THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case No: 2025-172308
In the matter between:
KELA SECURITIES (PTY) LTD Applicant
and
VINCENT JOSEPH FREEMANTLE First Respondent
THE SHERIFF, SANDTON SOUTH Second Respondent
Heard: 2 October 2025
Order: 7 October 2025
This judgment is handed down electronically by circulation to the parties’ legal
representatives by email and/or uploading on CaseLines. The date of hand- down
is deemed to be 7 October 2025.
JUDGMENT
MAKHURA, J
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[1] The applicant seeks relief on an urgent basis to stay the enforcement of the
award pending the determination of the review application under case number
JR2511/22. During his replying address, Mr Nyangiwe, representing the
applicant, moved for an amendment of the notice of motion to add that the stay
should also be granted pending the determination of the rescission application
instituted under case number J691/23. The rescission application was filed on
the morning of the hearing.
[2] The first issue for determination is whether an arbitration award that has been
made an order of this Court can still be a subject of the review application. If the
answer is in the affirmative, then the Court should determine whether to stay the
enforcement of the award pending the determination of the review application. If
not, the second issue is whether to grant the application to amend the notice of
motion. If the amendment is granted, the next issue is whether to stay the
enforcement of the award pending the determination of the rescission
application.
[3] Having considered the issues raised in the application and the facts of the
matter, I indicated at the commencement of the proceedings that I intended to
exercise my discretion and deal with the matter on an urgent basis in the interest
of justice. Mr Botha, who appeared for the employee, did not seriously object to
and persuade the Court otherwise. The application is therefore considered and
dealt with on an urgent basis.
[4] The award that forms the subject of this dispute is a default award issued on 24
August 2022 by the Commission for Conciliation, Mediation and Arbitration
(CCMA). The arbitrator, after declaring th at th e employee’s resignation
constituted constructive dismiss al, awarded the employee R250 000.00
compensation, due and payable by 15 September 2022.
[5] The applicant applied for the rescission of the default award. On 26 September
2022, the CCMA dismissed the rescission application. In her rescission ruling,
2022, the CCMA dismissed the rescission application. In her rescission ruling,
the commissioner found that:
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‘The applicant's representative alleges that they were absent because they had
an urgent submission to make at the JSE.
I have perused the emails between the applicant and JSE which were annexed
to the application. Firstly, it is clear from the emails that the queries from the JSE
started in June 2022. Secondly, on 5 August 2022 the JSE sent an email to the
applicant that the report was viewed and requesting that the applicant responds
by 11 August 2022, the date of the hearing.
Based on the above the applicant had ample time to arrange and ensure that
there is a representative in attendance for the arbitration or at least apply for a
postponement timeously.
Mr Kelatwang sent an email to the commission on 11 August 2022 requesting a
postponement and misleading the commission to say the request is due to an
unforeseen urgent matter, when the matter was foreseen.
The applicant has a duty to show that they have good prospects of succeeding in
the main claim of dismissal, however, they only state that the employee resigned
and is the one who caused their issues with the JSE . There is no prima facie
case or defense shown in as far as the alleged constructive dismissal is
concerned.’
[6] The applicant served and filed its review application against the rescission ruling
on 7 and 10 November 2022, respectively. The applicant also sought an order of
substitution to the effect that the rescission application is granted. 1 The record of
proceedings was furnished on 4 December 2022.
[7] On 16 May 2023, t he employee applied in terms of section 158(1)(c) of the
Labour Relations Act2 (LRA) to make the arbitration award an order of this Court.
On 17 May 2023, the employee informed the applicant that the review application
had lapsed on 8 May 2023 and confirmed that they had served and filed the
section 158(1)(c) application and attached the duly filed application. In their
1 The notice of motion erroneously seeks rescission of the rescission application.
2 Act 66 of 1995, as amended.
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response on 18 May 2023, the applicant’s attorneys disputed that the review
application had lapsed. Further, the applicant’s attorneys stated that:
‘We confirm that on Tuesday, 16 May 2023 you served on our offices your
client's section 158 application, without the accompanying affidavit, however, we
acknowledge receipt of the full application attached to your email.
It is our instruction to oppose the said application accordingly.’
[8] Despite the applicant’s contention that it would oppose the section 158(1)(c)
application, it did not file the answering affidavit.
[9] The applicant filed the record and supplementary affidavit on 12 June 2023. On
28 August 2023, the applicant filed an application for condonation of the late filing
of its supplementary affidavit. The affidavit in support of this application confirms
that the applicant was furnished with the record on 4 December 2022, and that
the record was filed on 12 June 2023, which was outside the prescribed 60- day
period in terms of clause 11.2.2 and 11.2.3 of the Practice Manual 3. The result is
that the review application is deemed withdrawn. In addition, the file was
archived in terms of clause 16.1 of the Practice Manual , in that a period of six
months from 10 November 2022 elapsed without any st eps taken by the
applicant.
[10] The applicant’s notice of motion in the condonation application only s ought
condonation insofar as its supplementary affidavit was filed late. The applicant
did not seek condonation for the late delivery of the record, nor did it seek
reinstatement of the withdrawn review application or retrieval of the file from the
archives.
