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THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

 

Not Reportable

Case no: PR88/22

 

In the matter between:

 

THE MINISTER OF POLICE	Applicant
and
SOLIDARITY	First Respondent
B.H. EVERTON	Second Respondent
THE SHERIFF, PORT ELIZABETH	Third Respondent

Heard:   28 November 2024

Delivered:    3 December 2024

 

JUDGMENT

 

GANDIDZE, AJ

 

Introduction

 

[1]  The applicant, the Minister of Police, brought an urgent application on 18 November 2024 seeking an order staying the enforcement and execution of an arbitration award issued against the South African Police Services (SAPS), in favour of Mr Everton (Everton), the second respondent herein. The stay is pending the outcome of a review application that SAPS launched, challenging the award. In terms of the award, the commissioner found that SAPS had committed an unfair labour practice against Everton and ordered that he be compensated.

 

[2]  Solidarity, the first respondent herein, opposed the application on its behalf and on behalf of Everton.

 

[3]  On 19 November 2024, the Court postponed the matter to 27 November 2024 to allow for the exchange of pleadings. For convenience, I deal with the contentions of the respective parties under different headings.

 

Background

 

[4]  The award sought to be enforced was issued on 3 December 2021.

 

[5]  On 26 April 2022, and outside the six-week prescribed period for filing a review application, the applicant, through the Office of the State Attorney, launched an application to review and set aside the award.

 

[6]  On or about 19 August 2022, the applicant filed a security bond for R948 432.00.

 

[7]  Between 15 July 2022 and October 2022, the complete record in the review application was filed, followed by a supplementary affidavit filed in December 2022. Solidarity filed a reply thereto on 9 January 2023, and on 20 April 2023, the applicant requested the Registrar to allocate a hearing date as the review was ripe for hearing. The parties await the set down notice.

 

[8]  In March 2024, Solidarity applied to the Commission for Conciliation Mediation and Arbitration (CCMA) to certify the award as contemplated in section 143(1) of the Labour Relations Act[1] (LRA). The purpose of certifying an award is so that it can be enforced as if it were an order of Court.

 

[9]  The certified award was sent to SAPS and the Office of the State Attorney on 12 June 2024.

 

[10]  On the same date, Solidarity addressed a letter of demand to SAPS and the State Attorney, citing the State Liability Act[2], that the Labour Court would be approached with a request to issue a writ of execution to recover the amount owed to Everton pursuant to an award that had since been certified. As far as the status of the review application was concerned, Solidarity advised that it had been archived.

 

[11]  On 1 July 2024, the State Attorney responded that the Registrar had been requested to set the matter down for hearing. It is unclear whether the State Attorney responded to Solidarity’s contention that the review application had lapsed and what its attitude was, as that letter did not form part of the application papers.

 

[12]  On 18 September 2024, the Sheriff Port Elizabeth West, the third respondent herein, attended at the Mount Road Police Station, Gqeberha, and attached five vehicles belonging to SAPS. The SAPS employee who deposed to the founding affidavit in the application to stay enforcement deposed that he became aware of the attachment on 17 October 2024.

 

[13]  In an undated letter, which was sent on 25 October 2024, the State Attorney wrote to Solidarity referring to the letter sent of 1 July 2024 that a set down date for the hearing of the review application was awaited and that by virtue of the provisions of section 145(7) and (8) of the LRA, the enforcement of the award was automatically stayed as a security bond was filed, and that should Solidarity persist with the enforcement, the Court would be approached on an urgent basis for an appropriate order.

 

[14]  The applicant’s version is that following the attachment of the SAPS vehicles on 18 September 2024, the Sheriff visited the Mount Road Police Station on 12 November and again on 15 November 2024 to remove the attached vehicles.

 

[15]  The present application was launched on 18 November 2024, on less than 24 hours' notice. As recorded elsewhere above, on 19 November 2024 an order was granted staying the enforcement of the arbitration award pending the outcome of the urgent application postponed to 27 November 2024.

