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[2018] ZALAC 40
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PLSMIDTH Buffalo (Pty) Ltd v Hlakola (DA13/17) [2018] ZALAC 40; (2019) 40 ILJ 527 (LAC); [2019] 4 BLLR 363 (LAC) (29 November 2018)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
.
,
DURBAN
Case
no: DA13/17
PLSMIDTH
BUFFALO
(PTY)
LTD
Appellant
and
ELLIAS
MAYIMAYI HLAKOLA
Respondent
Heard:
15 May 2018
Delivered:
29 November 2018
Summary:
Enforcement of an arbitration award in terms of s158(1)(c) of the
LRA employer contending that Labour Court not properly
applying
its mind in making the award an order of court and also failing to
take into account the delay by the employee in seeking
the
enforcement of the award - principle relating to the exercise of the
discretion restated - evidence showing that employer author
of its
own misfortune in refusing to comply with a clear award and failing
to act diligently to ascertain the review judgment dismissing
its
review application.
Held
that: the employer's argument that the court failed to exercise its
discretion judicially because it failed to consider that
it was yet
to receive written reasons is without merit in light of its failure
to act diligently or at all to secure the reasons
or even
establish
if there
was
an
extempore
judgment
handed
down.
To
avoid
further delay the respondent made
the
application and the
court
a
quo
made
the
award
an order of court... It then follows that the court
a
quo
exercised its discretion
judicially. Appeal dismissed with costs.
Coram:
Waglay JP, Phatshoane ADJP and Hlophe AJA
JUDGMENT
Waglay
JP
[1]
The appellant appeals against the
judgment of the Labour Court (Mabaso AJ) which made an award an order
of court. In terms of the
award, the appellant was to reinstate the
respondent and pay him an amount of R32 470.00.
[2]
For the purpose of this appeal, the
circumstance leading to the current dispute is common cause, and the
facts are limited for the
determination of this appeal. The
respondent was dismissed for misconduct on 30 June 2011. Dissatisfied
with the dismissal, he
referred an unfair dismissal dispute to the
Metal and Engineering Industries Bargaining Council. The award that
ensued favoured
the respondent as recorded above and the appellant
was directed to comply with the award on or before 16 January 2012.
[3]
Notwithstanding the injunction to abide
with the award on a certain date, the appellant, exercising its right
under the Labour Relations
Act 66 of 1995 (LRA), filed a review of
the award on 29 February 2012
.
The
review served before Mooki AJ. The review was dismissed. Whether
reasons for the court order were handed down is a matter that
is not
before this Court but is incidental to the current dispute
.
[4]
Since the review was dismissed, the
respondent through his attorneys addressed a letter to the appellant
on 17 September 2014 enquiring
as to when the respondent could resume
work. Almost a month later, the appellant replied and indicated that
it was not aware of
the court order and it had made a request to the
registrar to be furnished with written reasons. No written reasons
were forthcoming.
The appellant formed the view that the respondent
could not report for duty as it was awaiting written reasons before
deciding
whether it would appeal the judgment. The respondent's
insistence to report for duty fell on deaf ears as the appellant did
not
change its stance aforesaid.
[5]
Appellant's attitude caused the
respondent to, on 22 June 2015 bring an application in terms of
section 158(1)(c) of the LRA to
make the award an order of the Labour
Court.
[6]
The matter served before Mabaso AJ. The
court a
quo
was
confronted at the onset with the problem, not that written reasons
were yet to be furnished but as to whether there was an oral
judgment
handed down on 12 September 2011, the date of the Court order. The
court
a quo
recorded
that the registrar and the respondent's attorneys indicated that an
ex tempore
judgment
was delivered. Notwithstanding the incertitude as to the nature and
or foundation of the court order, the court
a
quo,
having satisfied itself that
there was no pending leave to appeal, asked itself whether it was in
the interest of justice to make
the award an order of the Labour
Court.
[7]
To this effect, the court
a
quo
relied on the purpose of the LRA
encapsulated in section 3 which requires an expeditious resolution of
labour disputes. The court
a
quo
further found support in the
Constitutional Court's judgment of
Toyota
SA (Pty) v CCMA
and
Others
[1]
which emphasised the need for a
speedy resolution of labour disputes.
