comply with the collective agreement namely ‘the implementation
of an interim uniform salary grading
scheme for emergency medical
care and ambulance services employees in the health and social
development department’ signed
on 9 June 2010.
“
[The applicant] is therefore
ordered to retrospectively upgrade the applicants as listed on pages
17 and 104 and 105 from the date
of the apartments retrospectively on
1 January 2003 and 1 January 2012 and implement the salary
adjustments from these dates.
It
is further ordered that the interest is paid on the outstanding
amounts from the date of this award in terms of
section 2
of the
Prescribed Rate of Interest Act 55 of 1975
.”
[6]
Following the issuing of the award, the applicant proceeded to bring
a rescission application. However, the rescission application
was
unsuccessful, the rescission ruling was issued on or about 17
September 2017. This unfavourable outcome necessitated the applicant
to lodge the pending review application in this Court on or about 9
March 2017 under case number JR 2107/17. The Commissioner and
the
Council failed to deliver the records as required by
Rule 7A
of the
Rules of the Labour Court. The applicant proceeded to bring an
application to compel them to deliver the records and the
latter
application was granted on 20 February 2018.
[7]
At the beginning of this month the applicant was served with
“enforcement of award” (confirming that the arbitration
award has been certified in terms of
section 143(3)
of the LRA). The
provisions of
ss 143
(1)and(3) of the LRA provide that once an
arbitration award has been certified it is final and binding and may
be enforced as if
it were an order of the Labour Court, in respect of
which a writ has been issued. Following the certification of the
award, the
sheriff was directed to attach and take into execution the
movable goods of the applicant and realised by public auction, the
sum of R12 524 642.00.
[8]
The deponent to the founding affidavit, Mr Sithole, following the
visit by the sheriff proceeded to inquire with the sheriff,
as
according to the applicant, “
the arbitration award was not
quantified and no computation was provided as to the calculation of
R12 524 642.00. On 13
June 2018, the sheriff returned to
the applicant’s offices and provided [Mr Sithole] with a copy
of certain calculations
that had been made by [the employees]”.
[9]
Upon receipt of the “enforcement of the award” from the
sheriff, the applicant proceeded to communicate with the
employees’
attorneys advising them that according to it, the award had not been
quantified, that they were not a party to
any computation of the
calculations therefore it was of the view that the
section 143(3)
process was irregular and/or incorrect and/or fatally flawed, and
that it therefore cannot be relied upon.
[10]
The applicant then asked for an undertaking from the employees'
attorneys to hold in abeyance any further executions steps,
however
this request received no response from the attorneys, and the sheriff
had indicated that the only way of not proceeding
with the
enforcement is when an urgent application is brought, hence this
application is before this Court.
Is
the affidavit defective?
[11]
In the answering affidavit, the employees through their attorney who
is a deponent thereto, contend that the application is
defective as
it was commissioned by an admin clerk allegedly in the office of the
Director of Public Prosecutions. They dispute
that an admin clerk has
the delegation of authority to commission and they further deny that
the admin clerk has commission of
authority in terms of
regulations.
[4]
Taking into
account what the employees have stated, the answer to this question
is situated in section 6 of the Justices of Peace
and Commissioners
of Oaths Act
[5]
read with
Designation of the Commissioners of Oath, which among other things
provides in its schedule that a public servant is classified
as a
commissioner of oaths.
The public servant
is defined as:
“
(a) Officers in the
Administrative, Professional, Clerical, Technical or General A and
General B Divisions of the Public Service
occupying a post with a
salary scale the minimum notch of which is equivalent to or higher
than the minimum notch of salary level
2 applicable in the Public
Service.
(b) Employees held against posts in
the Administrative, Professional, Clerical, Technical or General A
and General B Divisions of
the Public Service if the minimum notch of
the salary scale applicable to such posts is equivalent to or higher
than the minimum
notch of salary level 2 applicable in the Public
Service.”
Based
on the above, the submissions that the application is defective
cannot succeed.
Lapsed
review
[12]
The employees assert that the review application, which the applicant
has brought, asking this Court to stay the enforcement
of the award
pending its finalisation, has lapsed. The employees’ submission
is two-fold, namely: (a) that it is more than
8 months since the
review was delivered and the applicant has failed to deliver the
records of the arbitration, and that there
is no application for
extension of the period in which to serve and file the records.
