Denel SOC Ltd v NUMSA obo Peterson and Another (J518-22) [2022] ZALCJHB 143; (2022) 43 ILJ 2303 (LC); [2022] 10 BLLR 945 (LC) (24 May 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case no: J 518/22

In the matter between:

DENEL SOC LTD Applicant

and

NUMSA OBO PETERSEN First Respondent

SHERIFF CENTURION EAST Second

Respondent

Heard: 19 May 2022

Delivered: 24 May 2022

Edited: 25 May 2022

Summary: An application to stay an enforcement of an arbitration award pending the outcome of a rescission and condonation applications. The requirements for the stay enforcement met. The jurisdictional power of the Labour Court investigated. The statutory power to certify an arbitration award considered. Held: (1) The enforcement of the arbitration award is stayed pending the decision of the Commission for Conciliation, Mediation and Arbitration. (2) Each party to pay its own costs.

JUDGMENT

MOSHOANA, J

Introduction

[1] Every week without fail, the urgent Court in the Labour Court, Johannesburg is inundated with applications seeking to stay the enforcement of arbitration awards, issued by the Commission for Conciliation, Mediation and Arbitration (CCMA), bargaining councils and private

arbitrators. Mundanely, these applications are brought in terms of the provisions of section 145 (3) of the Labour Relations Act[1] (LRA). The question this judgment shall attempt to answer is whether the Labour Court is mandated to entertain all the applications for the stay or not. Even with a supremely talented bench, it is apparent that the Labour Court is not coping with these innumerable

applications. The question then becomes; can the load be lessened?

[2] What this Court has observed is that mundanely, the CCMA indiscriminately certifies default arbitration awards, which certification in turn breeds these applications to stay the enforcement of same whilst the CCMA is considering rescission applications. Could it be that the CCMA is possessed with powers to not certify default arbitration awards or powers to order a stay of enforcement whilst it is considering an interlocutory application to rescind the default arbitration award? This judgment shall attempt to address those important questions, even though they did not squarely arise in the present proceedings. This Court is aware that a Court of law is confined to the case as pleaded by the parties before it.

[3] Before me is an opposed urgent application seeking to stay an enforcement of a default arbitration award, which has been certified by the director of the CCMA. The application was prompted by the attachment of the goods belonging to Denel SOC Ltd (Denel) in satisfaction of the default arbitration award issued in favour of Oscar Petersen (Petersen).

Background facts

[4] A brief excursion of the facts pertinent herein is necessary. Petersen is an employee of Denel. Owing to some allegations around the handling of the intellectual property rights transaction between Denel and an entity known as Halcon Systems, Petersen was placed on suspension on 21 October 2019. Allegedly, Petersen was not paid his full emoluments during the suspension period. Aggrieved by the fairness of his suspension, Petersen referred a dispute to the CCMA and alleged unfair suspension within the meaning of the LRA. Conciliation failed to resolve the dispute. NUMSA on behalf of Petersen requested the CCMA to resolve the dispute through arbitration.

[5] The arbitration proceedings were enrolled by the CCMA on 29 October 2020 at its Pretoria offices. Petersen and his legal representative

attended the proceedings. Upon noting that Denel failed to attend, despite being notified through an email, Commissioner Mbatsana

(Mbatsana) continued with the proceedings in the absence of Denel. On an unspecified date in November 2020[2], Mbatsana issued a default arbitration award. In terms of the default arbitration award, Mbatsana found that the suspension of Petersen was substantively unfair. He ordered Denel to uplift the suspension and to pay Petersen his outstanding salary as well as three month’s compensation. It seems common cause that Denel became aware of the default arbitration award on 12 November 2020. Aggrieved thereby, on 27 November 2020, a day outside the prescribed period of 14 days, Denel launched a rescission application.

[6] Commissioner Lizel du Plessis (du Plessis), in a written ruling refused to entertain the rescission application since it stood defective before her as it was not accompanied by a condonation application for the one day delay[3]. The ruling was issued on 21 December 2020. On receipt of the written ruling of du Plessis, Denel launched an application seeking to condone the one day late filing. At the time of the hearing of the present application, a ruling on the condonation application was still pending.