[8]
Having satisfied itself of the need to
bring finality to the litigation, the court
a
quo
had regard to the award which
the respondent sought to be made an order of court and the various
correspondence of the parties.
[9]
The court held that the letters from the
appellant to the respondent evinced a wish to appeal not a decision
to appeal. Relying
on the decision of
Gauteng
Department of Education v Sanders in re Sanders v Gauteng Department
of Education and Others
[2]
which stated that the purpose of
making an award an order of court was for the award to be enforced,
the court took the view that
in light of the speedy resolution of
labour disputes, it would defeat the purpose of the LRA to further
delay the respondent the
enjoyment of his right to the benefit of the
award. To this end, the court made the award an order of court. The
court, however,
refused to grant costs on the basis that the
respondent should have certified the award instead of taking the
route of section
158(1)(c) of the LRA.
[10]
It is that judgment, making the award an order of court, that the
appellant wants overturned. The grounds upon which the appeal
is
sought are two. The appellant contends in the first place that the
court a
quo
failed
to take into account the fact that it had not received reasons for
the order dismissing its review application. On this score,
it
submitted that the court a
quo
failed
to consider the correspondence exchanged between it and the
respondent evincing that it had not received reasons for the
order
dismissing its review application. To this effect, it contends that
the court a
quo
erred
in receiving submissions from the bar that an
extempore
judgment was handed down this,
notwithstanding the fact that such oral judgment was foreshadowed
neither from the correspondence
between it and the respondent nor
from the correspondence with the registrar. I may add that when
appellant speaks of "correspondence",
it is referring to
two letters addressed to the Registrar one dated 08 October 2014 and
the other four months later on 2 February
2015. Additionally, it
wrote twice to the respondent on each occasion in reply to the
correspondence from the respondent. Its response
was
simply that it was waiting for reasons for judgment whereafter it
would take instruction on whether to appeal
[11]
The appellant contends that the judgment
a
quo
infringes on its constitutional
right to have access to justice as envisaged by section 34 of the
Constitution of the Republic of
South Africa, 1996 (Constitution).
This is so because, in its view, it was entitled to be furnished with
written reasons for the
purpose of lodging its appeal. The appellant
further submits that although the court
a
quo
had a discretion to make an
award an order of court, it ought to have exercised that discretion
against making such order so that
appellant is given the right to
lodge its
appeal.
[12]
The second ground upon which the appellant relies is the inordinate
delay in bringing the section 158 application. The appellant
argues,
in light of a number of judgments including that of
Myathaza
v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus
and Others
[3]
that an employee in whose
favour an award was granted cannot sit back and bring her/his section
158 application when it pleases
her/him. The appellant submits that
the court
a quo's
reasons
for making the award an order of court based on the speedy resolution
of labour disputes are irreconcilable with the Constitutional
Court's
judgment in
Myathaza
because
the court
a quo
failed
to have regard to the fact that a period of nine months had passed
between the date of the dismissal of the review application
and the
date that the respondent filed its section 158(1)(c)
application
.
[13]
The respondent, on the other hand,
contends that the court a quo's judgment is unassailable because the
court a
quo
exercised
its discretion judicially in finding that it was in the interest of
justice to make the award an order of court taking
into account the
need to resolve labour disputes speedily. The respondent submits that
he is entitled to the relief contained in
the award and such relief
cannot be delayed while the appellant takes his time to consider
whether it should appeal. Further the
request for reasons for a
judgment cannot prevent the court a
quo
from exercising its discretion to
make an award an order of court particularly since the appellant has
displayed a total lack of
diligence to enquire and follow up on this
issue.
[14]
Although the appellant made submissions
that the court
a quo
failed
to take account of the delay in bringing the section 158(1)(c)
application and that it was awaiting reasons for the order
dismissing
its review application, the issue for consideration in this appeal is
whether the court
a quo
failed
to exercise its discretion
judicially
.
