IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Case No: 2025-138694
Not Reportable
In the matter between:
ARAMUGAM GOVENDER Applicant
and
THE KWAZULU-NATAL OFFICE OF THE PREMIER Respondent
Heard: 11 September 2025
Delivered: This judgment was handed down electronically by circulation to the
parties and / or their legal representatives by email. The date and time
for handing-down is deemed 10h00 on 23 September 2025.
JUDGMENT
ALLEN-YAMAN J
2
Introduction
[1] By way of an urgent application, t he applicant sought an order in the following
terms,
‘2.1 That the enforcement of the arbitration award issued under GPSSBC Case
No GPBC 3086/2018 be authorised to proceed forthwith.
2.2 That the enforcement of the arbitration award issued under CCMA Case no
BCKN 197/23 be authorised to proceed forthwith.
2.3 Declaring that the stay of enforcement granted on 8 November 2023 has
lapsed and is no longer of force or effect.
2.4 Declaring that the interim stay granted on 12 August 2024 expired on its
return date of 5 September 2024 and is no longer in operation.’
[2] The respondent opposed the application and, having done so, sought by way of
a counter-application an order that the applicant be declared to be a vexatious
litigant, together with relief ancillary thereto.
Background
[3] On 16 August 2023 an arbitration award was issued in favour of the applicant
under case number GP BC 3086/2018 (‘the award’) in terms of which the
arbitrator found that he had been dismissed by the respondent on 1 April 2017,
and that such dismissal had been both substantively and procedurally unfair.
The applicant was awarded retrospective reinstatement, albeit that it was
appreciated by the arbitrator that such reinstatement could not be given
physical effect in light of the fact that the applicant had reached the compulsory
age of retirement in the intervening period. The arbitrator calculated the
backpay which was due to him in the amount of R9 449 997.48.
[4] Acting in terms of s143(3) of the LRA, the applicant applied to the CCMA to
certify the award, which was done on 13 October 2023. The respondent on the
other hand was dissatisfied with the outcome of the arbitration, and applied to
review the award under case number D601/2023 on 19 October 2023.
3
[5] As the respondent had neither furnished security in terms of s145(8), nor
applied to stay the enforcement of the award in terms of s145(3)
contemporaneously with the delivery of its review application the applicant
sought to enforce compliance, to that end having caused the Sheriff of the High
Court to attach certain of the respondent’s assets on 6 November 2023. The
respondent, in turn, applied to this court on an urgent basis to stay enforcement
and to be exempt from the provision of security. When the matter came before
this court on 8 November 2023 the parties were ad idem as to the further
conduct of proceedings and a consent order was then made an order of this
court. It read,
‘1. The non-compliance by the Applicant under the rules of court regarding the
form and time limits and manner of service is condoned.
2. The operation of the arbitration award under case no: GPBC 3086/2018 dated
16 August 2023 is suspended pending the determination of payment issue of
security by the Applicant.
3. The Second Respondent be and is hereby interdicted and restrained from
removing the goods and items already attached and listed in the notice of
attachment in execution (inventory annexed herewith as Annexure “A”) being
the property of the Applicant, pending the finalisation of the review
proceedings already instituted.
4. The First Respondent acting through the Second Respondent be and are
hereby forthwith interdicted and restrained from attaching further and
removing property belonging or found in the Applicant’s properties wherever
they are situated pursuant to the arbitration award under review.
5. The Second Respondent is directed to release from attachment all the
goods/items listed in Annexure “A” forthwith.
6. That paragraphs 3 and 4 herein above shall operate as an interim relief and
mandamas pending the finalisation of the review application.
7. The First Respondent shall file his answering affidavit on or before 22
November 2023.
7. The First Respondent shall file his answering affidavit on or before 22
November 2023.
8. The Applicant shall file its replying affidavit on or before 6 December 2023.
9. The Applicant is ordered to pay the Second Respondent’s costs of execution.
10. Costs of this application are reserved.’
1
1 Reference to the applicant in the order was reference to the respondent in the present application.
4
[6] There is no evidence before this court that any further steps were taken in
relation to that application and the order taken by consent accordingly remained
in place.