[11] On 4 August 2023, the Registrar issued a notice of set down , enrolling the
application in terms of section 158(1)(c) application for a hearing on 22
November 2023 . The notice wa s addressed to both parties ’ attorneys. The
3 The Practice Manual of the Labour Court of South Africa, 2 April 2013 (repealed with effect from 16 July
2024).
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employee alleged that the notice was sent to both parties. The applicant did not
specifically dispute this allegation.
[12] On 22 No vember 2023, this Court granted the application in terms of section
158(1)(c) and declared the award an order of court . The order was sent to the
applicant’s attorneys on 19 January 2024.
[13] On 5 February 2024, the applicant’s attorneys requested the employee to “defer
the prosecution of the order pending the finalisation of the review application”
failing which, the applicant would apply for rescission of the court order. The
employee’s attorneys responded on 12 February 2024. The employee stated that
the section 158(1)(c) application was served on 16 and 17 May 2023 and was
never opposed. The letter further recorded that on 3 August 2023, the applicant
was served with an index to the application and confirmed that the matter was
enrolled for hearing on the unopposed motion roll. T he employee’s response to
the request to stay the enforcement of the order was as follows:
‘Our client is the only party being prejudiced herein, and we hold instructions, in
the event of the review application not being enrolled and set down by 16
February 2024, that your offices be required to pay the costs of the application in
the event of being dismissed due to the continued and designed delay in
finalising the matter.
Please supply us with the updated index (as filed), as well as confirmation whom
of your offices will ensure a prompt enrolment of the review and condonation
applications.
If you fail to adhere to the aforesaid demands we will be duty bound to execute
the current order, as it is clear that your client had been in continuous default of
the time periods described by the Labour Court to prosecute the reviews
application, which is for more than 14 months.’
[14] The review application has not been enrolled for hearing. The applicant filed a
supplementary affidavit showing that the Court has issued a directive for the
supplementary affidavit showing that the Court has issued a directive for the
review application to be enrolled on the opposed motion roll.
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[15] The employee is now proceeding with the enforcement process. In opposing this
urgent application, the employee submitted that the writ of execution was issued
in respect of the court order of 22 November 2023, not the award. The employee
submits that the award no longer exists. For this submission, the employee relies
on the judgment of this Court in Department of Home Affairs v Public Service Co-
ordinating Bargaining Council & others
4 (Department of Home Affairs) . In this
judgment, the Court considered the legal principles on the effect of the award
having been made an order of the Court on the pending review application as
follows:
‘[7] The relevant principles are well -established. This court has long held that
the fact of a pending review is not a bar to the court making any
arbitration award that is sought to be reviewed and set aside an order of
court (see Ntshangane v Speciality Metals CC (1998) 19 ILJ 584 (LC;
[1998] 3 BLLR 305 (LC)). It is equally well -established though that where
an arbitration award is made an order of court, that order is fatal to any
pending application to review the award, if only because the arbitration
award ceases to exist. In Blue Marine (Pty) Ltd v Commission for
Conciliation, Mediation & Arbitration & others (2003) 24 ILJ 1528 (LC);
[2003] 9 BLLR 853 (LC) Ndlovu AJ (as he then was) said the following at
para 15:
‘It is important to realize that once the award is made an order of
the court the award, from which such order was made, falls away.
In other words, the two instruments cannot co-exist alongside
each other. Therefore, upon the award being made an order of the
court, there can be no question again of an application for review,
aimed at reviewing and setting aside the same award. By then,
the award no longer exists. Any party who feels aggrieved by the
award, can then only look for remedy to challenge the court order
(derived from the award) and not the award.’
4 (2018) 39 ILJ 823 (LC); [2017] ZALCPE 24.
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[8] More recently, in Gauteng Department of Education v Saunders: In re
Saunders v Gauteng Department of Education & others [2015] 12 BLLR
1187 (LAC), the Labour Appeal Court observed at para 32:
‘It is trite that once an arbitration award has been made an order
of court, it is no longer reviewable. The order is of final effect and
is, therefore, appealable.’5 (Own emphasis)
[16] From the above, it is clear that the award that the applicant seeks to review is no
longer in existence. The award ceased to exist on 22 November 2023 when
Tlhohlalemaje J made it an order of the Court. This is different to a certification of
the award in terms of section 143(3) of the LRA, which does not make the award
an order of court . Therefore, the review application has been overtaken and
rendered moot by the granting of the application in terms of the section 158(1)(c)
application. Accordingly, the review door was shut by the 22 November 2023
order, and this Court has effectively become functus officio in that, having made
the award an order of court, the Court cannot later consider a review of the same
award. The applicant’s remedy is to challenge the order of 22 November 2023.
Accordingly, the application to stay the enforcement of the award pending the
determination of the review application is incompetent and falls to be dismissed.
[17] The applicant’s submission that the employee undertook not to enforce the
award pending the determination is irrelevant and of no assistance. T he
employee’s undertaking was conditional, and the conditions were not fulfilled.
