It is the applicant’s duty to ensure that an award he has obtained from the CCMA is enforced. To do so, he has to follow the procedure prescribed in the CCMA rules. The CCMA award is binding and final and may be made an order of the Labour Court. Before such award can be enforced, however, it has to be certified by the director of the CCMA. Therefore, during the enforcement stage the CCMA is not actively involved in ensuring compliance with the award: It is up to the applicant to pursue his claim and deal with a recalcitrant employer.

 

Once the award is certified by the director, it is ready for enforcement. Thereafter, the applicant becomes responsible for ensuring that the employer is served with a copy of the award. The employer is required to adhere to or comply with the terms of the award once served on him, depending on the nature of the award. In my experience, the employer seldom complies with the award, especially if it is a monetary one. This becomes a heavy burden to bear for an applicant appearing in person without any legal assistance. Should the employer refuse to comply with the terms of the award, the applicant is left to return to the CCMA. During this period interest accrues in respect of the award in terms of s 143(2) of the LRA, as prescribed in terms of s 2 of the Prescribed Rate Act 55 of 1975. Failure by the employer to comply with the order results in the employer being in default, and the next step is to have the award certified in terms of s 143(3) (Griekwaland Wes Korporatiet v Sheriff Hartswater and Others In re Sheriff, Hartswater and Another v Monanda Landbou Dienste [2009] JOL 23720 (LC)).

 

The Labour Court

 

After the applicant has approached the director of the CCMA for certification in terms of s 143(3), his next step is to approach the Labour Court. He must apply to the registrar of the court for a writ of execution for enforcement of the award. To do so, he must attach all relevant documents, together with the forms that were completed when initiating the proceedings at the CCMA. Once the writ has been signed and stamped, it becomes ready for service and attachment and must be sent to the sheriff with jurisdiction to execute the writ. In this context, this will be the sheriff for the area where the employer’s place of business is situated.

 

Execution

 

In terms of general practice, the sheriff will open an account for the applicant, who is expected to pay the sheriff’s costs. The sheriff will then serve the employer with the writ of execution. The sheriff will be instructed to attach movables and thereafter will compile a list of assets for possible attachment. The sheriff must be specifically instructed to remove the assets discovered. Before proceeding with the attachment, the sheriff must be given security for any claims that might ensue as a result of such attachment. If the employee is unable to furnish the sheriff with security for costs, he may not be able to continue with enforcement of the award. Instead of the award yielding financial reward for the employee, it will at this stage incur financial costs. It is possible that the employer may not cooperate with the sheriff and instead consider taking steps to have the award rescinded.

 

Section 65A proceedings

 

The Labour Court enjoys the same jurisdictional status as that of the High Court and therefore has inherent powers in relation to matters within its jurisdiction. However, can a discontented employee bring an application in the magistrate’s court terms of s 65A?

 

In terms of this section, if a debt remains unsatisfied and the court has given judgment, the judgment creditor may issue from the court of the district in which the judgment debtor resides, carries on business or is employed (or, if the judgment debtor is a juristic person, from the court of the district in which the registered office or main place of business of the juristic person is situate) a notice calling on the judgment debtor (or a director or officer of the judgment debtor if a juristic person) to appear before court in chambers on a date specified to enable the court to inquire into the financial position of the debtor and make an order the court deems just and equitable. If the employer has failed to satisfy the award, and the sheriff has executed a writ of execution and has either compiled a nulla bona (no goods) return, indicating that there are no movable assets to be attached, or has been unable to gain entry to the employer’s premises, can the employee proceed with enforcement of the award in terms of this section?

 

I submit that reliance on this section provides a cost-effective solution in terms of which the employer is ordered to appear before a presiding officer to provide reasons for his failure to effect payment and a financial inquiry is conducted with the aim of establishing the judgment debtor’s financial status. Thereafter, the judgment debtor may be ordered to make monthly payments to settle the debt.

 

However, the transfer of civil judgments from the Labour Court to be enforced in the magistrate’s court, applying s 65A and M remains a grey area.