Estate Agency Affairs Board of South Africa v Commissioner Sibita NO and Others (J1153/2021) [2021] ZALCJHB 291 (27 September 2021)
The court found that the applicant had not been dilatory in launching the review application and that urgency was justified. However, the applicant failed to address the issue of providing security in its founding affidavit and did not make out a proper case for exemption from the requirement to provide security, as...
Source-derived case information.
- Citation
- [2021] ZALCJHB 291
- Parties
- Applicant: Estate Agency Affairs Board of South Africa; Respondent: Commissioner Zanele Sibita N.O; Respondent: Commission for Conciliation, Mediation and Arbitration (CCMA); Respondent: Nqabutho Bhebhe; Respondent: Leonard Nyoni
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- J1153/2021
- Procedural Posture
- Urgent Application / Application for Stay of Enforcement Pending Review
- Outcome
- Stay of enforcement of arbitration award granted conditionally upon provision of security; urgency and condonation granted; no order as to costs.
- Judges
- Lagrange
- Legal Topics
- Stay of Enforcement, Security for Review, Urgent Application, Arbitration Award, Labour Court Rules
Source-derived case record
Summary, issues, holding and outcome
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Parties
Estate Agency Affairs Board of South Africa
Applicant
Commissioner Zanele Sibita N.O
Respondent
Commission for Conciliation, Mediation and Arbitration (CCMA)
Respondent
Nqabutho Bhebhe
Respondent
Leonard Nyoni
Respondent
Procedural Posture
Urgent Application / Application for Stay of Enforcement Pending Review
Legal Issues
- 1 Whether the applicant is entitled to a stay of enforcement of the arbitration award pending review.
- 2 Whether the applicant, as an organ of state, must provide security for the enforcement of the award.
- 3 Whether urgency and condonation for non-compliance with rules are justified.
Ratio Decidendi
The court found that the applicant had not been dilatory in launching the review application and that urgency was justified. However, the applicant failed to address the issue of providing security in its founding affidavit and did not make out a proper case for exemption from the requirement to provide security, as required by the Labour Appeal Court in Monareng. Consequently, the stay of enforcement of the arbitration award was granted only on condition that the applicant provides security equivalent to 12 months’ remuneration for each of the third and fourth respondents by the specified date. If security is not provided, the stay lapses automatically.
Court Disposition
Stay of enforcement of arbitration award granted conditionally upon provision of security; urgency and condonation granted; no order as to costs.
Orders
- The application is heard as one of urgency and condonation for non-compliance with rules is granted.
- Certification and enforcement of the arbitration award is stayed pending the outcome of the review application, subject to the following conditions.
Full Case Text
Judgment text and source record
33 paragraphs
THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
Case No: J 1153/2021
In the matter between:
ESTATE AGENCY AFFAIRS BOARD OF
SOUTH AFRICA Applicant
And
COMMISSIONER ZANELE SIBITA N.O 1st Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION (CCMA) 2nd Respondent
NQABUTHO BHEBHE 3rd Respondent
LEONARD NYONI 4th Respondent
Hearing: 21 September 2021 (via Zoom)
Date of judgment: 27 September 2021. Judgment delivered by email.
JUDGMENT
LAGRANGE J
[1] I have considered the papers and heard the applicant’s counsel and the third and fourth respondents. I am satisfied that the applicant has not been dilatory in launching its review application of arbitration award GSA JB 4786 21 dated 30 August 2021 and that the procedures for a party such as the applicant to provide security in terms of section 145 [7] and [8] of the Labour Relations Act 66 of 1995. Nonetheless, the LAC has made it clear in City of Johannesburg v SA Municipal Workers Union on behalf of Monareng & another (2019) 40 ILJ 1753 (LAC) that the procedural steps an organ of state might have to follow to provide the necessary security are not sufficient reason to exempt such bodies from providing the security[1]. The only mitigating factor is that in this case the individual respondents are likely to have their award certified shortly and will return to work before the applicant can satisfy the requirements of providing security. In the applicant’s founding affidavit, the issue was not even dealt with. In Monareng, the LAC made it clear that a proper case must be made out for exemption from the requirement of providing security, as occurred in that matter.[2]
[2] In the circumstances,
I make the following order:
1. The application is heard as one of urgency in terms of Labour Court Rule 8 and the applicant’s failure to comply with normal time periods, forms and service as provided for in Labour Court Rule 7 is condoned.
2. The certification of the arbitration award handed down in case number GAJB 4786-21 and, or alternatively, the enforcement of the said award is stayed pending the outcome of the review application under case number JR 1982/21, subject to the provisions of paragraphs 3 and 4 of this order.
3. Notwithstanding paragraph 2, the Applicant must provide security equivalent to 12 months’ remuneration in respect of each of the third and fourth respondents, by 15 November 2021 to the satisfaction of the Court, as determined by a judge in chambers.
4. In the event that security is not provided in terms of paragraph 3 above, paragraph 2 shall automatically lapse.
5. No order is made as to costs.
Robert Lagrange
Judge of the Labour Court of South Africa
APPEARANCES
For the applicant: Adv
Leeuw, instructed by Mbale Attorneys Inc
For the third respondent: Mr Bhebhe
For the fourth respondent: Mr Nyoni
[1] At para [22]
[2] Ibid.