[7] In the meanwhile, Petersen commenced a process to certify the default arbitration award. On 13 April 2022, the default arbitration award was certified. On or about 21 April 2022, the sheriff Centurion East attached goods belonging to Denel in order to satisfy the monetary portion of the default arbitration award. Denel attempted to negotiate with the sheriff not to continue with executionary steps until the outcome of its interlocutory applications pending at the CCMA. The sheriff did not relent. Such prompted Denel to launch the present application on 04 May 2022. On 12 May 2022, the application emerged before the urgent Court beaconed by my sister Mahosi J. Mahosi J made an order standing the application down until 19 May 2022 and also ordered that pending the finalization of the present application, execution of the writ was suspended. That reprieved Denel for a jiffy.

[8] On 19 May 2022, the application came before me and after hearing submissions, I reserved the judgment of this Court. What follows hereunder is the judgment of this Court.

Evaluation

[9] Before I entertain the merits of the present application, it behooves me to deal with the questions flashed out earlier in this judgment.

Is the Labour Court mandated to deal with all the stay of enforcement applications?

[10] Recently, the Constitutional Court in interpreting the provisions of section 157

(1) of the LRA, in the matter of Baloyi v Public Protector and Others[4], stated the following:

“[44] The exclusive jurisdiction of the Labour Court is engaged where legislation mandates it, or where a litigant asserts a right under the LRA or relies on a cause of action based on a breach of an obligation contained in that Act.”

[11] Undoubtedly the Labour Court is a creature of a statute. Section 145 of the LRA deals with review of arbitration awards. In it, lies section 145 (3) which provides that the Labour Court may stay the enforcement of the award pending its decision. The text of the section suggests that the stay pends the decision of the Labour Court. Given where the sub-section is located, it must be so that its decision must be in relation to the review application contemplated in section 145 (1) of the LRA. That being the case, the Labour Court, in my view is not mandated to stay the enforcement if its own decision is not pending. Where a decision of another dispute resolution body is pending, it seems to be so that this Court is not mandated by the Act that begot it to stay the enforcement of an arbitration award.

[12] I however hasten to say that section 158 (1) (a) of the LRA empowers the Labour Court to make any appropriate order. That appropriate

order may include an urgent interim relief. A stay of an enforcement of an arbitration award qualifies as an interim relief. However, I take a view that the Labour Court must exercise those powers only when so mandated by the LRA. I have not been able to find any

provision in the LRA that mandates the Labour Court to stay an arbitration award pending a decision of another dispute resolution

body. It is indeed so that the Labour Court plays a supervisory role over the CCMA and the bargaining councils. But that supervisory role is circumscribed by the provisions of the LRA. I must interpose and perspicuously distinguish cases where a writ of execution is issued contrary to the law[5]. In that regard, the Labour Court in setting aside a writ of execution it exercises its interdictory powers. Inasmuch as the principles

applicable to an interim interdict have been adopted in dealing with a stay application, a stay application is not an interdict per se. An interdict is a legal remedy reserved to deal with unlawfulness. When a party executes an arbitration award in the face of a pending application, that party is not acting unlawfully[6]. In Saamwerk Southwerke (Pty) Ltd v Minister of Mineral Resources and another[7], Van der Merwe JA, writing for the majority, aptly stated the law as the following:

“[66] After its initial prevarication, the Department formally withdrew its opposition… The policy of the Department was not to finalise a mining right whilst litigation was pending regarding the validity of that right. It was in my view perfectly in keeping with public and legal policy not to undermine the legal process by determining that which courts were called upon to decide.

[67] In my view, policy and legal consideration do not regard the omissions as unlawful conduct… As Saamwerk failed to prove that the omissions were wrongful, its claim against the Minister must fail.

