Sneller Verbatim/PJ
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR662/03
2003-05-26
In the matter between
AST HOLDINGS Applicant
and
WRIGHT A TAZMAN Respondent
________________________________________________________________
J U D G M E N T
________________________________________________________________
REVELAS J: The applicant, AST Holdings, brought proceedings in the
Labour Court in Port Elizabeth that a written execution issued by the
CCMA be stayed, pending the outcome of a review of an arbitration
award made by an arbitrator appointed by the fourth respondent
(the Commission for Conciliation, Mediation and Arbitration, or "the
CCMA")
The first respondent was dismissed by the applicant for
alleged poor performance. The first respondent then referred the
dispute to the CCMA about an alleged unfair dismissal. The
arbitrator who eventually arbitrated the matter found that the
dismissal was both procedurally and substantively unfair, basing his
observations in this regard on certain concessions made on behalf
of the representative for the applicant in this matter.
A certificate was issued in terms of which the arbitration award
obtained the status of a court order. The first respondent then
proceeded to execute in terms of the award and the applicant now
seeks to stay these execution proceedings.
The award was issued and received by the applicant on 5 December
2002. The applicant therefore should have filed its review
application by 20 January 2003, but only did so on 17 March 2003.
Therefore, the application for review was brought well out of time. A
condonation application was filed thereafter and the explanation
given for the late filing of the application was inter alia, that the
deponent struggled to find a commissioner of oath to attest to the
affidavit. The attorney of record for the applicant also blames his
personal assistant in his office for the late filing of the application.
The applicant has to date hereof, neither indexed nor paginated the
court file. The Labour Court on a previous occasion, required a
substantive application for the condonation for the late filing of the
heads of argument which I have condoned. I do however take this
further delay into account in assessing the overall laxity of the
applicant.
The first respondent argued that at 20 March 2003, the date on
which the arbitration award was certified, no review application of
the award existed, due to the fact that the application was not
issued prior to service, and was not supported by an affidavit since
the document attached to the notice of motion was not signed and
the applicant failed to file the original document to court.
It was also argued that the arbitration award may only be enforced
as if it were an order of the Court, provided that the arbitration
award certified by the CCMA and is final and binding. It was then
argued that I do not have the power to review the CCMA award
since once it has been certified, the arbitration award has the
status and is for all intents and purposes regarded as an order of
Court and therefore may not be reviewed by a Labour Court judge
on review.
It was further submitted that an arbitration award is only capable of
being reviewed by the Labour Court once the certificate has been
rescinded or set aside which has not been done in this case. It may
be doubtful whether the court order status of an award elevates it
to a court order and judgment per se , which is only subject to
appeal by the Labour Appeal Court. That seems to be contrary to
the whole purpose of the amendment.
In this particular matter, the applicant has brought no application to
have the certificate rescinded or set aside. Whereas, this is a further
indication of the applicant=s lax attitude, it is doubtful whether is
failure to do so is an absolute bar to review. However this question
is still open to debate, since the recent amendment, in my view,
does introduce new questions about the powers of the Labour Court
to review awards.
However the answer to this application before me lies in the many
delays, and not a failure to have the certificate set aside first.
The first respondent has put forward facts to demonstrate that the
The first respondent has put forward facts to demonstrate that the
applicant was afforded a fair and proper opportunity to oppose the
application for certification of the award but failed to do so and he
argues further that, at this late stage, the applicant should not be
afforded such an opportunity under the guise of these proceedings.
With regard to the argument that there was no proper review
application before this Court, I believe that the arguments advanced
in respect of those propositions are somewhat over- technical and
per se, do not preclude me from granting the applicant the relief it
seeks. However, there are other factors present which tend to
support a view that the applicant was never serious in complying
with the award and in this regard I refer to the allegations made by
the applicant in its founding affidavit.
The applicant has not put forward an adequate explanation for the
delay in launching the review proceedings. It was eight months out
of time which is a substantial period of time. I have read the award
and I do not believe that the applicant's prospects of success are
very good. Review proceedings do not automatically have the
effect of delaying the enforcement of arbitration awards.
The very purpose behind the amendment introducing the
certification was to enable parties to execute without having to
approach the Labour Court, thus giving effect to the main object of
the Act, namely the speedy resolution of disputes.
The application in terms of section 143(3) of the Act was served on
the CCMA and at the Port Elizabeth offices of the applicant, as well
as on the applicant's appointed representative as early as 10
February 2003. The application was served under cover of a letter
by the CCMA advising the applicant that it had 14 days within which
to oppose the application and that is the application for the
certification of the award and the issue of the writ of execution in
terms of section 143(3) of the Labour Relations Act, 66 of 1995 as
amended ("the Act").
On 16 March 2003 the application for review was served on the first
respondent's attorneys, but was not served on the Director of the
CCMA charged with certifying the award and the Director,
accordingly had no knowledge of the application. The award was
then certified by the Director of the CCMA.
The applicant alleges that on 27 March 2003 it served and filed
opposing papers in section 143(3) application. These papers were
only received by the first respondent's attorneys by registered mail
on 9 April 2003 subsequent to the issue of the writ of execution. The
first respondent complained that to date the applicant has failed to
proffer any explanation in support of the allegation that it only
became aware of the section 143(3) application in the third week of
March 2003.
The first respondent's attorney also deposed to an affidavit wherein
she stated that the applicant was alerted to the existence of the writ
by way of a courtesy letter from her dated 9 April 2003, advising the
applicant's attorneys of the first respondent's intention of executing
the writ.
The first respondent argued that the applicant was afforded due
process and had the opportunity to object to and oppose the
certification of the award in the normal course of events, but had
not done so for reasons best known to itself. The first respondent
has also placed into question the applicant's allegation that it was
unaware of the writ. He contends that the applicant was aware of
the existence of the section 143(3) application as early as February
2003 when the application was served on it. The applicant should
therefore have been aware by the time it sought to oppose the
application by the end of March 2003, some four and a half weeks
later, the award may then have been certified.
The applicant has clearly delayed in launching the review
application. I have already stated what I have observed in respect of
the applicant's prospects of success. The applicant also made much
of the allegation that the first respondent refused to accept an offer
of the allegation that the first respondent refused to accept an offer
of payment of the amount due in terms of the writ. However, from
the papers it is apparent that the offer was made to the deputy
sheriff and not to the first respondent.
I have considered all these factors and most important of all, the
position of the first respondent. He obtained an award in his favour.
On the face of it the award seems to be unassailable. In my view,
this review application was brought with the sole purpose of stalling
proceedings. The applicant did not impress me as a litigant who
pursued its case with any vigour. Only at the last minute, and all too
often, too late, it acted.
It also did not paginate and index the court file as mentioned.
In the circumstances the application is dismissed with costs.
___________________
E. Revelas