 

Legal principles

 

[16]  As the applicant sought an order staying enforcement pending the outcome of a review application, the relief is interim in nature. The requirements for interim relief are (a) prima facie right, (b) reasonable apprehension of irreparable harm, (c) no satisfactory remedy, and (d) balance of convenience.

 

[17]  These requirements must be assessed against the context that the Court has a wide discretion in applications to stay, which discretion must be exercised judicially. Ultimately, the question is whether real and substantial injustice will result if the stay is not granted.[3]

 

[18]  In Chillibush Communications (Pty) Ltd v Gericke and Others[4] the Court stated thus:

‘[18]    … The most important consideration in the exercise of the discretion is whether there is a pending underlying cause of action arising from the arbitration award.’

 

Urgency

 

[19]  An applicant that seeks the Court’s indulgence to be heard on an urgent basis must, in terms of rule 38, set out (a) the reasons for urgency and why urgent relief is necessary; (b) the reasons why the requirements of the rules were not complied with, if that is the case; and (c) if a party brings an application in a shorter period than that provided for in terms of section 68(2)[5] of the LRA, the reasons why a shorter period of notice should be permitted.

 

[20]  The applicant became aware of the certified award on 12 June 2024. The applicant would have known at that stage that enforcement and execution proceedings were underway. It could have brought this application at that stage. Ms Ah Shene submitted that the State Attorney engaged Solidarity before launching the application. Although this approach is prone to criticism, based on the facts of this case, it was not unreasonable.

 

[21]  It is the applicant’s case that it was only on 17 October 2024, when the Sheriff attempted to remove the attached vehicles, that the State Attorney and SAPS became aware of the attachment of SAPS vehicles on 18 September 2024. On 25 October 2024, the State Attorney wrote to Solidarity, warning it that an urgent application would be launched if it persisted with the enforcement process. Solidarity did not respond.

 

[22]  On 12 November and again on 15 November 2024, the Sheriff attended at the Mount Road Police Station to remove the attached vehicles. At that point, it became apparent that Solidarity persisted in enforcing the award. It was a second attempt by the Sheriff to remove the attached vehicles on Friday, 15 November 2024, which prompted the launch of the current application on Monday, 18 November 2024.

 

[23]  Based on that account, the Court is satisfied that the applicant acted with haste after the second attempt by the Sheriff to remove the attached vehicles. Unless the Court hears this matter as urgent, the Sheriff may return to Mount Road Police Station and remove the attached goods. Contrary to Solidarity’s submission that the applicant is speculating about the removal, it does not allege that it did not and will not instruct the Sheriff to remove the attached vehicles. Why else would the Sheriff still attend at Mount Road Police Station if not to remove the attached vehicles? Solidarity insists that it is entitled to enforce the award as the review application is extant, and therefore, it will not instruct the Sheriff to pend the execution process. It also did not assure the State Attorney that the enforcement proceedings would not proceed. The removal of the attached vehicles is imminent, and the applicant does not have to wait until after the removal of the vehicles. The matter is urgent.

 

[24]  The postponement of the matter on 19 November 2024 cured the failure to give 48 hours' notice of the application, which allowed the parties to file further pleadings.

 

[25]  With urgency out of the way, l turn to the merits of the application.

 

Prima facie right

 

(i)   Section 145(7) and (8) of the LRA

 

[26]  The applicant contends that it is entitled to the relief it seeks given sections 145(7) and (8) of the LRA, which provide for the automatic stay of an award where a security bond is filed with the Court.

 

[27]  Section 145(7) 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.’

 

[28]  Section 145(8) provides that:

 

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

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

 

[29]  The applicant’s contention is correct. Once the State Attorney filed a bond of security covering the compensation awarded to Everton, the operation of the award was automatically suspended without having to do anything else. By filing the security bond, SAPS earned the temporary right not to comply with the award and not face the consequences until the review application is determined. A reading of the security bond filed by the State Attorney records this legal position.

