Aspen Pharmacare Ltd v CEPPWAWU obo Tabata and Another (PR184/15) [2024] ZALCPE 16; (2024) 45 ILJ 2024 (LC) (14 May 2024)

Lastest amended version 5 June 2024

FLYNOTES: LABOUR – Review – Archived – Consequences of review application being archived in terms of Practice Manual – Archiving does not invalidate security bond – Operation of arbitration award remains suspended by security bond until review application finally determined – Archiving does not render review application finally dismissed – Rule 11 application still required to render review application finally dismissed – Operation of award stayed – Respondents prohibited from executing award until final determination of review application.

THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

Reportable

Case no: PR184-15

In the matter between:

ASPEN PHARMACARE LTD Applicant

and

CEPPWAWU obo TABATA

First Respondent

SHERIFF PE WEST – NV SOGA N.O. Second Respondent

Heard: 19 March 2024

Delivered: 14 May 2024

This judgment was handed down electronically by emailing a copy to the parties. The 14th of May 2024 is deemed to be the date of delivery of this judgment.

Summary: Review application under section 145 of the LRA – Consequences of review application being archived in terms of Practice Manual – Archiving does not invalidate security bond in terms of sections 145(7) & (8) of the LRA – Operation of arbitration award remains suspended by security bond until review application finally determined

Review application under section 145 of the LRA - Consequences of review application being archived in terms of Practice Manual – Archiving does not render review application finally dismissed – Rule 11 application still required to render review application finally dismissed

Urgent application to stay operation of arbitration award under section 145(3) of the LRA – test for urgency as a two legged test – first leg is absence of substantial redress in normal course – absence of substantial redress something less than irreparable harm – second leg is further factors in the interests of justice including self-created urgency, prejudice to respondent, prejudice to administration of justice – urgency only self created if, had the applicant not delayed, it could have obtained substantial redress in the normal course – a staying order granted after execution of award not equating to substantial redress

JUDGMENT

MEYEROWITZ AJ

Introduction

[1] More than eight years ago the applicant, Aspen Pharmacare Ltd (Aspen), launched an application to review an arbitration award granted in favour of one of its erstwhile employees, Mr Ndumiso Tabata.

[2] Mr Tabata’s union, CEPPWAWU (the first respondent herein)[1], contends that the review application is now deemed to have been withdrawn, lapsed and/or dismissed in terms of the relevant provisions of the Practice Manual, essentially because Aspen failed to timeously file the record. As a result, so the argument goes, the bond of security suspending operation of the award no longer applies because the review application has ceased to exist by operation of the Practice Manual. CEPPWAWU argues further that this states of affairs is true even though Aspen’s application to remove the review from archives is currently pending before this court.

[3] On the legal basis set out above, CEPPWAWU instructed the Sheriff to attach Aspen’s assets in satisfaction of the award. This is the threatened conduct which gave rise to the application before me. Aspen has asked for an urgent order staying enforcement of the award pending finalisation of the review.

The facts

[4] Mr Tabata was dismissed by Aspen on 12 December 2014. His union, CEPPWAWU, referred an unfair dismissal dispute to the the NBCCI[2] (the Bargaining Council) which held, on 5 October 2015, that Mr Tabata’s dismissal was substantively unfair and ordered reinstatement (the Award).

[5] Having received the Award on 26 October 2015, Aspen launched a review application on 20 November 2015 seeking to have the Award set aside and, at the same time, filed a bond of security for the purpose of suspending enforcement of the Award in terms of sections 145(7) & (8) of the Labour Relations Act[3] (LRA). There is a dispute about whether this bond was actually, but this below under a separate heading.

[6] On 22 December 2015 the Registrar of the Labour Court in Gqeberha (the Registrar) informed the parties that she had received the record of proceedings from the Bargaining Council which record, significantly, contained no audio discs.