[13] As indicated earlier, this Court mundanely entertain applications to stay under section 145 (3). The fact that the Labour Court did so for years does not necessarily mean that the LRA mandates it to do so. In Evans v Oregon Short R. R. Co[8], the following was said:

“If a court has no jurisdiction of the subject of an action, a judgment rendered therein does not adjudicate anything. It does not bind the parties, nor can it thereafter be made the foundation of any right. It is a mere nullity without life or vigour. The infirmity appearing upon its face, its validity can be assailed on appeal or by motion to set it aside in the court which rendered it, or by objection to it when an effort is made to use it as evidence in any other proceedings to establish a right.”

[14] The word ‘pending’ has as its dictionary meaning as an adjective awaiting decision[9]. The word ‘it’ when used as a pronoun is used to refer to a thing previously mentioned. Therefore, when the word ‘its’

employed in the section as a possessive determiner, it refers to the Labour Court and no one else. For the above reasons, I take a view that the Labour Court is not mandated to deal with all stay of enforcement applications. However, I prefer to leave this question open, since it did not squarely arise in the present application.

Powers of the CCMA director to certify awards.

[15] As indicated above, this Court observed that when default awards are certified, they breed these type of applications. I necessarily take a view that in certifying an arbitration award, the CCMA director performs a statutory function, which is reviewable in terms of the powers stated in section 158 (1) (g) of the LRA. Nevertheless, section 118 (2) (a) (i) of the LRA provides that the director of the Commission must perform functions that are conferred on the director by or in terms of the LRA or any other law.

[16] Section 143 (3) of the LRA provides that an arbitration award may only be enforced in terms of subsection (1) if the director has certified that the arbitration award is an award contemplated in subsection (1). In line with section 118 (2) (a) (i) of the LRA, this sub-section (3) mandates the director to certify an award. It is my reading of the section that not every arbitration award is contemplated. It is only the one contemplated in subsection (1). Subsection (1) refers to an arbitration award issued that is of a final and binding nature. It suffices to mention that sub-section 145 (1) refers to a defect in the arbitration proceedings as opposed to the arbitration award. In a default award situation, there can hardly be a defect alleged. The defaulting party would have been absent; hence, a final arbitration award is an impossibility.

[17] Of course, the key question to be addressed in this judgment is whether a default arbitration award is final or not? There may be no doubt that a default award is binding in nature. It is indeed contemplated in the LRA. In Lodhi 2 Properties Investments CC v Bondev Developments (Pty) Ltd[10], the Supreme Court of Appeal had this to say about default judgments, which in my view felicitously apply in respect of default arbitration awards.

“A court which grants a judgment by default like the judgments we are presently concerned with, does not grant the judgment on the basis that the defendant does not have a defence: it grants the judgment on the basis that the defendant has been notified of the plaintiff’s claim as required by the rules,

that the defendant, not having given notice of an intention to defend, is not defending the matter and that the plaintiff is in terms of the rules entitled to the order sought. The existence or non-existence of a defence on the merits is an irrelevant consideration and, if subsequently disclosed, cannot

transform a validly obtained judgment into an erroneous judgment.”

[18] It is beyond any doubt that the default party would bereave the default award of a defence. Zweni v Minister of Law and Order of RSA[11] informs us that a decision is final in nature if it resolves the substantial portion of a dispute. A decision must have three attributes; namely; (a) must be final; (b) must not be susceptible of alteration and must be definitive of the rights of the parties; and (c) must have the effect of disposing of at least a substantial portion of the relief claimed[12]. It is settled law that an arbitration award is an administrative decision[13]. Owing to how a default award is conceived, I take a view that it lacks the hallmarks of a final decision capable of being certified.

In Williams v Benoni Town Council[14], Roper J said:

“A dispute exists when one party maintains one point of view and the other party the contrary or a different one. When that position has arisen, the fact that one of the disputants, while disagreeing with his opponent, intimates that he is prepared to listen to further argument, does not make it any less a dispute.”[15]

