THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: 2025-166235
In the matter between:
MOLAETSA WA BOTSHELO &
PROJECTS CC t/a CRE8WORK Applicant
and
MAPAYA, MALOSE PETER First Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent
THE SHERIFF: GERMISTON NORTH Third 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
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MAKHURA, J
[1] The applicant approached this Court on an urgent basis for an order to stay the
enforcement of the arbitration award pending the finali sation of the review
application instituted under case number JR1057/20. Further, the applicant seeks
to be exempted from furnishing security in terms of section 145(7) and (8) of the
Labour Relations Act1 (LRA).
[2] In the alternative, the applicant seeks to be directed to furnish in the amount of
R2,907.65, which it submits is the equivalent value of the maximum potential
outstanding salaries in accordance with the f irst respondent’s fixed term contract
of employment. Further alternatively, this Court should declare that the movables
already attached on 15 September 2025 constitute sufficient security.
[3] The arbitration award in this matter is dated 29 July 2020. It ordered the applicant
to reinstate the first respondent (employee) and pay him an amount of R56
000.00 in arrear s wages, which is an equivalent of his eight months’
remuneration at R7 000.00 per month.
[4] The applicant challenged the award on review in terms of section 145 of the LRA,
under case number JR1057/20. The founding affidavit in support of the review
application was signed in August 2020, and the review application was filed on 2
September 2020. The applicant signed a supplementary affidavit on 14 October
2020. The answering affidavit was filed on 29 January 2021, and a replying
affidavit on 4 February 2021.
[5] Thereafter, t he next court process took place on 14 June 2022, when the
applicant filed an application for a date or a notice in terms of rule 22B of the then
applicable Rules of this Court
2. On 22 June 2022, the Registrar directed the
1 Act 66 of 1995, as amended.
2 GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court, repealed with effect from
July 2024.
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parties to file heads of argument. The applicant ’s chronology of events after 22
June 2022 is set out in the founding affidavit as follows:
‘On 17 October 2022, Cre8work's erstwhile legal representatives duly delivered
the heads of argument...
On 4 April 2025, the enforcement award was issued by the CCMA.
On 15 September 2025 the Sheriff attended the premises of Cre8work in order to
attach property in accordance with the Inventory annexed hereto, in which
movables to the value of R 65,000.00 (sixty -five thousand Rand), resulting in the
necessity to institute this application.’
[6] The applicant then submitted that the Registrar has not allocated a date for the
hearing of the review application. As is apparent from the above chronology of
events, the applicant’s founding affidavit is devoid of any averments or facts
relating to its action or steps taken to obtain a date for hearing from 18 October
2022 until 15 September 2025 and now, a period well over 35 months.
[7] In his answering affidavit, the employee alleged through his attorneys of record
that on 22 September 2025, he inspected the review file and established that the
last pleading or process filed was the rule 22B notice. He then submitted that the
review application (on the face of it) is deemed to have been dismissed and that
there is no pending review application before this Court.
[8] The applicant, in its r eply, denied that the review application is deemed
withdrawn as alleged by the employee or at all. The reason for the denial is
recorded as follows:
‘No Directives or Orders have been issued in the review application under case
number JR 1057-20, in terms of which the application has been dismissed,
archived, or deemed withdrawn. Similarly, neither Mr Mapaya, nor any other
party, has made application for any specific or declaratory relief to dismiss or
confirm a quasi-dismissed status for the review application.
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It is respectfully denied that the above Honourable Court's Rules Published in GN
R1665 of 14 October 1996 (repealed on 13 July 2024) hereinafter referred to as
the "repealed Rules" contained any provision for a review application to be
deemed dismissed. Similarly, the (former) Practice Manual of 1 April 2013 which
expanded upon the (former) Rules does not make provision for an application to
be deemed dismissed.’ (Own emphasis)
[9] The issues before this Court are, firstly, whether the application is urgent or not.
The employee has argued that the application is not urgent and that any urgency
is self-created. Secondly, if the matter is urgent , whether the applicant is entitled
to the stay of the enforcement of the award. This latter enquiry will necessarily
involve the issue of security, whether it was furnished or not and if so, whether
the Court is satisfied with the furnished security. If no security was furnished,
whether the Court should entertain the application for exemption (in part or in full)
on an urgent basis and grant the relief of exemption with or without conditions, or
refuse it, on an urgent basis.
[10] According to the applicant, the application is urgent because on 15 September
2025, the sheriff k nocked on its doors and demanded payment in terms of the
now certified award. In other words, the urgency in this case was triggered by the
demand for compliance with and enforcement of the award.
[11] In my view, the urgency of this matter was designed by the applicant because of
its decision to disregard section 145(7) and (8) and its non- compliance with the
provisions of the Practice Manual 3. First, section 145(7) of the LRA expressly
states that the institution of the review application does not suspend the
operation of the award. Section 145(8) informs a review applicant of what he or
she must do to suspend the operation of the award. The applicant “must”, unless
this Court directs otherwise, furnish security of 24 months’ remuneration in the
this Court directs otherwise, furnish security of 24 months’ remuneration in the
case of a reinstatement or re- employment award or an equivalent of the amount
of compensation awarded.