 

[30]  Section 145(7) of the LRA was inserted into the LRA to dispense with the need to apply for a stay of the operation of the award pending the outcome of a review application. Solidarity’s answering papers make this concession, but in argument, Mr Groenewald sought to argue otherwise. That submission goes against the clear wording of section 145(7) of the LRA.

 

[31]  Solidarity’s further submission was that the security bond was, in any event, defective because (a) the wrong arbitration award is annexed to the review application, (b) that the bond of security for R948 432.00 is more than the compensation due to Everton, (c) the State Attorney could not issue a security bond and (d) that the security bond was issued months after the review was filed.

 

[32]  The security bond records that it is filed with respect to the award issued in case number PSSS927. That the complete case number is PSSS927-18/19 does not render the security bond defective, as it was evident that the security bond was in respect of the Everton award. If the wrong award was attached to the review application, that is an issue that the review Court can determine if the issue is persisted with.

 

[33]  The more bizarre complaint by Solidarity is that in terms of section 145(8) of the LRA, a security bond for R948 432.00 is defective because it is in excess of the compensation of R277 464.00 awarded to Everton. I say bizarre because common sense dictates that it is a security bond for a lesser amount that should aggrieve a respondent and would not be in compliance with the provisions of section 145(8).

 

[34]  The Court could not properly assess the submission that the State Attorney could not issue the security bond as the submission was not developed further other than the mention of another judgment of this Court to that effect. Not having been referred to the specific judgment relied upon, l am unable to assess the submission properly but am of the view that since the State Attorney is the State's legal firm, on the face of it, l can see no reason why law firms can issue a security bond but not the State Attorney.

 

[35]  Indeed the bond of security ought to be filed simultaneously with the review application but filing it four months later does not render it defective. Solidarity could have sought to enforce the award anytime after the review application was filed but before the security bond was filed, and it chose not to do so.

 

(ii)  Is there a pending review?

 

[36]  The finding that the security bond filed complies with the provisions of section 145(7) and (8) of the LRA would have been dispositive of the matter but Solidarity has raised issues with the status of the review application, which l turn to next.

 

[37]  Solidarity’s case was that there is no pending review application before the Court, and therefore, the urgent application to stay can be disposed of on that basis alone. If Solidarity is right that there is no pending lis, then the Court would lack jurisdiction to determine the application for the stay of the enforcement of the award.

 

[38]  While Solidarity submitted that the applicant had the onus to prove that the review application was still pending, the applicant contended that its review application was properly before the Court. Therefore, one must look at its submissions on that issue to assess whether Solidarity is correct that the review was no longer extant.

 

[39]  Solidarity’s answering affidavit in the review application filed in January 2023 does not allege that the review has lapsed.

 

[40]  It is unclear whether there were any engagements between the parties after April 2023, when the applicant requested the Registrar for a set down date. What is known is that in its letter of June 2024, Solidarity claimed that the applicant’s review application had been ‘archived.’

 

[41]  The only provisions in the Practice Manual that refer to the archiving of a review application are these:

 

‘11.2.7 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.

16.1    In spite of any other provision in this manual, the Registrar will archive a file in the following circumstances:

•     in the case of an application in terms of Rule 7 or Rule 7A, when a period of six months has elapsed without any steps taken by the applicant from the date of filing the application, or the date of the last process filed;’

 

[42]  Were the pleadings in this review application filed outside the twelve months? The review was launched in April 2022, and the answering affidavit, the last pleading given the applicant’s election not to reply to it, was filed in January 2023. That is within twelve months. There was also no period of six months that lapsed without the applicant taking steps after filing the review application, which would trigger clause 16.1. Therefore, the assertion that the review application was archived is not supported by the provisions of the Practice Manual.

