IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: 2026-180761
In the matter between:
DEPARTMENT OF CORRECTIONAL SERVICES Applicant
and
MOFOKENG, PHEHELLO AARON First Respondent
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING COUNCIL Second Respondent
ADV S C LETELE N.O. Third Respondent
THE SHERIFF, PRETORIA CENTRAL Fourth Respondent
Heard: 5 August 2026
Supplementary Heads of Argument: 14 August 2026
Delivered: This judgment was handed down electronically by circulation to
the parties and their legal representatives by email; and
publication on the Labour Court website and released to SAFLII.
The date for hand-down is deemed to be 3 September 2026.
(1) Reportable: Yes
(2) Of interest to other Judges: Yes
____________ ______________
Signature Date
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JUDGMENT
MOTSHEKGA, AJ
Introduction
[1] The applicant, the Department of Correctional Services (‘the DCS’), seeks on
an urgent basis an order staying the enforcement of an arbitration award (‘the
award’) issued on 4 October 2024 by the third respondent under the auspices
of the second respondent, pending the final determination of a review
application instituted under case number 2025- 025125. In addition, the DCS
seeks declaratory relief impugning the certification of the award, the writ of
execution and the attachments effected, and an interdict restraining the fourth
respondent, the Sheriff for the district of Pretoria Central ('the Sheriff') from
proceeding with a sale in execution.
[2] The first respondent, Phehello Aaron Mofokeng (‘Mofokeng’), a former
employee of the DCS who took early retirement with effect from 31 July 2024,
opposes the application.
[3] The following issues arise for determination. Firstly, whether this Court has
jurisdiction to entertain the application, having regard to the status of the
review application to which the security relates. Secondly, whether the
application is urgent, and in particular whether the urgency is self -created.
Thirdly, what section 145(7) of the Labour Relations Act¹ ('the LRA') requires
of an employer, a question which speaks to the urgency of the application and
to the effect of the security. Fourthly, whether the security furnished complies
with section 145(7) read together with section 145(8)(b), and the date from
which the suspension operates. Lastly, the relief sought by the DCS, and
costs.
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Background
[4] On 17 October 2024, following a referral by Mofokeng for an unfair labour
practice claim against the DCS, the third respondent found that DCS
committed an unfair labour practice in terms of section 186(2)(a) of the LRA
by failing to shortlist Mofokeng for five advertised Director posts in a
recruitment process conducted in 2022. Compensation was awarded in the
amount of R182, 086.00, being the equivalent of two months’ remuneration.
[5] Mofokeng caused the award to be certified in terms of section 143(3) of the
LRA on 17 December 2024, and on 21 February 2025 the Sheriff attached
movable property at the DCS's national head office.
[6] The DCS instituted review proceedings against the award on 25 February
2025 without furnishing any security and no application was brought for
exemption from, or reduction of, security.
[7] On or about 19 July 2025 Mofokeng's attorneys served an answering affidavit
in the review in which it was contended that the institution of the review did
not suspend enforcement, and that security was required if the DCS wished to
avoid it. The DCS conceded the point in its replying affidavit in the review
application and undertook to furnish security. It did not do so, despite several
follow-ups made on behalf of Mofokeng.
[8] Nothing came of the attachment of 21 February 2025. The goods were not
removed, no sale was advertised, and the DCS was not moved to furnish
security.
[9] On 10 March 2026 the Sheriff again attended at the DCS's premises and
attached movable property. On 27 July 2026 the DCS received an
advertisement of a sale in execution of 500 chairs and 50 computers,
scheduled to take place on 6 August 2026.
[10] The advertisement of the sale prompted the DCS into action because on 28
July 2026, it furnished security in the amount of R1,274,602.00, approached
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this Court on 29 July 2026 for an urgent stay of the enforcement of the award,
and separately filed an application for the retrieval of the review file and the
reinstatement of the review application.
[11] This Court heard the matter on 5 August 2026 and reserved its decision. On 6
August 2026 the Court issued a directive requiring supplementary heads of
argument on the status of the review and its consequences for the jurisdiction
of this Court to entertain the application, and directing that the sale not
proceed pending a determination of that question. The parties having filed
their supplementary heads as directed, it is to the jurisdictional issue that this
Court first turns.
Jurisdiction
[12] The stay is sought against the background of what the DCS itself contends is
a lapsed review. It was on that footing that it filed, on 28 July 2026, an
application for the retrieval of the review file, its reinstatement, and
condonation for the late filing of the record.