[7] On 15 March 2016 Aspen informed CEPPWAWU that the Bargaining Council had failed to supply a complete record and proposed that CEPPWAWU consent to Aspen using its own audio recordings for the purposes of transcribing the record, but CEPPWAWU rejected the proposal.

[8] On 31 March 2016 Aspen approached the Judge President for a direction as to the further conduct of the review given that a major portion of the record was missing (per clause 11.2.4 of the Practice Manual). On 12 May 2016 Van Niekerk J directed that the issue of the integrity of the record be placed on the opposed motion roll for determination. The matter was however removed from the roll after a further audio disc was supplied by the Bargaining Council to the Registrar during May 2016.

[9] Aspen then discovered that this further disc did not contain all of the missing portions of the arbitration proceedings, meaning that the record remained incomplete. As a result, the matter was set down for a reconstruction hearing in the Bargaining Council on 28 March 2017. The reconstruction hearing was, predictably, unsuccessful.

[10] Then on 30 May 2017 the Registrar informed the parties that she had received from the Bargaining Council what turned out to be the final missing audio disc. However, when Aspen attended at the Registrar’s office the file containing the disc could not be located (apparently because of the disruption caused by the Labour Court moving from Govan Mbeki street to Bird street). Ultimately, the Registrar’s office advised Aspen to return in early 2018 once the move had been completed.

[11] When Aspen attended in early 2018 it was told that the file still could not be located, and that the Registrar’s office would notify the parties once the file was located. Finally, on 16 August 2018 the missing disc was supplied to Aspen, whereafter Aspen attended to the transcription thereof within approximately one month.

[12] CEPPWAWU alleges that Aspen should have acted with more diligence and expedition when it came to accessing and transcribing this final disc. However, in light of my findings below, there is no need for me to make a ruling on this issue.

[13] On 17 September 2018 Aspen filed the complete transcribed record in terms of Rule 7A(6) along with a notice in terms of Rule 7A(8)(b). In response, CEPPWAWU informed Aspen that its review application was deemed to have been withdrawn with effect from 23 August 2017, being 60 court days after the final disc had been made available on 30 May 2017 (per clause 11.2.3 of the Practice Manual).

[14] On 9 January 2019 CEPPWAWU filed an application in terms of section 158(1)(c) of the LRA to have the Award made an order of court (the Enforcement Application).

[15] On 16 January 2019 Aspen filed an application to “revive” its review application in terms of clause 11.2.3 of the Practice Manual (the Revival Application).

[16] On 30 April 2019 Lallie J directed, inter alia, that the Enforcement and Revival applications should be heard together after the parties had exchanged the relevant outstanding affidavits. Thereafter, on 8 October 2019, CEPPWAWU addressed a letter to the Registrar explaining that both matters were ripe for hearing and requested that the matters be set down on the opposed motion roll.

[17] Unfortunately, and presumably on the basis of some error in the Registrar’s office, the matters were not set down for a hearing. It is nonetheless common cause that neither party bothered to follow up with the Registrar for a period of more than four years.

[18] This matter sprung back into life on 4 December 2023 when CEPPWAWU instructed the Sheriff (the second respondent herein) to enforce the monetary portion of the Award by attaching the Aspen’s movable property. CEPPWAWU did so without copying Aspen in on these instructions to the Sheriff.

[19] At the hearing of this matter I raised the issue of whether it would be lawful, in light of the precedent set in Mahlanga NO v Rand Water[4], for the Sheriff to enforce the backpay portion of a reinstatement order as if it were an order ad pecuniam solvendam. However, in light of my findings below, there is no need for me to answer this question.

[20] On 8 February 2024 the Sheriff attended at Aspen’s premises. The Sheriff explained to Aspen that she was there to prepare an inventory of Aspen’s movable property capable of satisfying the Award, and that after sending the inventory to CEPPWAWU’s attorneys she would wait for further instructions regarding attachment, removal and sale in execution. The Sheriff listed three of Aspen’s motor vehicles on the inventory.

