North West Star (Pty) Ltd v Serobatse and Another (JA42/2003) [2004] ZALAC 3; (2005) 26 ILJ 56 (LAC); [2005] 2 BLLR 125 (LAC) (30 April 2004)

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North West Star (Pty) Ltd v Serobatse and Another (JA42/2003) [2004] ZALAC 3; (2005) 26 ILJ 56 (LAC); [2005] 2 BLLR 125 (LAC) (30 April 2004)

19
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD IN
JOHANNESBURG
Case no:
JA42/2003
In
the matter between:-
NORTH
WEST STAR (PTY)LTD APPELLANT
(UNDER
JUDICIAL MANAGEMENT)
and
SEROBATSE
T 1
ST
RESPONDENT
MOLUASI
J 2
ND
RESPONDENT
___________________________________________________________
JUDGEMENT
___________________________________________________________
ZONDO
JP
Introduction
[1] This is an
appeal from a judgement of the Labour Court in a matter in which
Pillemer AJ granted an order in the following terms
in favour of the
current respondents and against the current appellant:
“
1. the
application for a stay of the order granted by Revelas J on 6
September 2002 is refused.
2. the
[appellant] is declared to be in contempt of the said order;
3. John
Louis Carter Fourie and Jayant Daji Pema in their capacities as
judicial managers of the [appellant] are hereby directed to
do all
such things as may be necessary to ensure that the [appellant]
complies fully with the said order within 7 days of the service
of
this order upon them;
4. this
order together with a copy of the order granted by Revelas J (to
which shall be attached the pages of the arbitration award
setting
out the award) shall be served upon the [appellant] and upon the said
judicial managers personally by the Sheriff;
5. if
the Respondent has not complied with this order within 7 days of the
service as aforesaid then the [respondents] are granted
leave to
approach this Court on application as a matter of urgency for an
order committing the judicial managers to prison until
such time as
the [appellant] complies with the order reinstating the [respondents]
in their employment or other appropriate relief.
6. the
[appellant] is ordered to pay the [respondents’] costs, which shall
include their reasonable travelling and other reasonable
disbursements.”
Subsequently the
appellant brought an application in the Court a quo for leave to
appeal to this Court which the Court a quo granted.
Factual
background
[2] The
facts in this matter are largely common cause. The first and second
respondents had been employed by the appellant but they
were
dismissed from the appellant’s employ on the 18
th
December 1998. A dispute subsequently arose between the appellant and
the respondents concerning the fairness of the respondents’
dismissal. On the 4
th
March 1999 the Bophuthatswana Provincial Division of the High Court
(“
the
High Court
”)
granted a provisional order placing the appellant under judicial
management. In part the provisional judicial management order
stayed
“
all
actions, proceedings, the execution of all writs, summonses and other
process (sic) against the [appellant]
”.
The order also provided that no action or proceedings “
be
proceeded with without the leave of”
that Court.
[3] On
the 25
th
March 1999 the respondents referred the dispute (about the fairness
of their dismissal) to the Commission for Conciliation, Mediation
and
Arbitration (“
CCMA
”)
for conciliation. On the 14
th
June 1999 a meeting was held to try and reach an agreement to settle
the dispute through the conciliation process but this was to
no
avail. On the same day the CCMA issued a certificate as required by
the Labour Relations Act, 1995 (Act 66 of 1995)(“
the
Act
”)
to the effect that the dispute remained unresolved. On the 12
th
August 1999 the High Court granted a final judicial management order
in respect of the appellant. The final judicial management order
included an order staying all proceedings and actions then pending
against the appellant, and, precluding the institution of new
ones,
without the leave of that Court.
[4] After
the conciliation process had failed and the certificate of outcome
had been issued, the unfair dismissal dispute was referred
to
arbitration under the auspices of the CCMA. The leave of the High
Court was not sought. On the 15
th
May 2000 the appellant and the respondents concluded a
pre-arbitration agreement. Clause 1 of that agreement read thus: “
The
parties described above have agreed upon the following concerning
their forthcoming arbitration.”
Clause 2.1 then said: “
That
the CCMA office – North West will designate an arbitrator for this
dispute
.”
[5] Arbitration
proceedings subsequently ensued. In due course the CCMA issued an
award in terms of which the appellant was ordered,
among other
things, to reinstate the respondents in its employ in the same
positions that they had held before their dismissals on
terms and
conditions not less favourable to them than those which applied to
their employment prior to their dismissal. The appellant
was further
ordered to compensate the respondents in full for any loss of income
that they might have suffered as a result of the
unfair dismissal.
