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[2009] ZALCJHB 100
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Chemical, Energy, Paper, Printing, Wood And Allied Workers Union and Another v Le - Sel Research (Pty) Ltd (J1226/08) [2009] ZALCJHB 100 (6 January 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASE
NO: J1226/08
REPORTABLE
In
the matter between:
CHEMICAL,
ENERGY, PAPER, PRINTING,
WOOD
AND ALLIED WORKERS UNION
First
Applicant
M
MOSES
Second
Applicant
and
LE
– SEL RESEARCH (PTY) LTD
Respondent
JUDGMENT
MOSHOANA,
AJ
INTRODUCTION
[1]
The Applicants brought an application for an order in the following
terms:-
1.
Making the arbitration award issued by the National Bargaining
Council for the Chemical Industry on 11
July 2005 under Case
Number:GP0444/03 an order of court insofar as it relates to the
dismissal of the Second Applicant;
2.
Directing the Respondent to pay the Second Applicant R40 800.00
together with interest at the rate
of 15.5% per annum from 11 July
2005 to date of full payment;
3.
Directing the Respondent to pay the Second Applicant her monthly
salary of R1 700.00 for the period
from 20 July 2005 to date of
judgment together with interest
a tempora morae;
4.
Directing that the costs of this application be paid by the
Respondent on the scale as between
attorney and own client;
5.
Granting further and or alternative relief.
[2]
According to Adv Van de Riet SC, appearing for the Applicants, prayer
1 of the Notice of Motion is brought in terms of Section
158(1)(c) of
the Labour Relations Act. Prayer 2 and 3 are brought in terms of the
provisions of Section 77 of the Basic Conditions
of Employment Act.
The application was opposed by the Respondent.
BACKGROUND
FACTS
[3]
The Respondent dismissed a number of its employees, including the
Second Applicant in July 2003. A dispute regarding the fairness
of
the dismissal was referred to the National Bargaining Council of
Chemical Industry. An award was issued on 11 July 2005, wherein
the
arbitrator found the dismissal of the Second Applicant to be
substantively unfair and ordered the Respondent to re-instate
the
Second Applicant retrospectively from the date of her dismissal. The
award specifically stated that the Second Applicant must
report for
duty on 18 July 2005. The Second Applicant failed to report for duty
on that particular day. The Respondent contends
that the deponent of
the Founding Affidavit had telephoned one, Mr Bosch and indicated to
him that the Second Applicant would not
be reporting for duty as she
feels that she is riding on the back of others. This aspect is
disputed by the deponent of the Founding
Affidavit. I shall deal with
this aspect later when I deal with whether there is a disputed fact
or not.
[4]
The parties then exchanged various correspondences. In the letter of
03 November 2005, the attorneys acting for the Respondent
indicated
that the Second Applicant had repudiated her contract of employment
and as a result she would not be paid in exchange
of her tender for
services. As a result of that, the Second Applicant assisted by the
First Applicant, referred a dispute to the
Bargaining Council on 02
November 2005. In that dispute, the Second Applicant was alleging
that she has been dismissed again on
03 November 2005. The matter was
then referred to arbitration. On 27 November 2006, a ruling was
issued to the effect that the
Bargaining Council lacks jurisdiction.
On 19 March 2007, the Applicants being aggrieved by that ruling
launched an application
for review in this Court under Case Number:
JR640/07. The review application was argued before His Lordship Van
Niekerk AJ on 14
June 2007. On 9 January 2007, an order was issued
dismissing the review application with costs.
[5]
As a result the Applicants then launched this application on 09 July
2008.
ARGUMENT
[6]
In court, Adv Boda appearing for the Respondent, submitted that the
application should be dismissed on the basis that there
has been an
unreasonable delay, there are disputed facts and that the Court would
lack jurisdiction to order prayers 2 and 3 in
particular. He also
argued that prayers 2 and 3 could possibly suffer the fate of
prescription. On the other hand Adv Van de Riet
SC argued that there
is no dispute of facts and the argument of unreasonable delay finds
no application. He indicated that prayers
1and 2 are brought in terms
of Section 77 of the Basic Conditions of Employment Act, accordingly
the Court should grant the prayers
as contained in the Notice of
Motion.
ANALYSIS
[7]
In considering this matter, I have to take into account the arguments
in particular the legal issues raised therein. I accordingly
do that
hereunder.
THE
ISSUE OF A DISPUTE OF FACT.
