South African Revenue Service v Howitz N.O and Others (J 354/2023) [2023] ZALCJHB 96 (24 March 2023)

IN the labour court of South Africa, johannesburg

Not Reportable

Case No: J 354/2023

In the matter between:

SOUTH AFRICAN REVENUE SERVICE

Applicant

and

COMMISSIONER MICHAEL HOWITZ, N.O.

First Respondent

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION

Second Respondent

VIOLET MAIKHOSE

Third Respondent

THE SHERIFF PRETORIA SOUTH EAST

Fourth Respondent

Heard: 23 March 2023

Delivered: 24 March 2023

JUDGMENT

VOYI, AJ

[1] This is an urgent application to stay the enforcement of an arbitration award, as contemplated by section 145(3) of the Labour Relations Act.[1] The application is brought as one of urgency in terms of Rule 8 of the Rules for the conduct of proceedings in this Court.

[2] The applicant is the South African Revenue Service (SARS), the nation’s tax collecting authority, established in terms of section 2 of South African Revenue Service Act 34 of 1997 (SARS Act) as an organ of state.

[3] In addition to the stay of enforcement, SARS also seeks an exemption from having to furnish the security required under sections 145(7) and (8) of the LRA. The stay of execution is sought pending the finalisation of the review application launched by SARS with this

Court under case number JR1487/22 on 08 July 2022. In the review application, SARS is seeking to review and set aside an arbitration

award issued by the first respondent, Commissioner Michael Howitz (Commissioner Howitz) on 17 February 2022.

[4] In his award, Commissioner Howitz found that the dismissal of the third respondent, Ms Violet Maikhose (Maikhose) by SARS was substantively unfair. The remedy granted by Commissioner Howitz was the retrospective reinstatement of Ms Maikhose on the same terms and conditions which existed prior to her dismissal on 20 August 2021.

[5] The present application is opposed only by Maikhose. It was launched on or about 13 March 2023, after SARS received a letter from the attorneys representing Maikhose dated 07 March 2023. In this letter,

the attorneys stated thus:

1. Kindly find attached hereto the enforcement award certified by the commissioner for your urgent attention.

2. We hold instructions to demand immediate compliance with the attached, failing which we hold further instructions to enforce by end of business today. (own underlining)

[6] The ‘enforcement award’ referred to in the letter appears to be a document issued by the second respondent, the Commission for Conciliation, Mediation and Arbitration (CCMA) on 11 May 2022

pursuant to certification of Commissioner Howitz’s award in terms of section 143(3) of the LRA on 25 April 2022.

[7] In opposing the urgency of the matter, Maikhose contends that urgency is self-created. Amongst others, it is contended by her that since ‘…receipt of the certified award, it has been almost one year that SARS has delayed launching this urgent application.’

[8] In their letter dated 07 March 2023, Maikhose’s attorneys expressly state that they hold further instructions to enforce compliance with the award if SARS failed to immediately comply with same. This letter makes it clear that unless there is compliance with the arbitration award, which is the subject of the review proceedings

under case number JR1487/22, such compliance will be enforced. Within a few days after the letter was issued, the present urgent

proceedings were instituted.

[9] Upon enquiring from Advocate Thabang Mathopo, who appeared for Maikhose, if his client was persisting with the enforcement of the award on the face of the review proceedings, the answer was not in the negative. The indications are, therefore, that Maikhose persists with her intention to enforce the award.

[10] In this matter, I find that SARS acted promptly upon being alerted to the fact that Maikhose intends to enforce compliance with the award. It is manifest that Maikhose did not take further legal steps to enforce the award after 22 May 2022, which was when the CCMA issued the document entitled ‘enforcement of award.’

[11] As there were no visible steps taken then, I cannot fault SARS for not having launched the present application to stay shortly after the certified award was delivered on 25 April 2022. In my considered view, the matter is, by virtue of its own circumstances, urgent and therefore merits the urgent attention of this Court. I now proceed to deal with whether or not a case has been made out for the urgent relief sought.

