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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

 

Not Reportable

Case no: J 468/2020

 

In the matter between:

 

THE LAKES HOTEL AND CONFERENCE (PTY) LTD               Applicant

 

And

 

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION (CCMA)                                                     First Respondent

 

AUBREY MOTEBANG MOKOENA N.O                                    Second Respondent

 

MATEBESE MATHEWS DIKGALE                                           Third Respondent

 

THE SHERRIF BENONI                                                            Fourth Respondent

 

Heard: 19 December 2023

Order: 19 December 2023

Date of Reasons:  07 February 2024

                                                                                                                     

REASONS FOR ORDER

 

PRINSLOO J

 

Background

 

[1]  The Second Respondent issued an arbitration award on 3 February 2022, wherein he found that the Third Respondent was constructively dismissed and he was awarded 12 months’ compensation.

 

[2]  The Applicant filed a review application on 18 March 2022, seeking the review and setting aside of the aforesaid arbitration award. The review application is is pending under case number JR 355/22.

 

[3]  The Third Respondent obtained a writ of execution on 22 March 2022. The Applicant stated that it was unaware of the existence of the writ of execution until 28 November 2023.

 

[4]  On 17 May 2023 the Applicant furnished security in terms of section 145(7) and (8) of the Labour Relations Act (LRA)[1] for the amount the Applicant was ordered to pay the Third Respondent in terms of the arbitration award, which is subject to review.

 

[5]  On 28 November 2023 and notwithstanding the fact that the Applicant furnished security, the Fourth Respondent (sheriff) attached the Applicant’s property. The Applicant’s attorneys addressed correspondence to the sheriff on 29 November 2023, requesting that the enforcement of the arbitration award be stayed pending the finalization of the review application, more so as security was furnished. The sheriff however proceeded to attach the Applicant’s property.

 

[6]  The Applicant subsequently approached this Court for relief and on 19 December 2023 the Applicant’s urgent application to stay a writ of execution pending the outcome of a review application, was heard on an unopposed basis.

 

[7]  After considering the merits of the application, the relief sought was granted and the execution of the writ was stayed, pending the finalization of the Applicant’s review application.

 

[8]  The Third Respondent requested reasons for the order granted on 19 December 2023.

 

Reasons

 

[9]  The order was granted for the following reasons:

 

[10]  Section 145(7) and (8) of the LRA provides that:

(7)   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).

(8)   Unless the Labour Court directs otherwise, the security furnished as contemplated in subsection (7) must—

(a)   in the case of an order of reinstatement or re-employment, be equivalent to 24 months’ remuneration; or

(b)   in the case of an order of compensation, be equivalent to the amount of compensation awarded.

 

[11]  Section 145(7) suspends the operation (and thereby the execution) of an arbitration award if security is furnished, in accordance with section 145(8). The provisions of the LRA suspend the operation of an arbitration award, if security is furnished, which the Applicant has done. In my view the operation of the arbitration award is automatically suspended, when security is furnished, pending the finalization of a review application.

 

[12]  In casu the Applicant has furnished security and by the operation of law, the operation of the arbitration award is suspended. This means that it cannot be executed, as its operation is suspended. This is the legal position which both the Third Respondent and the sheriff ignored, when they attempted to execute the award in November 2023.

 

[13]  Furthermore, this Court has a discretion to stay the enforcement of an arbitration award, pending its decision in a review application. I am of the view that a case was made out for the stay of execution, as the Applicant’s application for review is ripe for hearing and is awaiting enrollment.

 

Connie Prinsloo

Judge of the Labour Court of South Africa

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