After getting an arbitration award, what’s next? Methods for, and obstacles to, enforcement. Mr Craig Bosch

Part A: Methods of Enforcement Arbitration awards are final and binding and enforceable as if they were orders of the Labour Court – s143 LRA BUT only if they have been certified by the Director / delegated person

What are the requirements for certification? Is it done on notice to the employer? After certification, what’s next? –If required to pay a fixed sum: Writ of execution and attachment –If required to do something else (like reinstate): contempt proceedings in the Labour Court

1.Writs of Execution –From the Registrar –Then to the Sheriff – costs and security for costs Proposed amendments Options of applications for rescission or review and possible delays– and proposed amendments

Stay of execution of writ Not automatic once review proceedings initiated Court has a wide discretion Relevant factors? - Robor (Pty) Ltd (Tube Division) v Joubert & others [2009] 8 BLLR 785 (LC). See also Tony Gois t/a Shakespeare’s Pub v Van Zyl & others [2003] 11 BLLR 1176 (LC)

Options in tailoring orders to stay execution The proposed amendments

2. Contempt proceedings The disregard of the order must be deliberate and mala fide i.e. honest belief that non- compliance is justified or proper is not contempt. Where committal to prison or some other criminal sanction is sought the standard of proof is beyond a reasonable doubt

Where civil remedies are claimed the standard of proof is on a balance of probabilities Applicant must prove knowledge and non- compliance, but once it has done so the respondent must prove a lack of wilfulness and mala fides.

Part B: Obstacles to enforcement 1.Applications for rescission –erroneously sought or erroneously made in the absence of any party affected by that award –granted as a result of a mistake common to the parties to the proceedings. –Or on good cause shown – Shoprite Checkers (LAC) and proposed amendments

Application for rescission in 14 days of becoming aware of alleged defect. Late referrals can be condoned Can rescind certified awards

2. Review Application within 6 weeks of service of the award, subject to condonation of late referrals No prescribed period within which to apply for hearing date Danger of prescription

Proposed amendments to s145 –Must apply for hearing date within 6 months of delivering the application for review, subject to condonation by the court –Judgment must be within 6 weeks of the hearing unless exceptional circumstances require otherwise

3. Extinctive prescription The Prescription Act –Debt extinguished after 3 years from the date the debt is due, unless prescription is interrupted –Service by the creditor on the debtor of any (legal) process in terms of which the creditor claims payment of the debt interrupts prescription Arbitration award is a ‘debt’

A practical illustration: SA Transport & Allied Workers Union on behalf of Hani v Fidelity Cash Management Services (Pty) Ltd (2012) 33 ILJ 2452 (LC)

The proposed amendments: s145(9) ‘An application to set aside an arbitration award in terms of this section interrupts the running of prescription in terms of the Prescription Act (Act No. 68 of 1969) in respect of that award.’