[12] It is, by now, trite that this 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.[2] It was conveyed to me from the Bar by Advocate W Maodi, appearing for SARS, that the review application is ripe for hearing and all that is awaited is the allocation of a date of hearing by the Registrar of this Court. It was confirmed by both counsel that SARS has already delivered its heads of argument in the review.

[13] Under these circumstances, it seems to be clear to me that irreparable harm would befall SARS if the order sought staying the enforcement of the award is not granted. To allow for the enforcement of the award when the review application is at such an advanced stage would only serve to defeat the exercise, by SARS, of its right, as afforded by section 145 of the LRA, to review a decision it alleges is reviewable.

[14] With regard to the secondary relief sought, that SARS be exempted from furnishing security, this aspect also calls for the exercise of discretion by this Court.[3] In this connection, the Labour Appeal Court has held that a factor to be taken into consideration by this Court ‘… is whether the employer is in possession of sufficient or adequate assets to meet an order of the review court upholding the arbitration

award; the principal concern being that the dismissed employee should not be left unprotected if the Labour Court decides the review

application in his or her favour.’[4]

[15] At paragraph 29 of its founding affidavit, SARS contends as follows:

There can be no doubt that the Applicant in the shoes of SARS, which regulates the country’s finances in conjunction with Treasury, will be able to satisfy the compensation in terms of the arbitration award if the review application is not successful:

[16] In reaction to inter alia this averment, Maikhose states in her answering affidavit that SARS has failed to set out a case as to why it should be exempted from paying security. She further states that neither has SARS set out any financial position other than mere lip service. Taking particular note of the identity of the applicant seeking exemption, it being an organ of state in the public administration responsible for tax collection, I am inclined to agree that there can be no doubt that SARS will be in a position to satisfy the award in the event that the review application fails.

[17] On the facts of this matter, I am observing some limited protection that alleviates the prejudice presently suffered by Maikhose due to the delay in the implementation of the award. It is common cause that she reported for duty in line with the arbitration award. This was confirmed by the attorneys for SARS in a letter dated 15 June 2022. In this letter, it was stated that SARS will not be complying with the award until the intended review is finalised. In view of the fact

that Maikhose, as an employee, did tender her services to SARS and the latter refused to allow her to commence with her duties, it is my observation that the back pay entitlement, post the issuing of the arbitration award, accrues to her and it will so accrue until she is ultimately reinstated should the review application be unsuccessful.

[18] If the review application fails, be it before this Court or on appeal, if any, SARS will have to pay Maikhose the back pay stated in the award, with interest thereon as envisaged by section 143(2) of the LRA, as well as the remuneration she would have earned had she been allowed to resume with her employment, up to the date of actual reinstatement. The arbitration award has restored the employment relationship with effect from 20 August 2021.

[19] Lastly and with regard to costs, it was conveyed in argument that SARS is not seeking any order for costs against Maikhose in the event that this application is successful. In keeping with that stance, I determine that there should be no order as to costs in this matter.

[20] In the premises, I make the following order:

1. This matter is urgent.

2. The enforcement of the arbitration award issued by the first

respondent on 17 February 2022 under case number GAJB 17916-21 is hereby stayed pending the finalisation of the review application

lodged by the applicant with this Court on 8 July 2022 under case number JR1487/22.

3. The applicant is exempted from furnishing security as contemplated in sections 145(7) and (8) of the Labour Relations Act 66 of 1995.

4. There is no order as to costs.

N P Voyi

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Advocate William Maodi Instructed by: Maponya Attorneys Inc. For the Third Respondent: Advocate Thabang Mathopo Instructed by: Majavu Inc.

[1] No. 66 of 1995 (“the LRA”).

[2] See: City of Johannesburg v SAMWU obo Monareng and Another (2019) 40 ILJ 1753 (LAC) at para 7.

[3] Ibid, at para 19.

[4] See: City of Johannesburg v SAMWU obo Monareng and Another (supra) at para 19. See also: Afgri Poultry (Pty) Ltd t/a Daybreak Farms v Seruwe (J1535/21) [2021] ZALCJHB 458 (17 December 2021) at para 60.