The compensation amount was to be paid to the respondents within 14
days of them having resumed employment. Any
amount due by way of
compensation for loss of income was to earn interest in terms of
s143(2) of the Act. The appellant was also
ordered to allow the
respondents to resume their duties within seven days of receipt of
the award. The commissioner also made a certain
order of costs
against the appellant. The award appears to have been issued around
the 19
th
October 2000.
[6] The
appellant failed to comply with the arbitration award. The
respondents then brought an application in the Labour Court in
terms
of s 158(1)(c) of the Act to make that award an order of that Court
so that they could then enforce the award. On the 28
th
May 2002 the appellant, John Louis Carter Fourie and Jayant Daji Pema
(the latter two being the final judicial managers of the appellant),
launched a certain review application in the Labour Court. Apart from
costs and further or alternative relief, the orders which the
appellant and judicial managers sought in that review application in
the Labour Court were to:
“
1.
(r)eview and set aside the act and /or decision which the
[commissioner who arbitrated the dispute] took during the period
January
to October 2000 in the dispute between”
the
appellants and the respondents “
in
allowing the dispute to proceed and all the parties to participate
irrespective of the existence of a Judicial Management order
…
2. review and set
aside the relevant conciliation and arbitration proceedings inclusive
of certificates, (if any), of outcome of dispute
and the arbitration
award apparently dated 19 October 2000”.
[7] It
is to be noted that one of the orders that the appellant sought in
the review application was an order reviewing and setting
aside the
arbitration award which the CCMA had issued against the appellant in
October 2000. The review application was itself launched
on the 28
th
May 2002. This was about more than one and a half years from the date
of the issuing of the arbitration award. The appellant purported
to
bring the application in terms of s 158(1)(g) of the Act which
empowers the Labour Court to review the performance or purported
performance of any function provided for
“in
the Act “or any act or omission of any person or body in terms of
this Act on any grounds that are permissible in law.”
[8] To
the extent that the appellant was seeking to have the award reviewed
and set aside, it seems that it had brought the application
under a
wrong section because an application to have a CCMA award reviewed
and set aside can only be brought under s 145 of the Act
and not s
158(1)(g). Furthermore, when it is brought under s 145, it must be
brought within six weeks of the issuing of the award.
The appellant’s
application was late by more than a year and a half and no
explanation was advanced in the application as to why
the appellant
took more than a year and a half before bringing that application. In
any event even if the review application was
competent under s
158(1)(g) of the Act, the delay of over one and a half years seems to
have been an unreasonable delay.
[9] The
basis of the review application was that the CCMA arbitration
proceedings that had resulted in the award and the application
that
the respondents had brought in the Labour Court to have the award
made an order of Court were null and void because they had
been
instituted without the leave of the High Court. Not surprisingly,
that review application was subsequently abandoned by the
appellant
and the judicial managers.
Contempt
of Court proceedings in the Labour Court
[10] On
the 7
th
August 2003 the respondents launched contempt of court proceedings in
the Labour Court against the appellant only and did not cite
any
natural person including any of the final judicial managers. In the
founding affidavit in support of that application one of
the
respondents, Mr Moalusi, stated that the appellant had failed to
comply with the order of the Labour Court after it had been
duly
served on the 9
th
September 2002. He did not state the manner of service but stated
that the return of service was attached to the affidavit as annexure
“
B
”.
He said that the period within which the appellant was required to
have complied with the order had lapsed without the appellant
making
any arrangements to comply with the order. Although the return of
service attached to the founding affidavit is not the original
return
of service, it seems that the return is by a sheriff. The relevant
part of the return reads thus: “
On
01 October 2002 at 11h30 at North West Star Lucas Mangope Highway,
Mabopane being the work address of North West Star (Pty) Ltd
T/A
Mmabato Bus(sic) I duly served a copy of the application upon
Hendrietta [secretary to Koos Van Zyl] after the original was shown
and the nature and contents thereof explained. The said person who is
apparently older than sixteen years of age and apparently in
charge
at the given address accepted copies of the document in the temporary
absence of Mr Koos Van Zyl [Rule 4(1)(a)(iii)].”
[11] The
appellant delivered an answering affidavit deposed to by Mr John
Louis Carter Fourie, one of the two final judicial managers.
In the
answering affidavit Mr Fourie made a number of points in support of
the appellant’s opposition to the application. In the
light of the
case argued by Counsel for the appellant on appeal before us it is
necessary to refer to only one of those. That is
that Mr Fourie took
the point that the respondents had failed to obtain the leave of the
High Court before instituting conciliation
and arbitration
proceedings in the CCMA, launching the application to make the award
an order of the Labour Court and launching the
contempt of court
proceedings when they were obliged to have done so. Obviously the
appellant’s point in this regard was that,
because the respondents
failed to obtain the leave of the High Court before instituting all
of these proceedings, the appellant could
not be guilty of contempt
of court.