 

[43]  Solidarity’s answering affidavit alleges that the review had lapsed and had been archived. The submission was further that the review was effectively withdrawn based on the applicant’s timelines. The only provision in the Practice Manual dealing with deemed withdrawn reviews is this provision:

‘11.2.3 If the applicant fails to file a record within the prescribed period, the applicant will be deemed to have withdrawn the application, unless the applicant has during that period requested the respondent’s consent for an extension of time and consent has been given. If consent is refused, the applicant may, on notice of motion supported by affidavit, apply to the Judge President in chambers for an extension of time. The application must be accompanied by proof of service on all other parties.’

 

[44]  The prescribed period is 60 days calculated from when the Registrar advises an applicant that the record has been filed by either the CCMA or the Bargaining Council, as applicable. Even though the rule 7A(5) notice is not on file, the parties were informed on 15 July 2021 that the Bargaining Council had filed the record. The applicant contends that in the circumstances, it had until 10 October 2021 to file the record to comply with this requirement. Solidarity did not take issue with that calculation and submission.

 

[45]  On 10 October 2021, which was the last day for filing the record, the applicant wrote to Solidarity seeking consent to file the record outside the 60 days because even though the transcript had been secured, the Labour Court had provided the incorrect documents to those that served before the Bargaining Council.

 

[46]  In terms of clause 11.2.3 reproduced above, where consent is refused, an applicant can approach the Judge President with an application to extend the 60 days for filing the record. Solidarity did not respond. Instead, and to its credit, it actively cooperated with the State Attorney by furnishing them with the correct bundles of documents. The State Attorney was also invited to indicate if anything else was required. On those facts, l agree with Ms Ah Shene’s submission that tacit consent was given. Additionally, it must be borne in mind that the respondent's ‘refusal' to consent to an extension triggers an application to the Judge President to extend the 60-day period. Therefore, where a respondent receives a request to consent but remains silent on the issue and instead actively cooperates with the party requesting the consent to ensure that the complete record is placed before Court, then that party has not ‘refused’ the extension, which would trigger the alternative to approach the Judge President for an extension.

 

[47]  Solidarity complains that the applicant could have applied to compel the Bargaining Council to file the documentary record. This became unnecessary once Solidarity cooperated and assisted the State Attorney with the correct bundles of documents required to complete the review record.

 

[48]  A further consideration is the applicant’s undisputed claim that it received the ‘wrong’ documentary record from the Court. Had the correct documents been provided to the State Attorney, it would have filed the complete record within the 60-day period without seeking and obtaining Solidarity’s consent to extend the 60-day period.  

 

[49]  The Practice Manual did not expressly provide for a situation where the Registrar informs parties that the record is filed, but such record is incomplete. The current rules of the Court, effective from 17 July 2024, provide that the 60 days is calculated from when the Registrar informs the parties that the record was filed, and such record must be complete. Applying the new rules, Solidarity provided the applicant with the documentary record in October 2022, which was filed in the same month. Therefore, the record was filed timeously, so it cannot be said that the review was deemed to be withdrawn. To determine this application, the Court has exercised its residual discretion to interpret the provisions of the Practice Manual in the manner it has done.[6]  

 

[50]  A complete picture of the timelines became apparent after the replying affidavit was filed. Solidarity urged the Court to disregard the averments made for the first time in a replying affidavit. It is correct that the general rule is that an applicant must make out its case in the founding affidavit. However, where a respondent alleges in its answering affidavit that the review was no longer pending for reasons that it gives, an applicant is permitted, in reply, to set out a version disproving the respondent’s contention. This is what happened in this matter.

 

[51]  Based on the material before Court, it is incorrect that Solidarity repeatedly drew the applicant’s attention to non-compliance. Other than the statement that the review had been archived in the letter of demand, at no point before the launch of the current proceedings did Solidarity spell out why it was of the view that the review had been archived. As l demonstrated above, the review was never archived if one has regard to the provisions of the Practice Manual.