[15]
At the outset, it is prudent to dismiss
the appellant's contention that the court
a
quo
received submission from the bar
that an oral judgment was issued. As correctly submitted by the
respondent
,
that
submission played little or no role in the court a
quo's
judgment. After enquiring whether
there was an oral judgment, the court
a
quo
asked the relevant question
whether it was in the interest of justice to make the award an order
of court. The court
a quo
found
it worrisome that up to the date of the hearing the appellant had
provided no evidence that it did anything other than the
two letters
referred to above to ascertain whether an
ex
tempore
judgment was handed down or
when they could expect reasons from the court.
[16]
In the circumstances, I am of the view
that the Labour Court was entitled to make the award an order of
court. In making an award
an order of court, the Labour Court
exercised a discretion
.
It
is trite that an appeal court will interfere with a discretion of a
court
a quo
only
if it was exercised improperly or unreasonably. For an appeal court
to interfere with a discretionary power of a court below
,
an appellant must show that the court
a
quo
acted capriciously, or acted
upon a wrong principle, or in a biased manner, or for insubstantial
reasons, or committed a misdirection
or an irregular
i
ty
,
or exercised its discretion improperly
or unfairly.
[4]
In considering whether a court
a quo
had improperly exercised its
discretion, the appeal court is not entitled to interfere on the
basis that in its opinion it
would
have come to a different conclusion
because this would be substituting its discretion for that of the
court
a quo
.
[5]
[17]
From above, it is clear that an appeal court would only interfere
with a discretionary power only if it was exercised improperly
or a
wrong principle. A case contemporary to the matter at hand (though
relating to making a settlement agreement an order of the
Labour
Court) is that of
South African Post
Office Ltd v CWU obo Permanent Part-Time Employees
[6]
In that case, the Labour Court was
called upon to make the settlement agreement signed by both parties
an order of the Labour Court
in terms of section 158(1)(c) of the
LRA. In considering whether the Labour Court exercised its discretion
judicially, this Court
said:
'.
..
before the Labour Court will grant an
order sought in terms of Section 158(1)(c) of the LRA it must be
satisfied that, at the very
least:
i
…
ii.
the agreement or award is
sufficiently clear to have enabled the defaulting party to know
exactly what it is required to do in order
to comply with the
agreement or award; and
,
iii.
There has not been compliance by
the defaulting party with the terms of the agreement or
the award.
[7]
Further
that:
Once
the Labour Court is satisfied with all of the above then it must,
nevertheless, exercise its discretion whether to grant or
refuse the
order. In exercising the discretion, the Court must take relevant
facts and circumstances into account, such as are
necessary to
satisfy the demands of the law and fairness. Necessaril
y
,
each case must be decided on its own
facts and circumstances. There is, otherwise, no closed list of
factors to be taken into account.
A
relevant factor is the time it took the party seeking the relief to
launch the application to make
the settlement or award an order of court. The Labour Court may, for
example, be more reluctant to
make an award for reinstatement of
employees an order of court where the employees unreasonably delayed
in seeking the enforcement
of the award,
yet
a delay in years in seeking to make an award for payment a sum of
money may
not
be
grounds for refusing to make the award an order of Court. Finally and
most crucially
it
must
be remembered that the purpose of making an agreement or award an
order of the Labour Court
is
to
compel its enforcement, or enable
its
execution and not for some other
purpose.
[8]
[own
emphasis]
[18]
What the above means is that the appeal
court must consider whether the court
a
quo's
exercise of its discretion was
proper taking into account whether the award was sufficiently clear
and there was non-compliance
with the award.
[19]
In this case, the evidence is that the
appellant had not complied with the award and the award clearly
indicates that the respondent
be reinstated and be paid a sum of
money. More importantly that the respondent repeatedly sought for the
appellant to implement
the award, which was refused. This leaves us
with the question of the delay in seeking to make the award an order
of court.
[20]
The appellant contends that the court
a
quo
failed to take into account the
fact that there was a considerable lapse of time namely nine months
for the respondent to file his
section 158(1)(c) application. It
common cause that the arbitration award is dated 16 December 2011.
The order dismissing the appellant
review application was sent on 17
September 2014 to the respondent. From October 2014 to February 2015,
both parties exchanged
correspondence. The essence of the
respondent's letters was to enquire when to resume duties while the
appellant's letters were
to the effect that it was still waiting for
written reasons from the registrar. Of significance is the
appellant's letter of 10
October 2014 wherein the appellant stated
that "as
soon as we receive
these [reasons] we will
take
instructions from our client but would ask you to pend this matter
until we revert further.