[7] The respondent’s review application was enrolled for hearing on 16 July 2024
on which date it was dismissed , with r easons having been provided on 5
September 2024. In the meantime, alive to the fact that the review application
had been dismissed, the applicant again sought to execute against the
respondent’s assets in satisfaction of the award. To this end, the sheriff
attempted to execute a writ, but was denied entry by officials of the respondent
who initiated an urgent application in this court to prevent continued execution.
Whilst the application itself was not placed before this court, the order granted
on 12 August 2024 read as follows,
‘1. The Applicant’s failure to comply with the time limits referred to in section
68(2) of the Labour Relations Act No 66 of 1995 (as amended) (“the LRA”) is
hereby condoned, and that the matter is dealt with as one of urgency in terms
of Rule 8 of the Rules for the conduct of proceedings in the Labour Court.
2. A rule nisi is hereby issued calling upon the Respondent to show cause, if
any, to this Honourable Court on 5 September 2024 at 10h00 or so soon
thereafter as the matter may be heard, why an order in the following terms
should not be granted:
2.1 the Respondent herein is declared to be in contempt of the consent order
taken before the Honourable Madam Justice Allen-Yaman under case
number D601/23 on 8 November 2023;
2.2 the Respondent is hereby interdicted and restrained from taking any steps,
including enlisting the services of the Sheriff of this Court or his Deputy or any
other private or state functionary, to enforce the Arbitration Award issued
under case number GPBC 3086/2018 dated 16 August 2023, pending the
delivery of the written judgment in the review application under case number
D601/23 and the lapsing of the dies for noting an appeal;
D601/23 and the lapsing of the dies for noting an appeal;
2.3 further and/or alternative relief.
3. Pending the outcome of this application, paragraph 2.2 above is to operate as
an interim order with immediate effect.
5
4. Costs reserved.’2
[8] It was on the return day, 5 September 2024, that this court gave its written
reasons for its order of 16 July 2024. On the applicant’s undisputed version,
the interim order which had been granted on 12 August 2024 was then neither
confirmed nor extended.
[9] The respondent noted an application for leave to appeal against the dismissal
of its review application, which leave was granted in December 2024. Whilst
the outcome of the application for leave to appeal was awaited, the applicant
initiated two contempt applications. The first was heard on 7 November 2024
and was dismissed on 22 November 2024, with the second having been heard
on 6 December 2024 and dismissed on 20 February 2025.
[10] On 14 August 2025 the applicant initiated the present application.
Urgency
[11] The respondent took issue with the applicant having initiated his application on
an urgent basis, it having been the respondent’s case that the applicant failed
to address the requirements for urgency adequately, if at all, and, moreover, his
claim was for payment of a sum of money only, in circumstances in which this
court has reiterated that such claims do not, as a matter of course, found
grounds for urgency. The respondent is correct that the applicant’s case for
urgency falls short of that which a litigant is required to establish for it to be
entitled to a hearing on the urgent roll – he failed to provide particularity
concerning the severe financial prejudice he claimed to be experiencing, and
nor did he explain the irreparable harm he claimed he would sustain in the
event that he is obliged to await a hearing in due course.
[12] That having been said, this court has a discretion when it comes to deciding
whether to deal with matters on an urgent basis. In the present case, the
applicant has been without employment since 2016 and armed with an award in
2 Reference to the applicant in the order was reference to the respondent in the present application.
6
his favour since 2023. In view of the fact that a full set of affidavits was
exchanged and the issues fully ventilated, to strike the matter from the roll for
lack of urgency would simply result in another court in due course being
required to entertain the application on its merits once again. In the
circumstances, this court will enrol the matter and determine the application
and the respondent’s counter-application on their respective merits.
Applicant’s Application
[13] It is the applicant’s case that there is presently no lawful impediment to his
demanding compliance with the award:
• The order granted on 8 November 2023 was interim in nature, intended
(subject to the fulfilment of the condition of the payment of security,
which was never fulfilled) only to operate until the conclusion of the
review application, which eventuality occurred on 16 July 2024.
