Mafoko Security Patrols (Pty) Ltd v NUPSAW obo Shokane and Others (J391/21) [2021] ZALCJHB 269 (2 September 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: J 391/21

In the matter between:

MAFOKO SECURITY PATROLS (PTY) LTD Applicant

and

NUPSAW obo P.F. SHOKANE & 333 OTHERS First

Respondent

DETAWU obo NARE MASOGO & 98 OTHERS Second

Respondent

COMMISSION FOR CONCILIATION MEDIATION

AND ARBITRATION Third

Respondent

SIMON MOHUBEDU RANTHO Fourth

Respondent

NICHOLUS SONO N.O. Fifth Respondent

SHERIFF: PRETORIA EAST Sixth

Respondent

DEPARTMENT OF EMPLOYMENT AND LABOUR Seventh

Respondent

Heard: 6 August 2021

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date and time for hand-down is deemed to be on 2 September 2021 at 20:00

JUDGMENT

TLHOTLHALEMAJE, J

[1] The applicant (Mafoko Security Patrols Proprietary Limited) approached this Court seeking an order to stay the enforcement and execution of the arbitration awards issued by the fourth and fifth respondents (Commissioner) acting under the auspices of the third respondent, the Commission for Conciliation Mediation and Arbitration (CCMA). The arbitration awards were issued under case numbers, LP 7380/20 dated 18 October 2020, and LP 9537/20 dated 22 December 2020.

[2] The stay of execution is sought pending the final determination of application instituted at the North Gauteng High Court: Pretoria,

under case number 17776/21, in which Mafoko seeks to compel the seventh respondent, Department of Employment and Labour (DOEL) to consider its application brought under section 15 of the National Minimum Wage Act[1].

[3] The application is opposed by the second respondent (DETAWU) on the basis inter alia that the pending application before the North Gauteng High Court is wrong in law, in that, in the absence of an application to review and set aside the arbitration awards, this Court would not be competent to stay the execution of the aforesaid arbitration awards, and that the applicant would not suffer irreparable harm should the execution not be stayed.

[4] The pertinent background to the dispute between the parties is as follows;

4.1 Mafoko operates in the private security industry and has a workforce of about 6 444 employees. It has secured numerous contracts to provide security services at various government departments and institutions including SASSA, Department of Home Affairs, Department of High Learning Institutions, the SABC, Denel, OR Tambo International Airport, King Shaka Airport, and various Municipalities,

4.2 The wages in the security industry are determined by the National Minimum Wage Act, which came into effect on 1 January 2018. DETAWU and the second respondent (NUPSAW) are registered unions who have a membership at Mafoko. NUPSAW has however not opposed the application.

4.3 On 18 October 2020, the fourth respondent (Commissioner Rantho) had rendered a default award under case number LP7380-20 in favour of NUPSAW on behalf of 334 employees in respect of outstanding salaries. Mafoko was ordered to make payment in the amount of R3772.92 to each of the employees. That award was certified on 5 December 2020, and an enforcement order was issued on the same date.

4.4 A second arbitration award in favour of DETAWU on behalf of 56 of its members was issued under case number LP9537-20 by the fifth respondent (Commissioner Sono) on 22 December 2020 also in respect of outstanding salaries, as these employees were not paid in accordance with the Minimum Wage Act. That award was also certified on 5 February 2021 with an enforcement order being issued on the same date.

4.5 It is common cause that Mafoko has not sought a rescission of Commissioner Rantho’s default award, nor has it challenged Commissioner Sono’s award on review.

4.6 Mafoko’s main contention is essentially that it is unable to pay its employees in accordance with the National Minimum Standards, and has instead, sought and obtained an exemption from the seventh respondent (DOEL) for the period March 2019 – March 2020.

4.7 When the period of the exemption came to an end, Mafoko submitted yet another application in March 2020 which the DOEL acknowledged and requested additional supporting documents from Mafoko, including audited financial statements, proof of consultation with labour, etc. Mafoko was further advised to comply with the request within seven (7) days from the date of the correspondence, failing which the

application for exemption would be deemed as being declined.

4.8 Various disputes of fact arose in regards to the events that took place between that deadline and the final decision by Mafoko to approach the High Court with an application for a mandamus. It is not necessary to deal with these factual disputes other than to state that Mafoko’s contentions are that it had fully complied with the request for further documentation requested since 25 March 2020, and in the process of doing so, it had experienced difficulties related to the full despatch of the complete documentation. On 24 July 2020 however, and despite attempts at despatching the required documentation, the DOEL advised the applicant that its application was deleted from the system on account of want of the supporting documents, since DOEL could not process the application or due to the reason that the application was deleted from the system on account of the non-submission of the supporting documents.

4.9 DOEL subsequently advised the applicant to re-apply for exemption. When the applicant could not convince the DOEL to reconsider its original application for exemption, it then submitted a fresh application on 1 September 2020. That application according to the applicant remains pending before the DOEL.