[19] Section 138 (1) of the LRA impels a commissioner conducting an arbitration to deal with the substantial merits of the dispute. Clause 12 of the CCMA: Guidelines on Misconduct Arbitration provides that dealing with the substantial merits of the dispute entail not allowing technicalities to prevent the full picture of the relevant events being placed before the arbitrator[16]. Section 138 (5) (b) (i) of the LRA read with rule 30 of the CCMA Rules provides that if a party to the dispute fails to appear in person or through a representative at the arbitration proceedings, the commissioner may continue with the arbitration proceedings in the absence of that party. Logic dictates that a dispute is consummated by two opposing views. Where a commissioner listens to one view, it can hardly be said that he or she is dealing with the substantial merits of the dispute. Section 144 (a) of the LRA suggests that an arbitration award sought in the absence of any party affected by it is made in error. Consistent with Zweni, her Ladyship Cockerill J in ZCCM Investments Holdings PLC v Kansanshi Holdings PLC & Another[17], apropos stated that one factor in favour of the conclusion that a decision is an award is if the decision is final in the sense that it disposes of matters submitted to arbitration so as to render the tribunal functus officio, either entirely or in relation to that issue or claim. A default award does not dispose of matters submitted for arbitration, hence the body that issues it does not become functus officio.[18] In truth, a default award is not an arbitration award. Thus, it is incapable of being certified or independently reviewed[19].

[20] It must follow that when a director is faced with a default arbitration award, he or she is faced with (a) a not final decision and (b) an ‘erroneously’ made decision. That being the case, I take a view, although not conclusively, that a director is not empowered to certify a default arbitration award. It is my fervent view that when the legislature mandated the director to certify awards, it had only final awards in mind, which constitutes a decision within the meaning of the decision of Zweni. Again, since the issue did not squarely arise for my decision, the view I take is not conclusively dispositive of the question.

[21] Lest I am misunderstood, certification is akin to making an arbitration award an order of this Court. They both achieve the same consequences. After each of them execution follows. That process of making an arbitration award an order in this Court is regulated by section 158 (1) (c) of the LRA. The immediate distinction to draw is that section 158 (1) (c) affords the Labour Court a discretion to either make or refuse to make an arbitration award an order of Court. In a certification process, there is an exercise of statutory function involved. There is no room for discretion. In terms of rule 40 of the CCMA Rules, an application to have an arbitration award certified must be made on a prescribed form. Although the rule refers to apply, it is not an application in a normative sense. Regard being had to form 7.18 of the CCMA forms, what will satisfy the director or his or her appointed delegate is that there is an arbitration award by a commissioner and the Commission has sent a copy of it to the other party. Once proof of service of the award is shown then the director will exercise the statutory power.

[22] Mundanely, this Court makes default awards its orders. The manner in which section 158 (1) (c) is crafted is that this Court may make “any” arbitration award an order of Court[20]. A default award, albeit not final in my view, constitutes any arbitration award. Unlike in section 158 (1) (c), section 143 (1) specifically refers to a final arbitration award and not to any award as contemplated in section 158 (1) (c). I may mention that the majority of section 158 (1) (c) applications are granted in chambers and are customarily rescinded without any difficulties.

[23] This Court is alive to a concern that what must an employee armed with a default arbitration award do in order to ensure satisfaction of the arbitration award in instances where the employer does nothing to rescind the default award. This Court must take judicial notice that some errant and unscrupulous employers tend to simply ignore the arbitration awards issued by the CCMA. However, in the consistent practice, more often than not, employers only become aware of the arbitration proceedings late. In many instances, notifications are send to wrong persons within the company. This Court doubts whether an employer may sit back and not attend arbitration

proceedings willfully and await a default arbitration award. Counsel appearing for Petersen argued that such does happen as it happened in this case when allegedly the unnamed official of Denel, who was alerted of the arbitration proceedings, failed to make a commitment to appear on the day in question. With full knowledge that the rescission application is still sub-judice, I prefer not to comment further. Thus in many instances, these default arbitration awards arise because of lack of notification.

[24] Therefore, the practical manner to deal with applications in terms of rule 40 of the CCMA rules is to first establish whether the employer party is aware of the default award not that there is proof in the CCMA file that it was served. Nine out of ten times, it shall emerge that employers are not aware. Once made aware then the options available to the employer party must be spelled out; namely (a) accept the award and comply or (b) apply for rescission. If an option for rescission is taken, it is ineffective to allow certification, which may lead to execution, which ripples into applications of this nature. Should an employer opt for acceptance and compliance perhaps the award may be certified since it may acquire finality thereby.

