THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: PA 17/2024
In the matter between:
CEPPWAWU obo TABATA Appellant
and
ASPEN PHARMACARE LTD Respondent
Heard: 29 May 2025
Delivered: 24 July 2025
Coram: Van Niekerk JA, Nkuta-Nkontwana JA et Basson AJA
JUDGMENT
VAN NIEKERK, JA
Introduction
2
[1] Ordinarily, the furnishing of security in terms of section 145 (7) and (8) of the
Labour Relations Act1 (LRA) suspends the operation of an arbitration award that is
under review. 2 This appeal raises the question of whether the furnishing of security
suspends the operation of an arbitration award in circumstances where the underlying
review application has been archived in terms of clause 11 of the now-repealed Practice
Manual3.
Background facts
[2] At the time of his dismissal, the appellant had been employed by the respondent
for some 21 months . In that period, he had accumulated no less than five written
warnings, including a final written warning, for time and attendance- related
infringements. On 12 December 2014, t he appellant was dism issed by the first
respondent after arriving late for duty . The appellant referred a dispute about the
fairness of his dismissal to th e National Bargaining Council for the Chemical Industry
(the bargaining council).
[3] The dispute was referred to arbitration. On 5 October 2015, the bargaining
council issued an arbitration award to the effect that the appellant had been unfairly
dismissed and order ed his reinstatement. The respondent received the award on 26
October 2015. On 20 November 2015, the respondent filed an application in term s of
section 145 of the LRA to review and set aside the award. At the same time, the
respondent filed a bond of security in terms of sections 145 (7) and (8) of the Act.
[4] On 3 December 2015, the bargaining council delivered a n incomplete record of
the arbitration proceedings to the registrar. The record did not contain the audio discs of
the hearing. On 22 December 2015, the registrar advised the parties that the record had
been received from the bargaining council and that the parties ought to comply with
1 Act 66 of 1995, as amended.
2 City of Johannesburg v SA Municipal Workers Union on behalf of Monareng and another (2019) 40 ILJ
1753 (LAC) at para 7.
1753 (LAC) at para 7.
3 Practice Manual of the Labour Court of South Africa (repealed effective 17 July 2024).
3
clause 11.2 of t he Practice Manual. That clause provides that a transcription of the
record of the proceedings under review must be filed within 60 days of the date on
which an applicant in the review application is advised by the registrar that the record
has been received.
[5] On 15 March 2016, the respondent addressed a letter to the appellant ’s union
advising that the bargaining council had failed to file a complete record and requesting
consent to the filing of a private transcription of the record, prepared by the
respondent’s legal representatives. The union refused to accede to this request and on
22 March 2016, advised the respondent that it should inform the bargaining council that
the audio discs had been omitted from the record sent to the registrar.
[6] The respondent addressed a l etter to the registrar on 31 March 2016 advising
that the bargaining council had omitted to include an audio disc , and requested a
directive on how to proceed with the matter. On 29 April 2016, the bargaining council
delivered the audio disc to t he registrar. On 3 May 2016, the registrar issued a directive
in which receipt of the audio disc was acknowledged, and again drew the parties’
attention to clause 11.2 of the Practice Manual.
[7] The respondent discovered that the audio disc filed by the bargaining council
was incomplete. The matter was set down in the bargaining council for a reconstruction
of the record. That attempt at securing a complete record of the arbitration proceedings
was unsuccessful.
[8] On 30 May 2017, the registrar informed the parties that she had received what
appeared to be the missing audio disc. That disc was furnished to the respondent only
in August 2018, it having been misplaced during the Labour Court’s move to new
premises.
4
[9] On 17 September 2018, t he respondent filed the complete transcribed record
and delivered a notice in terms of Rule 7A (6), together with a Rule 7A (8)4 notice to the
effect that the respondent di d not intend to file a supplementary affidavit in support of
the review application.