[21] Frantic letters were then exchanged between the attorneys for Aspen and CEPPWAWU, respectively. On 28 February 2024 Aspen’s attorneys issued a “fresh” security bond in terms of sections sections 145(7) & (8) of the LRA. Ultimately, on 4 March 2024 Aspen stated that if CEPPWAWU did not provide it with an undertaking to not enforce the Award by 7 March 2024, then it would approach this court on an urgent basis.

[22] On 7 March 2024 Aspen launched the present application and the matter was heard on 19 March 2024. At the conclusion of the hearing I handed down an order preventing the Sheriff from attaching Aspen’s property until judgment in this matter was delivered.

Urgency

[23] Aspen has approached this court on an urgent basis. In my view the test for urgency consists of two legs.[5] The first leg requires a court to assess whether or not the applicant will be able to obtain substantial redress in the normal course.[6] The second leg requires the court to assess whether it would be in the interests of justice to consider other factors that might

nonetheless preclude an urgent hearing.[7] These factors include, but are not limited to (1) the issue of self created urgency[8], (2) any procedural prejudice that might befall the respondent[9], and (3) any prejudice to the administration of justice[10].

[24] To pass the first leg of the urgency test the applicant need only show that it will not obtain “substantial redress” in the normal course. This is not equivalent to irreparable harm; it is something less.[11]

[25] It is common cause between the parties that execution of the Award is imminent; the Sheriff is simply waiting for further instructions from CEPPWAWU. I am prepared to take judicial notice of the fact that it will take many months before this application to stay enforcement of the Award will be heard on the normal opposed motion roll. I must therefore accept that a hearing “in the normal course” would mean a hearing after execution has already taken place. This would make a staying order, in my view, largely meaningless.

[26] Execution of the Award will cause significant disruption to Aspen’s business operations because its three vehicles will be sold at auction, and it will have to reinstate Mr Tabata (under threat of contempt of court). Aspen will also have to purchase three new vehicles (at considerable cost), and it will be saddled with these new vehicles forever. Then, if the stay application is eventually granted, Aspen will not be able to get its three old vehicles back, and suddenly Mr Tabata will no

longer be entitled to be an employee. Aspen will also have to incur the expense of attempting to retrieve the value of the sale in execution back from Mr Tabata, in circumstances where it is very unlikely that Mr Tabata will be able to reimburse Aspen due to his self-professed lack of means.

[27] In light of the above, I am satisfied that a staying order granted after execution will not equate to “substantial redress” for Aspen, if it equates to any kind of material redress at all.

[28] In his heads of argument Mr Thys, for CEPPWAWU, argued that financial hardship cannot found a basis for urgency, but this is an

oversimplification of the principle. If the financial hardship in question can be substantially redressed by a monetary payment in due course, then the principle holds firm. However, if the financial hardship cannot be substantially redressed in the normal course, then the matter deserves an urgent hearing.[12] In the present matter it is very unlikely that Mr Tabata will be able to reimburse Aspen if a staying order is only granted after

execution, nor will he be able to compensate Aspen for the disruption to its business.

[29] Turning to the issue of self-created urgency, Aspen has not delayed to such an extent that, if it had not delayed, it would have been able to obtain substantial redress on the normal motion roll.[13] Even if Aspen had launched this application on the same day that the Sheriff arrived at its premises (8 February 2024), the normal motion roll would not have enabled Aspen to obtain a staying order prior to execution.

[30] The respondents have been provided with sufficient time to file their answering papers and comprehensively defend themselves in accordance with the principle of audi alteram partem.[14] I also cannot see how granting an urgent hearing might prejudice the administration of justice.[15]

[31] The above principles notwithstanding, in his heads of argument Mr Thys argued that an applicant must nonetheless come to court immediately or risk failing on urgency. I disagree. If a culpable delay creates the urgency of the matter, or if it causes prejudice to the respondents or to the administration of justice, then such a delay might preclude an urgent hearing under the second leg of the urgency test. However, if an applicant who cannot obtain substantial redress in the normal course approaches court at a sober pace, and in doing so cause no prejudice to anyone, they should not be denied an urgent hearing.