Could the Commission or bargaining council have powers to order a stay?

[25] In terms of section 115 (2A) (m) of the LRA, the Commission is empowered to make rules regulating all other matters incidental to performing the functions of the Commission. In terms of section 115 (1) (b) (i) the Commission has a statutory function to arbitrate if the LRA requires arbitration and a party has requested resolution of the dispute by arbitration. The word incidental means happening as a result of. In Nekongo NO v FNB Namibia[21], Masuku J had the following to say:

“[26] … The word “incidental” is defined to be an adjective, in the sense of “secondary” or in the sense of “accompanying” or “ancillary”. “Incidental to” can be defined as “happening as a result of”.

[26] To my mind, a stay application happens as a result of the CCMA performing its arbitral functions. In order to properly perform its arbitral functions, the CCMA should and is empowered in my view, stay the operation of a default arbitration award whilst it's decision over the default arbitration award pends.

[27] As empowered, the CCMA has put in place rule 31. That rule applies to any interlocutory application. Staying an enforcement of an

arbitration award pending a decision on a rescission application qualifies as an interlocutory application. In Soltec CC v Swakopmund Super Spar[22], Masuku J stated the following about interlocutory applications:

“[16] In Uvana v Steenkamp (infra), the court referred, for definition of interlocutory, to the Black’s Law Dictionary. There, interlocutory was defined as ‘interim or temporary, not constituting a final resolution of the whole controversy’. I adopt the definition…”

[28] This Court does not see any legal impediment for the Commission to entertain an application to stay an enforcement of an arbitration

award whilst the fate of the arbitration award is still being considered by it. It seems logical, like in a rescission application,

for a Commission or a bargaining council to take the responsibility of its own decisions[23]. Many accredited bargaining councils have similar rules to those of the CCMA.

[29] Rule 31 (8) suggests that the Commission or a commissioner may entertain an urgent application. Like in this Court, such an application may be heard on a motion roll or determined in any manner the Commission or commissioner deems it fit.

[30] If this Court is right in its assessment of the legal position, then applications seeking to stay enforcement pending the decision of the CCMA or bargaining council may be launched on an urgent basis at those forums. This will lessen the burden of the Labour Court. Regard being had to the purpose of the LRA as outlined in section 1 (d) (iv) of the Act, what this Court suggests is not inimical to the effective resolution of labour disputes.

[31] In summary, this Court takes a view that the mandate of the Labour Court is limited to decisions pending before it and not of other dispute resolution bodies. A view is also taken that default arbitration awards do not deserve to be certified because they are not final in nature. Lastly, a view is taken that the CCMA and the bargaining council are mandated to hear and determine applications seeking to stay enforcement of a default award pending its decision on it. I may point out that should the CCMA or the bargaining council refuse a rescission application, this Court can be approached to exercise its review powers over the default award as well as the ruling refusing to rescind. All of the above views resonates with the provisions of section 1 of the LRA.

[32] I now turn to the merits of the present application. I consider the present application on the assumption that section 145 (3) of the LRA does mandate the Labour Court to stay enforcement of an arbitration award pending the decision of another dispute resolution body.

Is Denel entitled to the relief sought?

[33] Petersen and his counsel strenuously argued that the application should be struck of the roll due to lack of urgency. The urgency punted for is one that is self-created, so went the argument. I do not agree. The goods of Denel are under judicial attachment. Petersen is determined to have them sold on execution despite a possibility of the default arbitration award being removed through a legitimate lawful means of rescission. In the exercise of my judicial discretion, I heard the application as one of urgency.

What are the requirements for a stay application?

[34] There seems to be judicial harmony that a stay application is akin to an interim interdict. Where there is apparent divergence, is whether a Court granting the stay must be satisfied that, the applicant enjoys prospects of success in the application seeking to remove the causa.