[13] It behoves a court to satisfy itself of its own jurisdiction, and it may raise the
question mero motu ( of its own accord) . Section 145(7) read with section
145(8) of the LRA provides that the institution of review proceedings does not
suspend the operation of an arbitration award unless security to the
satisfaction of the Court is furnished. On a plain reading the subsection
predicates the suspension upon the institution of review proceedings. That
poses the question whether this Court would have jurisdiction to entertain
enforcement proceedings where a review has been archived, the security
furnished having no review to operate upon. The parties were accordingly
directed to address the Court on the issue.
[14] The issue of jurisdiction to entertain an application for a stay of enforcement
where a review has been archived has been settled by the Labour Appeal
Court in Chemical, Energy, Paper, Printing, Wood and Allied Workers' Union
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obo Tabata v Aspen Pharmacare Ltd, 1 as cited by the DCS in its
supplementary heads of argument. The Labour Appeal Court in Tabata held
that a review application which has been archived is not extinguished, that it
continues to exist until reinstated or finally dismissed by order of court, and
that where an application to reinstate is pending at the time enforcement is
sought this Court is not precluded from determining an application concerning
the enforcement of the award. Mofokeng takes the contrary view on the status
of the review, and relies on Umshwathi Local Municipality v Lunga and
Others
2 for the contention that the current Rules contain no mechanism by
which a review lapses upon the mere expiry of twelve months, and that the
review accordingly remains pending.
[15] This Court expresses no view on the DCS's reinstatement application or on
the status of its review. In the event that the review has lapsed, an application
for its reinstatement is pending and Tabata, to which this Court is bound by,
applies. If it has not lapsed, the review is before this Court and no difficulty
arises. Either way, this Court is cloaked with the necessary jurisdiction to
entertain the application before it. What follows is the question of the urgency
of that application.
Urgency
[16] The DCS submits that the application is urgent on the basis that its movable
goods stand attached and a sale in execution was advertised for 6 August
2026. Those facts are common cause.
[17] Mofokeng opposes the application for a stay on two grounds. Firstly, he
contends that the urgency is self-created and relies for that submission on the
DCS’s failure to furnish security when it launched its review. Secondly, he
contends that the security furnished on 28 July 2026 cannot cure the
Department’s prior default, nor suspend execution from any date preceding its
furnishing.
1 [2025] 11 BLLR 1136 (LAC).
2 [2026] ZALCJHB 89 (19 March 2026).
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[18] The test for urgency was aptly crystallised by the decision of this Court in
O’Connor v LexisNexis (Pty) Ltd 3. The test, which this Court aligns with
comprises two legs. The first being a determination on whether applicant will
not obtain substantial redress in the normal course. The second being
whether it would be in the interests of justice to have regard to other factors
which might nonetheless preclude an urgent hearing, notwithstanding the
absence of substantial redress in the normal course, among them self-created
urgency, procedural prejudice to the respondent and prejudice to the
administration of justice.
[19] What an applicant must show under the first leg is that the delay occasioned
by a hearing in the ordinary course would diminish the benefit of the relief
sought that it would no longer amount to substantial redress. That leg is all -
important. Once it is met, a court will be slow to refuse an urgent hearing
unless the second leg discloses compelling reason to do so. To turn away a
litigant who cannot obtain substantial redress is to deny it access to court, a
right of cardinal importance whose limitation requires very powerful
considerations before it can be reasonable and justifiable.
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[20] Self-created urgency arises where an applicant has itself brought about the
need for an urgent hearing by culpably delaying in approaching the court.
Urgency is, however, self -created only where the delay has been such that,
absent it, the applicant would have obtained substantial redress on the
ordinary roll. A delay of some months may accordingly not qualify where
substantial redress was in any event unavailable.⁷
[21] In this particular matter, the first leg is undoubtedly satisfied. A sale in
execution was advertised for the morning following the hearing. Once the
goods were sold, the DCS would have lost possession of assets which it
submits are indispensable to the performance of its statutory functions.
submits are indispensable to the performance of its statutory functions.
Success in the review would sound in money alone and has no capacity to
3 (2024) 45 ILJ 1287 (LC) (‘O’Connor’) at paras 21 to 26.
4 Chief Lesapo v North West Agricultural Bank and Another 2000 (1) SA 409 (CC) at para 22, cited in
O’Connor above n 3 at para 24.
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undo the disruption occasioned by the sale of those assets. Furthermore,
there is no relief in the ordinary course that could restore the status quo ante.