 

[52]  Solidarity also argues that there is no pending lis as the review application was filed late. The review application was indeed filed later, but there is a pending condonation application for the late filing, which will be determined when the review application is heard. Things would have been different if the review application had been filed late and no condonation application had been filed.[7]

 

[53]  Other contentions by Solidarity were that the applicant filed the transcript only and not the entire record, that no rule 7A(6) notice was filed, that the Court file was never indexed and paginated, and that heads of argument were never filed. Both the transcript and the record are on the file, which is indexed and paginated. Notices accompanied the transcript and the documentary record, albeit the notices do not refer to rule 7A(6). Heads of argument will be called for in the set down notice, and the applicant has no control over when the Registrar will issue the set down notice. There is no merit to any of Solidarity’s complaints.

 

[54]  Reliance was also placed on section 145(5) of the LRA, which requires an applicant to request a set down date within six months of launching the review application. That provision is ‘subject to the Rules of this Court.’ When the review application was filed, the Practice Manual of the Labour Court, which applied until 16 July 2024, set out the steps and timelines that needed to be complied with. It required that all pleadings in the review application be filed within twelve months from when the review is launched. This was complied with. Clause 16.1 also required that a review be archived if six months lapse without the applicant taking steps after filing the review application. As l have found above, this provision was not contravened.  Therefore, section 145(5) of the LRA, which requires applicants in review applications to request a set down date within six months of filing the review application, must yield to the provisions of the Practice Manual, to which it is subject.

 

[55]  In light of the provisions of section 145(7) and (8) of the LRA, the review application is the underlying causa, which is sufficient to grant the stay. The applicant did not have to address its prospects of success in the review,[8] a matter that the review Court will determine in due course. The Ntshangane v Specialty Meats CC[9] judgment that Mr. Groenewald relied upon concerned an application to make an award an order of the Court, but l accept that the Court stated that in applications to stay, an applicant must address prospects of success, an issue that was not before the Court.

 

(iii)    Alleged non-compliance with the State Liability Act

 

[56]  The applicant contends that the enforcement process must be stayed for the further reason that the provisions of the State Liability Act[10] were not complied with during the enforcement process, and therefore, the attachment is flawed.

 

[57]  The above findings make it unnecessary to determine this issue in these proceedings.

 

(b)  Reasonable apprehension of irreparable harm and balance of convenience

 

[58]  The applicant submits that the disposition of the attached vehicles will hinder service delivery as there are already limited vehicles in use. The Court agrees, but more importantly, the applicant has a right to the automatic stay of the enforcement of the award by virtue of the provisions of sections 145(7) and (8) of the LRA. It will suffer irreparable harm if the Court does not apply the provisions in this matter and the balance of convenience favours the  granting of the interim relief sought.

 

(c)  No satisfactory or adequate remedy

 

[59]  The applicant was forced to approach the Court to vindicate its rights, which have already been vindicated by the LRA and at significant cost to the taxpayer. It was left with no choice.

 

Costs

 

[60]  The urgent application was filed after Solidarity persisted with the enforcement process even though a security bond was filed. If Solidarity believed that the bond of security was defective, it ought to have informed the State Attorney of the grounds for making this assertion, but it did not. The issue was raised for the first time after the urgent application to stay enforcement of the award was filed. Additionally, Solidarity’s contention that the review had been archived was not clarified or expanded on until the urgent application was filed. This application could have been avoided, but because the parties have an ongoing collective bargaining relationship, an order directing each party to pay its own costs would be in accordance with the requirements of law and fairness.

 

[61]  In the premises, the following order is made:

 

Order

 

1.  The matter is urgent.

2.  The enforcement and execution of the arbitration award certified by the CCMA in case number PSSS927-18/19 are stayed pending the finalisation of the review application under case number PR88/2022.

3.  There is no order as to costs.

 

T. Gandidze

Acting Judge of the Labour Court of South Africa

 

Appearances:

 

For the Applicant: Instructed by:	Advocate Ms Ah Shene The State Attorney
For the First and Second Respondent: Instructed by:	Advocate Groenewald CN Venter of Serfontein Viljoen and Swart Attorneys

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