• The further order granted on 12 August 2024 was also interim in nature,
intended to operate until the time period for applying for leave to appeal
had elapsed after reasons for the order of 16 July 2024 had been given.
In any event, on 5 September 2024 (the return date and the date on
which reasons for the order dismissing the respondent’s review
application were given) the interim order was neither confirmed nor
extended and it accordingly lapsed.
[14] Distinct from the assertions made by t he respondent in support of its claim that
the applicant be declared to be a vexatious litigant, it contended that:
• The relief sought was not competent.
• The award is the subject of a pending appeal before the Labour Appeal
Court under DA6/2025 and is accordingly, ‘not subject to alteration’ by
this court.
[15] In amplification of assertion that the relief sought by the applicant was not
competent, the respondent relied on this court’s previous judgments handed
down when having dismissed the applicant’s previous contempt applications. It
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was the applicant’s further case that the pending appeal automatically stayed
enforcement of the award.
[16] As regards the order of 8 November 2023, the order envisaged the payment of
security in terms of s145(3) of the LRA. The interim interdictory relief agreed to
in paragraphs 3 and 4 was not, however, contingent upon the payment thereof.
Paragraph 3 expressly interdicted the applicant from removing the goods which
had been attached ‘pending finalisation of the review proceedings,’ and
paragraph 6, in terms of which both paragraph 3 and 4 were given immediate
effect, made it clear that those paragraphs were to operate ‘pending the
finalisation of the review application.’
[17] Albeit that it was not the respondent’s pleaded case that the order of 8
November 2023 had any effect post fact the determination of the review, Mr
Luthuli for the respondent argued that ‘pending the review’ was intended to
mean ‘pending the review and all possible appeal processes which could follow
thereafter.’ Not only did he present this court with no authority for such a
proposition but the respondent’s founding affidavit in support of its application
to stay which led to the consent order of 8 November 2023 did not envisage the
suspension of enforcement for any period of time beyond the determination of
its review application by this court.
[18] Firstly, the application to stay was made contemporaneously with an application
to have been exempt from the provision of security in terms of s145(7), a
process which itself provides that upon the payment of the appropriate amount
of security an award will be stayed pending the outcome of the review. Mr
Kuhn, who deposed to the founding affidavit in the stay application on behalf of
the respondent, asserted that,
‘I am advised that the onus lies with an applicant who must show that it has assets of a
sufficient value to meet its obligations should the Arbitration Award be upheld by the
court on review.’
court on review.’
‘The Applicant has sufficient budget and assets to settle the debt if the review
application was decided in favour of the First Respondent.’
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‘Accordingly, the interest of justice demand that the fulfilment of the award and
execution on the Applicant’s property be stayed pending the decision of this Court on
Review.’
3
Nowhere in the respondent’s affidavit in support of its stay application was the
notion that the award was sought to be stayed beyond the determination of the
review in this court ever mentioned.
[19] As regards the order of 12 August 2024, that order was interim in nature,
intended to operate until its return date of 5 September 2024. The applicant’s
assertion that it lapsed on that date was undisputed by the respondent.
Nevertheless, even if it had been confirmed on the return date, it would have
lapsed on 13 December 2024, being the date on which the respondent was
granted leave to appeal this court’s judgment in its review application.
[20] In the circumstances, the applicant is correct that no order of this court currently
operates as a bar to enforcement of the award and the applicant is entitled to
the declaratory relief sought by him as regards the orders of 8 November 2023
and 12 August 2024. The issues that remain to be determined are the
correctness or otherwise of the respondent’s contentions that the relief sought
by the applicant is not ‘competent’ , and / or that its appeal operates as an
automatic bar to enforcement of the award.
[21] The first of its assertions was premised upon the findings of this court in t wo
applications for contempt which had been initiated by the applicant.
[22] The first of the applicant’s contempt applications was heard on 7 November
2024, with judgment having been delivered on 22 November 2024. It is evident
that the applicant then sought that the respondent be held in contempt of court
for having failed to have complied with the consent order of 8 November 2023
insofar as the applicant alleged that the respondent had failed to provide
security, despite the order having obliged it to do so. The applicant’s Notice of
security, despite the order having obliged it to do so. The applicant’s Notice of
Motion sought relief, inter alia, as follows,
9
‘declaring that the Respondent be and is hereby in contempt of paragraph 2 of the
court order granted by the above honourable court on the 8 th November 2023 under
the above case number.’
