Symeg Trading Proprietary Limited t/a Pick n Pay Tsepisong v Gabaoce and Others (J 820/21) [2021] ZALCJHB 170 (21 July 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: J 820/21

In the matter between:

SYMEG TRADING PROPRIETARY LIMITED t/a

PICK ‘N PAY TSEPISONG Applicant

and

KARABO GABAOCE

First Respondent

KELEBOGILE MMUSI

Second Respondent

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION

Third Respondent

SHERIFF, ROODEPOORT SOUTH

Fourth Respondent

Heard:

20 July 2021 (Virtual Hearing)

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 21 July 2021 at 21:00

JUDGMENT

TLHOTLHALEMAJE, J

Introduction and background:

[1] In this opposed urgent application, the Applicant seeks an order staying the enforcement of an award/writ of execution obtained by the Second Respondent (Ms Mmusi) following a default award issued by the First Respondent (Commissioner), pending the finalisation of a review application launched before this Court under case number JR1317/17.

[2] The background to this application to the extent that it is not disputed is summarised as follows;

2.1 Mmusi was employed by the Applicant as a Floor Supervisor/Assistant Manager by the Applicant, and her services were terminated in August 2020. She subsequently referred an alleged unfair dismissal dispute to the Third Respondent, the Commission for Conciliation Mediation and Arbitration (CCMA), and when the Applicant failed to attend the arbitration proceedings on 17 September 2020, a default award was issued in her favour on 30 September 2020.

2.2 In the award, it was found that the dismissal of Mmusi was procedurally and substantively unfair, and the Applicant was ordered to pay to her compensation in the amount equal to R76 800.00.

2.3 When the Applicant failed to pay the compensation amount, Mmusi had on 22 October 2020, applied to have the award certified by the CCMA. Rather than seeking a rescission of the default award, the Applicant launched a review application in October 2020 under case number JR1603/20. That application was subsequently withdrawn in November 2020.

2.4 On 12 November 2020, the CCMA certified the arbitration award and issued a writ of execution. Mmusi had in the same month, instructed the Fourth Respondent (Sheriff), to proceed with execution.

2.5 Despite the purported review application having been withdrawn, the Applicant served on Mmusi another rescission application launched in this Court on 17 November 2020. Mmusi had opposed the rescission application, and further raised preliminary points, mainly to the effect that this Court lacked jurisdiction to rescind the CCMA award.

2.6 In February 2021, the Applicant withdrew the rescission application before the Court under case number JR16461/20. In the same month, it served Mmusi with an application for rescission filed at the CCMA. Mmusi opposed the rescission application, further raising preliminary points that the rescission application was late and not accompanied by an application for condonation. The Applicant had subsequently filed an application for condonation, and the rescission application was determined on the papers and dismissed in terms of a ruling issued on 23 April 2021.

2.7 On 28 May 2021, the Applicant launched an application to review and set aside the rescission ruling issued on 23 April 2021. On 5 June 2021, the Sheriff addressed correspondence to the Applicant’s attorneys of record, and informed them that his instructions are to execute within three days since the review application did not automatically suspend the execution of the writ, and further since there was no order staying the execution

Evaluation:

[3] Rule 8 of the Rules of this Court[1] governs the bringing of urgent applications in this Court. An applicant instituting urgent proceedings must justify the necessity

to circumvent the ordinary time periods set out in the Rules of this Court, and is therefore required to set out explicitly the

circumstances and objective facts which it contends renders the matter urgent. Of equal importance is that an applicant must further

explain and demonstrate why it is said that it cannot obtain substantial redress at a hearing in due course. Further considerations as to whether a matter should be accorded any urgency is whether the urgency claimed is not self-created, and the expedition exercised when approaching the Court.

[4] Applying the above principles to the facts of this case, and having had regard to the material background and the facts of this case, it ought to be concluded that the urgency claimed by the Applicant is clearly self-created, and that the matter ought to be struck off the roll for the following reasons;

4.1 It is common cause that the rescission ruling was timeously received upon it being issued on 23 April 2021. As at that time, the writ had long been issued as far back as November 2020, and clearly the Applicant was aware of it.

4.2 Other than the above, this application was launched on 9 July 2021, some five weeks since the Sheriff had indicated an intention to execute the writ. There does not appear to be any indication that the Sheriff’s correspondence and intentions in regards to the execution were taken seriously.

4.3 During these proceedings, and despite Mmusi’s attorneys of record having sent correspondence to the Applicant’s attorneys on 22 June 2021 seeking compliance before execution scheduled for 5 July 2021, it was conceded that the Applicant subsequently took no steps, until on 8 July 202, when the Sheriff effected attachment.

4.4 No attempt was made at explaining the reason why any steps were not taken since November 2020, in relation to staying the execution, or at worst, from 23 April 2021 after the rescission application was dismissed, or on 5 June 2021, when the Sheriff issued a notice of intention to execute.

