Gauteng Department of Community Safety v General Public Service Sectoral Bargaining Council and Others (2025/054448) [2025] ZALCJHB 204 (30 May 2025)

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IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

 

Not
Reportable

Case
no: 2025/054448

 

In
the matter between:

 

THE
GAUTENG DEPARTMENT OF

COMMUNITY
SAFETY                                                 

Applicant

 

and

 

THE
GENERAL PUBLIC SERVICE SECTORAL

BARGAINING
COUNCIL                                              

First Respondent/Defendant

 

COMMISSIONER
ITUMELENG KGATLA N.O.            
Second Respondent/Defendant

 

SUENELTA
CELESTINE MARTIN                                

Third Respondent/Defendant

 

THE
SHERIFF OF THE COURT:

JOHANNESBURG
CENTRAL                                      

Fourth Respondent/Defendant

 

Heard:         
30 May 2025

Delivered:   
This judgment was handed down electronically by circulation to the
parties’ legal representatives by
email and publication on the Labour
Court’s website. The date for hand-down is deemed to be on 30
May 2025.

 

JUDGMENT

 

INTRODUCTION

 

[1] 
In this opposed urgent application, the applicant seeks the following
orders:

 

[1.1] that the
enforcement of the arbitration award issued under the auspices of the
General Public Service Sectoral Bargaining
Council under case number
GPBC 1148/2023 on 25 June 2024 by Commissioner Itumeleng Kgatla is
stayed in terms of s145(3) of the Labour Relations Act, 66 of 1995,
pending the outcome a review application launched with this
Honourable Court under case number 2025-043082;

 

[1.2]   The
third, fourth respondents are interdicted and restrained from
enforcing the arbitration award which was granted
under the auspices
of the General Public Service Sectoral Bargaining Council under case
number GPBC 1148/2023 on 25 June 2024 pending
the outcome of a review
application launched with this Honourable Court under case number
2025-043082.

 

[1.3] The third and
fourth respondents are interdicted and restrained from removing the
attached movable property of the Gauteng
Department of Community
Safety and selling the said movable property at public auction,
pending the outcome of the review application
launched by the
applicant with this Honourable Court under case number 2025-043082.

 

[1.4] exemption from
security of costs in terms of s145(7) of the Labour Relations Act, 66
of 1995

 

BACKGROUND

 

[2] 
The background to this application is summarised as follows:

2.1.  The third
respondent, Ms Martin, is employed by the applicant since May 2013 as
a provincial inspector. She was assigned
to a specialised unit in
January 2023 and her duties, involved law enforcement, recovery of
hijacked and stolen vehicles, drug
bust operations, earning a salary
of R23 000 per month.

 

2.2.  The applicant
invited Ms Martin and other officials to indicate whether or not they
would want to participate in a drone
pilot training programme to
commence 12 May 2023 and she was provided with the study material on
22 May 2023.   

2.3.  On 26 May
2023, the third respondent was informed by the Chief Provincial
Inspector, Mr Govender, that only the training
of crime prevention
wardens will continue. The Department emphasised that the training
will only be for crime prevention wardens
which will be facilitated
by private and independent company, Henry Air.       

 

2.4.  Ms Martin
contended that the withdrawal from the training programme constituted
an unfair labour practice in relation
to training and, as a result
thereof, referred the matter to the relevant bargaining
council.        

2.5.  The
Department, however, contends that the withdrawal from the programme
was due to operational reasons, namely budgetary
constraints and the
need for the Department to follow procurement processes. These
reasons were communicated to the third respondent
and other affected
employees at the time of the withdrawal from the programme. 

 

2.6.  The second
respondent, in his award, came to the conclusion that the applicant
committed an unfair labour practise. He
awarded, Ms Martin
compensation in the amount of R47 665.76, equivalent to two
months’ salary. He also ordered that
the applicant include ethe
third respondent in the next batch of drone pilot training and that
the award was to be implemented
by 31 July 2024.

 

2.7.  It is this
arbitration award that the applicant has taken on review and is
pending before this Honourable Court under
case number 2025-043082.
In addition thereto, the Department also applied for the condonation
for the late filing of the review.      

2.8.  On 20 March
2025, the Sheriff of the Court, Johannesburg Central, executed a
warrant of execution by presenting a notice
of attachment to the
Department. The sheriff then proceeded to attach one hundred desks
which are estimated to be at a value of
R30 000 and two hundred
chairs, which are estimated to be at a value of R20 000, the
total inventory amounting to R50 000.
The sheriff of the court
has not yet removed the attached property from the Department. The
removal and sale in execution is, however,
imminent.