[35] In this Court Mlambo J in a matter of Ntshangane v Specialty Metals CC[24] had the following to say:

“[13] … To succeed in stay proceedings the applicant must satisfy the court that it has good prospects of success in the pending matter…”

[14] …It is for whoever relies on the pending review argument to instill a well-grounded conviction in the mind of the court that the prospects of success of the review are reasonably good…”

[36] Following this dicta, this Court must be convinced that Denel enjoys reasonably good prospects of success in the pending rescission application should it be condoned. Petersen’s counsel strenuously argued that the rescission application ails on the prospects of success.

[37] Later, this Court per Waglay J, as he then was, in Tony Gois t/a Shakespeare’s Pub v Van Zyl and others[25], influenced by Strime v Strime[26] and Le Roux v Yskor Landgoed (Edms) Bpk[27], reached a conclusion that a rescission application qualifies as an attack on the causa underlying the award and a possibility exists that the causa may ultimately be removed. In summarizing, the general principles for the granting of the stay, Waglay J, amongst others stated that “the court is not concerned with the merits of the underlying dispute – the sole enquiry is simply whether the causa is in dispute.”[28]

[38] Clearly, this view is diametrically opposed to the view expressed in Ntshangane. On application of stare decisis et movere, Gois is the latest judgment in the Labour Court and I must follow it. In fact, Gois was followed in a number of other judgments[29]. This Court became aware that more recently, Acting Justice De Villiers sitting in the High Court in the matter of BP Southern Africa (Pty) Ltd v Mega Burst Oils and Fuels (Pty) Ltd and others[30]refused to follow the reasoning of Gois. After referencing Gois, the learned Acting Justice concluded thus:

“[19] I will differ from any attempt to read into Rule 45A a limitation that I may not consider the prospects of success in a petition still to be served, in exercising my discretion to stay execution…”

[39] The learned Acting Justice took a view that Gois improperly stifles the exercise of discretion by excluding the consideration of the prospects of success in the exercise. He preferred the approach taken in South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)[31]. With respect to the learned Acting Justice the factors listed in South Cape were relevant to an application for leave to execute a judgment that is under appeal. The repealed rule 42 of the Uniform Rules codified the common law position that the noting of an appeal suspended the operation of the order under appeal. In order to dislodge that common law protection, a party seeking to execute in the face of a pending appeal could apply to Court for leave to execute. The position is currently regulated by section 18 (3) of the Superior Courts Act (SCA).[32] With due respect to the erudite Acting Justice, I take a view that a special application for leave to execute is materially different from an application to stay enforcement or execution. The one is the opposite of the other. The one is the ceasefire (stay) whilst the other is the open-fire (leave to execute). Most importantly, the Court in South Cape recognised that the defunct rule 42 had as its purpose to prevent an irreparable damage from being done. The noting of an appeal served as an automatic shield towards irreparable damages. That being the case, it makes logical sense for a party seeking leave to execute, to persuade a Court that an appeal so noted or to be noted lacks prospects and was noted or is to be noted in order to frustrate the party with a favourable judgment. The defunct rule operated without a need for a Court order. It was couched in almost similar terms as section 18 (1) of the SCA. Section 18 (1) automatically suspends the operation and execution of a decision which is subject to an application for leave to appeal or of an appeal pending the decision on the application or appeal.

[40] On proper reading of section 18(1), it is not a requirement for suspension of the operation or execution of the order that the appellant or applicant must demonstrate some prospects of success before the order or execution thereof may be suspended. Clearly the legislature in legislating suspension of execution recognises that an appeal may remove the causa. A stay application gives deference to a pending decision that may upset the causa in the same way as section 18 (1) gives deference to the pending appeal. Thus I still agree with Gois that in a stay the merits play no role. I also maintain that in an instance where a party seeks to disturb the deference, such a party must demonstrate that the deference does not carry its potential possibility – to remove the causa.