[22] What remains is whether, in the interests of justice, there are circumstances
which nonetheless preclude an urgent hearing. Mofokeng submits that such
circumstance exist on the basis that the DCS failed to furnish security when it
launched its review. Advocate Naudé appearing for Mofokeng placed reliance
on the decision of this Court in Molaetsa wa Botshelo & Projects CC t/a
Cre8Work v Mapaya and Others 5 for that proposition. The employer in
Molaetsa had furnished no security at all, and applied five years after
launching its review to be exempted from doing so, alternatively for a
reduction, alternatively for a declaration that goods already attached would
suffice. The Court declined to entertain that application urgently and struck the
matter from the roll.
[23] The facts in Molaetsa are distinguishable from those in the present matter.
What was before the Court in Molaetsa was an application to be exempted
from the requirement to furnish security in terms of section 145(8) of the LRA.
The DCS seeks no exemption, and the discretion which that subsection
confers upon this Court in determining whether to relieve an employer of the
requirement does not arise. Significantly, no security had been furnished in
Molaetsa at any stage such that the award remained operative throughout
and execution against that employer was unimpeded, thus the Court in
declining an urgent hearing left the parties where the statute had placed them,
with the operation of the award extant.
[24] In the present matter the DCS furnished security on 28 July 2026, which, for
the reasons set out below, triggered the suspension of the operation of the
award by operation of law, with no discretion of this Court required to sanction
it. Put differently, an exemption application rests upon the discretionary
it. Put differently, an exemption application rests upon the discretionary
powers of this Court, and those powers do not arise where security has been
furnished. The suspension automatically takes effect, with no pronouncement
from this Court.
5 [2025] ZALCJHB 299 (7 October 2025) (‘Molaetsa’) at paras 11, 13 and 14.
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[25] Mofokeng further offers Molaetsa as authority for the proposition that an
employer which does not furnish security when it launches its review has
thereby created its own urgency. To the extent that Molaetsa so holds, this
Court respectfully differs.
[26] Self-created urgency is concerned with delay in approaching the court. The
enquiry is confined to the period between the event which first made it
necessary to approach the court and the launching of the application. It is the
immediate facts giving rise to the alleged urgency which fall under scrutiny.
Whether an employer has furnished security in terms of section 145(7), and
when it did so, has no bearing on whether it delayed in approaching the Court.
[27] The DCS's goods were attached in February 2025 and again in March 2026,
and it approached this Court on neither occasion. An attachment may itself
found urgency, and litigants frequently approach this Court upon attachment
rather than upon the advertisement of a sale. In practice an execution process
follows various stages, depending on what is attached and on the instructions
given to the Sheriff. In essence, an attachment is a precursor to a sale and
signals a looming dispossession of the goods attached, though whether and
when that dispossession will follow remains uncertain. It gives rise to an
apprehension of harm. The advertisement of a sale however creates an
apprehension of a different kind, imminent and real, being that which
propelled the DCS to approach this Court on an urgent basis.
[28] In the present matter the DCS approached this Court within two days of
receiving the advertisement of the sale. The urgency of this application was
accordingly not self-created, and the matter is dealt with as one of urgency.
[29] Out of an abundance of caution, this Court retains a discretion to entertain a
matter where the interests of justice so demand. Were this Court to decline a
hearing on an urgent basis, it would permit a sale in execution of an award
hearing on an urgent basis, it would permit a sale in execution of an award
whose operation stands suspended, and would deny the DCS access to this
Court in circumstances where no substantial redress is available. Those
consequences are inimical to the scheme of section 145(7), which suspends
the operation of the award by operation of law. This brings t he Court to the
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security provisions of the LRA and whether the security furnished on 28 July
2026 is satisfactory in terms of section 145( 7) read together with section
145(8), and the period from which suspension of the operation of the award
took effect.
What does section 145(7) and 145(8) of the LRA require of an employer?
[30] Section 145(7) provides that 'the institution of review proceedings does not
suspend the operation of an arbitration award, unless the applicant furnishes
security to the satisfaction of the Court in accordance with subsection (8)'. The
provision states what the default position upon the institution of review
proceedings is; the operation of the award is not suspended. The word
'unless' introduces the circumstance under which that default position is
altered. Thus, the provision creates a condition to be met before the default
position is disturbed. It imposes no independent obligation upon an employer.
The obligation arises only where the employer seeks to avoid the operation of
the award pending review. Absent the condition being met, the award can be
enforced against the employer.
[31] From the foregoing, it follows that the suspension takes effect upon the
furnishing of security, whenever that occurs, and that steps taken in execution
before that date were lawfully taken under the default position.
[32] The security furnished by the DCS on 28 July 2026 stood in the sum of
R1,274,602.00. Mofokeng objected to it, contending that the amount exceeds
the compensation awarded and that the bond was never served upon him or
upon his attorneys, he having learnt of it only when this application was
served. The DCS states in its supplementary heads that the bond was
replaced on 5 August 2026 by one in the amount of the compensation
awarded. That further bond has not been placed before this Court and nothing
turns on it, since a bond in the prescribed amount would in any event satisfy
section 145(8).
turns on it, since a bond in the prescribed amount would in any event satisfy
section 145(8).