[13]
The review application was delivered in October 2017, the
Commissioner and the Council failed to deliver the records of the
arbitration which led to the applicant approaching this Court and on
20 February 2018 this Court issued a court order directing
the
Commissioner and the Council to deliver the arbitration records
within 30 days. Clearly this process happened within seven
months
from the date of the lodging of the review application. I therefore
conclude that there is no substance to the employees’
argument
in respect of this point.
[6]
[14]
The other point to be dealt with is point (b) wherein the employees
have pleaded in paragraphs 9.4, 9.5 and 9.6 of their answering
affidavit, that once an arbitration award has been certified it is
final and binding and may be enforced as if it was an order
of this
court, which is the current position of law. However, during argument
the employees counsel argued that once an arbitration
award has been
certified in terms of the provisions of section 143 the review
process is no longer possible because such an award
is now “an
order of court” and he said the authority for this is
Department
of education v Sauders
[7]
and
Department
of Home Affairs v Public Service Co-Ordinating Bargaining Counciul
and Others.
[8]
[15]
I disagree with this submission.
The
Home
Affairs
judgment, in paragraph 3 the court
summarised the judgment that had been issued in the matter before it
, where a certified arbitration
award was further made an order of
court before contempt application could be instituted, and nowhere in
that judgment has Van
Niekerk J expressly or impliedly made a
statement that once an arbitration award has been certified it
becomes a court order and
the review becomes moot because of the
certification of such an award.
[16]
It is further explained in the
Home Affairs
judgment that once an arbitration award has been made an order of the
court, in terms of section 158(1)(c) it is no longer reviewable
but
can be appealable, and any pending review application against such an
award becomes “moot”, however, if an arbitration
award
has been certified that does not make a pending review “moot”
and such an award will still be reviewable if the
review thereof has
not been disposed of.
[17]
If a party armed with a certified award decides to bring an
application in terms of section 158(1)(c) ,to make the same certified
award an order of court and the Labour Court grants such application,
then its status would change to be a court order which will
automatically affect any pending review against that award and before
the review could be proceeded with, before this court, such
section
158(1)(c) court order may either be rescinded and/or appealed
against. Based on the above, the submission that the arbitration
award has lapsed fails, because
in
casu
there is no
evidence that the certified award has been made an order of court.
Exemption
from furnishing security?
[18]
The applicant argued that it should be exempted from furnishing
security , as it is of the view that it is not required to
provide
such. The applicant’s binary point is that (a) its budget and
financial management is governed by PFMA and Treasury
regulations,
(b) alternatively that security for costs only relates to instances
of reinstatement or compensation orders which
in
casu
it
submits that it is not the case.
In respect of the
first component of this point, the applicant relies on the authority
of
Free
State Gambling Board v CCMA and others
[9]
.
The applicant also acknowledged, in argument, that this Court in the
matter of
Rustenburg
local municipality v South African local government bargaining
council and others
[10]
differ with the
Free
State gambling board
matter.
[19]
I have taken into account the provisions of section 210 of the LRA,
which reads thus,
‘
210. Application of Act when in
conflict with other laws.-If any conflict, relating to the matters
dealt with in this Act, arises
between this Act and the provisions of
any other law save the Constitution or any Act expressly amending
this Act, the provisions
of this Act will prevail.’
[11]
[20]
I, therefore, share the same views as expressed in the
Rustenburg
matter in that municipalities are not
exempted from furnishing security. Under these circumstances, the
submission that the applicant
as an organ of state is exempted from
providing security because it is governed by the PFMA fails.
[21]
In respect of the second component of this point (the section 145 (8)
point), the applicant asserts that the arbitration award
relates to
salary grading not reinstatement or compensation. In dealing with
this point, one has to take into account the following
factors.
[22]
Section 145 reads as follows
‘
(7)
The institution of review proceedings does not suspend the operation
of an arbitration award, unless the applicant furnishes
security to
the satisfaction of the Court in accordance with
subsection
(8)
.