[32] In the present matter Aspen took one month to approach court. This time was largely taken up by attempts to settle the matter and avoid the need for an urgent hearing. Aspen also no doubt required time to gather the requisite evidence and carefully formulate its legal position (rather than rush off to court with a half-cocked application). Both actions should, in my view, be encouraged provided that the delays associated therewith do not a) create the urgency of the matter or b) cause undue prejudice to the respondent or to the administration of justice.

[33] In the present matter Aspen’s delay of one month, such as it is, caused no prejudice to anyone, and therefore cannot constitute a basis to deny an urgent hearing. Given my earlier finding that Aspen cannot obtain substantial redress in the normal course, I am satisfied that this matter should be treated on an urgent basis.

Is there is valid security bond in place?

[34] Prior to dealing with the merits it is important to ascertain whether or not a valid security bond is currently in place in terms of sections 145(7) & (8) of the LRA.

[35] The bond issued by Aspen’s erstwhile attorneys, Van Wyk & Associates (VWA), on 5 November 2015 states that “the Applicant has furnished security to the satisfaction of the abovementioned court in accordance with section 145(8)” and that payment of such security “has been effected into the trust account” of VWA. Curiously, in its founding affidavit in the review application Aspen’s Ms Ester Wolmarans (Wolmarans) describes the document as being a bond for only 12 months. This led CEPPWAWU to argue that, because the bond was not for 24 months as required by section 145(8), the bond was ineffective.

[36] Mr Grobler, for Aspen, argued that Ms Wolmarans was mistaken because what she says is contradicted by what is stated in the bond itself. This is not a very convincing argument. More evidence is needed to get to the truth of the matter (such as testimony from the attorney in question). Unfortunately, there is no more evidence before me and yet I must make a factual finding in this regard. In my view, I have little option but to take Ms Wolmarans at her word and find that the 12 month bond did not comply with section 145(8), and therefore did not suspend operation of the Award.

[37] However, that is not the end of the matter. On 28 February 2024 Aspen’s new attorney, Mr Denver Brandt of Kirchmanns Incorporated, filed a fresh bond of security in terms of section 145(7) explicitly in the amount of 24 months’ remuneration. I am therefore satisfied that a valid bond existed in terms of sections 145(7) & (8) as from 28 February 2024. Whether or not the bond had the effect of suspending operation of the Award is considered below.

Do sections 145(7) & (8) apply to reviews that have been “archived”

The law

[38] When the time period for filling a record expires a review application is deemed to have been “withdrawn” in terms of clause 11.2.3 of the Practice Manual. If all the papers in a review application are not filed within 12 months then the review application “will be archived and be regarded as lapsed” in terms of clause 11.2.7. Finally, if an applicant fails to take any steps for a period of six months, then the Registrar will “archive” the file and “it shall have the same consequences as to the further conduct by any respondent party as to the matter having been dismissed”.

[39] In the important judgment of Overberg District Municipality v Independent Municipal & Allied Trade Union on Behalf of Spangenberg & Others[16], Lagrange J seemed to accept that operation of the above clauses created the same result whether the Practice Manual deemed a review

application to have been “withdrawn”, “lapsed” or “archived”. Insofar as this was indeed the learned judge’s assessment, I concur, and I will use the umbrella term “archived” to refer to all three scenarios.

[40] In Edcon (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & Others: In re Thulare & Others v Edcon (Pty) Ltd[17], Bank AJ held that an archived review file enters a strange world of limbo “without ever being formally dismissed and from which the file may never emerge unless a properly motivated revival application… enters to rescue it from a shadowy netherworld…”. This is the interpretation advocated for by Aspen; the review is neither dead nor alive, and crucially the security bond remains

effective unless and until the review application is finally dismissed.