[12] The learned
Acting Judge in the Court a quo found that the defence raised by Mr
Fourie based on the fact that the respondents
did not obtain the
leave of the High Court before referring the dispute to the CCMA for
conciliation and arbitration, instituting
proceedings in the Labour
Court to make the award an order of Court and instituting contempt
of court proceedings was no defence
because, once a court has issued
an order, those on whom it is binding are obliged to comply with it
even if they think that it was
wrongly granted unless they appeal
against the order. As to Mr Fourie’s averment that he and his
co-judicial manager were not aware
of the order of the Labour Court
and that, for that reason, they did not intentionally fail to ensure
that the appellant complied
with such order, the Court a quo took the
view that, although that could be so, that would not apply to the
period after the judicial
managers had become aware of the contempt
of court application. The Court a quo said that the judicial managers
had become aware
of the order of the Labour Court when they dealt
with the contempt of court application but had since done nothing to
ensure that
the appellant complied with the court order. On this
basis the Court a quo found the appellant guilty of contempt of
court. The Court
a quo then made the order that it made as referred
to above.
The appeal
[13] In his written heads of argument on appeal Counsel
pursued only one point in his challenge of the decision of the Court
a quo.
The point related to the respondents’ failure to first
obtain the leave of the High Court before they referred the dispute
to the
CCMA, before they launched the application to make the award
an order of the Labour Court and before they launched the contempt of
court application. In fact Counsel for the appellant also stated in
paragraph 7 of the his written heads of argument: “
The
crux of this appeal is based on the submission that the judicial
management order issued by the High Court does not deprive the
Labour
Court of its jurisdiction.”
In his written
heads of argument Counsel did not submit that the respondents’
failure to obtain the leave of the High Court rendered
the
conciliation and arbitration proceedings, the award and the order of
the Labour Court null and void as had been submitted at
some stage
before the Labour Court. In his written heads Counsel for the
appellant specifically stated that that was not his argument.
Counsel
also submitted that the High Court’s judicial management order did
not bar the respondents from referring the dispute to
the CCMA or
from instituting proceedings in the Labour Court. He submitted
further that the judicial management order could not deprive
the
Labour Court of its jurisdiction to deal with a matter falling within
its jurisdiction. What then, the question arises, was the
effect of
the judicial management order of the High Court on the respondents’
right to institute proceedings such as those they
instituted? Counsel
for the appellant further submitted in his written heads that the
order of the High Court prescribing the obtaining
of that Court’s
leave “
merely contains a procedure which
must be followed, before an employee is entitled to make a referral,
based on an alleged dismissal,
to the CCMA
.”
Counsel said nothing more in the written heads on why the
respondents’ failure to follow such procedure would be a defence
to
contempt of court proceedings.
[15] Despite
his stance in the written heads of argument as set out in the
preceding paragraph, Counsel for the appellant changed
his stance
somewhat during argument and reverted to the argument that the
respondents’ failure to obtain the leave of the High
Court rendered
the CCMA award and the order of the Labour Court invalid with the
result that the appellant was entitled not to obey
the order of
court. Counsel did not refer us to any authority for this submission.
[16] The submission
by Counsel for the appellant is untenable and falls to be rejected.
The order in issue in this matter was issued
by the Labour Court. In
the terms of s 151(2) of the Labour Relations Act, 1995 (Act 66 of
1995) (“
the Act
”)
the Labour Court “
is a superior court that
has authority, inherent powers and standing, in relation to matters
under its jurisdiction, equal to that
which a court of provincial
division of the [High Court] has in relation to matters under its
jurisdiction
”. An application to make an
arbitration award an order of the Labour Court is a matter that in
terms of s 158(1)(c) of the Act
is placed within the jurisdiction of
the Labour Court. (
City of Tshwane
Metropolitan Municipality v Campella NO & others
[2004] 1 BLLR 1
(LAC))
. In the light of s 151(1) and (2) of
the Act, the Labour Court is a court that falls within s 166(e) of
the Constitution which recognises
courts established or recognised in
terms of an Act of Parliament which are “
of
a status similar … to the High Courts
…”
[17] Section 165(5) of the Constitution reads: “
An
order or decision issued by a court binds all persons to whom and
organs of state to which it applies.
