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2024
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[2024] ZALCJHB 184
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Harold v Moyane N.O. and Another (J1689/23) [2024] ZALCJHB 184 (2 May 2024)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no:
J1689/23
In
the matter between:
LIGEGE
NDIFELANI HAROLD
Applicant
and
LUCY
MOYANE
N.O.
First
Respondent
DEPARTMENT
OF EDUCATION
Second
Respondent
Heard
:
18 April
2024
Delivered
:
2 May 2024
(This judgment was handed down electronically by
emailing a copy to the parties. The 2
nd
May is deemed to
be the date of delivery of this judgment).
Summary:
Ex parte contempt application. Failure to satisfy requirements.
JUDGMENT
DANIELS
J
Introduction
[1]
This is an application to hold the respondent, the Department
of
Education, in contempt, for its alleged failure to comply with a
certified arbitration award dated 10 June 2022 (hereafter “
the
first award
”).
[2]
The matter was enrolled before my brother, Makhura J,
on 1 February
2024. The matter was struck from the roll on the basis that the first
award was not properly certified, and an uncertified
award could not
assist the applicant in a contempt application.
[3]
The matter came before me on 18 April 2024, as an application
to have
the matter re-enrolled. The applicant, however, argued the contempt
application as well. It was therefore prudent to the
contempt
application, if the application was reinstated.
[4]
Unfortunately, the applicant was unrepresented in these
proceedings,
and he drafted the pleadings himself. With respect, as is to be
expected from any unrepresented litigant, the pleadings
were not the
model of clarity.
[5]
It is necessary to briefly consider the history to this
matter.
Regrettably, there is a lengthy and tortuous history to the matter.
Material
facts
[6]
Mr Harold Ligege (hereafter “the educator”
or “the
applicant”) was employed by the Department of Education:
Mpumalanga as a Post Level 1 educator.
[7]
From 2015, the educator reported for duty at the Department’s
circuit office until, during early 2021, he was instructed to report
for duty at Ithole Primary School (hereafter the “School”).
For reasons which are not important at this stage, the educator was
unhappy with this instruction, and so was the School Governing
Body
(hereafter “the SGB”) of the School.
[8]
On 15 July 2021, the Department informed the educator
that his
services had been terminated, by operation of law, in terms of
section 14(1)(a) of the Employment of Educators Act No.
76 of 1998
(hereafter “the Educators Act”). The educator referred a
dispute to the Education Labour Relations Council
(hereafter “the
Council”) alleging that he had been dismissed by the Department
and his dismissal was unfair.
[9]
On 10 June
2022, Commissioner Havenga issued an arbitration award (as previously
mentioned, this is the “first award”)
in which he found
that the educator had been dismissed and his dismissal was
procedurally and substantively unfair. Commissioner
Havenga ordered
the Department to reinstate the educator, retrospectively, with
effect from 15 July 2021.
[1]
Commissioner Havenga directed the educator to report for duty at the
School on 1 July 2022.
[10]
The educator states that he reported for duty at the School on 1 July
2022
but he was turned away by the SGB because they were overstaffed.
The Department alleges that educator never reported for duty on
1
July 2022. The educator states that, after the first award:
10.1 The
Department “chose to pay my salary retrospectively”,
10.2 The
Department “decided to terminate my salary in February 2023”.
[11]
The Department alleged that, by January 2023, and the educator’s
services
had again terminated by operation of law, in terms of
section 14(1)(a) of the Educators Act. Once again, the educator
alleged that
he had been dismissed and his dismissal was unfair.
[12]
The educator again referred a dispute to the Council for conciliation
and,
when that failed, arbitration. The dispute was enrolled for
arbitration before Commissioner Boyce over several days during 2023.
[13]
On 28 August 2023, the educator requested that the arbitration (which
was scheduled
for 30 and 31 August 2023) proceed virtually because he
could not afford to travel to the Council. The Council rejected his
request
and advised the educator that the arbitrator had earlier
ruled that the hearing must proceed in person.
[14]
On 30 August 2023, when the educator failed to arrive for the
arbitration,
Commissioner Boyce postponed the arbitration to the
following day. When the educator failed to arrive on 31 August,
Commissioner
Boyce dismissed the applicant’s case (the “
second
award
”).
[15]
The educator filed an application to rescind the second award.
[16]
On 10 October 2023, Commissioner Boyce dismissed the rescission
application
(the “rescission ruling”). It appears that
the educator has not instituted an application to review the
rescission
ruling. The educator believes that he is entitled to
enforce the first award because, in his view, the Department has not
complied
with the first award.
Legal
issues and analysis
Application
to re-enrol the contempt application
[17]
The application to re-enrol took the form of a letter addressed to
the court. This does not comply
with the formalities in the Rules.
However, considering that the applicant is a lay person, and
unrepresented, it is equitable
that I condone non-compliance with the
Rules.
[18]
Once the application was struck from the roll, the applicant acted
promptly to have the award properly
certified and to have the matter
re-enrolled.