[41] CEPPWAWU advocates for the other position; it says that once archived a review application is dead, as dead as a doornail,[18] and as soon as it is dead the employee can execute the award notwithstanding the existence of a security bond and an application

to have the file removed from archives.

[42] In the matter of Macsteel Trading Wadeville v Van der Merwe NO & Others[19] a review application launched by NUMSA had been archived as a result of the late filing of the record. In the Labour Court the respondent (Macsteel) argued that the court should not entertain the review application because there was no application for revival. The court disagreed holding that it was entitled to hear the matter because Macsteel had not brought an application to dismiss the review in terms of Rule 11. On appeal the LAC overruled the Labour Court holding as follows:

[24] Macsteel had raised NUMSA’s undue delay in prosecuting the review application in its answering affidavit in the review application, but since that application had in effect lapsed and been archived, the Labour Court had no jurisdiction to determine the issue of the undue delay raised there. In the circumstances, Macsteel would have been required to bring a separate rule 11 application for the review application to be dismissed or struck from the roll on the grounds of NUMSA’s undue delay in prosecuting it. But a rule 11 application was not a prerequisite for the Labour Court, in this particular instance, to consider whether, on the grounds of undue delay, the review application should be dismissed or struck from the roll.

[25] As indicated, the review application was archived and regarded as lapsed as a result of NUMSA’s failure to comply with the Practice Manual. There was also no substantive application for reinstatement of the review application, and no condonation sought for the undue delay in filing the record. As contended for by Macsteel, the Labour Court was, as a matter of law, obliged to strike the matter from the roll on the grounds of lack of jurisdiction, alternatively, give Macsteel an opportunity to file a separate rule 11 application demonstrating why the matter should be dismissed or struck from the roll on the basis of undue delay.

[26] Thus, having failed to strike the matter from the roll, it was impermissible for the Labour Court to decline to deal with the issue of the delay because Macsteel did not bring a rule 11 application. The correct approach was for the Labour Court to afford Macsteel an opportunity to bring a rule 11 application. (own emphasis)

[43] On three occasions Kathree-Setiloane AJA, writing for a unanimous court, held that the correct approach would have been for Macsteel to launch a Rule 11 application to have the review application finally dismissed, even though the review application had already been archived. This can only mean that, in the LAC’s view, the review application was in a state of limbo rather than dead

as a doornail; otherwise there would be no need for a Rule 11 application.

[44] However, the Overberg case puts an interesting gloss on the precedent set by Macsteel. To begin with, Overberg refers to Ralo v Transnet Port Terminals & Others[20] where the court likened the archiving of files to the lapsing of appeals in the Labour Court of Namibia. In that case Van Niekerk J held, in essence, that just like a lapsed appeal an archived review was as dead as a doornail.[21] Overberg then discusses SA Police Union on behalf of Mnisi v Safety & Security Sectoral Bargaining Council & others[22] where Moshoana J held that when a review application is archived there is no longer a pending review application;[23] i.e. it is as dead as a doornail.

[45] The precedents set by Ralo and Mnisi prompted Lagrange J in Overberg to find that when a review application is archived “[for] all intents and purposes it ceases to exist as a pending application and this is not akin to a mere suspension or stay”[24]; once again, this would mean that the review application is as dead as a doornail.