4.5 It was submitted in these proceedings that the urgency arose on 8 July 2021 when the Sheriff effected attachment. This submission can however not be sustainable in view of the constant failures on the part of the Applicant to take any meaningful steps since the writ of execution was obtained in November 2020.

4.6 The sole purpose of seeking urgent relief is to avoid or mitigate any harm that may be caused should the Court not intervene. Clearly the harm that the Applicant complains of as a result of the attachment was long foreseen before 8 July 2021, and could have been avoided. Furthermore, in cases such as these, an applicant cannot complain of lack of alternative remedies, where those remedies were readily available in the first place, to mitigate the alleged prejudice in question.

[5] In the light of the above considerations, and purely on the basis of a finding that the urgency claimed is self-created, the matter ought to be struck off the roll. Even if the Court was inclined to entertain the merits of this application, the Applicant has failed to satisfy the requirements of interim relief it seeks, being (a) the right which is the subject-matter of the main application and which the applicant seeks to protect by means of interim relief is clear or, if not clear, is prima facie established, though open to some doubt; (b) if such case is only prima facie established, there is a well-grounded apprehension of irreparable harm to the applicant if the interim interdict is not granted and the applicant ultimately succeeds in establishing his or her right; (c) there is no other satisfactory remedy; and (d) the balance of convenience favours the granting of interim relief.[2]

[6] In Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton and Another[3], it was held that the granting of interim relief pending an action is an extraordinary remedy within the discretion of the Court, and that the discretion would be exercised with due regard to the requirements to be met and the facts of the case.

[7] The Constitutional Court in ‘OUTA’[4] further added that when a court considers whether to grant an interim interdict it must do so in a way that promotes the objects, spirit and purport of the Constitution[5]. Similarly, when this Court considers granting interim relief, it must do so in a manner that promotes the objects and purpose of the Labour Relations Act (LRA)[6] as set out in its section 1[7].

[8] In this case, the Applicant addressed these requirements in a cursory manner in its founding papers under the rubric of ‘Urgency’. For any prima facie right to be at least established, at most, the Applicant was required to demonstrate that there was a proper application to review the arbitration award before the Court.

[9] This is so in that such an application, will form the basis of a pending underlying causa,[8] which underpins a determination of whether a stay of execution should be granted or not. In Chillibush Communications (Pty) Ltd v Michelle Gericke & others[9], the approach of this Court in dealing with applications to stay a writ of execution pending a review or rescission application was summarised as follows;

‘In terms of section 145(3) of the LRA, the Court has the discretion to stay the enforcement of the arbitration award pending the outcome of the review application. This discretion which is very wide has to be exercised judicially taking account certain factors. The most important consideration in the exercise of the discretion is whether there is a pending underlying cause of action arising the arbitration award or in certain instances arising from the Court order. There is a wide range of factors which the Court will take into account in considering whether or not to order a stay of the execution of an arbitration award, the most important of which is whether the interest of justice supports the stay of execution pending the finalization of the review or rescission application.’[10]

[10] The Court further added that other considerations to be taken into account include; whether the stay of the writ based on the underlying causa was filed timeously filed; the existence of prospects of success in the review or rescission application; the interest of all parties in securing finality; the cost of the delay in finalising the matter to all the parties; the cost to all parties of instituting or opposing further proceedings, and he risk of injustice being done to the less powerful party to the dispute.[11] In Gois t/a Shakespeare’s Pub v van Zyl & Others[12], 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”.

[11] In this case, it is said that the review application is not properly before the Court, nor was it brought on time given the date on which the default award was issued, and the period it took for the Applicant to react to the writ of execution. Other than this dilemma, as at the hearing of this matter, the record of proceedings before the CCMA had not been filed despite the compliance by the CCMA in terms of Rule 7A(3) of the Rules of the Court on 1 July 2021. It appears that the Applicant allegedly was not aware of this fact, until proof in this regard was adduced during the proceedings on behalf of Mmusi. As to how Mmusi’s attorneys of record could have been aware of the compliance when the Applicant or its attorneys of record could not have been aware is clearly a mystery.

[12] Other than the delays already caused by needless and defective applications to this Court after the default award was issued, and the belated application for rescission before the CCMA, a further important consideration is that despite the clear provisions of section 145(7) of the LRA related to payment of security, no such security has been tendered when filing the review application. These provisions make it clear that the institution of review proceedings does not on its own suspend the operation of an arbitration award, unless the applicant furnishes security to the satisfaction of the Court in accordance with subsection 145(8) of the LRA. In the end, the mere filing of the review application was not sufficient to demonstrate a pending underlying causa, in the absence of these requirements being met.