[19]
The applicant has a reasonable explanation for his default – he
is unrepresented, and a layperson
with little or no legal knowledge.
In the circumstances, good cause has been shown and the contempt
application is reinstated.
Having reinstated the contempt
application, two legal issues arise: (1) has the applicant satisfied
the requirements for contempt,
and (2) given that the contempt
application relies on the respondents’ alleged non-compliance
with the first award, what
is the effect of the second award?
Requirements
for Contempt
[20]
The contempt applicant before the court related to alleged
non-compliance with the first award. I must
explore the requirements
in an application to hold someone in contempt of court.
[21]
In
Fakie
NO v CCII Systems (Pty) Ltd
[2]
(hereafter “
Fakie
”)
Cameron JA (as he then was) put it as follows:
“
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)
[22]
At para 42, Cameron JA (as he then was), succinctly set out the
requirements for contempt. An applicant
must prove all the requisites
of contempt – namely existence of the order; service of the
order; non-compliance with the
order; wilfulness and mala fides –
all of which must be proved beyond reasonable doubt. But, once the
applicant has proved
existence of the order, service or notice of the
order, and non-compliance, the respondent bears an evidential burden
in relation
to wilfulness and mala fides. If the respondent fails to
advance evidence that establishes reasonable doubt, as to whether
non-compliance
was wilful and mala fide, contempt will have been
established beyond reasonable doubt.
[23]
In this
matter, the applicant, the educator, does not state in what manner
the Department failed to comply with the certified award
(i.e. the
first award).
[3]
Instead, from
the applicant’s own papers, it appears that the Department
reinstated the educator’s salary and made
retrospective payment
of his salary as required by the certified award. Accordingly, it
appears that the Department reinstated
the applicant, and he remained
employed until his second deemed discharge during January 2023.
[24]
It appears that the applicant believes that he has not been
reinstated (in accordance with the first
award) because the
Department did not compel the SGB (of Ithole Primary School) to
permit him
physically
to teach there.
[25]
In
National
Union of Textile Workers and others v Jaguar Shoes
[4]
the court explained that, at common law, an employer that is ordered
to
reinstate
an employee will be deemed to have complied with the order if it pays
the remuneration due to the employee in respect of his normal
hours
of work. Simply put, an employer is not required to provide work to
the employee, but the employer is required to remunerate
the employee
when the employee has tendered his services (absent extraordinary
circumstances).
[26]
From the
applicant’s own version, it appears that the employer paid him
his remuneration for the period before the first award,
and it paid
him his remuneration from 1 July 2022 until the second deemed
discharge during January 2023. It therefore
appears
that the applicant was reinstated following the first award.
[5]
[27]
In the circumstances, the application for contempt must fail. The
applicant failed to prove
beyond reasonable doubt
that the
Department has not complied with the first award.
Effect
of the second award on the contempt application
[28]
For whatever reason, the applicant chose not to institute review
proceedings to review and set aside
the second award, which was
issued on 10 October 2023.
[29]
Regrettably, the applicant can no longer seek reinstatement through
the operation of the first award.
If, after January 2023, the
applicant desired reinstatement he was obliged to challenge the
second award.
[30]
The issue
of the second award (dismissing the applicant’s unfair
dismissal claim) is an administrative act. If the second
award has
not been reviewed and set aside, it is presumed to be lawful and it
has legal consequences.
[6]
In
the circumstances, there is presently no arbitration award finding
that the deemed discharge of the applicant on or about 7
January 2023
constituted a dismissal and that such dismissal was substantively
unfair.
Conclusion
[31]
In the
result
, the
application to reinstate the matter is granted. The application to
hold the respondents in contempt of court is dismissed.
RN
Daniels
Judge
of the Labour Court of South Africa
[1]
His backpay, under the award, amounted to R293 713, 46. The
employee advised the court that the Department had paid him
these
monies.
[2]
2006
(4) SA 326 (SCA)
[3]
For example, it was unclear whether the Department paid interest on
the amount of R293 713, 46 (see para 70 of the first
award).
Section 143(2) states that where an arbitrator orders payment of a
sum of money, that amount attracts interest at the
rate prescribed
in the Prescribed Rate of Interest Act from the date of the award.
The award was issued on 10 June 2022. Thus,
interest would have
accrued from 10 June 2022 until the date of payment.
[4]
1987 (1) SA 39
(N) para 44 – 5
[5]
Insofar the court’s conclusion in paras 23 and 26 is incorrect
(and the applicant has not been paid the full amount of
money due to
him under the first award plus interest) the applicant ought to seek
legal advice as to whether he may issue a writ
of execution to
recover such monies or institute legal proceedings to recover such
monies in the civil courts, or the Labour
Court in terms of
section
77(3)
of the
Basic Conditions of Employment Act No. 75 of 1997
. See
also fn. 3 above.
[6]
Oudekraal
Estates (Pty) Ltd v City of Cape Town and others
2004 (6) SA 222
(SCA) at paras 26 – 29