the labour court of South Africa, johannesburg

Not Reportable
Case No: J 297/2023

In the matter between:

MOLEMOLE MUNICIPALITY 	Applicant

and

THE SHERIFF BOCHUM 	First Respondent

MASEFORO LYDIA MATHATO	Second Respondent

Heard: 07 March 2023 
Delivered: 08 March 2023
(This judgment was handed down electronically by circulation to the parties’ legal representatives, by email, publication on the Labour Court’s website and released to SAFLI. The date on which the judgment is delivered is deemed to be 08 March 2023.)

JUDGMENT

VAN NIEKERK, J

[1]	The applicant seeks an order staying the execution of an arbitration award issued by the CCMA on 7 February 2023, pending the outcome of an application for review filed in this court on 3 January 2023.

[2]	The material facts are not in dispute. The second respondent is and remains employed by the applicant. The second respondent is in dispute with her employer regarding an adjustment to her salary by the applicant’s former municipal manager there are proceedings pending in the High Court concerning that decision, which the applicant contends was taken without due regard to the applicant’s budget, without any necessary approvals, and without the concurrence of the first respondent’s immediate managers. Separately, the first respondent sought to enforce the decision under the auspices of the Bargaining Council. At the stage of conciliation, the parties reached an agreement in terms of which the applicant accepted that the decision was binding, until set aside, with the reservation of the right to approach the court to set aside the decision. That is the genesis of the proceedings currently pending before the High Court. The first respondent then sought to have the Bargaining Council make the settlement agreement an arbitration award. The Bargaining Council did so on 21 October 2021. The applicant contends that the first respondent deliberately omitted to inform the presiding commissioner of the fact that the agreement was subject to court proceedings. The first respondent’s attorney wrote a letter to the applicant’s attorney confirming that the commissioner was not advised of the pending application, as it is of no relevance to them and there was no need to inform the about the pending application’.

[3]	The applicant filed a rescission application on 15 November 2022. On 23 November 2022, the Bargaining Council dismissed the application for rescission. On 20 January 2023, the applicant filed an application to review and set aside that decision. The second respondent has participated in those proceedings, to the extent of filing an answering affidavit. Despite and actively engaging in the process of litigation, on 7 February 2023, the second respondent proceeded to have the arbitration award certified and sought to enforce it by instructing the first respondent to attend at the applicant’s offices and take into execution certain movable goods. On 21 February 2023, the first respondent duly attended at the applicant’s offices and attached the goods. The applicant’s attorneys attempted to resolve the matter, but the first respondent informed them that he acts on instructions of the second applicant. The applicant then sought an undertaking from the second respondent that she would not take any further steps to execute the award, a request that was refused. The applicant then filed the present application.

[4]	The discretion to stay an award is one that must be exercised judicially. In Robor (Pty) Ltd (Tube Division) v Joubert [2009] 8 BLLR 785 (LC), this court noted that at the heart of the enquiry, is whether the applicant has shown a well-grounded apprehension of execution taking place and of injustice being done to the applicant by way of irreparable harm being caused if execution were not to be suspended. In this sense, the approach to be adopted resonates with that applicable in applications for interim relief. The test to be applied is one in which the court must have regard to all relevant factors, including the prospects of success in the review application and the prospect and degree of prejudice to the parties respectively should the implementation of the award under review not be stayed.

[5]	In the present instance, I accepted that the applicant has reasonable prospects of success in the review application. The second respondent does not dispute that the presiding commissioner was not advised that the settlement agreement was the subject of proceedings pending before the Limpopo High Court. The prejudice to the applicant should the award not be stayed is manifest - the most obvious prejudices to those citizens who live within the municipality’s jurisdiction and who will suffer the consequences of reduced levels of service. On the other hand, the prejudice to the second respondent is no more than delay. The second respondent remains employed by the applicant and should benefit by the terms of the agreement. For these reasons, in my view, it is in the interests of justice that the enforcement of the arbitration award be stayed pending the outcome of the review.

[6]	The applicant seeks costs against the second respondent. It does so on account the fact that the second respondent ought properly to have given the undertaking sought by the applicant Secondly, the applicant made reference to the tone adopted by the second respondent in the answering affidavit, which counsel for the applicant submitted amounted to the use of inappropriate and often insulting language. The court was referred to authorities in which orders for costs were grounded in the circumstances. In this court, orders for costs are regulated by section 162 of the LRA. Unlike the High Court, the ordinarily applicable rule that costs follow the result does not apply. I accepted that the use of language by the second respondent in her answering affidavit is unfortunate, to say the least, and that ordinarily, it would deserve the censure of an order for costs. I would accept however, that the guilty party here is not so much the second respondent as her attorney. The correspondence addressed by the second respondent’s attorney to the applicant and its attorneys bears the same hallmarks of inappropriateness. Second, as the Constitutional Court has reminded us, this court to be reluctant to make orders for costs against individual employees who pursue legitimately felt grievances against their employers. With some reluctance, I accepted that the requirements of the law and fairness are best served by each party bearing its own costs.

[7]	Finally, in so far as the provision of security is concerned, and with particular reference to prayers 4 and 5 of the notice of motion, section 145 of the LRA would appear require security to be provided only in circumstances where an applicant seeks to review and set aside arbitration awards that concern an unfair dismissal in unfair labour practices. The language of subsection (8) refers to reinstatement, reemployment and orders for compensation. Present dispute concerns none of these matters and it would appear to me on a proper reading of the section that it is not incumbent on the applicant to finish security pending the outcome of the review.

I make the following order: 

1.	The enforcement of the award issued by the CCMA on 7 February 2023 under case number LPD 052207 is stayed, pending the outcome of the review application filed by the applicant under case number J 01/2023.

2.	The first respondent is directed to uplift any attachment made pursuant to the certification of the above award.

André van Niekerk
Judge of the Labour Court of South Africa

Appearances:

For the applicant: 	Adv I Hlolethao
Instructed by:	Kuaho Attorneys

For the respondent:	K.M Mafa. Kabelo Mafa Attorneys Inc.