[41] The South African situation may be contrasted with foreign jurisdiction in order to gain a wider internationally acclaimed view. Most recently, the Canadian Supreme Court in Sodexo Canada Limited v Hotel Employees and Restaurant Employees International Union Local 779[33], per Justice Rosalie McGrath had the following to say which fully supports the Gois case:

“[109] Both counsel are in general agreement that the leading case with respect to an application for a stay is the Supreme Court of Canada decision in RJR-MacDonald Inc v Canada (AG) [1994] 1 SCR 311 in which the Court set out the following three factors to consider:

(a) Is there a serious issue to be tried (or, in certain circumstances, a strong prima facie case)?;

(b) Will the party requesting the stay suffer irreparable harm if the stay is not granted?; and

(c) Does the balance of convenience favour the granting of the relief?”

[42] Justice McGrath cited with approval, Justice Ratushny in Access Health Care Services v O.N.A[34] when the learned Justice said:

“9. The respondent submits that the applicant is required to demonstrate a strong prima facie case in order to succeed in this criterion…

10. I do not understand, however, that the respondent’s formulation of the threshold required to satisfy the first criterion is correct and I would think that the deference urged on me is more a matter of argument on the judicial review.”

[43] Justice McGrath went on to say:

“[129] In particular, I agree with the comments of the Court in Access Health Care Services. While I recognize that courts must give deference to experienced labour arbitrators this does not mean that an applicant for a stay of enforcement pending judicial review must convince an applications judge of the merits of his or her grounds of review at an early interlocutory stage.

[44] The learned Justice further remarked as follows:

“[164] While it is not appropriate to delve into the merits of the action on an interlocutory stay application, it is appropriate to give some consideration to the relative merits of the case when analyzing the balance of convenience…”

[45] Therefore, I am satisfied that the proper and logical legal position is that the merits and or demerits of the rescission application are irrelevant at this interlocutory stage. What matters is that there is an ongoing dispute between the parties with regard to the terms of the default arbitration award. Therefore, real and substantial justice requires that the contested default award be stayed otherwise an injustice will result. There is a real and substantial risk that Denel may not recover the money from Petersen once the default arbitration award is reversed after having been put into operation. Such constitutes irreparable harm. The balance of convenience certainly favours Denel. Denel will suffer greater harm should the stay be refused. In the RJR-MacDonald case, the test was referred to as the balance of inconvenience. The veritable question is who of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision? Should the pending rescission fail, Petersen shall be fully recompensed. He is in possession of a favourable judgment which may only prescribe after 30 years. Should the rescission succeed Petersen will only suffer a little inconvenience of proving his unfair labour practice claim again. On the other hand should the Court close the door for Denel, by the time it vindicates itself, the damage would have been caused. In Court, Petersen’s counsel unequivocally submitted that Petersen is intent on forging ahead with execution.

[46] In conclusion, the requirements for a stay are those succinctly and neatly summarised by Waglay J in Gois. In the present application those requirements are met by Denel. Accordingly; the application must succeed. What remains is the issue of costs.

Costs

[47] When it comes to costs, this Court is guided by its wide discretion announced in section 162 of the LRA. One of the factors to be taken into account is the conduct of the parties. This Court fails to understand why an applicant armed with a default arbitration award, which logically is susceptible to change, can strenuously oppose an application for its stay. As pointed out in Lodhi 2 a default arbitration award is without any possible defence form the other party and the party armed with a default arbitration award is fully conscious of that fact. Without fail, this Court grants stays as a custom. The question then becomes, why such applications would be strenuously opposed. In this matter, Petersen submitted a 51 paged heads of argument. It took almost three hours in Court for the present application to be heard. This Court, owing to the conduct outlined above, was minded to make an award of costs.

[48] However, I wish to take this opportunity to sternly warn practitioners that, when regard is had to the Gois authority, this and other authorities, care must be exercised when a decision is made to oppose an interlocutory application for a stay of enforcement of an arbitration award. Should such care not be exercised this Court shall in future not hesitate to make an appropriate order as to costs.

[49] In the circumstances, an appropriate order to make in this instance is that of each party paying its own costs.

[50] In the results, I make the following order:

Order

1. The application is heard as one of urgency.

2. The enforcement of the default award of the CCMA under case number GATW7025-20 is stayed, pending the outcome of the rescission

application against the award.