[10] On 9 November 2018, the union addressed a letter to the respondent advising
that the review application had been deemed withdrawn with effect from 23 August
2017, being 60 court days after the audio disc had been made available on 30 May
2017. The union demanded compliance with the arbitration award.
[11] More than a year later, on 9 January 2019, the appellant filed an application in
terms of section 158 (1)(c) to have the arbitration award made an order of court . On 16
January 2019, no doubt in response to the application, the respondent delivered an
application to reinstate the review, recording the difficulties that it had encountered in
preparing the complete record. The registrar enrolled the applications for hearing on a
single date, 30 April 2019. On that date, the Labour Court ordered that the applications
be heard simultaneously on a future date. Both applications remain pending.
[12] On 8 October 2019, the appellant addressed a letter to the registrar advising that
the applications for review and to have the award made an order of court were ripe for
hearing and requesting that they be set down on the opposed motion roll. For reasons
that are not apparent, for a period of some four years, the matters were not set down,
with neither party seeking to ensure that the applications came before the Court. It was
only on 4 December 2023, when the appellant , without notice to the respondent,
instructed the sheriff to attach goods to enforce the monetary component of the
arbitration award, that the matter was resurrected. The sheriff attended the respondent’s
premises on 8 February 2024 to execute the award.
5
premises on 8 February 2024 to execute the award.
5
4 Rule 7A of the now since repealed Rules for the Conduct of Proceedings in the Labour Court (GN 1665
of 1996), repealed effective 17 July 2024.
5 The Labour Court raised, but did not decide, the question whether it was lawful for the sheriff to enforce
the backpay portion of an award of reinstatement as if it were an order ad pecuniam solvendum.
5
[13] On 28 February 2024, the respondent’s new attorney of record filed a fresh bond
of security in an amount equivalent to 24 months’ remuneration. On 7 March 2023, after
the appellant refused to provide undertakings sought, the respondent filed an urgent
application seeking to stay the enforcement of the award pending the finalisation of the
review.
The Labour Court
[14] The Labour Court identified and dealt with three enquiries. The first was the
question of urgency; the second, the validity of the security bond issued in term s of
section 145 (7) and (8) of the LRA; and the third being whether section 145 (7) and (8)
applied to reviews that had been ‘archived’ in terms of the Practice Manual.
[15] The Court held that the application was urgent . In relation to the security bond,
the Court held that the bond initially issued on 5 November 2015 had been issued in an
amount equivalent to the employee’s remuneration for a period of 12 months’
remuneration, and not the 24 months required by section 145 (8) (a), given that the
arbitration award was one of reinstatement . In the absence of any satisfactory
explanation from the respondent , the Labour Court considered that th is bond was
ineffective since it had not been issued in the required amount . However, the Court
found that the security bond filed on 28 February 2024, in the correct amount, was valid.
[16] The Court then moved to consider whether the security bond furnished by the
respondent suspended the operation of the arbitration award in circumstances where
the underlying review application filed by the respondent had been archived. The Court
recorded that when the 60- day period for the filing of the record of arbitration
proceedings under review expires, in terms of clause 11.2.3 of the Practice Manual , the
review application is deemed to have been withdrawn. Further, if all t he papers in a
review application are not filed within 12 months , then the review application will, in
review application are not filed within 12 months , then the review application will, in
terms of clause 11.2.7, ‘be archived and regarded as lapsed’. Thirdly, if an applicant in a
review application fails to take any steps for a period of six months, then the registrar
6
will ‘archive’ the file with ‘the same consequences as to the further conduct by any
respondent as to the matter having been dismissed. ’ (All of these consequences were
referred to by the Court under the umbrella term ‘archived’.) It was not in dispute that
these consequences had been triggered. The respondent submitted that once a review
application is archived, the application remains in limbo pending any application to
reinstate it, and an y security furnished remained effective and precluded the
enforcement of the award, at least until the review application was finally dismissed.
The appellant submitted that once a review application is archived in terms of the
Practice Manual , the beneficiary of the award under review is entitled to execute the
award despite the existence of a security bond and any application to have the review
application retrieved from the archives.