[8]
The Respondent contends in its Heads of Argument that there is a
dispute of facts and on that basis alone, the Court must dismiss
the
application. In paragraph 20 of the Heads of Argument for the
Respondent, it is submitted that there is a dispute of fact as
to
whether or not the Second Applicant tendered her services persuant to
the award. The Respondent says that she did not. This
dispute must be
resolved in favour of the Respondent, so the argument went. The
dispute of fact was clearly foreseeable. It is
in fact anticipated in
the founding papers. For that reason the application must be
dismissed with costs. Reference was made to
various authorities in
that regard. Of course the disadvantage that this Court had in
preparation of hearing the matter was that
it did not know where in
the affidavits the dispute of fact occurs. It would have been prudent
for the Respondent in the heads
of argument to point the paragraphs
in the affidavits where the dispute of facts occurs.
[9] Nonetheless, Adv Boda
pointed to the Court that such appears in paragraph 4.6 of the
Founding Affidavit, which for the purposes
of this judgment I shall
quote. The deponent stated the following:-
“
On
10
th
August 2005 our attorneys received a letter dated 1
st
August 2005 from the company’s attorneys. In this letter, it
was denied that the company had advised Miss Moses not to report
for
duty. It was alleged that I had said that Miss Moses would not be
reporting for work as she feels that she is riding on the
back of the
others. This was not true. I had told Mr Bosch that Miss Moses felt
guilty about the fact that she was the only one
of the group of the
dismissed union members who had been reinstated but I did not say
that Miss Moses would not be reporting for
work as a result. I said
that she may be willing to consider a monetary settlement. A copy of
the company’s letter dated
1
st
August 2005 is attached to this affidavit marked “TB3””.
[10] In response to the
above quoted paragraph, the Respondent stated the following at
paragraph 27.5:-
‘
The
Second Applicant did not report for duty. In fact the Applicant’s
union official Mr Themba Buthelezi informed the Respondent
that the
Second Applicant would not be reporting for work as she feels that
she is riding on the back of the others”.
[11] In reply, the
following was stated:-
“
I
admit that Miss Moses did not report for duty on 18
th
July 2005. Miss Bosch stated that she should not do so. On 20
th
July 2005 our attorneys addressed a letter to the company recording
that Miss Moses tendered her services”.
[12]
The Respondent’s Opposing Affidavit was deposed to by one
Amelia Phillip, who stated that she is the Respondent’s
Human
Resources Director. There was no confirmatory affidavit from Mr Bosch
as to the allegation that the union official informed
him of the
reasons why the Second Applicant would not report for duty. It ought
to be taken into account that the union official
at the commencement
of these proceedings, in the Founding Affidavit, had already pointed
out that that allegation is not true.
It was therefore opportune for
the Respondent in opposing the matter to obtain a confirmatory
affidavit form Mr Bosch to confirm
that indeed this is what he was
told.
[13]
There is no dispute between the parties that on 18 July 2005 there
was no reporting for duty. The dispute relates to whether
the Second
Applicant tendered her services. The approach that the courts must
take with regard to disputed facts had been developed
in the matter
of
Stellenboch Farmers Winery (Ltd) v
Stelenvale Winery (Pty) Ltd
1957 (4) SA 234
(C)
at
235
.
Where
there is a dispute as to the facts a final interdict should only be
granted in Notice of Motion proceedings if the facts
as stated by the
Respondent together with the admitted facts in the Applicant’s
affidavit justify such an order. Where it
is clear that facts, though
not formally admitted cannot be denied, they must be regarded as
admitted.
[14] In the matter of
Plascon Evans Paints v Van Riebeeck Paints
[1984] ZASCA 51
;
1984 (3) SA 623
(AD)
the Appellate Division as it then was sought to perfect the
approach and said the following”-
“
It
seems to me, however, that this formulation of the general rule, and
particularly the second sentence thereof, requires some
clarification
and, perhaps, qualification. It is correct that, wherein in
proceedings of Notice of Motion disputes of fact have
arisen on the
affidavits, a final order whether it be
an interdict or some other form of relief, may be granted if those
facts averred in the
Applicant’s affidavit which have been
admitted by the Respondent, together with the facts alleged by the
Respondent, justify
such an order. The power of the court to give
such final relief on the papers before it, is however, not confined
to such a situation.
In certain instances the denial by the
Respondent of a fact alleged by the Applicant may not be such as to
raise a real genuine
or bona fide dispute of fact…if in such a
case the Respondent has not availed himself of his right to apply for
the deponents
concerned to be called for cross examination under Rule
6 (5) (g) of the uniform rules of court and the court is satisfied as
to
the inherent credibility of the Applicant’s factual
averment, it may proceed on the basis of the correctness thereof and
include this fact among those upon which it determines whether the
Applicant is entitled to the relief which he seeks….moreover
there may be exceptions to this general rule as, for example, where
the allegations or denials of the
Respondents
are so far fetched or clearly untenable that the court is justified
in rejecting merely on the papers.”
