THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: J1527/2023
Not Reportable
In the matter between:
SAUO obo LINDA C MOLLER Applicant
and
MEC FOR DEPARTMENT OF EDUCATION:
NORTH-WEST PROVINCE – V MOTSUMI First Respondent
HEAD OF EDUCATION DEPARTMENT:
NORTH-WEST PROVINCE – DR S MVULA Second Respondent
Date heard: 29 February 2024
Date delivered: 5 March 2024
Summary: Application to hold respondents in contempt for refusing to give
effect to certified arbitration award. Respondents found to be in contempt and
ordered to give effect to the CCMA arbitration award.
JUDGMENT
DANIELS J
Introduction
[1] This is an application brought by the applicant to hold the respondents in
contempt of court. The applicant was represented in this matter by the Afrikaans
Onderwys Unie (hereafter “the Union”).
2
Material facts
[2] The applicant, Ms Linda Moller (hereafter “Moller” or “the applicant”) was
engaged by the Department of Education as an educator and graded at post
level 164. She challenged this at the Education Labour Relations Council (the
“ELRC”). After conciliation, the dispute was arbitrated. An arbitrator appointed
by the ELRC issued an arbitration award dated 27 November 2022 (the
“award”). In the award, the arbitrator found that Ms Moller was incorrectly
graded, and he then ordered:
2.1 The respondents to place Moller on post level 178 with effect from 15
December 2022; (own emphasis)
2.2 The respondents to pay backpay in the amount of R36 743, 50 by 15
December 2022, with interest at the prescribed rate if these monies were not
paid on 15 December 2022. (own emphasis)
[3] The award was certified, in terms of section 143 of the Labour Relations
Act No. 66 of 1995 as amended (hereafter “the LRA”) on 14 July 2023.
[4] On behalf of the respondents, the second respondent delivered an
answering affidavit in which he stated Moller was placed on post level 178 with
effect from 14 September 2023. He conveniently ignore d the fact that the
Department was required to move Moller on 15 December 2022, and it took the
Department almost one year to comply.
[5] The applicant contends that the move from post level 164 to post level
178 would have meant an increase in her annual salary from R284 238, 00 to
R304 746, 00; a difference of R20 508, 00 per annum or an amount of R1709,
00 per month. The respondents do not dispute this.
[6] In its answering affidavit, the respondents admit that:
6.1 They have received the award,
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6.2 They implemented the award with effect from 14 September 2023,
instead of 15 December 2022. Accordingly, respondents admit that they have
not fully complied.
6.3 They paid Moller the backpay referred to in the award, but this was on 14
September 2023. Accordingly, respondents admit that they have not paid
interest on the backpay from 15 December 2022 until 14 September 2023.
[7] This matter came before Tlhotlhalemaje J on 23 November 2023, who
ordered inter alia that: (1) the second respondent must attend court on 29
February 2024, and (2) the second respondent must correct the salary and
benefits of Moller from 15 December 2022 and pay any outstanding amount
because of this correction within 14 days.
[8] On 28 February 2024, the second respondent filed an answering
affidavit.
[9] On 29 February 2024, when the matter came before me, the second
respondent was not in attendance. The court order issued on 23 November
2023 made it clear that the second respondent was not excused from attending
court even if he filed an affidavit. From the bar, the respondents’ legal
representative stated that the second respondent is no longer employed by the
Department. It goes without saying that evidence cannot be accepted from the
bar.
[10] It is plain from the abovementioned narrative that:
10.1 The order issued by this court on 23 November 2023 came to the
attention of the respondents,
10.2 The respondents did not place the applicant on post level 178 with effect
from 15 December 2022,
10.3 The respondents did not pay the applicant interest (on the backpay) at
the prescribed rate with effect from 15 December 2022 to 14 September 2023.
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[11] The respondents allege that their partial fulfilment of the award is
adequate. In my view, this demonstrates that the non- compliance with the
award is deliberate and wilful. The respondents raised no difficulties they had
experienced with fully implementing the award.