[17] After a comprehensive review of the case law concerning the consequences of
the archiving of a review application, the Labour Court concluded that if a review
application is archived in term s of the Practice Manual, the application could only be
‘finally dismissed’ by an order of Court in an application filed in term s of Rule 11. That
being so, ‘then the review must still exist . If it still exists, then sections 145 (7) & (8) of
the LRA must apply’. In the result, t he Labour Court concluded that the archiving of the
review application did not invalidate any security bond filed in terms of section 145 (7),
and that the operation of the underlying award remained suspended until the review
was finally determined, either o n the merits or dismissed through an application to
dismiss in terms of Rule 11. The Court went on to hold that an order to stay the
execution of the arbitration award was unnecessary, since the filing of the correct
security on 28 February 2024 had stayed the execution of the award, by operation of
security on 28 February 2024 had stayed the execution of the award, by operation of
law. The order ultimately granted was a declaratory order to that effect, coupled with an
order prohibiting the sheriff from executing the award until there was a final
determination of the review application. The Labour Court made no order as to costs.
The grounds for appeal
7
[18] The grounds for appeal are broad and encompass every aspect of the Labour
Court’s reasoning. The primary focus of the appeal is the Labour Court’s finding that the
archiving of a review application does not invalidate a section 145(7) security bond, and
that the underlying award remained suspended until the review application was
determined either on the merits or dismissed consequent on a Rule 11 application.
Evaluation
[19] The primary basis of the appellant’s opposition to the application was that any
suspension of execution continued only for so long as the review application remained
pending, and that , given what he termed the ‘lapsing’ (i.e. archiving) of the review
application, the issue of security was of no consequence. The primary dispute before
the Labour Court was thus whether the review application remained capable of
reinstatement unless and until ‘finally’ dismissed; or whether the Court was obliged to
find that the review application, once archived, could no longer constitute an underlying
cause to grant a stay of execution.
6
[20] The judgment by this Court in Macsteel Trading Wadeville v Van der Merwe NO
and Others
7 (Macsteel) concerned an application filed by a trade union seeking to
review and set aside an arbitration award that had upheld the fairness of the dismissal
of one of its members. The record had been filed about 20 months after the launch of
the review application, with the result that the application was archived in terms of
clause 11 of the Practice Manual. The Labour Court had refused to consider the issue of
undue delay raised by the respondent employer because the employer had failed to file
a Rule 11 application to dismiss the review. The Labour Court went on to uphold the
review and reinstate the dismissed employee. On appeal, this Court held that i n the
absence of any application for the reinstatement of the review, the Labour Court had
been obliged to strike the matter from the roll on the grounds of lack of jurisdiction .
been obliged to strike the matter from the roll on the grounds of lack of jurisdiction .
Alternatively, the Court ought to have afforded the employer an opportunity to file a Rule
6 As the Labour Court put it, was the review application ‘as dead as a doornail’?
7 (2019) 40 ILJ 798 (LAC).
8
11 application seeking to have the review dismissed on the basis of the undue delay. In
the result, the Labour Court had determined the review application in circumstances
where it had no jurisdiction to do so.
[21] In coming to this conclusion, this Court recognised a clear distinction between a
review application being archived under clause 11 of the Practice Manual, and the
dismissal of the application under Rule 11of the then Rules of the Labour Court.
[22] E Tradex (Pty) Ltd t/a Global Trade Solution v Finch and Others
8 (E Tradex),
followed on the judgment of Macsteel. In E Tradex, this Court held:
‘[9] The notion of a case being ‘archived’ was invented by the drafters of the
Practice Manual as a penalty for dilatoriness and to relieve the burden of carrying
dormant cases indefinitely. The consequence of a case being archived is serious.
… There can be no plausible doubt that once the case is ‘archived’ it requires the
intervention of the court to ‘un-archive’ it. …
[10] The use of the term ‘archived’ is peculiar to the Labour Court Practice
Manual. In the general civil courts, for example, the failure to prosecute an
appeal timeously results in the appeal having lapsed. The effect of that is that the
case shall not be dealt with by a court unless an application to reinstate the
appeal is made. It is, in our view, plain that the archiving of a Labour Court case
was intended to have the identical effect; indeed, clause 16.3 goes even further,
to equate the consequence of an archiving of a case to be understood to mean
the application is ‘dismissed’, albeit that a procedure exists to reinstate the case
on good cause shown.
