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[2021] ZAGPPHC 368
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Makwane v Baraka Enterprise Consulting (Pty) Ltd and Others (13681/2021) [2021] ZAGPPHC 368 (3 June 2021)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG
PROVINCIAL DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER JUDGES:
NO
(3)
REVISED:
NO
(4)
Date of hearing: 26 March 2021
CASE
NO: 13681/2021
In
the matter between:
KHOLOFELO
MAKWANE
APPLICANT
And
BARAKA
ENTERPRISE CONSULTING (PTY) LTD
FIRST
RESPONDENT
(Registration
No.: 2003/003366/07)
MANIE
BARNARD
SECOND RESPONDENT
L
JANSEN VAN
RENSBURG
THIRD RESPONDENT
JUDGMENT
NYATHI
AJ
A.
INTRODUCTION
[1]
This is an urgent
application wherein the Applicant seeks the following relief against
the Respondent:
1.1
That
non-compliance with the Rules of this Court regarding forms of
service and time periods be and is hereby condoned and the matter
be
heard as urgent in terms of Rule 6(12)(a),
1.2
That
the First, Second and Third Respondents be found to be in contempt of
a Commission for Conciliation, Mediation and Arbitration
[CCMA] award
dated 25 February 2021 under Case No.: GATW 855-21.
1.3
That
the First Respondent be ordered to re-instate the Applicant with
immediate effect in accordance with the CCMA award.
1.4
That
First Respondent and/or Third Respondent be ordered to pay the
Applicant R45 000.00 in respect of back pay as ordered
in the
award.
1.5
That
Third Respondent’s conduct in respect of contempt be reported
to the Legal Practice Council.
1.6
That
the Respondents be ordered to pay Applicant’s costs jointly and
severally on an attorney and own client scale.
B.
SUMMARY OF MATERIAL FACTS
[2]
The Applicant had
been employed by the First Respondent in terms of a fixed-term
contract. When the First Respondent did not renew
the Applicant's
contract, the Applicant lodged a dispute at the CCMA for arbitration.
[3]
The Second
Respondent is a service delivery manager employed by the First
Respondent.
[4]
The Third
Respondent was the legal representative of the First Respondent
following the outcome of the CCMA proceedings.
[5]
The
Commissioner in the CCMA proceedings issued an award in favour of the
Applicant, directing that the Applicant was to be reinstated
by the
First Respondent in his position as from 8 March 2021, and further
that he was to be paid an amount of R45,000.00 by the
First
Respondent as retrospective remuneration. The award was delivered by
the Commissioner by email on 26 February 2021.
[6]
On or about 5
March 2021, the Third Respondent, acting on instruction of and on
behalf of the First Respondent as its legal representative,
sent a
letter to the Applicant in order to inform the Applicant of the First
Respondent's intention to bring a formal review application
pertaining to the CCMA award. The letter also stated that an amount
of R45,000.00 would be placed on trust by the First Respondent
to
stay the operation of the award pending the outcome of the review
application. The letter also advised the Applicant not to
report for
work on 8 March 2021.
[7]
Notwithstanding the letter, the
Applicant attended the premises of the First Respondent on 8 March
2021, where he was subsequently
refused access.
[8]
Further correspondence was exchanged,
and the Applicant again attended the premises of the First Respondent
on 11 March 2021, only
to be refused access. The Applicant thereafter
brought this application on 15 March 2021, as aforesaid.
[9]
No evidence has
been adduced by the Applicant that he has had the arbitration award
certified in terms of section 143(3) of the
Labour Relations Act 66
of 1995 (hereinafter "the LRA").
C.
URGENCY
[10]
The Applicant
seeks initially, an order that this matter be heard as one of
urgency. the provisions of Rule 6 (12) in the case of
urgent
applications, permits the court to: “dispense with the forms
and service provided for in these Rules and to dispose
of such matter
at such time and place and in such manner and in accordance with such
procedure (which shall as far as practicable
be in terms of these
Rules) as to it seems meet.”
[11]
The
principles relating to urgent applications are trite by now, having
been laid out by Coetzee J in
Luna
Meubel Vervaardigers (Edms) Bpk v Makin Furniture & Another (t/a
Makin Furniture Manufacturers (Pty) Ltd
,
[1]
I
do not deem it necessary to repeat them here.
[12]
The Applicant did
not expansively lay out the degree in which it sought to deviate from
the standard timeframe, save for explaining
the events leading to the
loss of employment and how the matter ended up at the CCMA.
[13]
It
was submitted on behalf of the Applicant that by its very nature a
contempt application is urgent. Judicial reasoning supports
this view
as well. Plasket AJ (as he then was), held that ongoing contempt of a
court order, by its very nature, is urgent.
[2]
[14]
One
of the objects of contempt proceedings is by punishing the guilty
party to compel performance of the order.
[3]
[15]
I thus acceded to
this request and heard this matter on an urgent basis.
D.