’
[9]
[21]
The above correspondence from the
appellant evinces its request to the respondent to stay the execution
of the award pending it
getting instruction to proceed or not to
proceed with the appeal. This was in response to the respondent's
letter of 17 September
requesting the appellant to advise when the
respondent would resume duty after being turned away at the work
place when he reported
for duty.
[22]
The appellant's submission in the
circumstances that the inordinate delay of nine months from the date
of the order dismissing the
review application and the section
158(1)(c) application is deplorable. In light of the
South
African Post Office
case above one
must be tempted to conclude that there was a delay in
filing
the said application. However, taking the facts and circumstances of
this case into account, the evidence points to the fact
that the
appellant was the author of the delay. It failed to follow up on the
result of its review. It is the respondent that made
it aware of the
court order. It is opportunistic for the appellant to ask the court
to penalise the respondent for the delay in
filing the section
158(1)(c) application when all it did was to sit doing nothing to try
and establish what the true position was
with regard to the judgment
in respect of its review application other than writing two letters
to the registrar asking for reasons
for the judgment. Added to this
is the fact that on the occasions that the respondent wrote to it to
seek enforcement it was the
appellant who requested that the matter
be held over and the respondent gracefully held on for a while
[23]
The respondent had repeatedly put the
appellant to terms stating that if the appellant continues resists in
complying with the award,
he would have no option than approaching
the Labour Court for relief.
[10]
This
demonstrates that the respondent did not just sit around and do
nothing
.
On
the contrary
,
the
respondent was proactive in attempting to bring finality to the
matter but was
met
with resistance from the appellant who
maintained that without written reasons
,
it was not prepared to reinstate the
respondent and yet did almost nothing to try and expedite the getting
of the reasons assuming
there was no
ex
tempore
judgment. It, therefore,
follows that the delay in filing the section 158(1)(c) application
was not occasioned by the respondent
but was occasioned by the
appellant conduct. It borders on the unethical for the appellant to
argue that the delay in the prosecution
falls on the door of the
respondent in circumstances where but for the appellant's request,
the respondent would have filed the
section 158(1)(c) application
much earlier.
[24]
It is exactly to avoid further delay
that the respondent made the application and the court
a
quo
made the award an order of
court
.
The
interest of justice dictates that the respondent's interest trumps
that of the appellant because the purpose of the section
158(1)(c)
application is to enforce the award. It then follows that the court
a
quo
exercised its discretion
judicially
.
25]
Consequently, the appellant's argument
that the court failed to exercise its discretion judicially because
it failed to consider
that it was yet to receive written reasons is
without merit in light of its failure to act diligently or at all to
secure the reasons
or even establish if there was an
extempore
judgment handed
down.
[26]
In the circumstances, the appeal must
fail, and I see no reason why costs should not follow the result.
[27]
In the result
,
the appeal is dismissed with
costs.
Waglay JP
Phatshoane ADJP
I
agree
Hlophe AJA
I
agree
APPEARANCES
FOR
THE APPELLANT
:
Adv L Naidoo
Instructed by Edward Nathan Sonnenbergs
FOR
THE
RESPONDENT:
Mr Mhlanga from Mhlanga Inc
[1]
2006 (3) BCLR 374 (CC).
[2]
[2015] 12 BLLR 1187
LRA.
[3]
[2017] 3 BLLR 213
(CC)
(Myathaza)
[4]
Coates Brothers Limited v Shanker and Others
[2003] 12 BBLR
1189 (LAC) at para 5.
[5]
Knox D' Arey Ltd and Others v Jameson and Others
[1996] ZASCA 58
;
1996 (4) SA
348
(A) at para 24.
[6]
(2014) 35 ILJ 455 (LAC) ; [2013)
12 BLLR 1203
(LAC) 9 (South African
Post Office).
[7]
At para 21.
[8]
At para 22
[9]
Record vol 1 page 24.
[10]
Record vol 1 page 35.