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[2024] ZALCJHB 101
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SAUO obo Moller v MEC for Department of Education: North West Province and Another (J1527/2023) [2024] ZALCJHB 101 (5 March 2024)
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”).
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 ignored
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,
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
.
[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 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
[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
[1]
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) (31 March 2006)
[2]
2015 JDR 0841 (CC) at
para
28
[3]
Fn.
1