After getting an arbitration award, what

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After getting an arbitration award, whats next?
Methods for, and obstacles to, enforcement. Mr
Craig Bosch
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• 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

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• What are the requirements for certification?
• Is it done on notice to the employer?
• After certification, whats 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

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• 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

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• 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 Shakespeares Pub v
  Van Zyl others 2003 11 BLLR 1176 (LC)

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• Options in tailoring orders to stay execution
• The proposed amendments

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• 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

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• 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.

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• Part B Obstacles to enforcement
• 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

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

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• 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

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• 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

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• 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

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

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• 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.