[23] No issue may be taken with the court’s conclusion that,
‘A close conspectus of paragraph 2, which the applicant states that the respondent
failed to comply with, does not require the applicant to provide security at all. It rather
requires the operation of the arbitration award under case number GPBC 3086/2018 to
be suspended pending the determination of the payment issue of security . Simply put,
the respondent was never ordered to pay security at all.’
4
[24] It is not, however, clear why the court went further and made findings regarding
compliance with the award itself, seemingly an issue that was not before it,
‘In casu, the respondent filed a review application and, thereafter, an application for
leave to appeal. In addition, there is a further application which suspends the
operation of the arbitration award; it thus follows that the operation of the arbitration
award is suspended pending the determination of the review application. The purpose
of contempt proceedings is to compel compliance. This court cannot compel
compliance with an arbitration award whose operation was suspended or stayed by
the Honourable Madam Justice Allen-Yaman’s court order dated 8 November 2023.’
5
[25] Although the aforementioned remarks were made obiter, it should be noted that
at the time when the judgment was delivered, no court order stayed the
operation of the award: the consent order of 8 November 2023 had lapsed
upon the determination of the review on 16 July 2024, and the interim order of
12 August 2024 had lapsed upon the failure on the part of the respondent to
have extended it on 5 September 2024. Be that as it may, the only issue for
determination before the court was whether the respondent ought to be found
determination before the court was whether the respondent ought to be found
to have been in contempt of court for having failed to provide security in
accordance with the applicant’s appreciation of the order of 8 November 2023.
3 At paragraphs 28, 30 and 31
4 At paragraph
5 At paragraph
10
Whilst the court found that the respondent was not in contempt, such finding
has no bearing on the present application.
[26] By way of the second contempt application initiated by the applicant on 27
November 2024 pursuant to the respondent’s review application having been
dismissed, the applicant sought to have the respondent held to be in contempt
of court on account of its failure to have complied with its obligations under the
award. In dismissing his application, its reasoning for having done so w as
seemingly premised on the fact that at the time when the contempt application
was initiated, the respondent had applied for leave to appeal against the
judgment dismissing its review application,
‘Given KOTP’s application for leave to appeal and when the application and the
required submissions were filed, the contempt application falls to be dismissed with
costs. Costs, because the contempt application was filed long after the
aforementioned filings, and, on 15 October 2024, KOTP pertinently reminded
Govender that they had filed all the necessary papers in their application for leave to
appeal and pertinently warned him against his threat to bring this contempt
application.’
6
[27] Regardless of the court’s reasoning for having dismissed the applicant’s
contempt application, it nonetheless observed that there had been no prior
impediment to enforcement of the award,
‘A proper consideration of all his legal proceedings, save for the last one, indicates that
in his own lay manner he had attempted to enforce his award when he had every right
to do so given KOTP’s failure to furnish security and thereby suspend the operation of
the award.’7
[28] In consideration of the two judgments upon which the respondent relied as a
basis for its assertion that the applicant’s present application is not competent,
this court can find nothing in either which suggests, let alone dictates, the
conclusion the respondent seeks this court to arrive at.
6 At paragraph
7 At paragraph
11
[29] The final question is accordingly whether the applicant’s enforcement of the
award is automatically stayed by virtue of the respondent’s appeal. The effect
of an application for leave to appeal and an appeal is governed by s18 of the
Superior Courts Act, 2013 which provides as follows,
‘(1) Subject to subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise, the operation and execution of a decision
which is the subject of an application for leave to appeal or of an appeal is
suspended pending the decision of the application or appeal.
(2) Subject to subsection (3), unless the court under exceptional circumstances
orders otherwise, the operation and execution of a decision that is an
interlocutory order not having the effect of a final judgment, which is the
subject of an application for leave to appeal or an appeal, is not suspended
pending the decision of the application or appeal.