(8)
Unless the Labour Court directs otherwise, the security furnished as
contemplated in
subsection
(7)
must—
(
a
) in
the case of an order of reinstatement or re-employment, be equivalent
to 24 months’ remuneration; or
(
b
) in
the case of an order of compensation, be equivalent to the amount of
compensation awarded’
[23]
The phrase arbitration award is not defined in the LRA. It is common
cause between the parties that an arbitration award was
issued and
was issued in terms of the provisions of the LRA.
[24]
In order to decide whether or not the provisions of subsection
145(8)(a)/(b) of the LRA are applicable, one has to be guided
by what
Wallis J rehearsed in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[12]
where he said,
‘
An interpretation will not be
given that leads to impractical, unbusinesslike or oppressive
consequences or that will stultify the
broader operation of the
legislation”
and
‘
The present state of the law
can be expressed as follows: interpretation is the process of
attributing meaning to the words used
in a document, be it
legislation, some other statutory instrument, or contract,
having
regard to the context provided by reading the particular provision or
provisions in the light of the document as a whole
and the
circumstances attendant upon its coming into existence.
Whatever
the nature of the document, consideration must be given to the
language used in the light of the ordinary rules of grammar
and
syntax; the context in which the provision appears; the apparent
purpose to which it is directed and the material known to
those
responsible for its production. Where more than one meaning is
possible each possibility must be weighed in the light of
all these
factors. The process is objective, not subjective. A sensible meaning
is to be preferred to one that leads to insensible
or unbusinesslike
results or undermines the apparent purpose of the document….
The "inevitable point of departure is
the language of the
provision itself" read in context and having regard to the
purpose of the provision and the background
to the preparation and
production of the document….’
[25]
As the LRA is legislation based on the constitution, therefore, its
provisions should provide for the speedy resolution of
disputes in
the workplace.
[13]
It is always
important to look at the explanatory memorandum of the LRA to
understand why certain provisions had to be introduced
therein. For
example the memorandum of object in respect of the amendment of
section 145 of the LRA provides that:
“
this section is amended by
introducing certain measures intended to reduce the number of review
applications that are brought to
frustrate or delay compliance with
the arbitration awards, and to speed up the finalisation of
applications brought to the Labour
Court to review arbitration
awards”.
[14]
[26]
Taking into account what I have mentioned above, it is now essential
to look at the provisions of section 145(8) of the LRA
in that
nowhere in that section is it stated that the only arbitration award
which can be stayed by security for costs and/ or
by an application
in terms of section 145(3) of the LRA is one where
reinstatement or re-employment or compensation has been
ordered. In
line with
Endumeni’s
matter
and the explanatory memorandum cited above, I am of the view that it
was not the intention of the legislature to limit the
security for
costs to arbitration award which called for reinstatement or
re-employment or compensation (which relates to
dismissals only ),
but where an award which is a subject of the review in terms of the
provisions of section 145 relates to salary
grading and a
commissioner directed an employer to adjust salary, which I opine
that can be classified as compensation the provisions
of subsection
145(7), (8) apply.
Urgency
[27]
The determining factor here is that the arbitration award has been
certified in terms of section 143(1) of the LRA and the
sheriff has
already been instructed and has taken steps to enforce the certified
award and he advised the applicant that the only
way to stop the
process would be by approaching this Court. I have also taken into
account the amount of money that is involved
in this matter and what
the applicant has said from paragraph 5.2.2.1 to 5.2.2.3 of the
founding affidavit under the circumstances
I conclude that the
requirements of the urgency have been met.
Whether
the enforcement award is unlawful and irregular issued?
[28]
The applicant asserts
inter
alia,
that the execution
/certification of the award is irregular and/or flawed in that the
arbitration award has not been quantified
and the individual
employees are not permitted to quantify same unilaterally and
proceed to commence with steps of issuing
the writ of execution. The
applicant further submits that the calculations are incorrect.
[29]
Mr Christoffel Johannes Geldenhuys, an attorney for the employees is
the deponent to their answering affidavit, and asserts
that: “
having
dealt with the matter from the onset when the referral to the South
African local government bargaining council was made”
, the
contents of the answering affidavit are within his personal knowledge
and are both true and correct. The arbitration was set
down for 3
August 2017, he represented the employees, he introduced a bundle of
documents which was subsequently supplemented by
the applicant which
had been represented by Advocate Martin Steyn, and it was accepted as
common cause and the evidence on which
the commissioner was called to
interpret and apply the collective agreement.