[15] This approach has
since been followed in various judgments of this Court, particularly
in motion proceedings. In
Mahala v Nkombombini and Another
2006
(5) SA 524
(SECLD)
Erasmus J, followed the approach, however he
said the following in respect of the matter that was before him:-
“
That
approach is possibly not entirely satisfactory for a matter such as
the present. As was pointed out in
Trollip
v Du Plessis and Another
2002 (2) SA 242
(W)
at
245 E – F, a more robust approach is sometimes required, and
the court should then grant the order if it is satisfied that
there
is sufficient clarity regarding the
issues to be resolved for the court to
make the order prayed for.
[16]
The Respondent submitted that the Court must follow the
Plascon
Evans
approach. As I have pointed out,
the only dispute is about whether the Second Applicant had tendered
her services. That allegation
in the papers took the following
format:-
In the founding
affidavit, the deponent stated, in paragraph 4.5, the following:-
“
On
20
th
July 2005 our attorneys addressed a letter to the company recording
that Miss Moses tendered her services. A copy of that letter
is
attached to this affidavit marked “TB2””.
[17] In answer to the
allegation, the Respondent chose to give the background to the matter
and in paragraph 27.6 stated the following:-
“
On
20
th
July 2005 the Applicant’s attorneys addressed a letter to the
Respondent wherein it was stated that the individual applicant
was
told not to report for duty. A copy of this letter is annexed thereto
“LR5.”
[18] The said annexure
“LR5’ happens to be the letter in which the Second
Applicant’s services were tendered.
The said letter reads in
parts as follows:
“
We
are instructed as follows:-
1.
In the arbitration award delivered
in the above matter Lee Cell Research (Pty) Ltd was ordered to
reinstate one of CEPAWU’s
member Maria Moses with effect from
the date of her dismissal;
2.
The company informed Miss Moses that
she should not report for duty;
3.
Miss Moses tendered her service.”
[19] In response the
Applicants, in paragraph 17 of the Replying
Affidavit, stated the following:-
“
I
admit the contents of this paragraph. I fail to understand why the
Respondent attaches this and other letters to its affidavit,
when
they already appear twice elsewhere in the papers”.
[20] It is apparent to
the Court that in the first instance there is no dispute in respect
of the aspect that the Second Applicant
tendered her services on 20
July 2005. Therefore it is incorrect to submit that there is a
dispute of fact in respect of the tender
of services. However, an
allegation which seems to be related to the alleged dispute of fact
is that which was allegedly mentioned
by the union official to Mr
Bosch.
In
applying the
Plascon Evans
test I have to resolve the dispute on the papers, particularly
because the union official, under oath, disputed the statement
allegedly made to Mr Bosch. With the opportunity to have Mr Bosch
confirm that statement, the Respondent chose to repeat as it were,
the contents of its letter of o1 August 2005. Therefore the Court is
left with nothing but undisputed evidence by the union official
that
he did not utter the statement. The union official, under oath,
furnishes the reasons why the Second Applicant could not report
for
duty on 18 July 2005. Again this is not in dispute. I am bound to
accept those reasons.
[21] Therefore, I find
that there is no real and genuine dispute of fact, which will
necessitate that the order should be refused.
Adv Boda argued that if
the Court finds that there is a dispute of fact, it is therefore
appropriate to have the matter referred
to oral evidence. As the
Applicants is the one who commenced the proceedings by way of motion,
it should have anticipated this
dispute of fact. As the result the
Respondent was forced into motion proceedings despite this dispute of
fact. I reject this argument.
As I have pointed out, there is no
dispute of fact which is genuine and real for this Court to even
contemplate referring the matter
for oral evidence.
THE
ISSUE OF UNREASONABLE DELAY
[22] The contention of
the Respondent is that the Applicants should fail since there was a
delay for which no condonation was sought.
