If you ask attorneys who regularly volunteer their time at the SASLAW pro bono offices at the various Labour Courts, they will tell you that the vast majority of persons seeking assistance require help with the enforcement of arbitration awards in their favour.
Indeed, this has even been recognised by the legislature which has sought to streamline the enforcement process by way of various amendments to section 143 of the Labour Relations Act 66 of 1995 (“the LRA”) (in 2002 and 2015 respectively).
Unfortunately, despite the legislature’s best efforts, enforcement of arbitration awards remains somewhat of a vexed and confusing process for unrepresented litigants.
Section 143(1) of the LRA provides that an arbitration award may be enforced as if it were an order of the Labour Court in respect of which a writ has been issued. Section 163 of the LRA, however, provides that an order of the Labour Court may be served and executed as if it were a decision, Judgment or Order of the High Court.
Notwithstanding this, section 143(5) of the LRA, in turn, provides that arbitration awards ordering the payment of a sum of money must be treated for the purposes of enforcement and execution as if it were an Order of the Magistrates’ Court. So which is it, Labour Court, High Court, or Magistrates’ Court?
These sections, of course, only relate to arbitration awards sounding in money. In respect of reinstatement awards, section 143(4) of the LRA creates a bespoke enforcement mechanism which requires awards to be enforced by way of contempt of court proceedings in the Labour Court.
The Rules of the Labour Court require an ex parte contempt of court application, followed by a return date when the person allegedly in contempt is afforded the opportunity to explain why they are not. This process, and the associated Rules, are difficult for unrepresented litigants to follow without legal assistance.
In CCMA v MBS Transport CC & Others; CCMA v Bheka Management Services (Pty) Ltd & others (2016) 37 ILJ 2793 (LAC) the Labour Appeal Court (“LAC”) interpreted the interplay between the aforementioned sections as follows:-
“[34] Section 143(1) tells us what the status of a certified award is. Subsections (4) and (5) tell us how it should be enforced. The effect of subsection (5) is, if the certified award to be enforced sounds in money, it is enforced and executed as if it is an order of the Magistrates’ Court. It does not become an order of the Magistrates’ Court. It is still assumed to be an order of the Labour Court in respect of which a writ was issued; however if it sounds in money it is treated for enforcement and execution purposes only as an order of the Magistrates’ Court. The words ‘despite subsection (1)’ in subsection (5) make it plain that despite the assumption in subsection (1) a certified award sounding in money may be enforced and executed as if it is an order of the Magistrates’ Court. There are Magistrates’ Courts in all districts in the country and this makes the enforcement of certified awards sounding in money accessible to most workers. The enforcement order in terms of s 143 clearly empowers the sheriff to execute in the same manner as would be the case if he or she received a warrant signed and issued by the Registrar of the Magistrates’ Court.” (emphasis added).
The LAC’s reference to the various Magistrates’ Courts being easily accessible is confusing. For one thing, an employee would not need to approach a Magistrates’ Court in circumstances where no writ of execution needs to be issued (because awards sounding in money only need to be certified by the CCMA). All that is required is a certified copy of the award from the CCMA and appropriate instructions to the Sheriff.1
For another, reinstatement awards must be enforced by contempt proceedings before the Labour Court. Perhaps what the LAC meant was that the Magistrates’ Court would assist employees with the enforcement process (i.e. Instructing Sheriff’s etc…). It is doubtful that any such assistance would be available should an employee approach the Magistrates’ Court with a certified CCMA award – irrespective of whether it sounded in money or required reinstatement (or both).
In any event, what has become commonplace is for the CCMA to assist unrepresented litigants by issuing instructions to the Sheriff to attach the movable property of defaulting employers on their behalf.