[11] It must therefore f ollow that the archived case acquires a peculiar status
which requires the delinquent party to justify why it should be reinstated and
thereafter be entertained by a court in the wake of a lack of expeditious
prosecution. …’
8 (2022) 43 ILJ 2727 (LAC).
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[23] Neither judgment makes any pronouncement regarding the circumstances in
which an arbitration award may be executed where an underlying review of that award
has been archived. Neither judgment supports the appellant’s proposition that a review
application archived in terms of the Practice Manual ‘ loses its existence ’, and that the
Labour Court thus lacked jurisdiction to grant the order that is the subject of this appeal.
E Tradex specifically addresses the status of an archived review application and
confirms that that status may be altered by way of the outcome of an application to
reinstate the review, or an order that finally dismisses the application. In the present
instance, an application to reinstate the review was pending at the time that the
appellant sought to enforce the arbitration award in his favour. In these circumstances,
the Labour Court was not precluded from determining the application to stay the
enforcement of the arbitration award.
[24] Turning next to the security bond furnished by the respondent , section 145(7) of
the LRA provides:
‘(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).’
[25] The attack on the security bond is a limited and unsubstantiated denial in t he
answering affidavit that the notice filed does not constitute security in term s of sections
145 (7) and (8). The Labour Court’s finding that the respondent’s new attorney of record
filed a fresh bond of security on 28 February 2024 and that a valid bond existed from
that date is correct – the appellant does not seriously dispute that the bond was issued
in the correct amount.
[26] The next question is the correctness of the Labour Court ’s conclusion that the
execution of the award was stayed, by operation of law, once the fresh security bond
had been furnished. Section 145 (7) of the LRA. That section provides:
10
‘(7) The institution of review proceedings does not suspend t he operation of
an arbitration award, unless the applicant furnishes security to the satisfaction of
the Court in accordance with subsection (8).’
[27] What this formulation suggests is that when security is furnished in terms of
section 145 (7) and (8), the execution of any award that is the subject of a pending
review application is automatically suspended. In City of Johannesburg v S A Municipal
Workers Union on behalf of Monareng and another,
9 this Court held:
‘[7] The Labour Court has a discretionary power under s 145(3) of the LRA to
stay the enforcement of an arbitration award pending its decision in the review
application. It may stay the enforcement of an arbitration award pending
finalisation of a review application against the award with or without conditions. It
may in terms of s 145(8) of the LRA dispense with the requirement of furnishing
security. Properly construed, s 145(3) read with s 145(7) and (8) should be
interpreted to mean that where an applicant in a review application furnishes
security to the Labour Court in accordance with s 145(8) of the LRA, the
operation of the arbitration award is automatically suspended pending its
decision in the review application. In other words, the employer need not make
an application in terms of s 145(3) of the LRA to stay the enforcement of the
arbitration award pending the finalisation of the review application.’
[28] The Labour Court’s order was thus correct, and the appeal stands to be
dismissed.
[29] Finally, I associate myself with the Labour Court’s concerns at what it described
as the ‘appalling delays’ in the resolution of this matter. The arbitration award that is the
subject of the review application was issued almost 10 years ago, and the dispute over
the reasonableness of that award is nowhere close to resolution. This is a state of
affairs entirely inconsistent with the statutory goals of expeditious and efficient dispute
resolution.
resolution.
9 Ibid, fn 1.
11
[30] Insofar as costs are concerned, for the purposes of section 179 of the LRA, the
requirements of the law and fairness are best satisfied by each party bearing its own
costs.
[31] I make the following order:
Order
1. The appeal is dismissed, with no order as to costs.
André van Niekerk
Judge of the Labour Appeal Court
Nkutha-Nkontwana JA and Basson AJA concur.
APPEARANCES:
FOR THE APPELLANT: M Thys
Instructed by Butler Attorneys
FOR THE RESPONDENT: FE le Roux
Instructed by Kirchmanns Inc.