As pointed out, Adv Van
der Riet SC contended that the principle of unreasonable delay finds
no application. In court, Adv Boda
conceded that an arbitration award
is a debt as contemplated in the Prescription Act. He was however
steadfast that the Court should
find that even in Section 158(1)(c)
applications to make awards orders of this Court, such should be
refused on the basis of unreasonable
delay principle. Much as I found
the argument attractive and fanciful to say the least, I cannot
agree. This argument fanciful
as it maybe has already attracted the
attention of the Labour Appeal Court in the matter of
Solidarity
and Others v Eskom Holdings Ltd 2008 (29) ILJ 1450 (LAC)
. It is
instructive to note what the Labour Appeal Court said at page 456
paragraph 15, which was the following:-
“
Furthermore,
the view that the unreasonable delay rule applies to a case where the
Prescription Act applies will render the relevant
provisions of the
Prescription Act redundant. In terms of the Prescription Act, if A
assaults B, B has three (3) years within which
to institute court
proceedings for the payment of damages arising from the assault. The
effect is that B can sit at home and not
do anything about his claim
until the last minute before the expiry of the prescription period of
three years. There is, in my
view, no rule of law to the effect that,
despite the availability to him of a period of three within which to
institute court proceedings
B must, nevertheless, institute court
proceedings within a reasonable time prior to the expiry of that
period of three years, because
if he fails to do so, he will be
barred for doing so even though the prescription period of three
years prescribed by the Prescription
Act has not expired. The reason
why there is no such rule is because, when the legislature prescribed
three years it regarded three
years as a reasonable period within
which B should be required to institute his claim for damages. There
can, therefore, not be
a rule that effectively nullifies the
prescription period provided for in the Prescription Act. That is
rule that says B must institute
court proceedings within a reasonable
time before the
expiry of the three
years period prescribed by the Prescription Act and says that if he
fails to do so he will suffer the same consequences
that
the
Prescription Act say he will suffer if fails to institute court
proceedings within a longer period, namely, three years. Such
a rule
would create a prescription period within a prescription period”.
[23]
What is clear from the above stated is that where Prescription Act
applies there is no room for the rule of unreasonable delay.
Over and
above the fact that I am bound by this decision, I agree that as a
matter of logic, it would be inappropriate to refuse
to enforce an
award which is subjected to a Prescription Act. I suppose that in
respect of prayers 2 and 3 it is as clear as daylight
that
Prescription Act would apply to such claims. Accordingly the argument
of unreasonable delay would not succeed in respect of
them too.
[24]
Accordingly it is my finding that the principle of unreasonable delay
finds no application.
THE
ISSUE OF WAIVER AND OR PEREMPTION.
[25]
Adv Boda argued that there is peremption, although in its opposing
papers, the Respondent submitted that the Applicant’s
conducted
amounts to a waiver of right to bring the application. In reply to
this argument Adv Van De Riet SC argued that peremption
does not find
application and it has not been pleaded. In his submission
peremption, simply entails blowing hot and cold. He submitted
that
there was no blowing hot and cold in this matter. The Applicants did
not have an adverse award and accordingly the principle
of peremption
would not apply. I agree with the submission. Even if I were to
consider the plea of waiver, it appears that such
a plea was badly
pleaded, because the deponent only states that there was a waiver of
a right to bring the application not a waiver
to the claim. The
waiver contemplated in paragraph 15 seems to be referring to the
unreasonable delay principle, which I have already
found, finds no
application. In my judgment, I find that waiver in any event was not
pleaded. Accordingly I find no basis upon
which it can be said that
there has been waiver and or peremption.
THE
ISSUE WHETHER PRAYERS 2 AND 3 SHOULD BE GRANTED
[26] In court, as I was
somewhat dissatisfied that this Court would have jurisdiction to
order prayers 2 and 3, I enquired from
Adv Van de Riet SC as to the
basis for the jurisdiction of the Court. He submitted that in terms
of Section 77 of the Basic Conditions
of Employment Act, the Court
has jurisdiction. Section 77(3) provides as follows:-
“
The
Labour Court has concurrent jurisdiction with the Civil Courts to
hear and determine any matter concerning a contract of employment,
irrespective of whether any basic condition of employment constitute
a term of that contract”.
[27] His argument was
that the payments arise out of a contract of employment, which had
been restored by the award made on 11 July
2005. It is not in dispute
that since July 2005, the Applicant was not paid any salary. My
misgivings with regard to prayers 2
and 3 were brought to light by
the fact that there is re-instatement and its effect, in my view, is
that it covers prayers 2 and
3. In the
Republican Press (Pty) Ltd
v CEPPAWU and Gumede and Others
2007 (11) BLLR 1001
(SCA)
at
paragraph 19 Nugent JA said the following:-
“
I
do not think that the backpay to which a worker ordinarily becomes
entitled when an order for reinstatement is made is to be equated
with compensation (thus allowing for limitation contained in Section
194 to be applied in relation to the backpay). As pointed
out by
Davies AJA in Kroukram (and I respectfully agree) an order of
reinstatement restores the former contract and any amount
that was
payable to the worker under that contract necessarily becomes due to
the worker on that ground alone”.
