Transnet Limited v Commission for Conciliation Mediation and Arbitration and Others (JR1690/2003) [2007] ZALC 45 (25 June 2007)

IN

THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

Case number: JR1690/2003

In the matter between:

TRANSNET LIMITED Applicant

and

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION First Respondent

MOLETSANE, RUSSEL N.O Second Respondent

MABENTSELA, KALIPILE Third Respondent

___________

JUDGEMENT

NGALWANA AJ

[1] This is an application, brought on an urgent basis, for the stay of the third respondent’s application for certification of an arbitration award made in his favour on 13 August 2003 in the sum of R418 365. The applicant seeks the suspension of the certification of that award pending the outcome of review proceedings instituted by it in September 2003. The certification application under section 143 of the Labour Relations Act was launched by the third respondent on 30 May 2007, over three-and-a-half years after the review application was filed by the applicant.

[2] The applicant’s supporting affidavit – both in this application and in the application for review – is very thin on why it has not managed to pursue its review application in over three years. All that is advanced are two letters (both handed up from the Bar). The one letter is addressed to the first respondent in February 2004, 5 months after the launch of the review proceedings, threatening to bring an application compelling the first respondent to provide its notes on the arbitration since two cassettes could not be transcribed as they were empty. The other letter was addressed to the third respondent’s attorneys in June 2004 threatening to refer the matter de novo back to the first respondent since there allegedly was no co-operation from the third respondent’s attorneys as regards reconstruction of the arbitration record.

[3] A third letter, annexed to the founding papers, is dated 27 July 2004 and addressed to the third respondent’s attorneys. In it, the applicant’s attorneys threaten to oppose any attempt by the third respondent to enforce the award, pointing out that it is not its fault that the record of the arbitration proceedings is incomplete. It appears from the letter (which is a reply to a letter from the third respondent’s attorneys) that the third respondent’s attorneys were suggesting that an application be brought to compel the first respondent to provide a record or notes under Rule 7A(4) of the Labour Court Rules.

[4] Apart from these three letters there is no explanation why nothing seems to have been done to pursue the review application between July 2004 and May 2007. The applicant seems content to sit and wait for the third respondent to do something about reconstruction of the record, claiming that it is not its sole responsibility as applicant in a review application to reconstruct the record. Clearly, the applicant has nothing to lose the longer the award remains unenforced and unenforceable. It is more than happy to have the matter referred back to the first respondent for a de novo determination, as it has clearly demonstrated through correspondence to the third respondent’s attorneys. This is bullying tactics in my view.

[5] It could be understandable if the applicant could show at least some measure of urgency in pursuing the review application. Then considerations of prospects of success in the review application would come into play. But here, the applicant has shown absolutely no interest in pursuing the review in three years since informing the third respondent’s attorneys that it would oppose any attempt to enforce the award. The third respondent has in my view been considerably patient in bringing the certification application only in May 2007 for an award that was obtained in 2003 and a review application launched against it almost four years ago.

[6] In the circumstances of this case, I can find no reason to grant the application to stay the certification. The bringing of a review application is not in itself sufficient reason for staying the certification. If that were the case, the frustration of awards would be easily achieved simply by filing a review application and then sitting back. I do not read the judgment of Revelas J in Olivier v University of Venda (2003) 24 ILJ 208 (LC) as authority for that proposition. The Labour Court is there to review the awards of statutory and other arbitrators where there is a genuine intention on the applicant’s part so to review. This court cannot be party to what is in this case clearly an intention to frustrate the enforcement of an award.

[7] The application is dismissed with costs.

____

Ngalwana AJ

For the applicant: Mr L. D Mogaswa

Instructed by: Werkmans Inc

For the 3rd respondent: Mr T. Moloi

Instructed by: Ledwaba Mazwai Attorneys

Date of hearing: 21 June 2007

Date of judgment: 25 June 2007