[46] However, Lagrange J noted that many other Labour Court decisions have held that an archived review application is not as dead as a door nail, and that a Rule 11 application is required to render it so (as per the apparent imprimatur to that effect set down in Macsteel). These cases include Mchunu v Rainbow Farms (Pty) Ltd: In re Rainbow Farms (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others,[25] MJRM Transport Services CC v Commission for Conciliation, Mediation & Arbitration & others[26], and Mthembu v Commission for Conciliation, Mediation & Arbitration & others[27]. The learned judge nevertheless aligned himself with the cases in Ralo and Mnisi, and then held as follows:

[33] In passing, it seems that as long as the review application is no longer pending by virtue of one of the deeming provisions of the manual, nothing prevents the respondent party from taking steps to enforce the award, even if security was provided under s 145(7) as the provision of the security only stays execution of an application that is pending. For an employee party, this is a way of achieving finality without having to first dismiss the review application, as noted in Mnisi…

[35] This is not to say there might conceivably still be situations where it might be necessary for a frustrated respondent to have recourse to a dismissal application, in which case the ordinary principles applicable to such applications would apply. The LAC in Macsteel clearly envisaged that a rule 11 application might still be brought by a party prejudiced by the delay, but did not elaborate on the circumstances when this would be appropriate. It is also arguable that, because the ratio of the LAC’s decision was essentially on a very narrow basis, that the court’s comments on a rule 11 application were obiter.

[47] The above represents very strong obiter support for CEPPWAWU’s interpretation that the review application in the present matter is as dead as a doornail. It is obiter because Overberg did not deal with the question of enforcing an award under an archived review application, it only dealt with whether or not it was necessary to bring a revival application in addition to a condonation application for the late filing of a record.

[48] To complicate matters further, there is the more recent LAC decision of E Tradex (Pty) Ltd t/a Global Trade Solution v Finch & Others[28]. In that matter Sutherland JA held as follows:

[10] The use of the term ‘archived’ is peculiar to the Labour Court Practice Manual. In the general civil courts, for example, the failure to prosecute an appeal timeously results in the appeal having lapsed. The effect of that is that the case shall not be dealt with by a court unless an application to reinstate the appeal is made. It is, in our view, plain that the archiving of a Labour Court case was intended to have the identical effect; indeed, clause 16.3 goes even further, to equate the consequence of an archiving of a case to be understood to mean the application is ‘dismissed’, albeit that a procedure exists to reinstate the case on good cause shown. (own emphasis)

[49] In Panayiotou v Shoprite Checkers (Pty) Ltd and Others[29] the High Court, per Sutherland J as well, held that a judgment creditor was entitled to execute on a judgment debt as soon as an appeal had lapsed (even in the presence of an application to condone the late filing of an application for leave to appeal). This finding was approved by a full bench of the High Court in Myeni v Organisation Undoing Tax Abuse.[30]

[50] Accordingly, if a lapsed civil appeal and an archived review application are supposed to be treated in the “identical” way per E Tradex, then it would appear that an archived review application is as dead as a doornail. However, my analysis below reveals that this is not necessarily the case.

Analysis of the law

[51] A consideration of the case law at LAC level presents conflicting results. On the one hand, Macsteel strongly suggests that a Rule 11 application is required to render an archived review application finally dismissed. On the other hand, E Tradex suggests just as strongly that an archived review application is already as dead as a doornail.

[52] At the Labour Court level I find the logic used in Ralo, Mnisi and Overberg very attractive: these cases, in essence, all equate an archived review application to a lapsed civil appeal. However, I do not agree with Lagrange J in Overberg that Macsteel’s input on this issue was obiter dictum. In Macsteel the LAC reached a decision that the Labour Court lacked jurisdiction to determine a review application on the very basis that, by virtue

of the archiving, Macsteel should have given an opportunity to file a Rule 11 application. I am therefore not prepared to wish away Kathree-Setiloane AJA’s statement that “Macsteel would have been required to bring a separate rule 11 application for the review application to be dismissed…”[31], and I consider myself bound by this statement.