 

URGENCY

[3] 
It is trite that an applicant who institutes urgent proceedings in
this court must justify the necessity to circumvent
the ordinary
timeframes as set out in the rules of this Court. Rule 38 of the
rules of this Court govern the bringing of urgent applications.

 

[4] 
An applicant must set out the circumstances and objective facts which
render the matter urgent and must demonstrate why
substantial redress
cannot be obtained at a hearing in due course.

 

[5] 
From the
founding affidavit, it is evident that the arbitration award was to
be implemented on 31 July 2024. No review application
was filed prior
to the sheriff executing a warrant of execution on 20 March 2025. The
applicant only filed its review to set aside
the abovementioned
arbitration award on 4 April 2025 under case number
2025-043082.[1]         

[6] 
The respondents’ representative, Mr Mahapa from the Public
Servants Association, stipulated that the review application
has been
prosecuted very late and with no haste. I agree with this submission.

 

[7] 
The applicant contends that this matter is urgent because the sheriff
has already attached the assets on 20 March 2025.
        
The attachment has already been effected on 20 March 2025 and this
has serious
implications for the applicant. Taking into account the
importance of this matter to both parties, I deem it in the interests
of
justice that the matter be heard as one of urgency and for the
merits to be disposed of.

 

MERITS

 

[8] 
It is trite
that this court may, in terms of s145(3) of the Labour Relations Act,
66 of 1995 (“the LRA”), stay the enforcement
of the
arbitration award pending its decision in a review application. The
principles to be considered when determining whether
an application
for a stay of execution should be granted was reaffirmed in Gois
t/a Shakespeare’s Pub v Van Zyl and others[2]
where the court states as follows:

 

“(a)    
A court will grant a stay of execution where real and substantial
justice requires it or where injustice
would otherwise result.

(b)     
The court will be guided by considering factors usually applicable to
interim interdicts, except
where the applicant is not asserting a
right, but attempting to avert justice.

(c)     
The court must be satisfied that:

 

(i)      
the applicant has a well-grounded apprehension that the execution is
taking place at the
instance of the respondent(s); and

 

(ii)     
irreparable harm will result if execution is not stayed and the
applicant ultimately cedes in
establishing a clear right.

 

(d)  Irreparable
harm will invariably result if there is a possibility that the
underling causa may ultimately be removed,
i.e. where the underlying
causa is the subject matter of an ongoing dispute between the
parties.

 

(e) 
The court is not concerned with merits of the underlying dispute, the
sole enquiry is simply whether the causa is in dispute.”

 

[9] 
In exercising my discretion, it is not necessary for this court to
decide whether or not the case advanced in the review
application has
merit or not. The applicant submits that it has reasonable prospects
of success in the review application as the
commissioner ignored
material evidence, thus resulting in a gross irregularity and
rendering the award unreasonable.     

[10] 
It is common cause that the fourth respondent attended at the offices
of the applicant on 20 March 2025 to attach and
remove the assets of
the applicant. The applicant submitted that the requirements for an
interim interdict have been established.

[11] 
The applicant averred that it had a prima facie right to
interdict the aforementioned arbitration award under circumstances
where the sheriff has attached assets. The applicant
submitted that
it will suffer irreparable harm should the third and fourth
respondents be allowed to proceed with the planned removal
of the
Department’s attached movable property.      

[12] 
The applicant’s representative further submitted that there was
no alternative remedy but to approach this court
since the sale of
the movable property at public auction was imminent and that the
balance of convenience favoured the applicant.     

 

[13] 
The third respondent’s representative criticised the applicant
for the immense delay in prosecuting the review
application and
failing to comply with the provisions of the arbitration award. Mr
Mahapa further argued that the applicant had
no prospects of success
in the review application.     

[14] 
In
Chillibush
Communications (Pty) Ltd v Michelle Gericke and others[3],
the approach of this court in dealing with applications to stay a
writ of execution pending a review or rescission application
was
summarised as follows:     

 

“In
terms of section 145(3) of the LRA, the court has a discretion to
stay the enforcement of the arbitration award pending the outcome
of
the review application. This discretion which is very wide has to be
exercised judicially taking into account certain factors.
The most
important consideration in the exercise of the discretion is whether
there is a pending underlying cause of action arising
from the
arbitration award or in certain instances arising from the court
order. There is a wide range of factors which the court
will take
into account in considering whether or not to order a stay of the
execution of an arbitration award, the most important
of which is
whether the interests of justice supports the stay of execution
pending the finalisation of the review or rescission
application.”[4]

[15] 
The third respondent’s representative conceded that there was a
review application before this court, however that
the applicant had
a hurdle to cross in respect of condonation for the late filing of
the review.