” In
this matter the order of the 6
th
September 2002 issued by the Labour Court applied to the appellant
and was, therefore, binding on the appellant. Mr Fourie and the
other
co-judicial manager were obliged in their capacities as the
appellant’s judicial managers to take the necessary steps to
ensure
that the appellant complied with that order unless the appellant
noted an appeal against such order. If they failed to take
such steps
and the appellant failed to comply with the order and there was no
appeal against the order, the appellant would be guilty
of contempt
of court.
[18] The
respondents’ failure to first obtain the leave of the High Court
before they could refer the dismissal dispute to the CCMA,
and,
before they could bring the application to make the award an order of
court did not invalidate the award or the order and was
no valid
reason for the appellant not to comply with the order. Upholding the
submission made by Counsel for the appellant would
make a mockery of
the Constitution and the rule of law that forms part of the
foundations of our constitutional democracy. It would
be a licence
for people to disregard orders of courts simply because they do not
agree with the Court that such orders should have
been issued. A
society that would allow such would in no time be a society of chaos
and lawlessness. To do so would sow in society
a culture in terms
of which people felt free to obey only those court orders with which
they agreed or to obey only those laws which
they like and to
disregard those laws they do not like. I have no doubt in my mind
that such a principle has no place in our legal
system. The correct
principle is that, if a court has issued an order against you and you
are unhappy with it, you must take that
decision to a court higher
than the one that issued such order and which has competent appellate
or review jurisdiction and seek
to have such order set aside. If
there is no such court, for example, where there is no appeal or
review available against that court
or against such order or if the
court which issued the order is the court of final jurisdiction in
such matters or is the highest
court in the land, then you have no
choice but must simply comply with the order. A person cannot say :
“
I don’t like this court order; it is
wrong; therefore I will not comply with it.”
If
we want to deepen our democracy, promote the rule of law, discourage
self-help and encourage those who have disputes to take them
to the
courts of the land and not to seek to resolve them through physical
fights or violence, the whole society must frown upon
anyone who
disobeys an order of court or who, either by word or deed, encourages
or incites another or others to disobey an order
of Court.
[19] In the light of all of this I conclude that the
respondents’ failure to first obtain the leave of the High Court
did not invalidate
the CCMA proceedings nor did it invalidate the
proceedings before the Labour Court or its order. I conclude, too,
that the respondents’
failure to obtain such leave, assuming that
they were obliged to have obtained it, did not give the appellant a
licence to disobey
the order of the Labour Court of the 6
th
September 2002. Since this was the only point argued before us on why
the Court a quo’s finding that the appellant was guilty of
contempt
of court was wrong, my finding in regard to it means that no basis
has been shown on appeal for us to interfere with the
finding of the
Court a quo that the appellant is guilty of contempt of court and
with the order it made.
[20] During
the hearing of the contempt of Court application in the Court a quo
Counsel for the appellant moved an application from
the Bar for an
order staying the operation of the order of the Labour Court of the
6
th
September 2002. The purpose of that application was said to be to
enable the appellant to appeal against that order. The Court a
quo
dismissed that application on the basis that too long a period had
lapsed since the making of that order without the appellant
taking
any steps to appeal against it and that, for that reason, a time had
long passed when the respondents were entitled to organise
their
lives on the basis that there would be no appeal against that order.
The appellant also appeals against the order dismissing
that
application.
[21] I
cannot think of any reason why the appellant made that application to
stay during the hearing of the contempt of court application
and from
the Bar – and therefore without delivering a proper substantive
application – unless the appellant thought that the
staying of the
operation of that order would help it in the contempt of court
application. Such application could not help the appellant
at all in
the contempt application. The question before the Court a quo was
whether the appellant had acted in breach of the order
of the Labour
Court of the 6
th
September 2002. The period that was relevant to that question was a
period when the order of the 6
th
September had been operational. Staying the operation of the order
after the event could not assist the appellant in any way. In
any
event, even if it could assist the appellant, I am of the view that
the Court a quo’s decision to dismiss it was correct and
the
reasons it gave for its decision in this regard are sound.
[22] In
the light of all the above I have no hesitation in concluding that
the decision of the Court a quo was correct and that the
appeal falls
to be dismissed with an appropriate order of costs. However, before I
conclude this judgement, I wish to deal with another
aspect of this
matter. That is the delay in the finalisation of the dispute and the
manner in which the appellant’s officials and
judicial managers
have handled this matter.
[23] The
respondents were dismissed in December 1998. They were obviously
aggrieved by the appellant’s decision to dismiss them.
They
exhausted the internal procedures including instituting an internal
appeal to try and get their dismissal reversed. The appellant
did not
reverse its decision. They then referred the dismissal dispute to the
CCMA for conciliation. That did not produce any result.
