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[2024] ZALCJHB 94
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Nehawu obo Legodi v Laerskool Lindopark Primary (J1549/2023) [2024] ZALCJHB 94 (5 March 2024)
FLYNOTES:
LABOUR – Contempt – Failure to reinstate –
Commissioner
found dismissal substantively unfair – Ordered reinstatement
– Employee reported for duty but he
was turned away –
Employer contemplated instituting review of award – Not
instituted – Failed to advise
employee accordingly –
Failed to show any steps taken to give effect to award –
Respondents were aware of award
and deliberately chose not to
comply – Non-compliance is wilful and male fides –
Respondents are in contempt
of court.
THE
LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Case no:
J1549/2023
Reportable
In
the matter between:
NEHAWU
OBO FRANS LEGODI
Applicant
and
LAERSKOOL
LINDOPARK PRIMARY
First
Respondent
PRINCIPAL
VASI NAIDOO
Second Respondent
Date
heard:
28 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 National Education Health and Allied Workers Union
(hereafter “the Union”).
Material
facts
[2]
The applicant, Mr Frans Legodi (hereafter “Legodi”) was
employed as a general worker by the first respondent, the Laerskool
Lindopark Primary (hereafter “the school”).
[3]
On 8 August 2017, the school dismissed Legodi for gross
insubordination. Aggrieved by his dismissal, Legodi referred a
dispute
to the Commission for Conciliation, Mediation, and
Arbitration (hereafter “the CCMA”) for conciliation. When
that failed,
Legodi requested arbitration.
[4]
On 24 November 2017, the CCMA issued an arbitration award (hereafter
“the award”). In the award, the CCMA commissioner
found
that the dismissal of Legodi was substantively unfair because the
sanction was too harsh. Legodi was reinstated with effect
from the
date of the award, and the school was directed to issue to him a
final written warning valid for 12 months. Legodi was
required to
report for duty on 11 December 2017.
[5]
Legodi reported for duty at the school on or about 11 December 2017,
but he was turned away. The school principal at the time,
Mr JJ Van
Reenen, informed Legodi that his tender of services would not be
accepted because the school was contemplating a review
of the CCMA
award. Van Reenen further informed Legodi that the issue would be
considered at the next meeting of the School Governing
Body
(hereafter “the SGB”). Ultimately, the SGB did not
institute review proceedings but also failed to advise the
Union or
Legodi about this.
[6]
Neither the Union nor the respondents attempted to explain what
happened, if anything, between 2018 and 2021. If the school had
taken
any steps to give effect to the award, it failed to take the court
into its confidence.
[7]
On 28 October 2021, the Union applied to the CCMA to have the award
certified. The award was certified and sent to the school.
The school
took no notice of the certified award.
[8]
On 31 July 2023, the Union addressed a letter to the second
respondent, as the current principal of the school. In the letter,
the Union advised that Legodi would report for duty on 1 August 2023
and if his tender of services was not accepted the Union would
institute contempt proceedings.
[9]
On 14 August 2023, the second respondent sent a letter to the Union
advising that the SGB wished to settle the dispute with Legodi
on
financial terms. The second respondent proposed a meeting on 25
August 2023, to discuss settlement. At that meeting, the applicant
rejected the financial offer and insisted on reinstatement. The
second respondent undertook to place the issue on the agenda of
the
next meeting of the SGB and to revert thereafter.
[10]
On 14 September 2023, the second respondent sent a letter to the
Union. In the letter, the second respondent stated that the SGB
had
considered reinstating the second applicant and decided against it.
In the second respondent’s words: “
My mandate is to
advise you that the SGB will not reinstate your member
.” In
addition, the second respondent informed the Union that the SGB had
doubled its initial financial offer to settle the
dispute.
Significantly, the second respondent does not state that she
motivated the SGB to comply with the award.
[11]
At court, the second respondent alleged that the respondents cannot
take Legodi back into its service because:
11.1
The SGB has already
adopted an annual budget and it cannot find further funds to engage
Legodi,
11.2
The SGB has already
engaged another worker in the place of Legodi, and it would be forced
to retrench that worker,
11.3
The SGB had taken
its decision, and no single individual can reverse it,
11.4
Legodi did not
tender his services since he first did so shortly after the award was
issued.
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.
[13]
Inasmuch as the certified award is deemed to be an order of the
Labour Court, the LRA requires that it be accorded due respect.
[14]
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)
[15]
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
”.
[16]
The
Constitutional Court recorded in
Pheko
v Ekurhuleni Metropolitan Municipality
[2]
that
the willful
disobedience
of an order made in civil proceedings is contemptuous and a criminal
offence. Contempt in the context of civil proceedings
is coercive,
and not punitive, in character.