 

[16] 
I am, however, satisfied that there is a causa underlying the
writ of execution that may be removed if or when the application to
review and set aside the arbitration award is
finally determined. It
is evident that irreparable harm will result if the execution is not
stayed and the review application succeeds.
It is evident that the
applicant has no alternative remedy available to it.  

[17] 
As a result, I am satisfied that the applicant has made out a case in
respect of the stay of the writ of execution. 

 

[18] 
The applicant also, in terms of s145(7) of the LRA, seeks an
exemption from the security of costs. At the hearing of
this
application, the applicant had not furnished security as required.
The applicant’s representative made submissions that
this court
should exonerate it from providing security for costs and order that
the attached property, serves as security for costs.

 

[19] 
The applicant, did not make out a proper case for the exemption of
the provision of security in accordance with s145(8).

 

[20] 
In City
of Johannesburg v SA Municipal Workers Union obo Monareng and
another[5],
the Labour Appeal Court (LAC) upheld the principles outlined that all
employees, whether in the public or private sector, should
be subject
to the same requirement of providing security[6]
thereby disallowing the contrary view adopted in Free
State Gambling and Liquor Authority v Commission for Conciliation,
Mediation and Arbitration and others.[7]

 

[21] 
It is trite
that the onus is on the employer seeking an exemption from furnishing
security under s145(8) of the LRA to establish
that it has assets of
sufficient value to meet its obligations should the arbitration award
be upheld by the Labour Court on review.[8]  

[22] 
In this instance, the applicant’s representative indicated that
the writ of attachment showed an inventory to the
value of R100 000,
but in the founding affidavit the estimated amount is reflected as
R50 000.00. The applicant submitted
that this should be
sufficient security for costs in terms of section 145(7) of the LRA
as the compensation awarded was R47 665.76

 

[23] 
Taking into account all the facts of this matter, I am satisfied that
the assets of the applicant listed in the inventory
shall serve as
security for the purposes of s145(7) and (8)(b) of the LRA.      

 

COSTS

 

[24] 
In terms of
s162 of the LRA, the court has a wide discretion in awarding costs.
The Constitutional Court has recently reiterated
in Zungu
v The Premier of the Province of KwaZulu-Natal and others[9]
that costs orders should be made in accordance with the requirements
of law and fairness.

 

[25] 
I have considered Mr Mahapa’s request for costs. I am mindful
that section 161(2) stipulates that no party representing
the
applicant in the capacity as office bearer or official of that
party’s union may charge a fee, unless permitted to do
so.

 

[26] 
I have duly considered facts before me and taking into account the
ongoing relationship between the applicant and the
respondent, I am
of the view that in the interest of law and fairness, there should be
no order as to costs.

 

[27] 
In the premises, the following order is made:   

 

Order:

 

1.  The forms and
service provided for in Rule 38 of the Rules of this Court are
dispensed with and the application is dealt
with as one of urgency.

 

2.  The enforcement
of the arbitration award issued under the auspices of the General
Public Service Sectoral Bargaining Council
under case number GPBC
1148/2023 on 25 June 2024 by Commissioner Itumeleng Kgatla is stayed
in terms of s145(3) of the Labour Relations Act, 66 of 1995, pending
the outcome a review application launched with this Honourable Court
under case number 2025-043082.      

3.  The third,
fourth respondents are interdicted and restrained from enforcing the
arbitration award which was granted under
the auspices of the General
Public Service Sectoral Bargaining Council under case number GPBC
1148/2023 on 25 June 2024 pending
the outcome of a review application
launched with this Honourable Court under case number 2025-043082.

 

4.  The third and
fourth respondents are interdicted and restrained from removing the
attached movable property of the Gauteng
Department of Community
Safety and selling the said movable property at public auction,
pending the outcome of the review application
launched by the
applicant with this Honourable Court under case number
2025-043082.     

 

5.  The assets of
the applicant listed in the inventory as annexed to the applicant’s
founding affidavit shall serve
as security as contemplated in section
145(7) and (8) of the Labour Relations Act 66 of 1995.

 

6.  No order as to
costs.

 

L. Ah Shene

Acting Judge of the
Labour Court of South Africa

 

Appearances:

For
the Applicant: Ms N Lebese of The State Attorney

For
the Respondent: Mr K Mahapa (Union official from PSA)

 

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