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Who decides whether an employer has put up security “to the satisfaction of the Court”?

By Aadil Patel Director, National Practice Head and Kirsten Caddy Senior Associate, Employment, Cliffe Dekker Hofmeyr

 

In Moqhaka Local Municipality v Motloung and others (JS 1505/16, 14 October 2016) the Commission for Conciliation, Mediation and Arbitration (CCMA) found that the employee was unfairly dismissed and awarded him 6 months’ compensation. The employer took the award on review. The employer put up security in order to stay the enforcement of the award pending the finalisation of the review. The employer provided security in the form of a deposit of the requisite amount into the trust bank account of its attorneys. The employee contended that he did not receive proof of such payment into the trust bank account of the employer’s attorneys and issued a writ of execution. The employer brought this application to interdict the execution of the writ.

 

The questions before the court were:

 

  1. whether the registrar of the Labour Court had the power to issue a writ for the enforcement of an award sounding in money, because the amended LRA states that a certified award can be enforced as if it was an order of court; and

  2. who decides whether an applicant in a review application has furnished security “to the satisfaction of the Court” in order to stay the enforcement of the award.

 

In response to the first question, the Labour Court found that, because a certified award is also deemed to be an order of the Labour Court in respect of which a writ has been issued, it is completely unnecessary and redundant for the registrar of the Labour Court to formally issue a writ in circumstances where one is already deemed to have been issued by law. For the registrar to issue a writ in those circumstances has the effect that a second writ is issued where one is already deemed to exist. Accordingly, the writ issued by the registrar would be redundant and of no legal effect and the sheriff then has no authority to attempt to execute that writ. The employee must simply act on the strength of the certified award. On this basis, the Labour Court reviewed and set aside the writ of execution.

 

In response to the second question, the Labour Court held that the registrar or deputy registrar do not have the power to decide if security in terms of s145(8) of the LRA has been provided “to the satisfaction of the court”. Only the Labour Court can make that determination, usually in circumstances where the employer brings an application to interdict the employee from enforcing the award on the basis that it, the employer, has put up the requisite security. The solution is for the employer to obtain undertaking from the employee that no further steps will be taken to enforce the award in light of the security provided. If no such undertaking is forthcoming from the employee, the employer has no guarantee that the sheriff will not arrive at its premises to execute the deemed writ. It will then be necessary for the employer to institute proceedings to interdict the execution of the writ and the court will, at that stage, decide upon the sufficiency of the security.

 

For more information please contact Aadil Patel at or Kirsten Caddy at

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com

 

 

 

 

 

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