(3) A court may only order otherwise as contemplated in subsection (1) or (2), if
the party who applied to the court to order otherwise, in addition proves on a
balance of probabilities that he or she will suffer irreparable harm if the court
does not so order and that the other party will not suffer irreparable harm if
the court so orders.
(4) (a) If a court orders otherwise, as contemplated in subsection (1)-
(i) the court must immediately record its reasons for doing so;
(ii) the aggrieved party has an automatic right of appeal to the next
highest court;
(iii) the court hearing such an appeal must deal with it as a matter of
extreme urgency; and
(iv) such order will be automatically suspended pending the outcome of
such appeal.
(b) “Next highest court” for purposes of paragraph (a)(ii), means-
(i) a full court of that Division, if the appeal is against a decision of a
single judge of the Division;
(ii) the Supreme Court of Appeal, if the appeal is against a decision of two
judges of the full court of the Division.
judges of the full court of the Division.
(5) For the purposes of subsections (1) and (2), a decision becomes the subject
of an application for leave to appeal or of an appeal, as soon as an
application for leave to appeal or a notice of appeal is lodged with the
registrar in terms of the rules.’
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[30] Whilst it may appear that the effect of s18(1) is to suspend only those decisions
in which positive obligations are given effect, in Minister of Finance v Sakeliga
NPC (previously known as Afribusiness NPC) and Others 2022 (4) SA 401
(CC) the Constitutional Court explained that the terms ‘operation and
enforcement’ are not to be construed in a manner which limits the application of
the provision,
‘Crucially, the Minister is aware of the import of section 18(1) of the Superior Courts
Act. He says that in terms of this section the operation of the order of the Supreme
Court of Appeal was suspended from the date the Minister lodged an application for
leave to appeal to this Court on 23 November 2020. The law is, and always has been,
clear on the issue. In Ntlemeza the Supreme Court of Appeal traces the law from the
common law position before any statutory intervention. It quotes South Cape
Corporation which held:
“Whatever the true position may have been in the Dutch Courts, and more particularly
the Court of Holland … it is today accepted the common law rule of practice … that
generally the execution of a judgment is automatically suspended upon the noting of
an appeal, with the result that, pending the appeal, the judgment cannot be carried out
and no effect can be given thereto, except with the leave of the court which granted
judgement. To obtain such leave the party in whose favour the judgment was given
must make special application … The purpose of this rule as to the suspension of a
judgment on the noting of an appeal is to prevent irreparable damage from being done
to the intended appellant, either by levy under a writ of execution or by execution of the
judgment in any other manner appropriate to the nature of the judgment appealed
from.”
Plainly, execution of a judgment means giving effect to the judgment. And reference to
“execution of the judgment in any other manner appropriate to the nature of the
“execution of the judgment in any other manner appropriate to the nature of the
judgment appealed from” gives a wide meaning to the word “execution”. We should
not be led to think it relates only to execution under a writ of execution. Put simply, it
means giving effect to an order, whatever its nature. So, the suspension of the
execution of a judgment means that the judgment cannot be carried out and no effect
can be given thereto. And that applies to whatever it is that is required to be done or
has to take place in terms of the judgment. …
13
The position is now governed by section 18(1) of the Superior Courts Act. This section
provides:
“Subject to subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise, the operation and execution of a decision which is the
subject of an application for leave to appeal or of an appeal is suspended pending the
decision of the application or appeal.”
This too is in line with the common law position which has already been explained.
And “operation” which the section couples with “execution” (“operation and execution”)
does not alter the legal position stated above.’8
[31] The award itself is not a decision of this court. The respondent’s appeal, on the
other hand, is against the decision to dismiss its review. On the face of it, the
two processes may appear unrelated, and the award may appear to be
unaffected by s18(1). However, as the dismissal of the review gave rise to the
applicant’s entitlement to payment in terms of the award, on the authority of the
Constitutional Court, the respondent’s appeal against the decision to dismiss its
review has the effect of suspending the award itself, as s18(1) “applies to
whatever it is that is required to be done or has to take place in terms of the
judgment,” - in this instance, payment in terms of the award.