3. Each party shall bear its own costs.

G. N. Moshoana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr

V G Mkwibiso of DM5 Incorporated, Sandton

For the Respondent: Mr

V M Ndiweni

Instructed by: Nonyane

Inc, The Orchards.

[1] No. 66 of 1995, as amended.

[2] Cited as 12 November 2020 in the Ruling of Commissioner L du Plessis.

[3] Although it is correct that without condonation, du Plessis lacked the necessary power to entertain the application, a pragmatic approach would have gone a long way to achieve the objectives of the LRA. The delay was minimal. On application of the maxim de minimis non-curat lex, a different approach may have been taken. The purpose of the de minimis rule is to avoid the burdening of the courts with minimal complaints which would result in wasted costs, resources and time.

[4] [2021] 4 BLLR 325 (CC).

[5] For an example a writ of execution issued in contravention of section 3 of the State Liability Act 20 of 1957.

[6] Section 145 (7) of the LRA specifically decree that the institution of review proceedings does not suspend the operation of an arbitration award.

[7] (1098/2015, 206/2016) [2017] ZASCA 56 (19 May 2017).

[8] [1915], 51 Mont 107.

[9] See Dykema v Malebane and Another 2019 (11) 1299 (CC).

[10] 2007 (6) SA 87 (SCA) at para 27. This judgment was quoted with approval by the majority in the judgment of Zuma v Secretary of the Judicial Commission of Inquiry 2021 (11) BCLR 1263 (CC) at para 63.

[11] [1993] All SA 365 (A)

[12] See SAMIEA v SA Bank of Athens Ltd 1980 (3) SA 91 (A)

[13] See: Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] 12 BLLR 1097 (CC).

[14] 1949 (1) SA 501 (W) at p. 507.

[15] Followed in Newu v Sithole and Others [2004] 11 BLLR 1085 (LAC). In Edgars Stores Ltd v SACCAWU and another [1998] 5 BLLR 447 (LAC) the Labour Appeal Court approved of a dictum in Durban City Council v Minister of Labour and another 1953 (3) SA 708 (A) at 712A namely, a dispute “must as a minimum …postulate the notion of the expression by parties, opposing each other in controversy, of conflicting views, claims or contentions”.

[16] Le Monde Luggage t/a Pakwels Petje v Dunn NO and other [2007] 10 BLLR 909 (LAC).

[17] [2019] EWHC 1285 (Comm)

[18] See PT Operational Services (Pty) Ltd v Rawu obo Ngwetsana [2013] 3 BLLR 225 (LAC), WHERE Musi AJA amongst others stated that “I conclude that Cellier did not finally perform his statutory function…”

[19] See JMH-Doctors SPV (Pty) Ltd v 3 Health Holdco Mauritius Ltd and others (32492/2021) (26 April 2022) South Gauteng High Court per Fisher J.

[20] See City of Tshwane Metropolitan Municipality v Campella NO and others [2004] 1 BLLR 1 (LAC).

[21] [2020] NAHCMD 495 (29 October 2020)

[22] [2018] NAMHCMD 265 (31 August 2020)

[23] See paragraph 49 of the Zuma v Secretary of Judicial Commission supra. “Of course it will be inappropriate for any other court to entertain a rescission application pertaining to an order made by this court…”

[24] (1998) 19 ILJ 1008 (LC) at paras 13 and 14.

[25] [2003] 11 BLLR 1176 (LC).

[26] 1983 (4) SA 850 (C).

[27] 1984 (4) SA 252 (T).

[28] See: Gois at para 37.

[29] Rham Equipment (Pty) Ltd v Neville and others [2008] ZALCJHB 77 (13 June 2008) and Emalahleni Local Municipality v Phooko N.O and others (2021) 42 ILJ 2196 (LC) at para 16-17.

[30] (Case 39170/2019) dated 24 February 2020.

[31] 1977 (3) SA 534 (A).

[32] Act 10 of 2013.

[33] 2019 NLSC 192

[34] [2005] O.J No. 5470, 144 A.C.W.S (3d) (Ont. S.C).