[30]
Mr Geldenhuys disputes that the quantification was unilaterally done
by the applicant. The calculations were done by the applicant’s
executive director legal counsel, in the group legal services
department, these calculations were accepted by the employees and
included in the bundle of documents used before the Commissioner. It
is further asserted by Mr Geldenhuys that based on the same
calculations the applicant has already paid
“
Tsomo and 10 others an amount
of R1 1 99 780.00. Furthermore, paid the Makgatholela group and
others …based on the same
calculations, although in
instrument…”
[31]
The applicant in its replying affidavit, responding to what is stated
above regarding the evidence of Mr Geldnenhuys says “
the
contents of the disputed and I reiterate what is stated in the
founding affidavit in this regard”
.
It has to be noted that the deponent to the replying affidavit is Mr
Sithole and no confirmatory affidavit by Advocate Steyn whom
it is
asserted that he was involved and was involved in the submittal of
the calculations documents, was filed with the Court.
Under the
circumstances, the
Plascon-Evans
principle
[15]
applies, in this
regard, I accept the evidence of Mr Geldenhuys.
[32]
The fact that the arbitration award does not state the amount of
R12 524 642.00 does not mean that such amount is
incorrect
taking into account that it was part of the bundle of documents that
were common cause between the parties during the
arbitration. Looking
at the LRA form 7.18A under part 4(b) it refers to “B”
“C” and “D” which
such documents deal with
calculations, under those circumstances it is the view of this Court
that the proper quantification was
submitted to the Council. I
therefore conclude that prayer 3 of the notice of motion cannot
succeed.
[33]
the applicant in its founding affidavit has submitted that the grant
of the attachment and subsequent sale of its assets will
result in it
being unable to carry out its municipal duties and that service
delivery would be adversely affected. thI am of the
view that an
amount of more than R12 million would be too excessive as there is a
review application pending. Under those circumstances,
I conclude
that on a balance of interests of both parties, an amount equivalent
to25% of R12 524 642.00 should be furnished
as
security.
[34]
I, therefore, conclude that the following order will be proper:
Order:
1. The provisions of the
Rules, relating to time and manner of service referred to therein are
dispensed with, and the matter is
heard as one of urgency in terms of
Rule 8 of the Rules of this Court.
2. The Applicant to pay
R3.131 160.50 into the trust account of the Second Respondents’
attorneys, within 20 days of the date
of this order.
3. An application to
declare the certified arbitration award unlawful and issued
irregularly and to have no force and effect is
dismissed.
4. The certified
arbitration award issued by the second respondent is stayed pending
the finalisation of the review application,
however, should the
applicant fail to pay the amount as specified in (2) above, the
certified arbitration award may be executed.
5. No order as to costs.
_______________________
S
Mabaso
Acting Judge of the
Labour Court of South Africa
Appearances
For
the Applicant: Advocate X Mofokeng
Instructed
by: Gildenhuys Malatji Inc.
For
the Second Respondents: Advocate GL Van Der Westhuizen
Instructed
by: Geldenhuys CJ@ Law Inc.
[1]
Section 145(7) and (8) of the LRA.
[2]
Act 66 of 1995(the LRA)
[3]
Notice of motion.
[4]
[5]
Act 16 of 1963.
[6]
See paras 11.2.1
to 11.2.5, and 11.2.7 practice Manual.
[7]
[2015] 12 BLLR 1187
(LAC) at para 32
[8]
(2018) 39 ILJ 823 (LC) at para 3
[9]
(2015) 36 ILJ 2867 (LC), at paras 5 and 6.
[10]
[2017] 11 BLLR 1161 (LC).
[11]
See also
City Power (Pty)
Ltd v Grinpal Energy Management Services (Pty) Ltd and Others
(CCT133/14) [2015] ZACC 8;
2015 (6) BCLR 660 (CC).
[12]
2012 (4) SA 593
(SCA), paras 26 and 32.
[13]
[14]
For further discussion in this, see
Chillibush
Communications (Pty) Ltd v Gericke and others
[2010] JOL 24799
(LC).
[15]
Plascon-Evans Paints Ltd v
Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A), 634H-I.