[32] A similar conclusion was arrived at when an analogous situation arose in
Confuscore (Pty) Limited v Ehlers N.O and Others (2919/2016) [2019]
ZALMPPHC 2 (1 February 2019). In that matter, the respondents had
purchased three immovable properties at a sale in execution and the applicants
had applied to court to set such sales aside. Their application was dismissed,
the result of which was that the sales were upheld as having been lawful . By
virtue of the applicants having noted an appeal against the dismissal of their
application, however, the respondents were deprived of access to the
properties. Despite that the initial decision of the court did no more than
properties. Despite that the initial decision of the court did no more than
dismiss the applicants’ application, their subsequent appeal operated as an
impediment to the respondents’ enforcement of their rights of ownership as a
14
consequence of the operation of s18(1). In the circumstances, they were
obliged to apply to court in terms of s18(3) to enforce their rights of ownership
pending the appeal.
[33] Similarly, the respondent’s appeal has had the effect of suspending the
applicant’s rights in terms of the award. A bsent an order in his favour in terms
of s18(3), enforcement of the award remains suspended pending the outcome
of the respondent’s appeal.
Respondent’s Counter-Claim
[34] By way of a counter-application the respondent sought an order in the following
terms,
‘1. Declaring that the Applicant herein is a vexatious litigant.
2. Directing that no legal proceedings shall be instituted by the applicant herein,
Mr Arumugam Govender against the Respondent herein without the leave of
this Honourable Court, or any Judge thereof and such leave shall not be
granted unless the Court or the Judge determining the matter, is satisfied that
the proceedings are not an abuse of the process of the court and that there
is/are prima facie grounds for the proceedings, as contemplated in section
2(1)(b) of the Vexatious Proceedings Act 3 of 1956.
3. That the Applicant is directed to pay the costs of this application on a scale as
between attorney and client.’
[35] The present application constitutes the second attempt on the part of the
respondent to obtain such relief , a similar counter -application having served
before this court in response to the applicant’s contempt application of 27
November 2024, which counter-application was dismissed.
[36] On the face of it, the applicant has done no more than seek to obtain payment
of an award in his favour which award this court has previously upheld. Insofar
as the declaratory relief sought by the applicant in the present application is
8 At paragraphs 12 – 15, with reference to Ntlemeza v Helen Suzman Foundation 2017 (5) SA 402
(SCA) and South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3)
15
concerned, the applicant’s understanding of the effect of the orders of 8
November 2023 and 12 August 2024 has been found to have been correct and
he is entitled to orders to this effect. As to the remainder of the relief sought by
him the applicant , as a layperson, could not have been expected to have
appreciated the effect of s18(1) of the Superior Court’s Act, 2013.
[37] Save that the applicant has launched a further application, which differed from
his previous contempt applications, there is no basis for this court to conclude
that the applicant has ‘persistently and without reasonable grounds’ instituted
legal proceedings against the respondent. In the circumstances, the
respondent’s counter-application will be dismissed.
Costs
[38] In consideration of the issues involved in this matter, this court is not of the view
that an award of costs is warranted.
Order
Applicant’s Application
1. The applicant’s application is enrolled as an urgent application and the
applicant’s non-compliance with forms and periods of service is condoned to the
extent necessary.
2. It is declared that the stay of enforcement of the award issued under case
number GPBC 3086/2018 lapsed on 16 July 2024 and, with effect from that
date, was of no force and effect.
3. It is declared that the stay of enforcement of the award issued under case
number GPBC 3086/2018 lapsed on 5 September 2024 and, with effect from
that date, was of no force and effect.
SA 534 (A)
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4. The relief sought by the applicant under paragraphs 2.1 and 2.2 of his Notice of
Motion dated 14 August 2024 is dismissed.
5. There is no order as to costs.
Respondent’s Counter-Application
1. The respondent’s counter-application is dismissed.
2. There is no order as to costs.
________________________
K Allen-Yaman
Judge of the Labour Court of South Africa
Appearances
Applicant:
In person
Respondent:
Mr S Luthuli, instructed by the State Attorney, KZN