Fidelity ADT (Pty) v Sheriff, Roodepoort and Others (J907/21) [2021] ZALCJHB 431 (11 November 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J 907/21

In the matter between:

FIDELITY ADT (PTY) Applicant

and

THE SHERIFF, ROODEPORT First

Respondent

SATAWU obo LINDIWE BUSAKWE

& 10 OTHERS Second

Respondents

Heard: 12 August 2021 (Virtual hearing)

Delivered: In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be 11 November 2021.

JUDGMENT – REASONS FOR AN ORDER

MAHOSI. J

Introduction

[1] The applicant brought an application for an order in the following terms:

‘1. That this application be heard as one of urgency as provided for in terms of the Labour Court Rule 8 and that the applicant's failure to comply with the normal time periods, forms and services as provided for in terms of the Labour Court Rule 7 be condoned.

2. That the enforcement of the award issued by the Commission for Conciliation, Mediation and Arbitration (CCMA) on 17 May 2021 under case number FSBF2980-20 be set aside;

3. In the alternative, that the enforcement of the award issued by the CCMA on 17 May 2021 under case number FSBF2980-20 be stayed pending the review application under case number JR207/2021;

4. That the applicant be exonerated from providing security for costs;

5. In the alternative, that the attachment of goods which have not been removed is to serve as security;

6. That the second respondent, being Dikeledi Claudia Kgolotsa, be ordered to pay costs of this application;

7. That the applicant be granted such further and/or alternative relief as the above Honourable Court deem necessary.’

[2] On 20 August 2021, this application served before me. Having had regards to the papers and submissions presented in Court, I made an order in terms of which the matter was heard as one of urgency. In addition, the enforcement of the aforementioned award was stayed pending the review application under case number JR207/2021 on condition that the applicant furnishes security in terms of section 145(8) of the LRA within 20 days of the order, failing which the order would lapse. There was no order as to costs.

[3] Subsequent thereto, the applicant requested reasons for the aforesaid order, which follow infra.

Background

[4] SATAWU acts on behalf of 11 respondents (the employees) who were employed by the applicant on different dates by the applicant and earned different salaries and were dismissed on different dates on charges of misconduct. SATAWU and the employees are jointly second respondents in the application.

[5] The employees’ dismissal arose from a charge of misconduct for:

‘1. Unauthorised removal of client property at CCBSA…when you took 25-litre container without gate pass and without declaring it as per procedure required when you remove it from site.

2. Gross dereliction of duties as a checker whereby you didn’t declare the 25-litre container you took from the HL contractor at CCBSA…you didn’t declare it as per procedure and as a checker who is responsible for securing client property and seeing that all movement at the gate has been declared when they come in or obtain the gate pass when leaving the premises as required by the SOP of FSS and the CCBSA known to you.’

[6] Subsequent to their dismissal, the employees referred an unfair dismissal dispute to the CCMA for conciliation. The dispute could not be resolved through conciliation. As a result, SATAWU referred the dispute for arbitration. The commissioner found their dismissal to be substantively unfair and ordered their reinstatement on the same conditions and terms of employment, which governed the employment relationship prior to their dismissal. The commissioner further ordered that as a result of the retrospective effect of the reinstatement, the applicant must pay remuneration due to the respondents in varying amounts to the sum total of R 383 317.30 by not later than 31 January 2021.

[7] On 03 February 2021, the applicant launched an application to review and set aside the aforementioned arbitration award, which is still pending. The first respondent has opposed the review application.

[8] On 29 July 2021, the second respondent attended to the applicant’s business premises where he attached its various movable properties. It is the execution of the said attachment that the applicant seeks to set aside or stay pending the finalisation of the review application.

Urgency

[9] The requirements for urgency are trite.[1] Rule 8 of the Rules of this Court requires a party seeking urgent relief to set out the reasons for urgency and to show why the rules of this Court relating to forms and service should be dispensed with.

[10] To an extent that the second respondent has attached the applicant’s movable property and is ready to sell it in execution and further in the absence of an undertaking by the first respondent that no execution would take place pending the outcome of the review application, I accepted that the application to stay the writ of execution is urgent.

