Emalahleni Local Municipality v Moloko Ephraim Phooko NO and Others

On 17 July 2013, Mr Rapolae was appointed as head of traffic and security department of the Emalahleni Local Municipality. In May 2016, he was transferred to a new position. Aggrieved by the transfer, he lodged a grievance. After the conclusion of the grievance process, Rapolae refused to report to his new position, resulting in his suspension. Following a disciplinary hearing, Rapolae was dismissed around October 2019. He referred a dispute to the bargaining council alleging unfair dismissal. On 18 December 2019, an arbitration award was issued ordering the municipality to reinstate Rapolae and pay him compensation. In January 2021, the municipality launched a review application alleging defects in the arbitration award. During March 2021, Rapolae commenced certification of the award to take executionary steps. At the beginning of April 2021, the award was certified and Rapolae and his union indicated that executionary steps would be taken. On 13 April 2021, the municipality launched an urgent application to stay enforcement of the award and to be exempted from furnishing security.

• Whether it is a condition for the grant of a stay of enforcement that security must be furnished
• Whether granting a stay without an order for payment of security secures the stay of enforcement in terms of section 145(3) of the LRA
• Whether there is a connection between section 145(3) powers and section 145(7) provisions of the LRA
• Whether the applicant has made out a case for the stay of enforcement
• Whether the applicant should be exempted from furnishing security under section 145(7) and (8) of the LRA

1. The application is heard as one of urgency. 2. The enforcement of the award issued by Commissioner Moloko Ephraim Phooko under case number MPD 101908 dated 17 December 2020 is stayed pending the finalization of the review application launched under case number JR47/21. 3. The applicant is absolved from furnishing security as contemplated in section 145(7) and (8) of the LRA. 4. There is no order as to costs.

1. Section 145(3) and section 145(7) of the LRA are separate and distinct provisions that are not dependent on each other. 2. The Labour Court retains a self-standing discretionary power under section 145(3) to stay the enforcement of an arbitration award pending its decision, which may be exercised independently of section 145(7). 3. Where a party obtains an order to stay enforcement under section 145(3), such party does not require the automatic suspension provided by section 145(7) which is actuated by furnishing security. 4. The principles from Gois v Van Zyl remain applicable: a stay will be granted where real and substantial justice requires it, where there is a well-grounded apprehension of execution, where irreparable harm will result if execution proceeds and the applicant ultimately succeeds, and where the underlying causa is the subject-matter of an ongoing dispute. 5. The Labour Court is bound by the LAC decision in City of Johannesburg v SAMWU obo Monareng, which establishes that the default position is that an applicant must furnish security, but this does not preclude the granting of a stay under section 145(3) without security being furnished. 6. An applicant may be exempted from furnishing security if it demonstrates assets of sufficient value to meet its obligations should the arbitration award be upheld on review.

The Court observed that if the legislature intended a connection between subsections (3) and (7), subsection (3) would have been amended to read 'Subject to subsection [7] the Labour Court may stay the enforcement of the award pending its decision.' The Court noted that the legislature uses specific language such as 'subject to section' when it intends to create dependencies between provisions (as seen in section 158(1)(g) of the LRA). The Court commented that a subsection (3) application may be launched even before a review application is instituted, for example where a non-party to an award needs to be added. The Court noted that where an applicant for review does not comply with the Rules and Practice Manual, a review shall be deemed withdrawn or lapse and be considered dismissed, entitling the other party to execute without further ado. The Court observed that where a party is unable to furnish security, the only way to prevent imminent irreparable harm is to obtain a stay, which is equivalent to an interim interdict. The Court noted that should the applicant fail in its review, the rights of the employee emanating from the award remain intact for 30 years (referring to the prescription period for enforcement of court orders).

This case is significant in South African labour law for clarifying the relationship between section 145(3) and section 145(7) of the LRA. The judgment establishes that the Labour Court's discretionary power to stay enforcement of an arbitration award under section 145(3) is independent from the automatic suspension mechanism in section 145(7) that operates upon furnishing of security. The judgment confirms that a party seeking review of an arbitration award may obtain a stay of enforcement without necessarily furnishing security, provided the traditional requirements for a stay are met. This provides important protection for parties (particularly municipalities and employers) who may not have liquid funds readily available for security but who have a genuine review application pending. The case also provides guidance on the proper interpretation of amendments to the LRA and clarifies the 'default position' referred to in earlier cases, holding that it relates to the general rule that launching a review does not automatically suspend an award, rather than being a requirement to furnish security before a stay can be granted.