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[2019] ZALCJHB 288
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New Era Packaging v Ngwenya NO and Others (J1936/19) [2019] ZALCJHB 288 (22 October 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: J 1936/19
In the matter between:
NEW ERA PACKAGING
Applicant
and
DUMISANI NGWENYA
N.O
First
Respondent
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
Second
Respondent
SATU obo
MEMBERS Third
respondent
Heard:
1 October 2019
Delivered:
22 October 2019
JUDGMENT
TLHOTLHALEMAJE,
J
[1] With
this application, the applicant seeks an interim order staying the
enforcement of an arbitration award dated 4 March 2018
issued in favour of the third respondent, pending the finalisation
of
a review application launched on 12 April 2018. The third respondent,
acting on behalf of its members (40 individual employees)
opposed the
application.
[2] The
background material to this application is fairly common cause. The
arbitration award issued as above had followed upon an alleged unfair
labour practice dispute that came before the first respondent
(Commissioner Ngwenya) at the CCMA. Upon receipt of the award, the
third respondents had it certified in April 2018. The
arbitration award was subsequently varied to include a calculation of
amounts payable to the individual employees. When the applicant
failed to make payments in accordance with the arbitration award, the
sheriff attended at the applicant’s premises on 27 August 2019
and made certain attachments in fulfilment of the arbitration award.
[3] The
applicant approached the Court with an application to stay the writ
of execution on 4 September 2019. The matter came before
Mabaso AJ on 16 September 2019 and was dismissed with
no
order as to costs. The third respondents’ contention is that
the dismissal of the application before Mabaso AJ was due
to the fact
that the review application had lapsed in accordance with the
provisions of clause 11.2.7 of the Practice Manual of
this Court, and
therefore the execution of the award could not be stayed.
[4] Upon
the first application to stay the writ having been dismissed, the
third respondents’ attorneys of record made a demand for
payments in terms of the arbitration award. The applicant met the
demand with a second application to stay the writ on
19 September 2019, enrolling the matter for 1 October 2019.
[5] In
seeking to stay the execution of the writ, the applicant contends
that
it has reasonable prospects of success with its review
application, and further that it stands to suffer irreparable
prejudice
should the execution not be stayed. It further contends
that the third respondents would not suffer any prejudice since they
had
not taken any steps to enforce the award since March 2018.
[6] In
opposing the application to stay, the third respondent pointed out
the
defects in the applicant’s founding affidavit, and in
particular, the fact that the affidavit was not properly commissioned
as it did not indicate the date and place of commissioning. The
applicant did not file a replying affidavit, and one would have
thought that such a patent error as raised in the answering affidavit
would have been rectified, but this was not to be so.
[7] Several
issues however arise in this application insofar as the applicant
had
instituted the second application to stay the execution of the writ.
In regards to the first application which was as already
indicated,
dismissed by Mabaso AJ, in the absence of a replying affidavit, it
can be accepted that that application was dismissed
as the review
application relied upon had lapsed.
[8] It
is trite that to the extent that a stay of execution of the writ is
sought pending a review application, there must be a proper review
application before the Court. In this case, the review application
under case number JR567/2018 which the applicant seeks to rely on was
delivered on 12 April 2018. There is a dispute
as to
whether that application was served on the third respondent or not.
Be that as it may, a record of arbitration proceedings
was filed and
served belatedly on 27 August 2019.
[9] The
status of that review application is such that it remains deemed to
have lapsed. This Court can only determine disputes in motion
proceedings on the basis of what is pleaded. Thus, if what is pleaded
does not sustain the right to the relief that is sought, the
application ought to be dismissed. Given the status of the
applicant’s
review application, the applicant in its Notice of
Motion seeks an order staying the execution of the writ. Nothing is
said in
that Notice of Motion about any pending application to
reinstate or revive the review application to the extent that interim
relief
is sought, nor is there anything said in regards to the
reasons the transcribed record of arbitration proceedings was filed
belatedly,
and the basis upon which condonation in that regard should
or would be granted.
[10] Worse
still, a copy of that application to revive was not placed before the
Court. This
effectively means that this Court is again constraint to
grant the interim relief sought in the absence of any indication that
the application to revive would succeed. The founding affidavit in
support of the application to stay is replete with references
to the
review application and the grounds of review. Any prospects of
success referred to is merely in reference to that review
application, and not any pending application to revive the review
application.
[11] The
applicant assumes that the mere fact that it had furnished security
in accordance with
the provisions of section 145(7) of the LRA, or
that a record (which is in any event incomplete) was filed and served
is sufficient
to have the writ of execution stayed. That assumption
is misplaced in that in the absence of that review application being
properly
before the Court in the sense that the revival application
had succeeded, that review application cannot be said to be properly
before the Court for the purposes of a stay of execution.
[12] The
requirements for interim relief are well-known. The applicant is
required to establish
a
prima facie
right; a
well-grounded apprehension of irreparable harm if the interim relief
is not granted and the ultimate relief is eventually
granted; that
the balance of convenience favours the granting of an interim
interdict; and that it has no other satisfactory remedy.’
[13] For
a moment, it can be accepted that the matter is urgent to the extent
that the sheriff
is ready to execute the writ. This however does not
imply that the applicant has satisfied all the requirements of
urgency, to
the extent that the sheriff had indicated an intention to
execute as far back as 27 August 2019. It can further be
accepted
that the applicant has no other alternative remedy. This
however is as far as the applicant’s case goes.
[14] To
the extent that the applicant seeks interim relief, it is apparent
that it has not, in
the absence of a proper application to review the
arbitration award, established any right, even if
prima facie
.
It follows that the balance of convenience cannot favour it, and that
it is the third respondents who would continue to suffer
harm as they
are in possession of a favourable arbitration award, which they are
not able to execute.
[15] I
have further had regard to the requirements of law and fairness
insofar as the issue of
costs is concerned. When the initial
application to stay the execution of the writ was dismissed by Mabaso
AJ, no order as to costs
was made. One would have assumed that the
applicant would have taken stock and reflected on how best to deal
with the quandary
it finds itself in, which in any event, is
self-inflicted. This case as pleaded, clearly show that the applicant
failed in that
regard. In these circumstances, I can see no reason in
law and fairness, why the third respondents should be burdened with
the
same costs on the second occasion, in respect of applications
which were unsustainable.
[16] Accordingly,
the following order is made;
Order:
1. The Applicant’s
application is dismissed with costs.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
T Nkambule.
For
the Respondents:
E
Liebenberg, Instructed by Leonard Singer Attorneys