Westernshelf Trading & Invest 205 CC t/a Brits Spar v Commission for Conciliation Mediation and Arbitration and Others (JR3004/12) [2013] ZALCJHB 151 (25 July 2013)

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REPUBLIC OF SOUTH AFRICA

IN THE LABOUR COURT OF SOUTH AFRICA, AT JOHANNESBURG

JUDGMENT

Not Reportable

Case no: JR3004/12

In the matter between:-

WESTERNSHELF TRADE & INVEST 205 CC

t/a BRITS SPAR ...............................................................................................Appellant

and

THE COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION ......................................................First Respondent

LERATO SIKWANE N.O. ..............................................................Second Respondent

MICHAEL OTTO ................................................................................Third Respondent

SHERIFF OF THE HIGH COURT BRITS ........................................Fourth Respondent

Heard : 31 January 2013

Delivered: 25 July 2013

Summary: Leave to appeal against judgment dismissing application for stay of enforcement of arbitration award pending a review application in respect of refusal of rescission.

judgment

HASLOP AJ

On 13 December 2012 Lagrange J granted interim relief, staying the enforcement of the arbitration award in CCMA case number GATW14355-11 until 31 January 2013.

On 31 January 2103 the matter came before me as an application to make that interim relief final. In a judgment delivered ex tempore I dismissed the application with costs.

The appellant now seeks leave to appeal against that judgment.

I have read and considered the appellant’s application for leave to appeal as well as its heads of argument.

I note that the appellant’s current attorneys of record are different from those on record at the time that I delivered my judgment. It is not clear whether they were present in court on the day and heard the judgment. They do not appear to have obtained a transcript of it. The appellant has also not, in its application for leave to appeal, addressed the very reason for my judgment.

In my judgment I pointed out that the major difficulty facing the applicant, now the appellant, in seeking to review the rescission ruling, pending the finalisation of which review the appellant seeks a stay of the enforcement of the arbitration award giving rise to that rescission application, was that the award was not obtained in its absence and that rescission could therefore never have been properly granted. I mentioned that the appellant had been represented at the arbitration proceedings.

I note that the appellant does not mention this among its grounds of appeal.

In addition, I pointed out in my judgment that, although there was a review application in the file, it was out of time and no application for condonation had been delivered. There was, therefore, at the time of my judgment, no valid review application in place. I note that there is now an application for condonation on the file, filed more than two months after the late filing of the review application. I cannot now take that into account.

I note, too, that the suggestion by the appellant to the effect that I ought to have considered staying the writ on condition that the amount of the arbitration award was paid into the sheriff’s trust account was not a possibility even suggested by the appellant at the hearing of this matter.

I note, in passing, that the suggestion that the appellant would have suffered irreparable harm because of the fact that the items attached by the sheriff were used to store perishable goods has little merit.

In any event, in order to have succeeded before me, the appellant was required to have shown that it had a clear right to the relief sought. For the reasons that I mentioned in my judgment it was unable to do so. I note, too, that this finding has not been challenged among the appellant’s grounds of appeal.

I have reconsidered the matter in the light of the application for leave to appeal and the heads filed therewith, but I am not persuaded that a reasonable possibility exists that a different court might come to a different conclusion

Order

[13] In the circumstances I make the following order:

1. The application for leave to appeal is refused.

2. There is no order as to costs.

__________________

R Haslop

Acting Judge of the Labour Court