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[2019] ZALCJHB 292
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Popela Maake Incorporated v Commission For Conciliation Mediation and Arbitration and Others (J1834/19) [2019] ZALCJHB 292 (13 September 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: J1834/19
In
the matter between:
POPELA
MAAKE INCORPORATED
Applicant
and
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION First
Respondent
MUSOLWA
RAPLALANE
Second
Respondent
LEBOKGANG
LIONEL NTSIE
Third Respondent
Heard:
10 September 2019
Delivered:
13 September 2019
JUDGMENT
MABASO,
AJ
Introduction
[1]
The genesis of this application stems from an arbitration award
issued by the second
respondent against the applicant in favour of
the third respondent, wherein the former was ordered to pay the third
respondent
an amount of R48 000.00. The applicant seeks an order to
stay the enforcement of the award pending finalisation of the review
application.
[2]
Ms Maxeleju, correctly submits that this Court has to follow the
principle as rehashed
by this Court in
Bolt
Engineering Distributors v Lorrain Classens
[1]
regarding
stays of enforcement of the writ of execution. However, this case
cannot be read in isolation from the provisions of section
145 (7)
and (8) of the Labour Relations Act
[2]
(LRA).
[3]
Ms Maxeleju argued on the strength of the applicant’s papers
that there are
good prospects of success in the review application,
therefore, this Court should use its discretion in its’ favour
that
they should not comply with the provisions of section 145 (7)
read with sub section (8) of the LRA in that the applicant should
be
exempted from paying security. It is further argued that in case this
Court concludes that the applicant cannot be exempted
“
it
determines the satisfaction amount to be furnished as security as the
compensation awarded is too steep for the applicant”
[3]
.
[4]
The institution of a review application does not suspend the
operation of an arbitration
award, unless an applicant furnishes
security to the satisfaction of the Court, and which can be either
equivalent to 24 months
remuneration if reinstatement is awarded or
if compensation is awarded then equivalent to the awarded amount. The
payment of security
is peremptory unless the Court directs otherwise.
[5]
A party who wishes to stay the enforcement of an
award, if they have not paid the security bond as per the
provisions
of section 145 (7) and (8) of the LRA has to bring an application in
terms of section 145 (3), as
in casu
.
[6]
The provisions of sections 145(7) and (8) was introduced in 2014, its
purpose, without
doubt, being a deterrent to applicants from bringing
review applications in this Court with an intention of frustrating
the party
whose favour the award is issued and for them to have
recourse should a review be unsuccessful and/or to be protected
against an
applicant who takes no further action in prosecuting such
review which at the end of the day will only frustrate the employees
armed with arbitration awards which are final and binding. No doubt
that once the review application has been dismissed, sometimes
an
employee would be frustrated in receiving payment as stipulated in
the award. As an example: if an applicant is a juristic person
and
you find that it has been liquidated for whatever reason then the
employee would be protected, if security bond has been paid,
if the
review application is unsuccessful. The Labour Appeal Court (LAC)
recently stated that a court which is faced with an application
where
it is required to exercise its discretion in matters of this nature
it has to:
“
regard to the
particular circumstances of the case as well as considerations of
equity
and fairness to both the employer and the employee
.
Effect that the Labour Court must take into consideration is whether
the employer
is
in possession of sufficient or adequate assets
to make an order of the review court upholding the arbitration award,
the principal concern being that the dismissed employee should
not be
left unprotected if the Labour Court decides the review application
in his or her favour”
[4]
[7]
Considering that this is motion proceedings, and an applicant is
required to detail
its case in the affidavit. If this Court were to
accept that a party should not comply with the provisions of section
145(7) and
(8) of the LRA, for providing security bond, because it
has
"robust prospects of sustaining a successful review
application upon hearing of this matter
" as suggested by the
applicant in this matter, I opine that a wrong message will be sent
that good prospects of success in
the review application should
except parties from paying security bond. This would mean the
provisions of section 145(7) and (8)
are not relevant and will invite
every employer to bring this kind of an application raising the same
point. Based on that, I do
not accept the reasons provided by the
applicant that this Court should exempt it from paying security.
[8]
The applicant has contended that the R48,000 is
"too
steep"
.
As the LAC, signposted that when discretion is exercised, one has to
take into account the equity and fairness to both the employer
and
employee. This Court, in the matter of
Rustenburg
,
[5]
explained that for good cause to be shown, a proper explanation as to
why the request should be entertained has to be advanced.
The example
given was that in considering good cause shown when a number of
employees are employed by such company, the Court is
to take into
account what prejudice will be suffered if an applicant has to pay
the amount, as security, that has been ordered
to pay.
[9]
It is also prudent to mention that the LAC, as discussed above,
clearly stated that
when one looks at the fairness one must take into
account what will happen in a case whereby a review application is
not granted
in favour of the applicant, will the employee get what
the arbitration award directed the employer to pay. If the answer is
no,
the Court has to be reluctant to grant exemption and/or reduce
the amount.
In casu
, I am of the view that a statement that
payment would be
"too steep"
does not meet the
requirement of good cause shown in this matter. Therefore, there is a
risk that the employee might not get the
money as per the award
should the review be dismissed.
[9]
In the premises, the following
order is made:
Order
1.The
matter is heard as one of urgency.
2.
The application to stay the arbitration award issued under case
number GAJB 15871 by the second respondent is dismissed.
3.
There is no order as to costs.
___________________
S.
Mabaso
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Ms L. Maxeleju of Popela Maake Attorneys
[1]
Unreported judgment (Case no: J1238/16). [2016] ZALCJHB 216 (24 June
2016).
[2]
No 66 of 1995, as amended.
[3]
[4]
City of
Johannesburg v SAMWU obo Monareng and another
(2019) 40
ILJ
1753
(LAC) at para 19.
5
Local Municipality v SALGBC and others, case number J779/2017,
delivered on 30 June 2017.