THE LABOUR COURT OF SOUTH AFRICA
AT PORT ELIZABETH
Of interest to other judges
Case no: 2025-104199
In the matter between:
THE DEPARTMENT OF HEALTH
Applicant
and
GARFIELD GATSHENI NDLOVU First respondent
PUBLIC HEALTH AND SOCIAL
DEVELOPMENT SECTORAL
BARGAINING COUNCIL
Second Respondent
PHUMELELE DHLODHLO N.O. Third Respondent
SHERIFF OF THE COURT, KING
WILLIAMS TOWN
Fourth Respondent
Heard: 26 September 2024
Delivered: 2 October 2025
Summary: (Urgent application to stay execution of arbitration award –
Employer timeously authorising provision of security but not following through
on decision – Enforcement stayed pending provision of security under s
145(8)(a) of the LRA)
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JUDGMENT
LAGRANGE, J
Nature of the application
[1] This is an application brought on an urgent basis to stay enforcement of an
arbitration award handed down in favour of the first respondent, Mr G Ndlovu
(‘Ndlovu’) on 18 March 2025, pending finalization of an application to review
that award instituted by the applicant (‘the department’) on 3 July 2025. It also
seeks ancillary relief in the form of an interdict to restrain the sale of motor
vehicles of the department by auction and directing the fourth respondent (‘the
Sheriff’) to return the vehicles to it. The arbitrator had ordered the department to
reinstate Ndlovu on a three year contract commencing with effect from 1 April
2024.
[2] The department received the arbitration award on 26 March 2025 and advised
Ndlovu’s legal representatives that it was considering reviewing the award and
that Ndlovu should not return to duty. It appears that the award was certified by
22 May 2025.
[3] The application was prompted by Ndlovu ’s attempt to enforce the award. A
notice of attachment was received by the department on 23 May 2025 at the
time it claims it was still busy finalising the review application. On 6 June 2025,
the state attorney notified Ndlovu’s representatives that review papers were
being finalised and that it had invoked the provisions of section 145 ( 8) of the
Labour Relations Act, 66 of 1995 (‘the LRA’) , “by furnishing security for an
amount of R2,264442.00”, which was equivalent to two years’ salary of Ndlovu.
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[4] Nevertheless, on 3 September 2025, the sheriff arrived to attach and remove
seven departmental vehicles, which the department uses for service delivery
purposes. It claims, without providing particulars of the vehicles, that the
absence of the vehicles has compromised its ability to fulfil its functions, which it
implies are central, inter alia, to the provision of services to pregnant women.
[5] The matter was originally enrolled on 19 September 2025 but was subsequently
removed from the roll on 18 September 2025. The apparent reason for its
removal was the unavailability of a judge in Gqerberha to hear the matter. The
state attorney claims that it advised Ndlovu ’s legal representatives that they
need not appear in court on that account but it seems there is some dispute
about whether the message was conveyed. There does not seem to be any
doubt they were advised that the application was removed from the roll, the
previous day.
[6] Be that as it may, the matter was re -enrolled a week later on 26 September
2025. As the matter was heard on the recess urgent roll it was convened
virtually using MS-the teams.
Merits
[7] The department asserts there is added urgency to the application, because it
was notified on 16 September that the sheriff intended to sell seven of the
attached vehicles on 30 October 2025. Ndlovu argues that the department
failed to explain the delay between launching the review and Ndlovu ’s attempt
to execute on the award. He also contends that the fact the matter was
removed from the roll reflects a lack of genuine urgency on the department’s
part.
[8] The department queries why Ndlovu sought the attachment of the vehicles in
circumstances where “a provision has been made for bond security and stay of
enforcement of arbitration award” (sic ). It also points out that it has already
uplifted the record of the arbitration proceedings on 14 August 2025 and
submitted them for transcription.
submitted them for transcription.
[9] I fail to understand what steps the department was supposed to have taken
between filing the review application on 3 July 2025 and the attachment by the
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sheriff on 3 September 2025. It appears that the department believes it has
done everything to forestall an execution of the award prior to the outcome of
the review.
