Gibela Rail Transport Consortium (Pty) Ltd v Mpheteng and Another (J791/24) [2024] ZALCJHB 282 (31 July 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

CASE NO: J 791/24

In the matter between:

GIBELA RAIL TRANSPORT CONSORTIUM (PTY) LTD Applicant and MOEKETSI MPHETENG First Respondent SHERIFF NIGEL Second Respondent In re: In the matter between: MOEKETSI MPHETENG Applicant and GIBELA RAIL TRANSPORT CONSORTIUM (PTY) LTD First Respondent METAL AND ENGINEERING INDUSTRIES BARGAINING COUNCIL Second Respondent LORETA MANTSHULE N.O. Third Respondent

Heard: 30 July 2024

Delivered: 31 July 2024, via email to the parties

JUDGMENT

MABASO, AJ:

Introduction:

[1] Gibela Rail Transport Consortium (Pty) Ltd RF (“the Applicant”) has approached this Court on an urgent basis seeking an order in the following terms: “That the Writ of Execution …be and is hereby stayed pending the finalisation of the Review Application…” and a costs order against Ms Moeketsi Mphateng (“the First Respondent”). The First Respondent, in opposing this application, raised a point in limine, which her Counsel wisely withdrew it mid-argument.

Background and Analysis

[2] This matter came before this Court on an urgent basis this morning, and this Court ruled that, indeed, the matter was urgent. This was after this Court was satisfied that since the First Respondent was armed with a writ of execution issued on 02 July 2024 and the Second Respondent had already attended the Applicant’s premises for purposes of executing it, when the Applicant tried to negotiate with both Respondents, such attempt yielded no results. Therefore, the only option was to bring this application.

[3] The First Respondent was employed by the Applicant until dismissed together with fellow employees. Subsequent to that dismissal, they collectively approached the Metal and Engineering Industries Bargaining Council (“the MEIBC”) challenging the dismissal. An arbitrator, after arbitrating the unfair dismissal dispute, concluded that the dismissal of the First Respondent was procedurally fair but substantively unfair and, as a result, ordered the Applicant to reinstate her on the same terms and conditions that applied before dismissal.

[4] The Applicant, being dissatisfied with the outcome thereof, on 21 July 2021, approached this Court for an application to review and set aside the arbitration award. According to the papers before this Court, the MIEBC did not file the records of the arbitration proceedings, despite being called upon to do so. As a result, the Applicant, on 28 March 2023, brought an application to compel the MIEBC to do so. On 16 November 2023, the First Respondent launched an application in terms of section 158(1)(c) of the Labour Relations Act[1] (“the LRA”) to make the arbitration award an order of this Court. The latter application was unopposed and served before

the learned Tlhotlhalemaje J on 27 May 2024, as Counsel for the Applicant advised this Court that it was not opposed

because the Applicant had nothing to say. That Court granted the application. Forthwith, it became a Court Order. The Applicant

further confirmed that no rescission application is pending against this Court Order.

[5] On 26 May 2024, a day before the set down of the section 158(1)(c) application, the Applicant delivered “the bond of security”. Despite the latter step, the First Respondent, on 02 July 2024, successfully applied for the writ of execution. Now, the Applicant intends to stay the same writ of execution. At this point, it is prudent to confirm that the writ of execution is the result of the Court Order which has a final effect unless is set aside on appeal.[2]

[6] The First Respondent submitted that this Court should not entertain the application considering that the review application has been deemed “abandoned” when applying the provisions of the defunct Practice Manual. Counsel for the Applicant accepted that the review has been abandoned but, in response, argued that since it has launched an application to reinstate the review application, consequently, this Court may still apply its discretion in its favour. This Court accepts the argument of the Applicant that it may still entertain the application of stay of execution despite a review application being abandoned if there is an application to reinstate such review application; this is so because the powers of this Court to stay enforcement does not only apply when there is a pending review application, but this Court has broad powers relating to such. What this Court has to take into account is what is before it; put differently, each matter has to be decided based on its circumstances.

[7] In deciding stay applications this Court inter alia has to consider that the provisions of the LRA call for the speedy resolution of disputes declared under the same Act, to be satisfied

that an application to stay is not being used as an ulterior motive in order to frustrate an employee who is armed with an arbitration

award, this Court has to be satisfied that there is an application that is pending against the same administrative action that is asked to be stayed, and further assess if there is no prejudice that will be suffered by the employee concerned.[3]

[8] The First Respondent presented the following undisputed evidence: that is, since the launching of the application for review, the Applicant did not file all necessary documents for a period of more than 12 months thereafter. It took the Applicant almost 19 months before it could launch an application to compel, meaning it failed to act within a reasonable time. In addition, she indicates that the reason for the writ of execution to be issued was that the application had been abandoned, and she had brought an application to make the arbitration award an order of the Court. This Court also notes that the Applicant launched the application for the reinstatement of the review application only in June 2024.

[9] Considering what is stated in the two preceding paragraphs, this Court considered view is that indeed it seems like the application to reinstate the review application was done with the intention of frustrating the First Respondent as there is no reason in the papers proffered as to why the Applicant did not bring the application to compel the MEIBC immediately upon expiry of the 10 day period from the date of service of the review application. The application to reinstate the review application has been filed more than two years after the review had been deemed abandoned, and there is no reason that has been provided in the papers before this

Court. Nevertheless, the application to reinstate the review remains moot in the absence of the rescission of the section 158(1)(c) order.

[10] Furthermore, the review application that the Applicant is attempting to reinstate is against the arbitration award, which unfortunately has been made an order of this Court and its status has changed as stated in paragraph 4 above; and the Applicant has indicated that they do not have the intention of challenging such an Order. Therefore, granting the application to stay will serve no purpose because such a review application does not exist, and the arbitration award is now the Order of the Court. Therefore, the Applicant has not advanced grounds justifying the application.

[11] Consequently, the following order is made:

1. The matter is heard as one of urgency.

2. The application is dismissed.

3. No costs order is made.

Sandile Mabaso

Acting Judge of the Labour Court of South Africa

Appearances For the Applicants: Mr Mbhiza Instructed by: Seleka Attorneys Inc. For the Respondent: Adv Khupi Ramarumo Instructed by : Lehlohonolo Medupe Attorneys

[1] Act 66 of 1995, as amended.

[2] cf Greater Taung Local Municipality Bargaining Council and Others [2023] ZALAC 1; (2023) 44 ILJ 761 (LAC) at paras 11 and 17.

[3] cf Rham Equipment (Pty) Ltd v Neville Llyod & Others [2008] ZALCJHB 77 (13 June 2008).