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[2018] ZALCJHB 430
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Steeldale (Pty) Ltd v Kwakwa and Others (J4422/2018) [2018] ZALCJHB 430 (28 December 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: J 4422/2018
In the matter between:
STEELDALE (PTY)
LTD Applicant
and
CLEMENT PHILLIP
KWAKWA First
Respondent
THE COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION Second
Respondent
SHERIFF –
POLOKWANE Third
Respondent
Heard: 20 December 2018
Delivered: 28 December 2018
JUDGMENT
TLHOTLHALEMAJE,
J
[1]
The applicant approached this Court on an urgent basis to seek an
order to stay the writ of execution issued under case number
LP2756/18 under the auspices of the second respondent (CCMA) dated
26 October 2018. The applicant further seeks that
the
attachment effected on 8 November 2018 pursuant to the
execution of the writ by the third respondent (Sheriff) be
set aside.
The first respondent (Kwakwa) opposed the application.
[2]
On the applicant’s averments, upon the writ of execution having
been obtained, the Sheriff has effected an attachment
on its entire
office content as well as of its vehicle. These are the items it
requires to conduct its business, but it has been
barred and
prevented from using them. Further in the light of the haste with
which the applicant approached this Court, it cannot
in my view be
argued that the urgency in this matter is self-created.
[3]
The facts leading to this application are essentially common cause
and to some extent unusual. Kwakwa having been dismissed
by the
applicant approached the CCMA with an alleged unfair dismissal
dispute. The matter came before an arbitrator and an award
was issued
on 13 August 2018 in terms of which Kwakwa’s
dismissal was found to be procedurally and substantively
unfair. The
applicant was ordered to reinstate Kwakwa with retrospective effect
and to pay an amount of R171 500.00 in back-pay.
Kwakwa was to
tender his services on 16 September 2018.
[4]
Kwakwa attended at the office of the applicant on various occasions
in September 2018 to seek compliance with the arbitration
award. When
he could not resume his services he then approached the CCMA in
September 2018 to have the award certified in
terms of section
143 of the LRA.
[5]
The award was certified and the applicant at some point advised
Kwakwa that it intended to approach the Court with a review
application. On 22 October 2018, the applicant offered
Kwakwa a new position. He had resumed his employment from
27 November 2018.
In accordance with the ‘new’
contract of employment, his employment with the applicant is deemed
to be with retrospective
effect from August 2018. In effect, the
applicant has partially complied with the arbitration award, whilst
at the same time
proceeding to challenge it. The review application
was launched 29 October 2018.
[6]
Mr Biggs for the applicant contended that the approach of partially
complying with the arbitration award and thereafter reviewing
it is
practical in the circumstances and was adopted for the benefit of
Kwakwa.
[7]
As at this stage, the review application is pending before the Court.
An application for the late filing of the review application
has also
been filed. In accordance with the provisions of section 145(7) of
the LRA, the institution of review proceedings is stayed
if security
is furnished to the satisfaction of the Court. The applicant has
furnished security in terms of the provisions of section
145(8)(b) of
the LRA.
[8]
The only issue of contention in this case is that in accordance with
the provisions of section 145(8)(a) of the LRA, and to
the extent
that Kwakwa was reinstated in terms of the arbitration award, he
insists that the applicant ought to furnish security
in the full
amount of 24 months’ remuneration. The applicant seeks to be
absolved from furnishing security equal to 24 months’
remuneration as Kwakwa was reinstated.
[9]
It must be stated that I fail to appreciate the vehement manner with
which Kwakwa would seek to oppose this application, and
to further
seek to pursue the execution of the writ, especially in circumstances
where part of the security was furnished, and
where he had been
reinstated.
[10]
On the facts, unusual as they may be, and in the light of the pending
review application, the reinstatement of Kwakwa and the
furnishing of
the security as per annexure ‘E’ to the founding
affidavit, the Court, in the exercise of its discretion,
is satisfied
that there is no basis not to absolve the applicant from the payment
of the full 24 months’ remuneration as
security.
[11]
Kwakwa has not demonstrated in what manner, shape or form, he stands
to suffer any prejudice if the full security is not furnished.
I fail
to appreciate the reason he seeks to enforce the award in the manner
he does when it has been partially complied with. The
circumstances
of this case would have been different had he not been reinstated.
[12]
It is appreciated as argued on behalf of Kwakwa, that the fact of a
reinstatement or re-employment is not a consideration in
the
determination of whether an applicant should be absolved from payment
of the prescribed security. The circumstances of this
case however
are such that the fact of a reinstatement can however not be ignored
in a consideration of real or substantial injustice
to the applicant.
The aim of the furnishing of security is essentially to compel a
reviewing party to ensure that a review application
is timeously
prosecuted, and there is no basis for a conclusion to be reached in
this case that it is the applicant’s intention
not to timeously
prosecute the review application pending before the court.
[13]
In the circumstances, the following order is made;
Order:
1. The application is heard as one of
urgency in accordance with the provisions of Rule 8 of the Rules of
this Court, and the applicant’s
failure to comply with the
normal time periods, forms and services as contained in Rule 7 is
condoned.
2. The writ of execution issued by the
second respondent under case number LP2756/18 is stayed pending the
finalisation of the review
application brought by the applicant under
case number JR22446/18.
3. The attachment
effected
by the third respondent in terms of the warrant of execution on
8 November 2018 under case number LP2756/18 is set aside.
4. The applicant is absolved from
furnishing full security as contemplated in section 145(8)(a) of the
Labour Relations Act, and
the security furnished in the amount of the
compensation as per the arbitration award is to the satisfaction of
this Court within
the meaning of section 145 (7) of the LRA.
5. There is no order as to costs.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicants: J. Biggs of Snyman Attorneys
For
the First Respondent: S Manganye
Instructed
by: Mohlabi Inc