Merits

[11] It is trite that this Court may, in terms of section 145 (3) of the LRA, stay the enforcement of the arbitration award pending its decision. The principles to be considered when determining whether an application for stay of execution should be granted were re-affirmed in Gois t/a Shakespeare’s Pub v van Zyl and Others[2], where the Court stated as follows:

‘(a) A court will grant a stay of execution where real and substantial justice requires it or where injustice would otherwise result.

(b) The court will be guided by considering the factors usually applicable to interim interdicts, except where the applicant is not asserting a right, but attempting to avert injustice.

(c) The court must be satisfied that:

i. the applicant has a well-grounded apprehension that the execution is taking place at the instance of the respondent(s); and

ii. irreparable harm will result if execution is not stayed and the applicant ultimately succeeds in establishing a clear right.

(d) Irreparable harm will invariably result if there is a possibility that the underlying causa may ultimately be removed, i.e. where the underlying causa is the subject-matter of an ongoing dispute between the parties.

(e) The court is not concerned with the merits of the underlying dispute-the sole enquiry is simply whether the causa is in dispute.’

[12] The question that arises is whether there is a possibility that the causa underlying the writ of execution may ultimately be removed when the application to review and set aside the arbitration award is finally determined.

[13] It is trite that, in exercising its discretion, it is not necessary for this Court to decide whether the case advanced in the review application has merit or not. It should consider whether or not it could sustain a successful review.

[14] In casu, the applicant’s basis on which it brought this application was that, on 29 July 2021, the first respondent attended its offices to attach and remove its assets despite the pending review application. The applicant further took issue with the fact that the application for the enforcement of the award was only applied for by one of the second respondents, being Dikeledi Caludia Kgolotsa (Ms Kolotsa), even though the total amount of R383 317.30 was awarded to all the second respondents.

[15] It is the applicant’s submission that to an extent that Ms Kolotsa’s attorneys were not mandated to act on behalf of the remaining 10 respondents, they do not have the required mandate to obtain the enforcement of the award in the full amount of the compensation awarded which makes it irregular. The applicant avers that the portion of the award, awarded to Ms Kolotsa needs to be separated from the remaining second respondents. The applicant further submits that the enforcement of the award must be set aside as incompetent as the judgment is not definite and certain.

[16] In support of its submission, the applicant relied on the judgment in De Crespigny v De Crespigny[3] in which the Court stated that:

‘In the result I think that it can be stated authoritatively that a writ of execution, which has been issued will be held to be incompetent if the amount payable under the judgment can only be ascertained after deciding a further legal problem.’

[17] The applicant’s reliance on the aforementioned judgment is misplaced as that matter is distinguishable from the current matter in that the amount payable to the second respondents is clearly stated in the award. In fact, the award specifies the amount payable to each employee. There is, therefore, no reason for this Court to set the enforcement award aside.

[18] In the alternative, the applicant seeks an order to stay the enforcement of the award on the basis that there is a pending application to review and set aside the arbitration award.

[19] Having regard to the totality of the facts and circumstances in this case and to an extent that there is a review application pending before this Court, I am satisfied that there is causa underlying the writ of execution that may be removed if or when the application to review and set aside the arbitration award is finally determined, that irreparable harm will result if the execution is not stayed and the review application succeeds, that the applicant has no alternative remedy available to it and further that it would be in the interest of justice to allow the applicant an opportunity to pursue its review application.

[20] However, section 145(7) clearly states that the institution of review proceedings does not suspend the operation of an arbitration award, unless the applicant furnishes security to the satisfaction of the Court in accordance with section 145(8), which states as follows:

‘(8) Unless the Labour Court directs otherwise, the security furnished as contemplated in subsection (7) must—

(a) in the case of an order of reinstatement or re-employment, be equivalent to 24 months‘ remuneration; or

(b) in the case of an order of compensation, be equivalent to the amount of compensation awarded.’

