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THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA
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Case No: 2025-057504
In the matter between:
KEMPSTON EMPLOYMENT SOLUTIONS Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION & ARBITRATION First Respondent
JACOBS PH N.O. Second Respondent
ANTONI THENJISWA Third Respondent
Heard: 23 July 2025
Date of Judgment: This judgment was handed down electronically by circulation
to the parties’ legal representatives by email, publication on the Labour Court
website and release to SAFLII. The date and time for handing down judgment is
deemed to be 11h00 on 29 July 2025.
Summary: application to stay enforcement of CCMA arbitration award — no security
furnished in terms of section 145 (7) and (8), and no acceptable reason advanced
for such failure — application to stay the enforcement of the award dismissed —
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employer ordered to furnish security as provided in section 145 (8) failing which
award may be enforced.
JUDGMENT
DE KOCK, AJ
Introduction
[1] This matter comes before the court as an urgent application to stay the
enforcement of the arbitration award of the Commission for Conciliation, Mediation
and Arbitration (CCMA), in the matter between Thenjiswa Antoni v Kempston
Employment Solutions (CCMA Case No, ECGQ6735-24) pending finalisation of
the review application launched.by the applicant under Case No. 2025-057504.
[2] The review application was filed on 24,April 2025. The applicant, despite the
review application and despite the provisions of section 145 (7) and (8) of the
Labour Relations Act (LRA)', failed to furnish security and approached the court,
on an urgent basis, to.seek.an order that the enforcement of the arbitration award
be stayed.
Urgency
[3] The» arbitration award was issued on or about 12 March 2025. The review
application was filed on 24 April 2025. The applicant failed to furnish security in
terms of section 145 (7) and (8). The urgent application was filed on 3 June 2025,
and the application was only heard on 25 July 2025, nearly two months later. The
applicant failed to provide an explanation why it waited, from 12 March 2025 until
3 June 2025 to launch the urgent application, or alternatively why the applicant
‘No 66 of 1995, as amended
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failed to immediately apply for an order seeking an exemption of the need to
provide security.
[4] The court has serious reservations as to whether the applicant has satisfied the
requirement of proving the urgency of this application. The applicant, having filed
the review application on 24 April 2025, was required to furnish security to avoid
the enforcement of the award. The applicant failed to do so. There was a legal
requirement on the applicant to furnish security to avoid the enforcement of the
award and if a lesser amount of security was sought to be provided, or no security
at all, it was incumbent on the applicant to apply for an.exemption from,the Labour
Court. The applicant failed to do so.
[5] The urgency was therefore in the opinion of the court self-created by the applicant.
Be that as it may, the third respondent, in her opposing affidavit, does not take
issue with the issue of urgency and in fact agrees that the matter is urgent and
needs to be determined on the urgent courtrolly The court will therefore, instead
of striking the application off the roll for lack of urgency, proceed to address the
merits of the application.
Requirement to provide security
[6] The Labour Court is inundated with urgent applications by employers seeking to
stay the enforcement of arbitration awards in cases where employees have been
reinstated, re-employed, or awarded compensation. This is despite the clear
provisions of section 145 (7) and (8), which deal specifically with the requirements
that must be complied with to suspend the operation of an award.
[7] Section 145 (7) provides:
‘The institution of review proceedings does not suspend the operation of an award,
unless the applicant furnishes security to the satisfaction of the Court in
accordance with subsection (8).’