JURISDICTION – APPLICANT’S VERSION
[16]
The Applicant based his application
firstly, on the provisions of section 143 (1) of the LRA which
provides that:
“
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 …”
[17]
Secondly the Applicant relies on
section 157 (2) (a) of the LRA to base his contention that this court
has jurisdiction to hear
this matter. The section reads as follows:
“
The
Labour Court has concurrent jurisdiction with the High Court in
respect of any alleged or threatened violation of any fundamental
right entrenched in Chapter 2 of the Constitution of the Republic of
South Africa … and arising from … employment
and from
labour relations …”
[18]
In paragraph 5 of his founding
affidavit, the Applicant alleges that he is a father of two minor
children for whose maintenance
he was responsible, and that because
of the Respondents’ non-compliance with the CCMA award he was
no longer able to provide
for them.
[19]
The Applicant
further state that his minor children have rights as enshrined in
Section 28 (1) of the Constitution and that he holds
corresponding
obligations to them.
[20]
The Respondents’
conduct is in further violation his right to human dignity by
deliberately refusing to implement an order
confirming his human
right to work and provide for himself and those he is responsible
for.
[21]
It was submitted
on behalf of the Applicant that the above submissions qualify this
matter to be brought to this court as it has
concurrent jurisdiction
with the Labour Court as contemplated in section 157 (2) (a) of the
LRA.
E.
JURISDICTION - RESPONDENT’S VERSION
[22]
The Respondents raise the following
issues in response to the Applicant’s version:
22.1
The
Respondents question whether this court has jurisdiction to entertain
the matter. The Respondents allege that only the Labour
Court has
exclusive jurisdiction to hear this matter in terms of section 157 of
the LRA. The Respondents further submit that in
terms of section 143
(4) of the LRA any non-compliance with the award by the CCMA ought to
be enforced by way of contempt proceedings
instituted in the Labour
Court.
22.2
The
Respondents also contend that the matter is not ripe for hearing,
because the arbitration award cannot be enforced. The Applicant,
according to the Respondents, labours under the mistaken impression
that the CCMA award dated the 25
th
of February 2021 constitutes a court order as envisaged in
Section
143(1)
of the
Labour Relations Act. The
Respondents submit that the
CCMA order only has the effect of a court order once certified in
accordance with the provisions of
section 143
(1) of the LRA. The
Applicant has not adduced any evidence that the arbitration award in
question has been certified In accordance
with the provisions of
section 143(3)
of the LRA.
22.3
As
to the merits of the matter, it must first be established whether all
three Respondents can correctly be found to be in contempt.
22.4
If
the Respondents can be found to be in contempt as alleged by the
Applicant, it must be determined whether the Applicant qualifies
for
the interdictory relief prayed for.
22.5
Finally,
the issue of costs must be determined, especially because the
Applicants seek a
de
bonis propriis
order against the legal representatives of the Respondent.
F.
ANALYSIS OF THE LEGAL PROVISIONS
[23]
In analysing the legal provisions, I
will confine myself to the question of whether this court has
jurisdiction to entertain this
matter, unavoidably the facts of the
merits may come up for consideration.
[24]
The above position is because at the
core of this matter is the enforceability of the CCMA order. The CCMA
order in turn incorporates
the main 3 prayers sought by the
Applicant, namely: That the Respondents be held to be in contempt,
Reinstatement, and the payment
of the R45 000 back pay.
[25]
The Applicant contends that this matter
has jurisdiction to deal with the enforceability of a CCMA order
arising out of the provisions
of
section 157
(2) which I quoted in
full in paragraph 17 above. The interpretation of this section has
created uncertainty for some years.
[26]
In
PSA
obo Members v Minister of Health and Others
[2019]
1 BLLR 71 (LC)
[4]
Van
Niekerk J at paragraph [11] considered the two Constitutional Court
judgments
of
Chirwa v Transnet Ltd
[2008] 2 BLLR 97
(CC), and
Gcaba
v Minister for Safety and Security & Others
2010 (1) SA 238
(CC) and one more by the Supreme Court of Appeal.
Referring to the matter of
Motor
Industry Staff Association v Macun NO & others
(2016) 37 ILJ (SCA) at para 20 the SCA, He quoted with approval the
SCA’s summary of the approach to be followed:
“
Section
157
(2) of the LRA was enacted to extend the jurisdiction of the
Labour Court to disputes concerning the alleged violation of any
right
entrenched in the Bill of Rights which arise from employment
and labour relations, rather than to restrict or extend the
jurisdiction
of the High Court.
The
Labour Court and Labour Appeal Court were designed as specialist
courts that would be steeped in workplace issues and be best
able to
deal with complaints relating to labour practices and collective
bargaining.
