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[2009] ZALCJHB 42
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Sibeko v Department of Education and Another (JR722/03) [2009] ZALCJHB 42 (24 April 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JR 722/03
In
the matter between:
GIJIMANE
SAMSON SIBEKO
Applicant
and
DEPARTMENT
OF
EDUCATION
First
Respondent
MEC
MR M.C.
MOKITLANE
Second
Respondent
JUDGMENT
BHOOLA
AJ:
Introduction
[1]
The applicant seeks an order placing the Second Respondent in
contempt for failure
to comply with an order of this court.
Background
[2]
This matter has a long history which is set out briefly below.
[3]
A dispute concerning the alleged unfair dismissal of the
applicant was referred to arbitration under the auspices of the
relevant
bargaining council.
[4]
An award was made by arbitrator Moloi in which she found the
dismissal of the applicant
to have been fair.
[5]
The applicant successfully reviewed the award, and it was remitted
back to the Bargaining
Council by Revelas J.
[6]
A second arbitration ensued and in March 2003 arbitrator Makua issued
an award in
favour of applicant. Arbitrator Makua found the dismissal
of the applicant to have been procedurally and substantively unfair,
and ordered his reinstatement. Although the respondent in both
arbitrations was the Department of Education, subsequent pleadings
filed by the applicant cite the MEC as second respondent, and
pleadings of the respondent refer to only one respondent. I will
refer in this judgment for ease of reference to the parties as they
are cited in the application before me.
[7]
The award of arbitrator Makua was subsequently certified and a writ
issued in 2005
in respect of the sum of R54208, 00.
[8]
The respondent brought an application for review of arbitrator
Makua’s award,
which application was dismissed by Cele J in
December 2007.
[9]
An application for the rescission of the judgment of Revelas J was
brought by the
respondents (under case number 348/09). At the same
time the applicant also brought an application placing the second
respondent
in contempt (under case number 722/03) of the second
arbitration award. The contempt application was brought on 24 January
28 and
both applications were heard together by Molahlehi J who
granted the rescission application and dismissed the contempt
application
on 20 August 2008.
[10]
The applicant applied for leave to appeal, which was refused. In his
judgment refusing leave
Molahlehi J finds Cele J’s judgment to
stand until it is either rescinded or set aside on appeal. He states
furthermore that
the applicant has the right to seek enforcement of
that judgment but should, if he seeks enforcement through contempt
proceedings,
ensure that proper procedures are followed.
[11]
It would appear that a review of the award of arbitrator Moloi,
brought by the applicant, is
still pending.
The current application
[11]
In the matter before this court the applicant submits that the
judgment of Molahlehi J is “a recent judgment
and
must be executed”. Furthermore, t
he applicant submits
that the result of Cele J’s dismissal of the review application
brought by the respondents is that the
award of arbitrator Makua
became enforceable in terms of section 143(4) of the LRA.
He
accordingly seeks to do so by way of this application.
[12]
The respondents oppose the application on the grounds,
inter
alia
, that it involves substantially
the same issue and relief sought by the applicant in its papers filed
in January 2008, which application
was dismissed by Molahlehi J. The
allegations in both applications are substantially the same.
Accordingly respondent submits that
the current application is
res
judicata
in that
,
it is apparent that there has been a prior judgment in which the same
parties were involved and substantially the same point was
in issue.
[13]
The respondents submit furthermore that the effect of the rescission
of the judgment of Revelas
J is that everything consequent to it has
no legal effect. The essence of its submission is that the award of
arbitrator Moloi
was revived thereby and accordingly the second
arbitration award is rendered a nullity.
Finding
[14]
In my view, the respondents submission that award of arbitrator Moloi
stands appears to be consistent
with the finding of Molahlehi
J. He states:
“
The contempt
order in the light of the conclusion reached concerning the
rescission application is bound to fall away for this reason
alone”.
I
agree. In the circumstances, it is clear that this matter has
previously been disposed of by this court in that not only was the
application for contempt dismissed, but leave to appeal was
furthermore refused.
[15]
In the premises I make the following order:
1.
The application is dismissed.
2.
The applicant is to pay the costs of the respondents on a party and
party scale.
________________________
Bhoola
AJ
Date
of hearing: 02 .04.09
Date
of judgment: 24.04.09