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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[12] Mr Atcheson, appearing for the applicant, submitted that section 145(7) and (8)
do not impose an obligation on employers who wish to challenge the award on
review to furnish security . Further, he submitted that unless there is imminent
harm, that is, unless the employee decides to enforce the award, the applicant
did not have to furnish security.
[13] Mr Atcheson’s submission is only correct technically for employers who have no
issue with the compliance and implementation of the award pending the
determination of the review application, whilst challenging the award on review.
In my view, section 145(7) and (8) obliges employers who would like to avoid the
implementation of the award pending the review application to furnish security, or
to apply to this Court for exemption or to “direct otherwise”. This application for
exemption must be launched as soon as the applicant decides to challenge the
award or at the time of filing the review application. Therefore, employers who
want to avoid the enforcement and/or implementation of the award pending
determination of the review application must furnish security or apply for
exemption at the time of filing the review application, and not at a later stage
particularly in an urgent application.
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[14] The applicant now applies, five years after the review application was launched ,
for exemption. No reasons are provided why this could not have been done
earlier. This is a self -designed urgency, and the application for exemption is not
urgent. The absence of security and the decision of this Court not to entertain the
exemption application on an urgent basis means that t he whole application falls
to be struck off the roll. The argument by Mr Atcheson that the Court may direct
the applicant to furnish security to its satisfaction within a prescribed period is of
no assistance to the applicant.
4 In Panorama Park Retirement Village v Commission for Conciliation, Mediation and Arbitration & others
(2020) 41 ILJ 1200 (LC) ; [2020] ZALCJHB 8, Tlhotlhalemaje J bemoaned the increasingly -common
practice whereby employers apply for an exemption from security at a belated stage, and labelled it as
“an affront to the very purpose of the provisions of ss 145(7) and (8)… and must come to an end” . The
Court said that the application for exemption must be made at the time of launching the review application
and not at some later stage in an urgent application.
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[15] Even if th e application is entertained on an urgent basis, there is no pending
review application before this Court . The now repealed Practice Manual applies
to the application. Clause 11.2.7 of the Practice Manual provided that:
‘A review application is by its nature an urgent application. An applicant in a
review application is therefore required to ensure that all the necessary papers in
the application are filed within twelve (12) months of the date of the launch of the
application (excluding Heads of Arguments) and the registrar is informed in
writing that the application is ready for allocation for hearing. Where this time limit
is not complied with, the application will be archived and be regarded as lapsed
unless good cause is shown why the application should not to be archived or be
removed from the archive.’
[16] In terms of the above provision, the applicant was required to ensure that all the
necessary papers (pleadings, notices and records ) are filed within 12 months,
and the registrar is informed in writing that the application is ready for allocation
of a hearing. The 12 months from 2 September 2020, when the review
application was filed, expired on 2 September 2021. It is common cause that the
registrar was only informed on 14 June 2022 that the application is ready for
allocation of a hearing. This was outside the 12 months period. Therefore, the
applicant’s failure to act in accordance with clause 11.2.7 resulted in the
application being archived and regarded as having lapsed.
[17] The consequence of the fil e having been archived is that the application is
regarded as having been dismissed. 5 To revive the application and bring the file
out of the archives, the applicant must apply to the Court per clause 11.2.7 and
show good cause.6 There is no such application before this Court. On the record
before me, this Court has no jurisdiction over the review application. Accordingly,
before me, this Court has no jurisdiction over the review application. Accordingly,
it would be incompetent for the Court to order the stay pending a non- existent
review application.
5 See clause 16.2 of the Practice Manual (as repealed).
6 See also: Samules v Old Mutual Bank (2017) 38 ILJ 1790 (LAC) ; [2017] 7 BLLR 681 (LAC) at paras 4,
16 and 17.
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[18] The review application has been archived and consequently dismissed. The
applicant did not apply to retrieve the file from the archives or revive the
application. Further, the application would still fail because of the unreasonable
and unaccounted delay from October 2022 to 15 September 2025. Mr Atcheson
submitted that after the application for allocation of a hearing date, it was not for
the applicant to chase after the registrar to follow up on the allocation of a date.
Well, three years of inaction is too long to ignore. When it is unexplained, it
becomes unreasonable.
[19] The application fails on urgency , and it would have in any event failed on the
merits. The employee seeks costs. The review application was launched in
August 2020, more than five years ago. The applicant did not furnish security as
required by section 145(7) and (8) of the LRA. I say “as required” because the
applicant did not intend to comply with or implement the award pending the
determination of the review application. The Court declines to entertain its
application for exemption from furnishing security because the applicant waited
five years to institute it . The order sought is incompetent because the review
application is no longer pending before this Court . The applicant should have
known that the review had lapsed. This urgent application is a non-starter. There
is no reason why the employee should be out of pocket for opposing this
misdirected and abuse of the court processes application.
[20] In the premises, the following order is made:
Order
1. The application is struck off the roll for lack of urgency, with costs.
_____________________
M. Makhura
Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Mr R. Atcheson
c/o DH Hinrichsen Attorneys
For the First Respondent: Mr C. Grove
c/o CGG Attorneys