[17]
In this matter, it was
common cause that the award was certified, that it was served on the
respondents, and there had been no compliance
with the award. Once
the
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. Both respondents were aware
of the
award and deliberately chose not to comply. The SGB adopted a budget
which did not cater for the reinstatement of Legodi.
The SGB employed
another in his place. The SGB turned Legodi away on the pretext that
it would review the award. But, when the
SGB decided not to review,
it failed to call him back. In these circumstances, Legodi can hardly
be blamed for the apparent inaction
between 2018 and 2021. At most,
both parties are equally responsible for the period of inaction. In
the circumstances, the respondents’
non-compliance with the
award is wilful and male fides.
[19]
In
Pheko
[4]
at para 47, the court
stated that when: “
a
court order is disobeyed, not
the person named or
party to the suit but all those who, with knowledge of the order, aid
and abet the disobedience or wilfully
are party to the disobedience
are liable
”
.
The second respondent, despite the evidentiary burden to show that
her disobedience was not wilful, tendered no evidence that
she took
any steps to comply with the award.
[20]
The following sections of the
South African Schools Act No 84 of 1996
are relevant:
20.1
In respect of some functions, the school principal represents the
Head of Department of Education. The school principal is responsible
for the professional management of all educators and support staff -
section 16A(2)(a)(ii).
0cm;
line-height: 150%">
20.2
The governance of the school resides in the SGB -
section 16(1).
The
SGB may establish posts for non-educators and employ individuals
additional to the establishment determined under the Public
Service
Act, 1994.
20.3
All public schools have juristic personality (section 15). The
implication of this is that the first respondent was correctly cited
and the SGB, as the governance structure of the first respondent, is
bound by any decision in relation to the first respondent.
[21]
None of the provisions of the Schools Act permit the SGB, or the
second respondent, to avoid compliance with the certified award.
The
second respondent stated that she is an
ex officio
member of
the SGB but cannot tell it what to do. Importantly, the second
respondent does not state what she did, as an
ex officio
member of the SGB, to ensure compliance with the award.
[22]
The other arguments made by the respondents may quickly be disposed
of as follows:
22.1
The SGB has adopted an annual budget and has no funds to engage
Legodi. Even if this argument had merit, which it does not, the
respondent themselves made a financial offer to settle the dispute,
which would have required funds not provided for in the budget.
Clearly the budget is somewhat flexible. The annual budget is no
excuse.
22.2
The SGB has engaged another worker in the place of Legodi. This court
simply cannot allow the LRA, and its dispute resolution machinery,
to
be frustrated so easily. The respondents must take the consequences
of its own conduct. They chose not to review the award,
and they
chose not to comply with the award either.
22.3
The SGB has taken a decision not to comply, and no single individual
can reverse it. This is contemptuous of the CCMA, and this
court. If
this were permissible, rule of law would quickly become a thing of
the past.
22.4
Legodi did not tender his services since he first did so shortly
after the award was issued. Though there may well be good reasons,
such as financial limitations, this court cannot speculate as to the
reasons why Legodi did not report for duty on a regular basis
between
2017 and 2021. Importantly, the respondents do not claim that Legodi
waived his rights or that his rights under the award
had prescribed.
Respondents simply claimed that reinstatement is impractical given
the effluxion of time. This is no excuse. At
best, both parties are
equally to blame for the lengthy periods of inaction.
[23]
In all the circumstances, the evidence establishes, beyond reasonable
doubt, that respondents are in contempt of court.
Costs
[24]
The application was made necessary by the respondents’
deliberate non-compliance with an arbitration award. Its defences
were weak, bordering on frivolous. There is no reason in law and
fairness why the applicant should be denied costs.
Conclusion
[25]
The application is successful. The respondents are indeed in contempt
of court. In the circumstances, I make the following order:
25.1
The second respondent is sentenced to one month’s imprisonment,
wholly suspended for 60 (sixty) days, subject to the respondents’
compliance with the arbitration award issued by the CCMA under case
reference GATW12153-17 by:
25.1.1 Reinstating
Mr Legodi in the employ of the first respondent, with effect from 24
November 2017,
25.1.2 Upon
reinstatement, issuing a final written warning to Mr Legodi, valid
for 12 months.
25.2
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:
Union official
For the
Respondent: Adv Nel
Instructed
by:
Raymond
Hauptfleish Attorneys
[1]
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) (31 March 2006)
[2]
2015 JDR 0841 (CC) at
para
28
[3]
Fn.
1
[4]
Fn. 2