The Labour Court in the recent judgment of Denel SOC Ltd v NUMSA obo Peterson & Another sought to provide guidance on an alternative approach when faced with the enforcement and stay of a default arbitration award pending an application to rescind that award before the CCMA/Bargaining Council.

Having the urgent roll clogged by many identical applications seeking to stay the enforcement of arbitration awards, Justice Moshoana expressed an interesting and valuable analysis and view on this issue.

In the matter before the CCMA, Denel had not attended the arbitration, which continued in their absence and resulted in a default arbitration award in Peterson’s favour being issued. Peterson, armed with the certified default arbitration award had instructed the sheriff to attach goods belonging to Denel in order to satisfy the monetary portion of the default arbitration award. Denel then launched an urgent application to the Labour Court to stay the enforcement of the arbitration award pending an application before the CCMA to rescind it.

Before considering the application on the merits, the Court took the view that it was in fact not mandated to stay the enforcement of the award if its own decision is not pending. In other words, where a decision of another dispute resolution body (e.g. the CCMA) is pending, the Court took the view that is not mandated by law to stay the enforcement of an arbitration award while that decision is pending before that other body.

The Court went on to opine that a default award is not an arbitration award that is capable of certification by the CCMA because it does not dispose of matters submitted for arbitration. The Court therefore took the view that although default awards are indeed binding, they are not final in nature.

The Court then expressed the view that the CCMA should and is empowered to stay the execution of a default arbitration award whilst its own decision on the rescission of the default arbitration award pends. The basis for this view is that the proper performance of the CCMA’s functions is such that it must have the authority to stay the execution of its awards while it determines an application in relation to that award.

Rule 31 (8) of the CCMA Rules suggests that the Commission or a commissioner may entertain an urgent application. Like in the Labour Court, such an application may be heard on a motion roll or determined in any manner the Commission or commissioner deems it fit.

This, as the Court reasons, will lessen the burden of the Labour Court.

These opinions expressed by the Court are not binding, as they do not amount to findings on an issue that was pleaded in the matter before Court. On the merits, the Court went on to grant the stay of execution sought by Denel, as has ordinarily been done by the Labour Court in circumstances such as these. However, this judgment may lay the foundation for matters relating to certification and stay of default awards to be handled differently in future. Of course, this will require the buy-in of the CCMA. It remains to be seen whether the CCMA/Bargaining Council will accede to this call.