Nkayi v Revelation Church of God (J1790/19) [2021] ZALCJHB 185 (2 August 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J 1790 / 19

In the matter between:

NKAYI,

RAYMOND MPUMELELO

Applicant

and

REVELATION CHURCH OF GOD Respondent

Heard: 06 July 2021

Delivered: 02 August 2021 (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 02 August 2021.)

Summary: Application to make arbitration award an order of court in terms of section 158 (1) (c) of the Labour Relations Act 66 of 1995.

JUDGMENT

RAPHULU, AJ

Introduction

[1] This is an application to make an arbitration award of the Commission for Conciliation Mediation and Arbitration (CCMA) dated 22 December 2015 under case number ECPE2359-15 an order of this Court in terms of section 158 (1) (c) of the Labour Relations Act[1] (LRA). The Applicant contends that this is necessary in order for it to be able to attach the bank account of the Respondent in order to satisfy the arbitration award, as the writ of execution route against the moveable property resulted in a nulla bona return.

[2] The Applicant contends that it has in the past obtained a writ against the moveable property of the Respondent on 1 February 2016 but the moveable property was inadequate to satisfy the judgement debt. In order to be able to have a writ against the bank account of the Respondent, the Sheriff indicated that a High Court order was necessary and refused to attach the bank account based on the certified award in terms of section 143 of the LRA on 26 April 2019. This is the Applicants contention and reason for bringing the current application. The Applicant contends that the Respondent should pay for the costs of these proceedings.

[3] Although not contained in its Notice of Motion, the Applicant in its replying affidavit raises that there is a pending review application in this Court by the respondent under case number J217/16 which review hasn’t been prosecuted by the Respondent in four years, and asks this Court to dismiss the review application in terms of paragraph 16.3 of this Court’s Practice Manual[2] due to the failure of the Respondent to prosecute such review application within the prescribed six month time frame.

[4] The Respondent seeks to stay the enforcement of the arbitration award based on section 145 (3) of the LRA. Essentially, that the enforcement of the arbitration award is stayed pending the decision on the review proceedings.

[5] The Respondent further raises that the arbitration award is already certified as if it is an order of this Court in line with section 143 (1) of the LRA, and that the Applicant is duplicating the process and forum shopping, and that based on this, the application should be dismissed with costs.

[6] In relation to the review proceedings, the Respondent contends that it is disingenuous for the Applicant to ask this Court to dismiss the review application and to amend its prayers in its Notice of Motion without approaching this Court for permission, that this prayer should be dismissed as the review is not the centre of the Applicant’s order and that its merits warrant to be fully vindicated when it is set down, in front of a different judge.

[7] The Respondent raises the point of law in section 145 of LRA that institution of review proceedings does not suspend the operation of an arbitration award unless the applicant in the review proceedings furnishes security to the satisfaction of the Court and that unless the Court directs otherwise, the security furnished must in the case of an order of re-instatement or re-employment, be equivalent to 24 months’ remuneration; or in the case of an order of compensation, be equivalent to the amount of compensation awarded.

[8] The award in question ordered the Respondent to pay the Applicant an amount of R98 000.

[9] Upon questioning the Respondent on the status of the review proceedings, it stated that it had served and filed the necessary papers to revive same. Upon questioning when this had been done, I was informed that it was done today, on the day that these proceedings are being heard, and the papers were then sent to me later on this same day.

[10] The Respondent alleges that the compensation awarded to the Applicant in the arbitration award was not based on the Applicant’s salary but rather what was determined by the commissioner.

[11] The Respondent contends that it is a spiritual church and is struggling to make ends meet, and that like many voluntary organisations, the Disaster Management Directives and the Coronavirus lockdowns have affected its finances, and that it had to use its reserves to be able to retain some of its employees. The Respondent asks this Court to exempt it from paying security or alternatively to reduce the amount so that it can afford to pay and demonstrate its commitment to its application.

[12] On the issue of security, the Applicant contends that the Respondent has had years to put that money aside as this matter goes back many years, and cannot now use the Coronavirus and its effects as an excuse.

[13] The Applicant contends that the Respondent has not taken steps in years to pursue the review proceedings.

[14] The Respondent contends that it did not have the whereabouts of the Applicant and accordingly could not serve the review papers on the Applicant, they were returned by the Sheriff.

Analysis

[15] The application to make the arbitration award an order of this Court is being sought in order to allow the Applicant to enforce the award against the bank account of the Respondent. The previous certification did not allow them to do this. It is therefore a necessary step for the Applicant if it wishes to execute against the Respondent’s bank account, and not an unnecessary duplication.

[16] Unless otherwise decided by this Court, security for costs is required from the Respondent in order to stay the arbitration award. The award in question goes back to 2015 and the review proceedings were launched in February 2016. At the point of launching the review proceedings, that is when security should have been tendered by the Respondent or an application made by the Respondent to this Court for an exemption from having to tender security, or a reduction in the security to be tendered. Even with considering the impact of the coronavirus on the Respondent, it has indeed had many years to make some provision for security for costs if it intended to suspend the operation of the arbitration award, and pursue review proceedings.

[17] The review proceedings are separate to the current proceedings, and need to be fully considered with all the issues pertaining to them under their separate case number. It is worth noting though that the Respondent has left the review proceedings unpursued for many years, and that the fact that the process to revive same is conveniently served and filed today, the very day on which the Applicant seeks to have the arbitration award made an order of this Court, is telling of the extent of the delay.

[18] After hearing the above the following order is made:

Order

1. The arbitration award dated 22 December 2015 under case number ECPE2359-15 of the Commission for Conciliation Mediation and Arbitration is made an order of this Court.

2. In order to suspend the operation of the arbitration award, the Respondent is to pay security for costs in terms of section 145 (7) and 145 (8) of the Labour Relations Act, 1996 in the amount of R65 000 within 14 days of this order.

3. The parties are to deal with the review proceedings separately under the case number of the review proceedings.

4. There is no order as to costs.

L. Raphulu

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Advocate Britz

Instructed by:

For the Respondent: Xoliswa Sibeko

Instructed by:

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

[2] Effective April 2013.