They then
requested that the dispute be arbitrated. The appellant agreed to
this and signed a pre-arbitration agreement with them.
They went
through the arbitration and were successful. The appellant was
ordered to reinstate them and pay them compensation. The
appellant
did not comply with the award of the CCMA, a statutory body whose
function is to deal with such disputes. The respondents
then made an
application to the Labour Court to have that award made an order of
Court. They were again successful. The appellant
was now ordered by a
Superior Court effectively to comply with the award. The appellant
once again did not comply. Instead the appellant
brought a hopeless
application to review and set aside the arbitration proceedings and
the award which, not surprisingly, it later
abandoned. The Labour
Court made the award an order of court. The appellant once again did
not comply. The respondents then brought
contempt of Court
proceedings. The judicial manager who deposed to the affidavit
delivered on behalf of the appellant became aware
of the order but
did not take the necessary steps to ensure that the appellant
complied with it simply because he thought that such
order should not
have been granted because the respondents had not first obtained the
leave of the High Court. He did not advance
any basis upon which it
can be said that the respondents, who were not party to the
proceedings that culminated in the order of the
High Court, were
bound by that order. In the meantime a period of five years has
lapsed from the date of the respondents’ dismissal
and, despite
having long obtained an award in their favour for their
reinstatement, the respondents have not been reinstated as yet.
[24] The
respondents were not legally represented before the Court a quo. They
appeared in person. Before us, they were again not
legally
represented but appeared in person. It would appear that at some
earlier stages of this long struggle for their reinstatement,
the
respondents were legally represented. I have no doubt that they would
have liked to have been legally represented in the Court
a quo and in
this Court but no longer had funds to pay for legal representation.
They have struggled for five long years to seek
justice in the courts
of the land and in other tribunals against an employer whose handling
of this matter has been totally unacceptable.
[25] In
his award the commissioner of the CCMA who arbitrated the dismissal
dispute also criticised the appellant for the manner in
which its
officials had handled the matter in the CCMA. He referred to various
instances in this regard which demonstrated how badly
the appellant
had behaved in connection with the arbitration. He said at some stage
in his award:
“It
is my view that such conduct [on the part of the appellant] was meant
to frustrate and further delay the proceedings.”
Those remarks by the commissioner seem to have had no deterrent
effect on the appellant or its officials or the judicial managers.
On
the contrary the manner in which the appellant’s officials
including the judicial managers later handled this matter vindicated
the commissioner’s view. They seem to have handled this matter with
no regard for the respondents’ rights, with no regard for
statutory
bodies and the Courts and with no regard for the interests of the
appellant, its creditors and their responsibilities as
judicial
managers. A period of more than five years has lapsed since the
respondents were dismissed. It is high time that the two
employees
who are respondents in this appeal should see justice done. Should
the judicial managers fail to ensure that the appellant
reinstate the
respondents within the time specified in the order of the Court a
quo, the respondents must, without any delay, take
advantage of the
leave that the Court a quo has already granted them to bring an
urgent application against the appellant and the
judicial managers in
the Labour Court for an order committing the judicial managers to
prison until they ensure compliance by the
appellant with the order
of the Labour Court.
[26] I
think that the High Court may well wish to inquire into whether the
appellant’s judicial managers have done their job properly
in
relation to this matter and, in particular, whether in allowing this
matter to drag for so long after the award had been given
and thereby
increasing the back pay that the respondents are entitled to –
without ensuring that the appellant had the benefit
of the
respondents’ services- the judicial managers have acted in the
interests of those whose interests they were duty bound to
protect
and advance, especially when, on the merits of the finding of the
commissioner that the dismissal was unfair, there has been
no
complaint really by the appellant. In the order that I shall make I
shall direct the Registrar of this Court to refer this judgement
to
the Registrar of the Bophuthatswana Provincial Division of the High
Court who must bring it to the attention of the Judge President
of
that Court as the appellant’s management is subject to the
supervision of that Court for the duration of the operation of the
judicial management order.
[27] In
the result I make the following order:-
(1) The appeal is
dismissed.
(2) The appellant is
ordered to pay all reasonable disbursements including travelling
expenses incurred by the respondents in connection
with this appeal.
(3)
The Registrar is directed to forward a copy of this judgement to the
Registrar of the Bophuthatswana Provincial Division of the
High Court
with a request that he or she brings it to the attention of the Judge
President of that Court.
Zondo JP
I
agree.
Davis
AJA
I
agree.
Jafta
AJA
Appearances
For
the Appellant: Adv E.S.J Van Graan
Instructed
by: Smit Stanton Inc
For
the Respondent: Mr J Moalusi
Date
of judgement: 30 April 2004