[10] While the department repeatedly refers to having provided security equivalent to
the value of the arbitration award, it did not attach a copy of the bond of security
to this application. At the hearing it was argued that the bond could be found in
its review application, which was not before the court hearing the matter
remotely in Cape Town. In the circumstances, the court could not ascertain
whether it is correct that a bond of security satisfying the requirements of
section 145(8)(a) of the LRA has been met. If that requirement has been met,
then the operation of the award, and consequently any attempts to enforce the
award would have effectively been suspended pending the outcome of the
review in terms of section 145 (7) of the LRA.
[11] In (7) In City of Johannesburg v SA Municipal Workers Union on behalf of
Monareng & another
1 the Labour Appeal Court confirmed the automatic effect
of compliance with s 145(8):
“(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
enforcement of the arbitration award pending the finalisation of the
review application.”
(emphasis added)
[12] It appears from Caselines that the review application was uploaded on 30
September 2025. Attached to the founding affidavit of that application is
Annexure “RN5”
2 an internal memorandum dated 6 May 2025 addressed to the
1 2 (2019) 40 ILJ 1753 (LAC).
2 Caselines bundle 001-42 to 001-45.
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Head of Department, Dr R Wagner entitled “MEMORANDUM TO REQUEST HOD TO
APPROVE BOND OF SECURITY FOR STAY OF ARBITRATION AWARD DATED 18 MARCH
2025 IN THE MATTER OF GARFIELD NDLOVU//MEC FOR HEALTH ”. On 17 June 2025,
after proceeding through various other levels of departmental management for
recommendation and comments, the request was approved by the Head of
Department in an amount of 24 months’ salary.
[13] From the above it appears that, at the outset, the department, in good faith, took
steps to approve the provision of a bond of security and the bond was approved
before the review application was served on 3 July 2025.
[14] However, the approval of a bond of security is not the same as issuance of the
bond of security itself. To confirm the existence of security satisfying section
145 (8)(a), there must be a standalone document evidencing the existence of
the funds or assets pledged as security to fulfil an unqualified acceptance of an
obligation to pay the amount secured to Ndlovu in the event the review
application is unsuccessful, unless otherwise directed by the court. Commonly ,
this is provided in the form a deposit in an attorney’s trust account, but could
take the form of a bank guarantee or otherwise secured by a notarial bond,
deed of suretyship, or even a cession of rights to an asset. The critical issue is
that the amount secured, in the case of an order of reinstatement, must be
equivalent to two years’ remuneration, and the undertaking to pay the amount, if
the review is unsuccessful, subject only to the court’s direction otherwise, must
be evident in the document.
[15] In the circumstances, while I accept the department has decided to provide the
security, it needs to provide a document recording the type of security provided
and containing an enforceable undertaking to make the payment, if the review
fails.
[16] Given that the department has acted in good faith in relation to the issue of
fails.
[16] Given that the department has acted in good faith in relation to the issue of
security, and that it has been reasonably prompt in pursuing the review
application, I believe it should be given an opportunity to implement its decision
to approve the provision of security.
[17] On the question of costs, it was not unreasonable of Ndlovu to oppose the
application in the absence of a security being provided, rather than just
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approved. However, I am not persuaded it was necessary for his
representatives to attend court on 19 September, so their fees for attendance
on that day should be excluded.
Order
1. The application is dealt with on an urgent basis in terms of Rule 38 of the Labour
Court Rules, and any non-compliance with those Rules as to forms and service is
condoned.
2. By 30 October 2025, t he Applicant must file security in terms of section 145(8)(a)
in respect of the arbitration award issue by the Third Respondent on 18 March
2025 under case number PSHS418-24/25 (‘the award’).
3. Pending the Applicant’s compliance with paragraph 2 above:
a. the enforcement of the award is stayed;
b. the Fourth Respondent is interdicted and restrained from proceeding with
the sale of the motor vehicles of the Applicant, attached by it in execution
of the award, and
c. the Fourth Respondent must forthwith return the motor vehicles of the
Applicant attached by it in execution of the award.
4. In the event the Applicant does not comply with paragraph 2, the interim relief
ordered in paragraph shall lapse.
5. The Applicant must pay the First Respondent’s costs of opposing the application,
including the fees of counsel, save for the costs of attendance by his legal
representatives on 19 September 2025.
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_____________________
R Lagrange
Judge of the Labour Court of South Africa
Appearances
For the Applicant: A M Maseti instructed by
the State Attorney
For the Respondent: M Thys instructed by
Ashley Meyer Attorneys