4.10 It was at that point that the two disputes by NUPSAW and DETAWU were referred to the CCMA resulting in the arbitration awards under case number LP 7389-20 and LP 9537-20.

4.11 On 10 March 2021, the sixth respondent (Sheriff) attached the movable assets of the applicant in exceed of One Million and Five Hundred Thousand Only, in satisfaction of the aforesaid arbitration awards. The applicant then approached the North Gauteng High Court to compel the DOEL to consider its application for exemption which was filed on 17 March 2021.

4.12 On 9 April 2021, the applicant approached this Court to stay the execution of the aforesaid arbitration awards pending the mandamus serving before the High Court.

4.13 This Court (per van Niekerk J) issued an order enrolling the matter for 29 April 2021, and the execution of the aforesaid arbitration awards was stayed pending the finalisation of this application. On 29 April 2021, the matter came before Mabaso AJ who had extended the order staying the execution issued by van Niekerk J, until 6 August 2021.

[5] In these proceedings, DETAWU opposed the application for a stay of enforcement and execution on the grounds that first, it was not urgent, and second, that the application was incorrect and misconceived to the extent that reliance was placed on the application before the Gauteng High Court (Pretoria).

[6] The question whether the urgency of the matter is still a primary consideration can however not be sustainable in view of the fact that when the matter initially came before van Niekerk J on 20 April 2021 on the urgent roll, it was stood down to 29 April 2021 pending judgment in the application, with a further addition that the execution of the writ under case numbers LP 7380/20 and LP 9537/20 were stayed. Van Niekerk J’s order was then extended on 29 April 2021 by Mabaso AJ on the same date to 06 August 2021. The issue of urgency therefore has been superseded by events.

[7] The question whether the enforcement and execution should finally be stayed or whether the application should be dismissed is dependent on a variety of factors which the Court takes into account when exercising discretion. Primary amongst these are whether there is a pending underlying cause of action arising from the arbitration award or in certain instances, arising from the Court order; and whether the interest of justice supports the stay of execution pending the finalization of the review or rescission application[2]. In Gois t/a Shakespeare’s Pub v van Zyl & Others[3], it was held that this Court will favourably consider granting the stay of execution when “real and substantial justice requires such a stay or, put differently, where injustice would otherwise result”.

[8] In this case, it ought to be reiterated that the arbitration awards leading to the enforcement and execution remains unchallenged. It nonetheless ought to be restated that the provisions of section 145(3) of the LRA are not the only legal basis upon which the enforcement of the award may be stayed. The Court may in the light of its discretionary powers consider other legal proceedings ancillary to the review application or even unrelated to the review application itself, when determining whether an application for a stay of enforcement of an award may be granted or not. What is of relevance is whether there is a particular underlying cause of action that necessitates the stay.

[9] A second consideration is that there is a pending application before the DOEL in terms of section 15 of the National Minimum Wage Act, as well as a pending application for a mandamus before the High Court. These are pending causes of action which the applicant has relied on, irrespective of whether DETAWU considers them to be bad in law or ill-conceived. It is however not for this Court to conclude that the said applications are incorrect or ill-conceived, particularly in the light of the previous applications for exemptions that were granted by DOEL to the applicant.

[10] In the light of the above considerations, it is therefore my view that the interest of justice supports the stay of execution pending the finalization of the application before the Gauteng High Court.

[11] To the extent that the stay of the enforcement and execution is to be granted until the finalisation of the application before the High Court, I further agree that the stay should however not be without qualification and conditions, more specifically since the arbitration awards in question remain uncontested. Further having had regard to the requirements of law and fairness, there is clearly no basis for any costs order to be made.

[12] Accordingly, the following order is deemed appropriate;

Order:

1. The enforcement and execution of the arbitration awards under case numbers LP7380/20 dated 18 October 2020 and LT9537/20 dated 22 December 2020 is stayed, pending the finalisation of the application for a mandamus before the Gauteng High Court (Pretoria) under case number 17776/21.

2. The Applicant is ordered to submit to the Registrar of this Court and to the First Respondent, and commencing with effect from 30 September 2021, a monthly progress report on the matter before the Gauteng High Court (Pretoria) under case number 17776/21.

3. Should the order under paragraph (2) above not be complied with, this entire order will lapse, and the First Respondent will be entitled to approach this Court for an order directing the Sixth Respondent to proceed with the execution as per Annexure ‘R22’ to the Applicant’s Founding Affidavit.

4. There is no order as to costs

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant: F. Venter (Heads of Argument prepared by C. Goosen), Instructed by A.H. Stanger Attorneys

For the First Respondent: M.B. Matwa, Union Official of DETAWU

[1] Act 8 of 2018

[2] Chillibush Communications (Pty) Ltd v Michelle Gericke & others (2010) 31 ILJ 1350 (LC) at para 18

[3] (2003) 24 ILJ 2302 (LC) at paragraphs 32 - 36