Put differently, the Labour and Labour Appeal Courts are best placed
to deal with matters arising out of the LRA. Forum shopping
is to be
discouraged. When the Constitution prescribes legislation in
promotion of specific constitutional values and objectives
then, in
general terms, that legislation is the point of entry rather than the
constitutional provision itself.” (my emphasis)
[27]
In
Merafong
City Municipality v SAMWU
[2016] 8 BLLR
758
(LAC) the Labour Appeal Court held that:
“
[29]
Section 157(1) is more of a confirmatory and reference section. It is
not in itself a primary source of jurisdiction. Instead,
it confirms
that the Labour Court has jurisdiction in matters where the Labour
Court has exclusive jurisdiction in terms of the
LRA. It also
confirms that the Labour Court’s jurisdiction where other
legislation provides that a matter has to be determined
by the Labour
Court. Its main purpose, as derived from its wording within the
context of the entire section 157, appears to be
to delineate to
those instances in which the Labour Court would have exclusive
jurisdiction.”
[30]
Section 157 (1) directs the reader of that section to the sources of
the Labour Court’s exclusive jurisdiction, albeit
in very vague
and general terms. It does not refer to specific sections in the LRA
but suggests that they are to be found elsewhere
in that Act. As a
result, the interpreter is saddled with the difficult task of having
to, for example, distinguish purely jurisdictional
provisions from
general empowerment provisions. The difficulty is exacerbated by
sections which purport to contain mere empowerment
provisions,
whereas they, on proper construction, also actually contain
provisions which are sources of the Labour Court’s
jurisdiction.
[31]
Section 158 is such a section. Its introductory wording specifically
states that it deals with the powers of the Labour Court.
Because the
introductory words of the previous section, that is section 157,
states that it deals with the jurisdiction of the
Labour Court, the
immediate expectation is that section 158 is not a source of
jurisdiction, but merely contains provisions defining
the powers of
the Labour Court in respect of matters, which, in terms of some other
provision of that Act, falls under the jurisdiction
of the Labour
Court. However, a close reading of the entire section 158 dispels
that initial notion. It does deal with powers (post
jurisdiction),
but also with powers, which cannot but be construed and understood as
sources of jurisdiction.”
[5]
[28]
The Labour Court in
PSA
obo Members (supra)
continued and
warned in para 14 of the judgment that “…
the
court should be circumspect and slow to assume jurisdiction in the
absence of any provision that expressly confers jurisdiction…”
(own emphasis).
[29]
As I have noted above, at the nub of
this application is the enforceability of a CCMA award. In terms of
section 143 (as amended),
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
,
unless it is an advisory arbitration award.
[30]
The Respondents have informed the
Applicant that they intend taking the grant of the award on review.
CCMA awards are
subject to review by the Labour
Court. This means that a party aggrieved by a decision made by a
commissioner in an award may
apply to the Labour Court in
terms of section 145 of the LRA, to have it set aside based on an
alleged defect with that award.
G.
CONCLUSION
[31]
Having regard to the scenario
above, I can find no place for a High Court to exercise any
jurisdiction. It would lead to a situation
so absurd that the
legislature, in enacting section 157 (2), could not have
contemplated.
[32]
The reinstatement part of the CCMA
award to remedy the alleged unfair labour practice is enforceable
through contempt proceedings
in the Labour Court. The LRA provides
that the monetary compensation aspect falls to be dealt with in terms
of section 143 (5)
which provides that:
“
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.”
[33]
Having regard to the aforegoing, I do
not find the way open to deal with the merits of this application for
want of jurisdiction.
The matter bears all the hallmarks of a forum
shopping expedition by the Applicant.
H.
ORDER
I make the following order:
The application is struck from
the roll. Applicant to pay the Respondent’s costs.
J.S. NYATHI
Acting Judge of the High Court
Gauteng Division, Pretoria
Date
judgment delivered: 03 June 2021.
On
behalf of the Applicant: Adv VM Magwane
Instructed
by:
NEMAXWI
ATTORNEYS
PROTEA
TOWERS BUILDING
Office
423
246
Paul Kruger Street
PRETORIA
0001
Cell:
076 190 2090
Email:
nemaxwitax@gmail.com
REF:
MAKWANE
On
behalf of the Respondent: Adv J. Van Wyk
Respondent's
Attorneys: Waldick Jansen Van Rensburg
CAMBRIDGE
Office Park
No.
05 Bauhinia Street
Building
No. 04, 1
st
Floor
TECHNO
PARK, HIGHVELD
CENTURION
Tel:
(012) 643 0004
Email:
herman@wjvr.co.za
;
lou@wjvr.co.za
;
jana@wjvr.co.za
.
REF:
GATW855-21
[1]
1977 (4) SA 135 (W)
[2]
Victoria Park Ratepayers Association v Greyvenouw CC & Others
[ZAECHC] Case No.: 511/2003 SAFLII Unreported par 26.
[3]
Nestadt J in Protea Holdings Ltd v Wriwt & Another 1978 (3) SA
865 (W)
[4]
Also reported as [2019] ZALCJHB 345 and (2019) 40 ILJ 193 LC
delivered on 12 October 2018.
[5]
Quoted by Van Niekerk J in PSA obo Members v Minister of Health &
others
supra.