[21] In City of Johannesburg v SA Municipal Workers Union on behalf of Monareng & another[4] (“City of Johannesburg”) the Labour Appeal Court (LAC) upheld the principles outlines all employers, whether in the public or private sector, should be subject to the same requirement of providing security[5] thereby disallowing the contrary view adopted in Free State Gambling and Liquor Authority v Commission for Conciliation, Mediation & Arbitration & others[6]. On the Labour Court’s discretion, the LAC in City of Johannesburg stated as follows:

‘[7] The Labour Court has a discretionary power under section 145(3) of the LRA to stay the enforcement of an arbitration award pending its decision in the review application. It may stay the enforcement of an arbitration award pending finalisation of a review application against the award with or without conditions. It may in terms of section 145(8) of the LRA dispense with the requirement of furnishing security. Properly construed, section 145(3) read with section 145(7) and (8) should be interpreted to mean that where an applicant in a review application furnishes security to the Labour Court in accordance with section 145(8) of the LRA, the operation of the arbitration award is automatically suspended pending its decision in the review application. In other words, the employer need not make an application in terms of section 145(3) of the LRA to stay the enforcement of the arbitration award pending the finalisation of the review application.

[8] However, should the employer wish to be absolved from providing security or to provide security in an amount less than the threshold in subsections (8) (a) and (b), then it is required to make an application to the Labour Court, in terms of section 145(3), for the stay of the enforcement of the arbitration award pending its decision in the review application. The employer must make out a proper case for the stay as well as for the provision of security in accordance with section 145(8) to be dispensed with or reduced.’

[22] In casu, the applicant failed to furnish security as required, but it submitted that the Court should either exonerate it from providing security or order that the attached property, which has not been removed, is to serve as security. In support of its submission, the applicant did not make out a proper case for the provision of security in accordance with section 145(8) to be dispensed with or reduced. Instead, it made a number of bold and unsubstantiated submissions that, given that it runs a labour intensive business with the largest liability being its salary expense, it would be unreasonable for the Court to expect it to provide security for costs in each matter considering the unnecessary burden it would place on its financial position and its constitutional rights. According to the applicant, provision for security is not mandatory but at the discretion of the Court.

[23] It is apparent from the applicant’s submissions that it seems not to appreciate the responsibility that rests on it as a litigant who seeks an exemption from furnishing security under section 145(8) of the LRA. In the judgment of City of Johannesburg[7], the LAC stated that:

‘The onus is on the employer seeking an exemption from furnishing security under section 145(8) of the LRA to establish that it has assets of a sufficient value to meet its obligations should the arbitration award be upheld by the Labour Court on review. On a purposive or contextual construction, sections 145(7) and (8) of the LRA must be construed as requiring all employers – whether in the public or private sectors – to provide security. I accordingly support the position adopted in Rustenburg Local Municipality that all employers whether in the public or private sector should be subject to the same requirement of providing security.

[24] To an extent that the applicant failed to place any documentary proof of its financial position before this Court to support its assertions or to determine if it would be able to comply with the arbitration award should the review be unsuccessful, there is no proper case made out for this Court to waive or reduce the amount of security required in terms of section 145(8)(b) of the LRA.

[25] However, to an extent that there is causa underlying the writ of execution that may be removed when the application to review and set aside the arbitration award is finally

determined, that irreparable harm will result if the execution is not stayed and the review application succeeds, that the applicant has no alternative remedy available and further that more satisfactory form of security may be provided, I have decided to stay the execution of the writ temporarily, on condition that the applicant furnishes security in terms of section 145(8) of the LRA within 20 days of the order, failing which the order would lapse.

Costs

[26] In terms of section 162 of the LRA, the Court has a wide discretion in awarding costs. The Constitutional Court has recently reiterated in Zungu v Premier of the Province of Kwa-Zulu Natal and Others[8], that costs orders should be made in accordance with the requirements of law and fairness. In this matter, the requirements of law and fairness dictate that there should be no order as to costs.

D. Mahosi

Judge of the Labour Court of South Africa

Representatives:

For the applicant: Ms

Lynsey Foot of Crafford Attorneys

For the second respondent: Advocate Tiaan Du Preez

Instructed by Krammer

Weihmann Incorporated

[1] See: Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin's Furniture Manufacturers) 1977 (4) SA 135 (W).

[2] 2011 (1) SA 148 (LC).

[3] 1959 (1) SA 149 (N) at 152A.

[4] (2019) 40 ILJ 1753 (LAC) at para 20.

[5] Rustenburg Local Municipality v South African Local Government Bargaining Council (2017) 38 ILJ 2596 (LC).

[6] (2015) 36 ILJ 2867 (LC).

[7] City of Johannesburg para 20.

[8] (2018) 39 ILJ 523 (CC).