[53] In E Tradex the LAC dealt with the issue of whether or not the Registrar’s decision to enrol an archived review application for hearing somehow “un archived” the review application. The court held that it did not. But the court did not consider whether an award under an archived review application would be executable. I am therefore hesitant to assign a very broad meaning, to the very broad statement, that the archiving provisions have the identical effect as the lapsing of civil appeals. The LAC did not have the executability of arbitration awards in mind when it made this statement, and only a few paragraphs

later it quotes Kathree-Setiloane AJA in Macsteel with approval. I am therefore satisfied that the LAC did not intend its statement to constitute binding authority, contrary to Macsteel, that a Rule 11 application is not required to render an archived review application finally dismissed.

[54] In light of the above, if there is need for a Rule 11 application to render an archived review application finally dismissed, then the review application must still exist. If it still exists, then sections 145(7) & (8) of the LRA must apply. I therefore find that the archiving of a review application does not invalidate a section 145(7) security bond, and operation of the underlying award remains suspended until the review application is finally determined either on the merits or through an application to dismiss in terms of Rule 11.

Application of the law to the facts, costs

[55] Having concluded that the archiving of a review application does not invalidate sections 145(7) & (8) of the LRA, on the facts of this matter execution of the Award was suspended on 28 February 2024 when Aspen issued its “fresh” security bond.

[56] Aspen has asked this court to grant an order staying execution of the Award in terms of section 145(3). Such an order is, under the circumstances, unnecessary because execution of the Award was stayed by operation of law on 28 February 2024. This means that, from that date, neither Mr Tabata, CEPPWAWU, nor the Sheriff, would have been entitled to enforce the Award until the review application is finally determined.

[57] Mr Grobler argued that CEPPWAWU should be made to pay the costs of this application because instructing the Sheriff to execute the Award amounted to CEPPWAWU impermissibly taking the law into its own hands. I disagree. Understandably frustrated by the delays, CEPPWAWU acted in good faith and then opposed this application on very reasonable grounds. One need only peruse the contents of this judgment to see that the law on this issue was far from certain.

[58] Given that the Enforcement and Revival Applications are still pending it would be inappropriate for me to assign blame for the appalling delays incurred in this matter. In these unhappy circumstances all I can do is apply the law to the facts. I therefore make the following order:

Order

1. Operation of the award issued by the National Bargaining Council for the Chemical Industry dated 5 October 2015 in the matter between CEPPWAWU obo Tabata v Aspen Pharmacare under case number ECCHEM139-14/15 (the Award) was stayed by operation of law on 28 February 2024 in terms of sections 145(7) and 145(8) of the Labour Relations Act 66 of 1995.

2. As a result of the above, the first and second respondents are prohibited by law from executing the Award until final determination

of the review application before this court under case number PR184/15.

3. There is no order as to costs.

Mark Meyerowitz

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Advocate Marius Grobler

Instructed by:

Kirchmanns Incorporated, Gqeberha

For the First Respondent: Advocate Mark Thys

Instructed by:

Butler Attorneys, East London

For the Second Respondent: No appearance

[1] There was some confusion at the hearing of this matter as to whether it was CEPPWAWU, or Mr Tabata, who was cited as the first respondent. In the founding papers it is in fact CEPPWAWU who is cited as the first respondent.

[2] The National Bargaining Council for the Chemical Industry

[3] Act 66 of 1995, as amended.

[4] (2023) 44 ILJ 569 (LC)

[5] See O’Connor v Lexisnexis (Pty) Ltd (P18/24) [2024] ZALCPE 11 (unreported judgment dated 11 April 2024) at [21] to [30]

[6] See Maphalle v National Heritage Council & Others (2023) 44 ILJ 579 (LC) at [18]; Vumatel (Pty) Ltd v Majra & Others (2018) 39 ILJ 2771 (LC) at [8]; Association of Mineworkers & Construction Union & Others v Northam Platinum Ltd & Another (2016) 37 ILJ 2840 (LC) at [21]. See also Chung-Fung (Pty) Ltd and Another v Mayfair Residents Association and Others (2023/080436) [2023] ZAGPJHC 1162 (13 October 2023) at [18]; East Rock Trading 7 (Pty) Ltd & another v Eagle Valley Granite (Pty) Ltd & others [2012] JOL 28244 (GSJ) at [6]; In re: Several matters on the urgent court roll 2013 (1) SA 549 (GSJ)

