SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Reportable
CASE NO : 2025 -047062
In the matter between:
NATIONAL PROSECUTING AUTHORITY Applicant
And
SIMPIWE TAKU First Respondent
COMMISSIONER CEDRICK MSELEKI N.O Second Respondent
GENERAL PUBLIC SERVICE
SECTORAL BARGAINING COUNCIL (GPSSBC) Third Respondent
THE SHERIFF OF THE HIGH COURT,
DURBAN COASTAL Fourth Respondent
THE STANDARD BANK OF SOUTH
AFRICA LIMITED Fifth Respondent
Heard : 08 April 2025
Delivered: This judgment was handed down electronically by circulation to the
Applicant’s and First Respondent’s Legal Representatives by email,
publication on the Labour Court website and release to SAFLII. The
date and time for handing - down is deemed to be 1 5h30 on 10 April
2025 .
JUDGMENT
LALLIE J
[1] The applicant launched this application seeking the following order:
‘1. That the writ issued against the Applicant by the Third Respondent under
its case number GPBC 1407/2023 on 7th February 2025 be and is hereby
set aside.
2. Alternatively, that the writ described above be and is hereby stayed,
pending the finalization of the review application under this case numbe r
which is presently pending in this Honourable Court;
3. That Fifth Respondent is ordered to forthwith release and make available
all amounts held in the Applicant’s bank accounts, under its name, “the
National Prosecuting Authority”, bearing the account number: 0[...], and
funds in any other accounts held in the Applicant’s name with the Fifth
Respondent forthwith;
4. That the First Respondent is ordered to pay the costs of this application.
5. That any of the other Respondents who oppose this applicat ion pay the
costs of this application.
6. Further and/or alternative relief.’
The application is opposed by the first respondent who, in doing so, challenged
its urgency.
[2] Urgency is challenged mainly on the grounds that it is self created and that the
applicant failed to afford the first respondent reasonable time to file the
answering affidavit. The validity of both grounds is denied by the applicant.
[3] I have considered the grounds for urgency and the basis of the first respondent’s
opposition. Whi le I accept the first respondent’s version that he informed the
applicant in September 2024 of his intention to enforce the arbitration award
there were intervening acts including the filing of the interlocutory application for
a dec laratory order on the i ssue of the bond of security in the review application
and the communication between the parties on the enforcement of the award
which reasonably led the applicant to believe that its enforcement would be
delayed. I therefore do not accept the first respon dent averment that urgency is
self created. The extremely truncated schedule the applicant set for the filing of
the answering affidavit is unacceptable. It, however , must be weighed with other
relevant factors. The factors which tilted the scale in favour of the applicant are
that it cannot obtain substantial relie f in due course. This application is inhe rently
urgent because the money in the bank account that has been attached in terms
of the writ is used for, inter alia, paying witness protection expense s. The ability
of the applicant to successfully prosecute criminal cases and the safety of
witnesses cannot be jeopardized.
[4] The factual background to this dispute is that the first respondent was employed
by the applicant as an Assistant Director. He w as dismissed for misconduct and
challenged the fairness of the dismissal at the third respondent (the bargaining
council). The dispute was arbitrated by the second respondent (the arbitrator)
who, on 18 June 2024, issued an arbitration award in the followi ng terms:
‘(a) I hereby rule that the dismissal of the applicant was procedurally unfair
and substantively unfair.
(b) I hereby order the respondent to reinstate the applicant with full pay to the
position, which he occupied effectively from the 09th of October 2019
being the date of the dismissal.
(c) The applicant must report for duty on the 05th of August 2024.
(d) I hereby order the respondent to pay the applicant the sum of R529 185,84
being an equivalent of his salary for a period of twelve [ 12] months as
back pay not later than the 05th of August 2024.”
[5] In a letter dated 11 November 2024 the first respondent’s attorneys informed the
applicant that the arbitration award had been certified in terms of section 143 of
the Labour Relations Act1 (the LRA). They further advised that the writ of
execution had been issued by the Commission for Conciliation, Mediation and
Arbitration (the CCMA). Thereafter an exchange of correspondence ensued
between the parties about the validity of the bond of security the applicant had
filed with the application to review and set side the arbitr ation award. The
applicant filed an interlocutory application seeking a declaratory order on the
issue. On 1 April 2025 it was brought to the applicant’s attention that its bank
account which it used in discharging its mandate including witness protection had
been frozen. The account was attached as a consequence of the first
respondent’s attempt to enforce the arbitration award by executing the writ. The
applicant reacted by filing this application.
[6] The applicant did not file a replying affidavit. It w as argued on behalf of the first
respondent that the rule in Plascon - Evans Paints v Van Riebeeck Paints (Pty)
Ltd2 be applied. The applicant proffered no cogent reason for the rejection of the
first respondent’s argument. I could also find no reason in law for not applying the
rule. The Plascon Evans (supra) rule will therefore be applied.
