Pexmart CC v Commission for Conciliation, Mediation and Arbitration and others; Valard Bearings (Pty) Ltd v Metal and Engineering Industries Bargaining Council and others

These were two consolidated applications before the Labour Court. In the Pexmart matter, an arbitration award was issued on 13 April 2023 ordering Pexmart CC to reinstate employee Mojalefa Semelane and pay backpay of R123,552.00 (11 months' remuneration). Pexmart applied to review and set aside the award on 29 May 2023 but elected not to furnish security in terms of section 145(8) of the LRA nor to apply for exemption from the security provisions. The employee subsequently sought to enforce the award by certifying it on 9 June 2023. Pexmart only brought an urgent application to stay enforcement in 2025. In the Valard matter, an arbitration award was issued on 29 September 2024 ordering Valard Bearings (Pty) Ltd to reinstate an employee and pay backpay of R53,126.40. Valard applied to review the award on 22 November 2024 but similarly did not furnish security. The employee certified the award on 5 November 2024 and instructed the sheriff to attach assets. Both applicants approached the Court on an urgent basis seeking to stay enforcement pending the review applications and to be exempted from furnishing security under sections 145(7) and 145(8) of the LRA, alternatively to furnish reduced security. Both applicants cited financial difficulties and cash flow challenges as reasons for seeking exemption.

• Whether the applications to stay enforcement were urgent
• Whether urgency was self-created by the applicants' failure to comply with the security provisions timeously
• Whether applicants should be exempted from furnishing security in terms of section 145(8) of the LRA
• What amount of security is required under section 145(8) of the LRA in reinstatement cases
• Whether courts should entertain urgent applications from litigants who have disregarded statutory provisions

Both applications were struck from the roll for lack of urgency. There was no order as to costs.

The binding legal principles established are: (1) An application to stay enforcement of an arbitration award and for exemption from furnishing security under section 145(8) of the LRA is not inherently urgent merely because an employee has exercised their lawful right to enforce an award and the sheriff has attended the employer's premises. (2) Urgency is self-created where an employer files a review application without furnishing security as required by section 145(8) and without timeously applying for exemption, then only approaches the court urgently when enforcement proceedings commence. (3) Courts will not entertain urgent applications arising from self-created urgency caused by deliberate non-compliance with statutory provisions. (4) Under section 145(8) of the LRA, the security required for a reinstatement award is limited to 24 months' remuneration and does not include the amount of backpay awarded by the arbitrator. (5) Reasonable and law-abiding employers must take steps at the time of filing a review application, or shortly thereafter, to either furnish the required security, reach an agreement with the employee not to enforce, or file an application for exemption in the normal course.

The Court made strong obiter observations lamenting the pattern of employers who continue to disregard the security provisions with impunity, often represented by legal practitioners who should know better. The Court noted this was conduct that had persisted for 10 years since the promulgation of the security provisions. The Court observed that 'litigants should not expect aid from courts of law when they created the problem by disregarding the law' and that 'Courts should not be hastened by law breakers and stretch the already limited resources to entertain these self-created urgent applications.' The Court described such employer conduct as 'recalcitrant' and 'contemptuous' and stated that 'the disregard to section 145(7) and (8) of the LRA and the employers' contemptuous conduct must stop now.' The Court noted that applications for exemption prosecuted expeditiously in the normal course would be determined in a very short period of time, even if opposed, suggesting there was no legitimate reason for the urgent route taken by these applicants.

This judgment reinforces the importance of compliance with the security provisions in sections 145(7) and 145(8) of the LRA. It sends a strong message to employers and their legal representatives that disregard of these statutory provisions will not be tolerated, and that courts will not entertain urgent applications born from self-created urgency through non-compliance with the law. The judgment clarifies the correct interpretation of section 145(8) regarding the amount of security required (24 months' remuneration only, not including backpay awarded). It establishes that employers filing review applications against reinstatement awards must act proactively and timeously to furnish security, reach agreements with employees, or apply for exemption in the normal course - not wait until sheriffs arrive to enforce awards. The case represents judicial pushback against a pattern of non-compliance with security provisions that had persisted for 10 years since their promulgation. It emphasizes that courts will not aid law-breakers or allow litigants to use urgency as a mechanism to circumvent statutory obligations they have deliberately ignored.