Dekra Automotive v Mahlatji and Others (J 274/2023) [2023] ZALCJHB 36 (8 March 2023)

THE LABOUR COUR OF SOUTH AFRICA,

HELD AT JOHANNESBURG

Not Reportable

Case No: J 274/2023

In the matter between:

DEKRA AUTOMOTIVE Applicant

and

WILSON MAHLATJI First Respondent

COMMISSIONER XOLANI NYAMEZELE Second Respondent

COMMISSIONER JULIUS MOLEFE Third Respondent

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION Forth Respondent

SHERIFF OF JOHANNESBURG SOUTH Fifth 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 to stay the execution of an arbitration award issued under the auspices of the CCMA. The material facts are not disputed. The first respondent was employed by the applicant as a vehicle examiner. The first respondent was dismissed for misconduct and referred a dispute to the CCMA. On 12 February 2021, an arbitration award was issued in the first respondent’s favour, by default. On 22 December 2022, an application to rescind the award was refused. The applicant has sought to review and set aside that decision.

[2] The applicant has furnished security in the amount of the award, which the fifth respondent, the sheriff, holds in trust. The sheriff has taken the position that he is obliged to pay the funds to the first respondent. The applicant seeks an order to the effect that the amount be held in trust pending the outcome of the review application, alternatively, that the sheriff be ordered to release the funds on the basis that the applicant be awarded, within a reasonable time, to furnish a security bond in accordance with the provisions of section 145(8) of the LRA.

[3] The application is opposed on the basis that it is not urgent. The application was filed 28 February 2023, in circumstances where the sheriff’s attorney had advised the applicant’s attorney, on 14 February 2023, that the sheriff is not a party to the review application and would not exceed to the request to retain the funds furnished to him, in trust, pending the outcome of the review proceedings, absent a court order to that effect. The present application was filed within 14 days of receipt of that correspondence. In the circumstances, I failed to appreciate that it can be said that the applicant did not act with due diligence. The application is urgent, and I intend to deal with it on that basis.

[4] The only substantive issue for decision is the fate of the security held by the sheriff. The applicant’s attorney indicated during argument that the alternative relief sought in the notice of motion would be preferred, i.e. that the sheriff be directed to release the funds to the applicant and that the applicant be ordered to furnish security in terms of section 145. That is the order that I intend to make, an order that protects the interests of both the applicant and the first respondent.

[5] For the purposes of section 162, the requirements of the law and fairness are best served by each party bearing its own costs.

I make the following order:

1. The fifth respondent is directed to release the funds held in trust on behalf of the applicant to the applicant, forthwith.

2. The applicant is ordered to furnish security in the sum and form required by the provisions of section 145(7) and (8) within 24 hours of receipt of the funds from the fifth respondent in terms of paragraph 1 of this order.

3. There is no order as to costs.

André van Niekerk

Judge of the Labour Court of South Africa

Appearances:

For the applicant: N

Muller, Yusuf Nagdee Attorney

For the respondent: Adv

BL Pilusa

Instructed by: MB

Mabunda Inc