[7] See Mogalakwena Municipality v Provincial Executive Council, Limpopo and Others 2016 (4) SA 99 (GP) at [64]. These factors have been referred to as “secondary considerations” in De Wit (2021) The correct approach to determining urgency in Without Prejudice: Sabinet (June 2021) at p13

[8] Vumatel (supra) at [18], [20] to [25]; Ecolab (Pty) Ltd v Thoabala & Another (2017) 38 ILJ 2741 (LC) at [28]

[9] Chung-Fung (supra) at [24]; Mogalakwena Municipality (supra) at [64]; IL & B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd and Another; Aroma Inn (Pty) Ltd v Hypermarkets (Pty) Ltd and Another 1981 (4) SA 108 (C) at 112H and 144B.

[10] Mogalakwena Municipality (supra) at [64]

[11] Ibid

[12] See Ziegler South Africa (Pty) Ltd v South African Express SOC Ltd and Others 2020 (4) SA 626 (GJ) at [17]; Harley v Bacarac Trading 39 (Pty) Ltd (2009) 30 ILJ 2085 (LC) at [6] to [11]; Twentieth Century Fox Film Corporation and Another v Anthony Black Films (Pty) Ltd 1982 (3) SA 582 (W) at 586F – G. See also Shetu Trading CC v The Chair of the Tender Board for Namibia and Others (APPEAL-2010/352) [2011] NAHC 179 (22 June 2011) and the cases cited therein.

[13] O’Connor (supra) at [28]

[14] O’Connor (supra) at [29]. See also Chung-Fung (Pty) Ltd and Another v Mayfair Residents Association and Others (2023/080436) [2023] ZAGPJHC 1162 (13 October 2023) at [24]; Mogalakwena Municipality v Provincial Executive Council, Limpopo and Others 2016 (4) SA 99 (GP) at[64]; IL & B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd and Another; Aroma Inn (Pty) Ltd v Hypermarkets (Pty) Ltd and Another 1981 (4) SA 108 (C) at 114B.

[15] O’Connor (supra) at [30]

[16] (2021) 42 ILJ 1283 (LC)

[17] (2016) 37 ILJ 434 (LC)

[18] The phrase comes from the opening paragraphs to Charles Dickens’ A Christmas Carol: “Marley was dead: to begin with. There is no doubt whatever about that... Old Marley was as dead as a door-nail. Mind! I don’t mean to say that I know, of my own knowledge, what there is particularly dead about a door-nail. I might have been inclined, myself, to regard a coffin-nail as the deadest piece of iron-mongery in the trade. But the wisdom of our ancestors is in the simile; and my unhallowed hands shall not disturb it... You will therefore permit me to repeat, emphatically, that Marley was as dead as a door-nail…. This must be distinctly understood, or nothing wonderful can come of the story I am going to relate. If we were not perfectly convinced that Hamlets Father died before the play began, there would be nothing more remarkable in his taking a stroll at night, in an easterly wind, upon his own ramparts, than there would be in any other middle-aged gentleman rashly turning out after dark in a breezy spot…”

[19] (2019) 40 ILJ 798 (LAC)

[20] (2015) 36 ILJ 2653 (LC)

[21] At [10]

[22] Case no JR2597/201 (unreported) 19 August 2019

[23] At [14]

[24] At [24]

[25] (D203/15) (2017) ZALCD 17 (12 June 2017)

[26] (2017) 38 ILJ 414 (LC)

[27] (2020) 41 ILJ 1168 (LC)

[28] (2022) 43 ILJ 2727 (LAC)

[29] 2016 (3) SA 110 (GJ)

[30] (15996/2017) [2021] ZAGPPHC 56 (15 February 2021)

[31] At [24]