South Africa: Fishing Without A Hook

Last Updated: 24 March 2016
Article by Suemeya Hanif and Alfred Selman

Most Read Contributor in South Africa, September 2018

Despite a recent court ruling, the status of enforcement awards issued by the Commission for Conciliation, Mediation and Arbitration ("CCMA") in terms of the amended section 143 of the Labour Relations Act 66 of 1995 ("LRA") remains a vexing issue.

The recent Labour Court cases of MBS Transport CC CCMA v Three Others and Bheka Management Services v Jonathan Kekana and Two Others, while arising from different facts, essentially required a determination of the same point and were therefore heard by the court at the same hearing.

In a nutshell, the factual milieu (as the court put it) of the two cases was that they were brought before the Labour Court on an urgent basis in order to stay the enforcement of the awards that were issued and certified by the CCMA.

In both applications, the Sheriff had attached the employer's goods, but had not yet removed them. The employers sought an order staying the enforcement awards, pending the outcome of their respective review applications.

Amended section 143 of the LRA

The relevant provisions of the amended section 143 of the LRA read as follows:

"143(1) An arbitration award issued by a commissioner is final and binding and it may be enforced as if it were an order of the Labour Court in respect of which a writ has been issued, unless it is an advisory arbitration award" (our emphasis).

"143(3) An arbitration award may only be enforced in terms of subsection (1) if the director has certified that the arbitration award is an award contemplated in subsection 1."

"143(5) Despite subsection (1), an arbitration award in terms of which a party is required to pay an amount of money, must be treated for the purposes of enforcing or executing that award, as if it were an order of the magistrate's court."

Beyond the court's powers

The court considered whether it had jurisdiction to stay the writs issued by the CCMA. After considering relevant case law, the court held that an application to set aside a writ can only be made to the court that issued the writ. The court further held that section 157(1) of the LRA specifies the matters over which the Labour Court has exclusive jurisdiction, whereas section 157(2) confers upon it concurrent jurisdiction with the high court in respect of certain matters. The court, therefore, concluded that the granting of a stay of a writ by the CCMA or by the magistrate's court falls outside the Labour Court's powers.

The court also considered whether the CCMA had the power to issue writs. It found, on a plain reading of section 143 of the LRA and rule 40 of the Rules for the Conduct of Proceedings before the CCMA, that it is clear that the CCMA is not statutorily given the authority to issue writs and the certification of an award and its subsequent execution through the Sheriff is in fact beyond its legal powers or authority.

In the circumstances, the court held that the proper course to follow is for litigants to issue the writs of execution in satisfaction of the arbitration awards in the Labour Court.

Not the law's intention

In our view, the court's reasoning and findings present some confusion and difficulty relating to how these amendments are to be interpreted and applied.

Firstly, the court's finding that the CCMA does not have statutory authority to issue writs, on the face of it, appears to be uncontroversial. This finding is based on the assumption that the awards certified by the CCMA in terms of the amended section 143(1) of the LRA are in fact writs. However, they are not. An award issued in terms of section 143 is a statutorily created instrument that enables a successful litigant in the CCMA to expedite the enforcement of such award without having to approach the Labour Court to do so. Put differently, the clear wording of section 143(1) indicates an intention to create a statutorily created mechanism, not for orders of the CCMA to become orders of the Labour Court in respect of which a writ has been issued, but for orders of the CCMA to be enforced as if they are orders of the Labour Court in respect of which a writ has been issued.

Secondly, if we were to accept the court's conclusion that the proper course to follow is for litigants to approach the Labour Court to issue the writs of execution in satisfaction of the arbitration awards, in our view, the words "in respect of which a writ has been issued" in section 143(1) becomes superfluous. In the court's words, "it is settled practice" over the years that writs of execution in respect of arbitration awards made by the CCMA were issued by the registrar of the Labour Court. If the proper course to follow, after the amendment, is for litigants to approach the Labour Court to issue the writs of execution in satisfaction of the arbitration awards, then we argue that the amendment is unnecessary and irrelevant.

This interpretation of the amendment is also inconsistent with the memorandum of objects on the Labour Relations Amendment Bill, 2012, which states that the amendments to section 143 of the LRA seek "to streamline the mechanism for enforcing arbitration awards of the commission and to make these more effective and accessible [by removing] the need for the current practice in terms of which parties have a writ issued by the Labour Court". In essence, the court's findings in this case are contrary to what the amendments aim to achieve.

Still the law, for now

Although this decision might cause some consternation and debate, which may necessitate legislative and/or judicial intervention, employers should be aware that this decision remains binding until set aside by the Labour Appeal Court. Accordingly, employers could therefore still expect to be served with writs issued by the Labour Court and may still approach the Labour Court to stay the enforcement of the writs pending the outcome of review proceedings instituted by them. Despite the amendments to section 143 of the LRA, employees seeking to enforce arbitration awards issued by the CCMA will still need to approach the Labour Court to have writs issued.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions