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[2024] ZALCJHB 96
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Rakgatla v Department of Education Limpopo and Another (J1243/12) [2024] ZALCJHB 96 (26 February 2024)
THE LABOUR COURT OF
SOUTH AFRICA
HELD AT JOHANNESBURG
Not
reportable
Case
no:
J1243/12
In
the matter between:
KGADI
MARGARET RAKGATLA
Applicant
and
DEPARTMENT
OF EDUCATION: LIMPOPO
First
Respondent
MEC
FOR EDUCATION LIMPOPO
Second Respondent
Date
heard:
22 February 2024
Judgment
delivered:
26 February 2024. The judgment was emailed to the
parties on this date.
Summary:
Application to rescind court order and revive writ of execution.
Application dismissed with no order as to costs.
JUDGMENT
DANIELS
J
Introduction
[1]
In this matter, the applicant prays for an order “reviving”
a court order issued on 16 April 2013. The applicant is
referred to
as “the employee”. The Department of Education is
referred to as “the Department”. The applicant
states
that the application is brought in terms of Rule 66(1) of the Uniform
Rules of Court read with section 163 of the Labour
Relations Act.
Material
facts
[2]
The Department had employed the applicant for several years, when,
during 2003, the Department issued a letter of redeployment
to her,
which she subsequently agreed to in writing. In the letter, the
Department treated the applicant as an “excess employee”.
[3]
The applicant alleged that she had earlier been “absorbed”
by the Department, and had been coerced into agreeing to
the
redeployment, which constituted an unfair labour practice. She
referred an unfair labour practice dispute to the Education
Labour
Relations Council (the “ELRC”).
[4]
The arbitrator, appointed by the ELRC, issued an
arbitration award (the “award”) on or about 24 May 2006,
in which he
found that the Department had committed an unfair labour
practice by redeploying the applicant. The arbitrator ordered the
Department
to employ the applicant as a First Education Specialist,
in accordance with its earlier letter dated 29 December 2000. This
letter
was not placed before the court.
[5]
On 13 November 2009, the Department sent a letter to the applicant
informing her that she had been absorbed as Senior Education
Specialist at Post Level 3, with effect from 1 December 2000.
[6]
The applicant maintained that the Department failed to pay her at
Post Level 3, and it failed to make her appointment retrospective
to
1 December 2000.
[7]
The applicant maintained that the Department had not complied with
the award, and she approached the Labour Court to make the award
an
order of court. On 16 April 2013, the Labour Court made the award an
order of court.
[8]
Pursuant to the order, a writ was issued by the applicant dated 17
December 2014.
[9]
In May 2015, the respondents applied for an order setting aside a
writ of execution issued by the applicant. These papers were
not
placed before the court.
[10]
During
2017, the writ of execution was set aside by this Court
[1]
in the absence of the applicant or her attorney, who was seriously
ill. The respondents maintained that it had complied with the
award
by engaging the applicant on Post Level 3 in the position of Senior
Education Specialist. Effectively, the current application
is brought
to rescind the order of this court in which it set aside the writ of
execution.
[11]
The court papers revealed that the applicant had also brought a
contempt application, which was dismissed. These court papers were
also not before the court.
Analysis
of the case
[12]
Rule 66 of the Uniform Rules of Court relate to the duration of writs
of execution. The Rule provides that writs remain in force
and may be
executed without being renewed until the judgment is fully satisfied.
Section 163 of the LRA provides that orders of
the Labour Court may
be executed as if they are decisions, judgments, or orders of the
Labour Court.
[13]
Court orders, do not, of course, need to be revived. Prescription was
not applicable either.
[14]
I accept that the applicant’s reference to revival of a court
order was an administrative error. In fact, the applicant sought
to
rescind an earlier order, and thereby revive the writ of execution -
which this court ruled could not be executed.
Material
dispute of fact
[15]
I note that there is a material dispute of fact on the papers –
whether the respondents complied with the order by remunerating
the
applicant at Post Level 3 from December 2000. In addition, I note
that the applicant seeks a final order.
[16]
It is trite
that in motion proceedings, where final relief is sought, in the
absence of a request to refer the dispute to oral evidence,
the court
will only grant such relief if: “
the
facts stated by the respondent together with the facts alleged by the
applicant that are admitted by the respondent, justify
such an order
unless the court is satisfied that the respondent’s version
consists of bald uncreditworthy denials, raises
fictitious disputes
of fact, is so far fetched or so clearly untenable or so palpably
implausible as to warrant its rejection merely
on the papers
.”
[2]
[17]
In its answering affidavit, the respondent explains:
17.1
There are three factors which impact on salary namely: (1) post
level, (2) notch level (the minimum notch to maximum notch = salary
range), and (3) qualifications (also termed “REVQ”).
17.2
The applicant was graded or positioned at REVQ 13 – 17.
17.3
Using REVQ 13 – 17:
17.3.1 The salary
range for post level 2 educators ranged from 8 – 9 (including
9).
17.3.2 The salary
range for post level 3 educators ranged from 9 – 10 (including
9).
17.4
Salary range 9 thus straddled post levels 2 and 3. In other words,
being in salary range 9 does not mean that an educator is not
being
remunerated at post level 3.
17.5
The applicant’s remuneration was R107 643 per annum, the third
notch of salary range 9.
17.6
The applicant has therefore been remunerated as Senior Education
Specialist at Post Level 3, with effect from 1 December 2000,
in
accordance with the award.
[18]
In reply, with no explanation or detail whatsoever, the applicant
stated that any increases she received were a result of her
qualifications and experience, and not compliance with the award.
Furthermore, once again, without any explanation, she said she
was
entitled to be placed at the third notch of salary range 10 from
December 2000 (R135 828 per annum). As a result, she alleges
that she
is entitled to backpay in the amount of R93 120, 58 per annum.
[19]
Applying
the
Plascon
Evans
test to this matter, the applicant cannot succeed. The factual
dispute must be resolved on the version of the respondent, unless
the
respondent’s denial is bald or uncreditworthy, it raises a
fictitious dispute, the denial is far-fetched, clearly untenable,
or
palpably implausible. In my view, the denial, far from being
far-fetched, is imminently creditworthy. In my view, the denial
by
the respondent is not only creditworthy, but clearly correct. In
fact, the table,
[3]
put up by
the applicant itself, which table forms part of the Employment of
Educators Act, clearly demonstrates that salary range
9 straddles
both post level 2 and post level 3. I find that the respondents have
not breached the award.
[20]
It is disappointing that the applicant chose to litigate this dispute
through the Labour Court, on motion. It was open to the applicant
to
bring its claim as a dispute regarding the implementation of a
collective agreement, or a breach of contract. Arbitration or
trial
proceedings is the better way to proceed when material disputes of
fact are foreseeable.
Costs
[21]
Although the applicant brought the application, which was
misconceived and without merit, I see no reason to mulct the
applicant
in costs. Equity demands that the applicant not be punished
for pursuing a case she genuinely believed in. No doubt she
acted
on legal advice. I make no order as to costs.
Conclusion
[22]
In conclusion, I find that the respondents have fully complied with
the award. In the circumstances, the application is dismissed,
with
no order as to costs.
R Daniels
Judge of the Labour
Court of South Africa
Appearances:
For the
Applicant:
Ms Grace Makoti
Instructed
by:
Makoti
Attorneys
For the
Respondent: State Attorney
Instructed
by:
Department
of Education
[1]
The order or judgment was not placed before the court.
[2]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984(3)
SA 623 (A) at 635C
[3]
See
page 129 of the paginated pleadings bundle.