Upload
bertha-lloyd
View
216
Download
1
Tags:
Embed Size (px)
Citation preview
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)
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)