The undertaking lapsed on 16 February 2024. Regardless, th e legal principle as
articulated above is clear , and even if the undertaking was made, it could not
triumph over the law. There is no review before this court, and therefore, such an
undertaking is pro non scripto.
[18] The next issue is to consider the amendment application to the notice of motion.
[18] The next issue is to consider the amendment application to the notice of motion.
The employee objected and opposed the application. It is trite that pleadings are
made for the court and for a proper ventilation of the real issues , hence
5 Ibid at paras 7 – 8.
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applications for amendment would be granted if the proposed amendment is
intended to raise the real issues between the parties. 6 Ultimately, the Court has
discretion, to be exercised judicially, to grant or refuse the amendment , unless
the amendment is mala fide or cannot be granted without prejudicing the other
party.7
[19] These are motion proceedings where evidence has been presented in the form
of affidavits. The application for amendment in this case is for a prayer in the
notice of motion. The employee did not raise any prejudice. For this reason
alone, I have decided to exercise my discretion and allow the amendment.
[20] The question the Court must now answer is whether the applicant has made out
a prima facie case for the stay of enforcement of the award pending the
determination of the rescission application. The challenge faced by the applicant
in this regard is that there is no single allegation made in the founding affidavit
that a rescission application was made. No supplementary affidavit was filed to
incorporate the rescission application into the current application. Mr Nyangiwe
submitted that, these being urgent proceedings, the Court cannot ignore the fact
that there is a rescission application, which he sought to hand a copy to the Court
from the bar. In other words, the urgency of the application should permit a
situation where the Court admits any document from the bar. This submission is
untenable and unsustainable. Therefore, on the record before this Court, the
applicant has failed to make out a case for stay pending a rescission application.
[21] Even if I am wrong that the applicant failed to make out a case for the stay of
enforcement pending a rescission application, the record before this Court shows
that the applicant was not only served with the application in terms of section
158(1)(c), it was notified of the date of the hearing of that application and despite
its earlier intention to oppose the application, it failed to oppose the application
its earlier intention to oppose the application, it failed to oppose the application
and again failed to attend Court on 22 November 2023. The applicant was
6 Cross v Ferreira 1950 (3) SA 443 (C) at 447B – D.
7 See: Sibiya v SA Police Service (2022) 43 ILJ 1805 (LAC) at para 29; Molefe & other v SA Police
Service (2021) 42 ILJ 1240 (LC) at para 7; Moolman v Estate Moolman and another 1927 CPD 27.
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served with the court order on 19 January 2024. The rescission application,
which is now brought 21 months after it was served with the order, will first hinge
on the condonation application. This rescission application, filed belatedly on the
date of the hearing, could only have been prompted by the applicant’s realisation
that the award no longer exists. On the face of proper service of the section
158(1)(c) application, decision not to oppose the application, knowledge of the
notice of set down, service of the court order on 19 January 2024 and the
excessive delay in applying for rescission of the order, the rescission application,
which hinges on a condonation application, has been seriously weakened.
[22] Another challenge facing the applicant is that even if the condonation application
is granted, the question is going to be whether the Court should rescind the order
when, on the record, the review application is withdrawn and the file archived.
The applicant, on the record before the Court, did not seek the reinstatement of
the review application. I accept that the applicant could still seek to amend the
notice of motion; however, the current status is that the applicant did not seek
reinstatement of the withdrawn review application or retrieval of the archived file.
The review application itself, on the face of the commissioner’s findings which I
have set out above and the test applicable in that application, faces its own
challenges. For the above reasons, I would still refuse to exercise my discretion
in favour of granting a stay.
[23] The manner in which the applicant dealt with this matter from its inception has
been dreadful. It elected not to attend the proceedings before the CCMA , failed
to comply with the Practice Manual which necessitated a condonation and
reinstatement and/or retrieval application which the applicant only applied for
condonation, having elected not to oppose the application i n terms of section
condonation, having elected not to oppose the application i n terms of section
158(1)(c) and to attend the hearing, and after being notified of the order, the
applicant elected to sit idle and only apply for rescission over 21 months after it
was served with the order. For all the reasons above, the application stands to be
dismissed.
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[24] Both parties sought costs against each other. The applicant went to the exten t of
seeking costs de bonis propriis or costs on attorney and own client scale. The
employee has sought costs on a punitive scale C. Both parties are ad idem that
the successful party is entitled to costs on a higher scale. The legal position
regarding the review of the award after the award was made an order Court is
clear. The employee informed the applicant of the legal principle with reference
to the judgment of the Department of Home Affairs . The applicant persisted with
the application. The rescission application c ame a little too late to save the
applicant from a cost order. For these reasons and the other reasons in this
judgment, I am inclined to grant the parties’ wish to issue costs on a punitive
scale.
[25] In the premises, the following order is made:
Order
1. The application is heard as one of urgency.
2. The application for amendment is granted with no order as to costs.
3. The application to stay the enforcement of the arbitration award is
dismissed with costs on attorney and own client scale.
_____________________
M. Makhura
Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Mr L. Nyangiwe
Instructed by: Rams Attorneys
For the First Respondent: Mr G. Botha
c/o Gerhard Botha Attorneys