This is even the approach with reinstatement awards where the CCMA regularly seeks to assist by attaching movable property in support of the back-pay portion of any reinstatement award (i.e. for back pay from date of dismissal to date of reinstatement specified in the award).2
The above is precisely what transpired in the recent case of the Labour Court in Anthony Douglas James v Genesis Distribution Projects (Pty) Ltd.3 The facts were briefly as follows:-
- an employee was notified of his dismissal when his staff transport failed to collect him in the morning. When he contacted his employer, he was told that he was dismissed with immediate effect;
- he had neither a contract of employment, nor had the employer registered or made any UIF contributions, leaving him without any form of social safety net (or even any specific knowledge of which entity within the wider Genesis Group was his employer);
- in vindication of his rights, he managed to locate the CIPC registration details of his employer online, refer a dispute to the CCMA and secure a default arbitration award in terms of which he was reinstated with back pay. His tender of services was, however, rejected;
- he then sought the assistance of the CCMA, who had instructed the Sheriff on his behalf to attach the employer’s printer as a means of satisfying the back-pay portion specified in the award. He was not advised to proceed by way of contempt of court in respect of the reinstatement portion of the award;
- the employer filed what was styled as an ‘interpleader affidavit’ with the CCMA alleging that the printer belonged to the sole director of the employer in her own name. The attachment was released;
- at this stage, the CCMA advised the employee to attend at the SASLAW pro-bono office;
- it was only then that contempt of court proceedings as a means of enforcement were suggested to him (being long after the initial arbitration award);
- in the meantime, between the Sheriff and the CCMA, the originally certified award served on the employer (and the certification certificate) had been misplaced. The award thus needed to be re-certified and re-served;
- by the time the contempt of court proceedings were finally instituted, the employer had been de-registered for want of compliance with filing annual returns with CIPC. It is trite that no claim can lie against a de-registered entity because it lacks locus standi;
- in response to the ex parte contempt of court Order, the employer ultimately – albeit with scant detail being provided – alleged that the employee was in fact employed by another company within the Genesis Distribution Group, being an unregistered company purportedly operated by the husband of the sole director of the CIPC registered entity that the employee had cited at the CCMA.
The subsequent Judgment of the Labour Court is remarkable in many respects.4 Firstly, the Court held that in terms of section 83 of the Companies Act 71 of 2008, a director of a de-registered company remains liable for contempt for non-compliance with a certified CCMA award, provided that the certified award was served prior to its de-registration.
Secondly, the Court took umbrage at the fact that the former director of the employer had been required, by means of an Order, to explain the relationship between the alleged unregistered employer and the company which the employee had originally cited as his employer at the CCMA.
The Court moreover held, in terms of section 200B, that the corporate structure amounted to a sham, the intent or effect of which was to defeat the purposes of the LRA. Costs were awarded despite the fact that the employee was represented on a pro bono basis inter alia as a mark of the Court’s displeasure for the failure to provide details in relation to the group structure.
Finally, the Court was prepared to apply section 200B of the LRA and to reinstate the employee to the business being conducted by the erstwhile director of the employer, and her husband, under whatever guise it continues to be operated.
The Judgment constitutes vindication for an employee who has never given up in respect of enforcing his rights. It, however, also demonstrates the immense difficulties faced by many unrepresented litigants when trying to enforce arbitration awards in their favour. One does wonder whether the various amendments to the LRA have had their intended effect, or whether there is a better way for enforcement to be dealt with.
Perhaps judicial intervention in the form of wider reliance on section 200B – making provision for enforcement against third parties – and appropriately severe costs orders will, in the meantime, compel employers to think differently when trying to dodge awards.
1 See CCMA v Bheke Management Services (supra) where the LAC also held that “[t]he practical effect of section 143(1) and 143(3) is that a certified arbitration award may be enforced without the need for a writ to be issued by any court or the CCMA”.
2 Back pay from date of re-instatement in terms of the award, to date of actual (factual) reinstatement is dealt with through a separate contractual claim. See Coca Cola Sabco (Pty) Ltd v Van Wyk (2015) 36 ILJ 2013 (LAC)
3 Unreported, 4 September 2025, CA 34/2025 (LC)
4 A copy available here: James v Genesis Distribution Projects (Pty) Ltd and Another (Reasons) (C34/2025) [2025] ZALCCT 72 (4 September 2025)