1 Act 66 of 1995 as amended.
2 [1984] 2 All SA 366
[7] The applicant sought to r ely on the first respondent’s failure to comply with the
provisions of section 3 of the State Liability Act3. The submission is refuted by the
first respondent who contended that the writ was issued in terms of the LRA a
statute which takes precedence ove r the State Liability Act. In the absence of a
replying affidavit the averment is unrefuted. I accepted the first respondent’s
contention because it is cons istent with the provisions of section 210 of the LRA.
[8] The first respondent submitted that the ap plicant failed to prove its entitlement to
the relief it seeks in prayer 2 of the notice of motion because there is no prima
facie right to the relief it seeks in respect of staying the writ. The applicant sought
the stay of the writ pending the finalisati on of the review application. The
applicant submitted that there is a pending review application as, inter alia , the
60 day period within which it is required to file the record prescribed in Rule
37(14) has not expired. The first respondent submitted that there is no pending
review application because it had lapsed.
[9] In support of his contention the first respondent submitted that on 17 October
2024 the bargaining council dispatched the record to the applicant. He submitted
that in terms of rule 37(14) the applicant was required to have filed the record
within 60 days from 17 October 2024. The 60 day period expired on 11 February
2025. As the applicant had not complied with the provisions of rule 37(14) the
review application had been deemed withdrawn as envisaged in rule 37(1 5).
[10] In the letter the first respo ndent sought to rely on the office of the State Attorney
acknowledged having received the record on 14 October 2024. In the absence of
the replying affidavit, I accept the first respondent’s version based on the Plascon
Evans (supra) rule because it is unrefute d and not far fetched. As the review
was deemed withdrawn as envisaged in rule 37(15) there is no review
application. The writ may not be stayed pending a non -existent review
3 20 of 1957.
application. In the absence of the review application the need to de al with the
validity of the bond of security has fallen away.
[11] The applicant submitted that the writ should be set aside because the first
respondent followed an incorrect procedure by seeking to enforce the certified
award through the issuing of a writ. It submit ted that the first respondent should
have instituted contempt proceeding in enforcing the arbitration award. It was
argued on behalf of the first respondent that the procedure he followed is correct.
It is based on section 143 of the LRA which provides tha t an award sounding in
money may be enforced through a writ .
[12] It is common cause that in the award the applicant is ordered to reinstate the first
respondent with full back pay with effect from the date of his dismissal, the 9
October 2019. The applica nt was further ordered to pay the first respondent back
pay in the amount of R529 185.84 by 5 August 2024. The applicant did not
comply with the arbitration award.
[13] In determining whether the applicant established valid grounds for the setting
aside o f the writ I have taken into account that the enforcement of a certified
award is governed by section 143 of the LRA. The section makes no reference to
back pay. The term back pay is used in Kubeka and Others v Ni -Da Transport
(Pty) Ltd4 where the time of its payment is expressed as follows:
“Back pay is only contractually owing upon the full restoration of the
employment contract. This requires more than a tender of services by the
unfairly dismissed employees. The employer should also h ave accepted
those employees back into its employ. If the employer failed to do so, the
correct legal path was to have forced it to restore the contract of
employment by means of contempt proceedings… the judgment ordering
reinstatement does not in and of itself reinstate the contract of
4 [2021] 4 BLLR 352 (LAC).
employment; rather, it is an order directing the employer to accept those
services. If the employer fails to do so, the remedy is to bring contempt
proceedings to compel the employer to do so. ”
[14] The significance of the full restoration of the contract of employment before back
pay is due to an employee is that the LRA is silent on back pay. The power of
arbitrators to order reinstatement is conferred on them by section 193 (a) of the
LRA which provides that after finding a dismissal unfair they may order the
employer to reinstate an employee. Payment of back pay is therefore part of the
execution of the reinstatement order. It is inextricably linked to it. The
enforcement of a certified award which orders an employer to re instate an
employee is regulated by section 143(4) of the LRA. I therefore accept the
applicant’s averment that the first respondent followed an incorrect procedure by
attempting to enforce the reinstatement award through a writ. The writ was, in the
circu mstances, irregularly issued. It must be set aside.
[15] I could find no reason in fairness for granting a costs order against the first
respondent.
[16] In the circumstances the following order is made:
1. The writ issued against the applicant by the thir d respondent under case
number GPSC1407/2023 on 7 February 2025 is set aside.
2. The fifth respondent is ordered to forthwith release and make available all
amounts held in the applicant’s bank accounts under its name ‘the
National Prosecuting Authority’ b earing account number 0[...], and funds in
any other accounts held in the applicant’s name with the fifth respondent.
3. There is no order as to costs.
NZM Lallie
Judge of the Labour Court of South Africa
Appearances
For the Applicant: Advocate Winfred
Instructed by State Attorney
For the First Respondent: Mr Hlomgwane of Mhlanga Inc.