[33] The bond before this Court is that of 28 July 2026, to which Mofokeng's
objections relate. The award being one of compensation, the security
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contemplated by section 145(8) was R182,086.00, and the bond binds the
DCS in a sum approximately seven times that amount.
[34] Sections 145(7) and 145(8) of the LRA exist for the protection of the
employee, and an excess in security can never be a defect. What section
145(7) requires is that security be furnished to the satisfaction of this Court,
and this Court may be satisfied by more than the subsection prescribes.
Section 145(8)(a) provides that security furnished in terms of section 145(7) in
the case of an order for reinstatement or re-employment must be equivalent to
24 months’ compensation and in the case of an order for compensation, the
security must be equivalent to the compensatory amount awarded in terms of
section 145(8)(b) . To interpret the word ‘equivalent’ in either of the
subsections as excluding anything in excess would mean that a bond
exceeding an amount of 24 months’ remuneration or the awarded figure by a
single cent or rand fails to suspend the award, an absurdity the Legislature
could surely not have intended. The question , rather, is whether the security
furnished ‘is to the satisfaction of the Court’, and a bond of security in excess
is bound to satisfy a Court as contemplated in section 145(7).
[35] Mofokeng further contends that the bond of security is defective and invalid
for want of service upon him or upon his attorneys. That contention cannot be
sustained. Section 145(7) does not make service upon the employee a
condition of validity. Non- service may occasion practical inconvenience, in
that enforcement already under way might have been halted had the
employee been apprised of the security, but it certainly does not relate to the
‘satisfaction’ imposed by that provision which, properly understood within its
protective ambit, denotes the sufficiency of the security with which the Court
must be persuaded.
[36] This Court is accordingly satisfied within the meaning of section 145(7) with
[36] This Court is accordingly satisfied within the meaning of section 145(7) with
the security that was furnished on 28 July 2026. Concomitantly , the operation
of the award was suspended from that date.
Relief sought
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[37] The DCS sought an order staying execution, and declarations impugning the
certification of the award, the writ and the sale. Those declarations cannot
succeed, the steps in question having been lawfully taken for the reasons
already given. As to the application for a s tay of the execution of the award,
such relief would be redundant, the suspension of the operation of the award
having taken effect on 28 July 2026 by law and requiring no order of this
Court. What is required is that the Sheriff, in whose hands enforcement now
rests, be placed in a position to act in accordance with the findings of this
Court, and a declaration that the operation of the award stands suspended
serves that purpose. The maxim qui potest plus, potest minus (he who can do
more can also do less ) finds apt application in these circumstances: a court
which may grant the greater relief may grant the lesser. 6 An order in those
terms accordingly falls within the prayer for further and alternative relief.
Costs
[38] Costs in this Court do not follow the result. Section 162 of the LRA requires
that an order be made according to the requirements of the law and fairness, 7
and regard may be had to the conduct of the parties in proceeding with the
matter before this Court.
[39] There is nothing frivolous or vexatious in the conduct of either party in these
proceedings and a cost order is not warranted.
[40] In the circumstances, the following order is made:
Order
1. The forms and service provided for in the Rules of this Court are
dispensed with and the application is dealt with as one of urgency.
2. It is declared that the operation of the arbitration award issued under
case number GPBC1984/2023 on 4 October 2024, and which is the
subject of the review application instituted under case number 2025-
6 See, for an application of the maxim, National Union of Metalworkers of South Africa and Others v
Ntlokose (2024) 45 ILJ 495 (LAC) at para 33.
Ntlokose (2024) 45 ILJ 495 (LAC) at para 33.
7 Zungu v Premier of the Province of KwaZulu-Natal and Others (2018) 39 ILJ 523 (CC) at para 24.
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025125, has been automatically suspended by operation of law with
effect from 28 July 2026, and remains suspended until that review
application is finally determined.
3. The fourth respondent is interdicted from taking any step to enforce or
execute the award until the review application referred to in paragraph
2 above is finally determined.
4. The application for an order declaring the certification of the award, the
writ of execution and the sale in execution unlawful, void or of no force
and effect, and setting aside the certification and the writ, is dismissed.
5. No order as to costs.
__________________________
M J Motshekga
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Adv K O Moodley
Instructed by: The State Attorney, Pretoria
For the First Respondent: Adv C P Naudé
Instructed by: Isaac Teke Mothibe Attorneys Incorporated