Legal analysis
[12] Section 143(1) read with section 143(3) of the Labour Relations Act No.
66 of 1995 (hereafter “the LRA”) provides that a certified arbitration award may
be enforced as if it is an order of the Labour Court. Where a certified award
orders something other than the payment of money, the award may be enforced
by way of contempt proceedings in the Labour Court. Inasmuch as the certified
award is deemed to be an order of the Labour Court, the LRA requires that it be
accorded due respect.
[13] As Cameron JA (as he then was) so stated in Fakie NO v CCII Systems
(Pty) Ltd (Fakie):1
“[6] It is a crime unlawfully and intentionally to disobey a court order. This type
of contempt of court is part of a broader offence, which can take many forms,
but the essence of which lies in violating the dignity, repute or authority of the
court. The offence has in general terms received a constitutional ‘stamp of
approval’, since the rule of law – a founding value of the Constitution – ‘requires
that the dignity and authority of the courts, as well as their capacity to carry out
their functions, should always be maintained’. (Own emphasis)
[14] As Cameron JA eloquently put it, in Fakie, when court orders are
disregarded, this “sullies the authority of the courts and detracts from the rule of
law”.
[15] The Constitutional Court recorded in Pheko v Ekurhuleni Metropolitan
Municipality
2 that the willful disobedience of an order made in civil proceedings
1 2006 (4) SA 326 (SCA) (31 March 2006)
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is contemptuous and a criminal offence. Contempt in the context of civil
proceedings is coercive, and not punitive, in character.
[16] In this matter, it was common cause that the award was certified, that it
was served on the respondents, and there had not been full compliance with the
award.
[17] Once an applicant has proven the existence of the order; service of the
order; non- compliance (beyond reasonable doubt ) the respondent bears an
evidential burden in relation to wilfulness and mala fides .
3 If the respondent fails
to establish reasonable doubt as to whether non- compliance was wilful and
mala fide, contempt will have been established beyond reasonable doubt.
[18] Here, the respondents advanced no evidence that the non- compliance
was neither wilful nor male fides. They simply took the approach that partial
compliance was adequate. In the circumstances, I find that the respondents
deliberately chose not to comply.
[19] In all the circumstances, the evidence establishes, beyond reasonable
doubt, that respondents are in contempt of court. They have not fully complied
with the award:
19.1 They failed to pay interest on the backpay at the prescribed rate,
calculated from 15 December 2022 until 14 September 2023,
19.2 They failed to place the applicant on post level 178 with effect from 15
December 2022. This would have required them to adjust her remuneration
from 15 December 2022. Instead, the respondents did this with effect from 14
September 2023.
Costs
2 2015 JDR 0841 (CC) at para 28
3 Fn. 1
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[20] The application was made necessary by the respondents’ deliberate non-
compliance with an arbitration award. There is no reason in law and fairness
why the applicant should be denied costs.
Conclusion
[21] The application is successful. The respondents are indeed in contempt of
court. In the circumstances, I make the following order:
21.1 The first and second respondents are jointly and severally fined a total
amount of R100 000, 00 (one hundred thousand rands) , which fine is
suspended for 60 (sixty) days, subject to full compliance with the arbitration
award issued by the ELRC under case reference ELRC306-22/23NW by:
21.1.1 Complying with paragraph 16 of the arbitration award by placing the
applicant on post level 178 with effect from 15 December 2022 including the
necessary adjustments to her salary and benefits, and
21.1.2 Complying with paragraphs 17 and 18 of the arbitration award by
calculating and paying to the applicant the interest contemplated in those
paragraphs.
21.2 The respondents are ordered to pay the costs of this application, jointly
and severally, the one paying the other to be absolved.
R Daniels
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Ms AH Du Plessis, Smit Sewgoolam Inc
For the Respondents: State Attorney