[13] To the extent that the Applicant has not established a prima facie right to the relief that it seeks, that should be the end of the matter, and there is no need for the Court to even consider whether other requirements of the relief sought have been satisfied.

[14] In circumstances where the urgency claimed is clearly self-created, and where the attack on the underlying cause of action was either brought out of time or there was none before the Court in the form of a proper application, clearly the interests of justice cannot be in favour of granting a stay, particularly since the Applicant’s dilatoriness has not assisted in the expeditious resolution of the dispute between the parties. Furthermore, Mmusi is in possession of a favourable award which she is entitled to execute, and to bring this matter to finality. The costs of the delay in finalising the matter to Mmusi are not negligible and clearly there is a risk of injustice being done to her should the order sought by the Applicant be granted. To this end, rather than merely striking the matter off the roll, the most appropriate order would be to dismiss it.

[15] I have further had regard to costs, and in the light of the circumstances of this case and the position that Mmusi finds herself in as a result of having to oppose this application, the requirements of law and fairness dictate that the Applicant be held liable for the costs of this application.

[16] Accordingly, the following order is made;

Order:

1. The Applicant’s application is dismissed with costs.

___________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr.

W Mukantsi, of Mukantsi Attorneys.

For the Second Respondent: Ms. V Reddy, of Norton Rose Fulbright South Africa INC

[1] 8 Urgent relief (1) A party that applies for urgent relief must file an application that complies with the requirements of rules 7(1), 7(2), 7(3) and, if applicable, 7(7). (2) The affidavit in support of the application must also contain- (a) the reasons for urgency and why urgent relief is necessary; (b) the reasons why the requirements of the rules were not complied with, if that is the case; and (c) if a party brings an application in a shorter period than that provided for in terms of section 68(2) of the Act, the party must provide reasons why a shorter period of notice should be permitted.

[1] 8 Urgent relief

(1) A party that applies for urgent relief must file an application that complies with the requirements of rules 7(1), 7(2), 7(3) and, if applicable, 7(7).

(2) The affidavit in support of the application must also contain-

(a) the reasons for urgency and why urgent relief is necessary;

(b) the reasons why the requirements of the rules were not complied with, if that is the case; and

(c) if a party brings an application in a shorter period than that provided for in terms of section 68(2) of the Act, the party must provide reasons why a shorter period of notice should be permitted.

[2] See National Treasury and Others v Opposition to Urban Tolling Alliance and Others (CCT 38/12) [2012] ZACC 18; 2012 (6) SA 223 (CC); 2012 (11) BCLR 1148 (CC) at para 41 (‘OUTA’)

[3] 1973 (3) SA 685 (A) at 691C-G

[4] Supra

[5] At para 45

[6] Act 66 of 1995, as amended

[7] ‘1. Purpose of this Act The purpose of this Act is to advance economic development, social justice, labour peace and the democratisation of the workplace by fulfilling the primary objects of this Act, which are- (a) to give effect to and regulate the fundamental rights conferred by section 23 of the Constitution of the Republic of South Africa, 1996. (b) to give effect to obligations incurred by the Republic as a member state of the International Labour Organisation; (c) to provide a framework within which employees and their trade unions, employers and employers' organisations can- (i) collectively bargain to determine wages, terms and conditions of employment and other matters of mutual interest; and (ii) formulate industrial policy; and (d) To promote- (i) orderly collective bargaining; (ii) collective bargaining at sectoral level; (iii) employee participation in decision-making in the workplace; and (iv) the effective resolution of labour disputes.’

[7] ‘1. Purpose of this Act

The purpose of this Act is to advance economic development, social justice, labour peace and the democratisation of the workplace by fulfilling the primary objects of this Act, which are-

(a) to give effect to and regulate the fundamental rights conferred by section 23 of the Constitution of the Republic of South Africa, 1996.

(b) to give effect to obligations incurred by the Republic as a member state of the International Labour Organisation;

(c) to provide a framework within which employees and their trade unions, employers and employers' organisations can-

(i) collectively bargain to determine wages, terms and conditions of employment and other matters of mutual interest; and

(ii) formulate industrial policy; and

(d) To promote-

(i) orderly collective bargaining;

(ii) collective bargaining at sectoral level;

(iii) employee participation in decision-making in the workplace; and

(iv) the effective resolution of labour disputes.’

[8] See Transport and Allied Workers Union of South Africa v Algoa Bus Company (Pty) Ltd and Others [2015] 7 BLLR 738 (LC); (2015) 36 ILJ 2148 (LC) at paragraphs 25 - 27

[9] (2010) 31 ILJ 1350 (LC)

[10] At para 18

[11] In reference to Robor (Pty) Ltd (Tube Division) v Joubert and Others (2009) 30 ILJ 2779 (LC) at para 16.

[12] (2003) 24 ILJ 2302 (LC) at paragraphs 32 - 36