Borotho v Royal Serve Cleaning (Pty) Ltd and Another (JS 1138/11) [2013] ZALCJHB 7 (23 January 2013)

Borotho v Royal Serve Cleaning (Pty) Ltd and Another (JS 1138/11) [2013] ZALCJHB 7 (23 January 2013)

The Court found that the application to make the arbitration award an order of the Court was not for enforcement but to create a basis for a plea of res judicata. The discretion to make an arbitration award an order of the Court should be exercised judicially and is generally reserved for enforcement. Since the underlying purpose was not enforcement, the Court declined to make the award an order. Regarding the joinder application, the Court held that the arbitration award, which found that the first respondent was not the employer, remains binding until set aside on review. The jurisdiction of the Court is temporarily ousted pending the outcome of the review, and there is no basis to join...

Citation
[2013] ZALCJHB 7
Parties
Applicant: Borotho Naledi; Respondent: Royal Serve Cleaning (Pty) Ltd; Respondent: Royal Serve Catering (Pty) Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
23 January 2013
Case Number
JS 1138/11
Procedural Posture
Joinder Application / Judgment After Interlocutory Applications
Outcome
Both the application to make the arbitration award an order of the Court and the application to join the second respondent are dismissed.
Judges
Molahlehi
Legal Topics
Joinder of Parties, Arbitration Award Enforcement, Res Judicata, Condonation, Jurisdiction of Ccma
Labour Law Joinder of Parties Arbitration Award Enforcement Res Judicata Condonation Jurisdiction of Ccma

Case Brief

Summary, issues, holding and outcome

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Parties

Borotho Naledi

Applicant

Royal Serve Cleaning (Pty) Ltd

Respondent

Royal Serve Catering (Pty) Ltd

Respondent

Procedural Posture

Joinder Application / Judgment After Interlocutory Applications

Legal Issues

  1. 1 Whether the arbitration award should be made an order of the Court.
  2. 2 Whether the second respondent should be joined as a party to the proceedings.
  3. 3 Whether the Labour Court has jurisdiction pending review of the arbitration award.

Ratio Decidendi

The Court found that the application to make the arbitration award an order of the Court was not for enforcement but to create a basis for a plea of res judicata. The discretion to make an arbitration award an order of the Court should be exercised judicially and is generally reserved for enforcement. Since the underlying purpose was not enforcement, the Court declined to make the award an order. Regarding the joinder application, the Court held that the arbitration award, which found that the first respondent was not the employer, remains binding until set aside on review. The jurisdiction of the Court is temporarily ousted pending the outcome of the review, and there is no basis to join...

Court Disposition

Both the application to make the arbitration award an order of the Court and the application to join the second respondent are dismissed.

Orders

  • The application to make the arbitration award an order of the Court is dismissed.
  • The application to join the second respondent is dismissed.