[28]
Therefore, it is my view that making an order in respect of 2 and 3
would necessarily become superfluous, since the Court is
inclined to
make prayer 1, an order of court. Prayer 1 is in respect of an award
that contains a re-instatement order.
[29]
In my view, Section 77(3), should be read with other provisions of
the Basic Conditions of Employment Act, in particular the
provisions
of Section 32, which provides that an employer must pay to an
employee any remuneration that is paid in money. Any refusal
to pay
remuneration is in contravention of Section 32.
[30]
In terms of Section 64(1), a Labour Inspector in promoting,
monitoring and enforcing compliance with an Employment Law would
endeavour to secure compliance with the Employment Law by securing
undertakings or issue compliance orders. The Employment Law,
referred
to, includes, as defined, the Basic Conditions of Employment Act. In
terms of Section 69(1), the Labour Inspector may
issue a compliance
order if an employer has not complied with the provisions of the Act.
In terms of Section 73, the compliance
order may be made an order of
this Court. With that statutory framework, it is my view that issues
relating to non-payment of salary
cannot be brought under Section
77(3). Section 77(3) contemplates, in my view, other claims and or
benefits that may arise out
of a contract of employment, not the
remuneration aspect, as same is covered by Section 32. Prior to the
coming into operation
of the
Basic Conditions of Employment Act 75 of
1997
, its predecessor made provision that the Civil Courts could be
approached on condition that there is a
noli
prosequi
. In the old Act, there
was no provision of Labour Inspectors securing compliance and making
those an order of court. In my
view, Act 75 of 1997 introduced an
uncomplicated and simple procedure wherein a salary had not been
paid. If that is so, it would
be a duplication of efforts, if Section
77(3) could be used, when a compliance order could be obtained which
could be made an order
of this Court.
[31] In opposing prayers
2 and 3, Adv Boda referred me to the decision of this Court in
Char
Technology (Pty) Ltd v Mnisi and Others
2000 (7) BLLR 778
(LC).
In that judgment Her Ladyship Pillay AJ as she then was had the
following to say:-
“
I
mention in passing that the commissioner failed to quantify the
award. If this matter had come before this Court for an order
in
terms of Section 158(1)(c) of the Act, it would have been have
referred back to the CCMA for quantification”.
[32]
As it is clear, the statement was made in passing, same does not form
part of the
ratio decidendi
of the Court. Accordingly I do not think that same is authority to
the proposition that when an application is brought in terms
of
Section 77(3), as it was argued by Adv Van de Riet SC, such cannot be
entertained simply because the arbitrator had not quantified.
In any
event in terms of the
Republican Press
decision the employee’s pay is included in the reinstatement
order.
[33]
My other misgiving with regard to prayers 2 and 3 is that the
Applicants is seeking interest at 15.5% from July 2005 in respect
of
prayer 2 and interest
a tempore morae
in
respect of paragraph 3. If I accept that prayers 2 and 3 can be
brought in terms of Section 77(3), interest would only accrue
to that
once the Court makes an order to that effect. Since there is no
order, the interest would not accrue. In any event I am
not inclined
to grant prayers 2 and 3, since prayer 1 is sufficient for their
purpose.
THE
ISSUE OF COSTS
[34]
Both counsel argued that costs should follow the results. Given the
approach I have taken that prayer 1 is inclusive of prayers
2 and 3,
it follows that the Applicants was successful in all respects. That
being the case I see no reason why the Applicants
should not be
entitled to their costs.
CONCLUSION
[35] I have, in the
course of this judgment, rejected all the arguments presented on
behalf of the Respondent. Since the Respondent
had not brought a
review application for the award, I find no reason why the award
should not be made an order of this Court since
the Respondent is
refusing to comply with the award. In the result I make the following
order:-
1.
The arbitration award issued by the National Bargaining Council for
the Chemical Industry on 11
July 2005 under Case Number: GP0444/03 is
hereby made an order of this Court.
2.
The Respondent to pay the Applicant’s costs
____________________________
G.N
MOSHOANA
Acting
Judge of the Labour Court
Date
of Hearing: 04 December 2008
Date
of Judgment: 06 January 2009
APPEARANCES
For
the Applicants: Adv J G van der
Riet SC
Instructed
by
Cheadle Thompson &
Hayson
For
the Respondent: Adv F Boda
Instructed
by
Yusuf Nagdee Attorney