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[2017] ZALCJHB 200
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Tlhabadira v Van Staden and Another (J977/17) [2017] ZALCJHB 200 (26 May 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT
REPORTABLE
CASE
NO. J977/17
In
the matter between:
ISAAC
TLHABADIRA
Applicant
and
THE
VICE CHANCELLOR
LOURENS
VAN STADEN
First Respondent
TSWANE
UNIVERSITY OF TECHNOLOGY
Second Respondent
Date
heard : 19 May 2017
Date
delivered: 19 May 2017
Date
of reasons: 26 May 2017
REASONS
FOR THE ORDER
BALOYI
AJ
Introduction
[1]
On 19
th
May 2017 I made an order dismissing the
Applicant’s
ex parte
application. The Applicant
sought an order in terms of section 143(3) of the Labour Relations
Act that the Respondents be
held in contempt of Court. The
Respondents are accused of not abiding by orders made in the
arbitration award that the Applicant’s
suspension was declared
unfair labour practice. The lifting of the said suspension was
accordingly ordered coupled with reinstatement.
The contempt
application became opposed as it was served on the Respondents. The
First Respondent was specifically called upon
to appear in Court on
the date of set down of the
ex parte
application. It is
worth mention that the application was filed through a law firm on
behalf of the Applicant. On the
date of hearing the Applicant
unexpectedly appeared in person. The reason being that he had in fact
terminated the mandate of his
attorney just a day before the court
date with a view of saving costs. He pronounced his readiness
to proceed in person.
The Respondents’ Counsel did not
have knowledge on whether the notice of withdrawal of the Applicant’s
attorney
was served.
Factual
Background
[2]
The dispute arose out of suspension of the Applicant which he took to
the CCMA. After having obtained an award ordering his
reinstatement
dated 15
th
June 2016, the Applicant tendered his services
on 20
th
June 2016 as ordered. The reinstatement was
delayed as discussions and correspondence between the parties took
course. The Second
Respondent eventually complied with the order and
caused the Applicant to report for duty on 12
th
October
2016. Everything went well until on 18
th
November
2016 when the Second Respondent through letter signed by the First
Respondent informed the Applicant that he was with
immediate
temporarily removed from his duties, responsibilities and decision
making authority attached to his position of Deputy
Vice Chancellor:
Institutional Support. According to the letter this arrangement
was to prevail pending finalization
of review application instituted
by the Second Respondent and the disciplinary hearing action against
the Applicant.
Arguments
[3]
The Applicant felt that the Respondent’s conduct amounted to
contempt of Court as certain parts of the reinstatement order
have
been violated. The Respondents argued that the application is
defective for non-compliance with practice manual as the
First
Respondent was called to appear on the very date of set down of the
ex parte
application, that is prior to its granting.
Despite the notice of irregular step served on the Applicant’s
attorneys
to remedy the defect nothing was done by the Applicant
and/or his attorneys. The Respondents moved for dismissal of
the application
with costs. The Applicant maintained that his
papers were in order and there was never a need to amend them and
strongly
stood by them.
Discussion
[4]
The court may where papers of a litigant are not in order exercise
its discretion by directing such party to amend or supplement
accordingly and in so far as it may be necessary make an appropriate
cost order. The Applicant for whatever reason sought a final
order
instantly which is not attainable in
ex parte
applications.
The submissions by Respondent’s Counsel that the application is
defective and is ought to be dismissed on this
basis alone is not
sustainable in situations where a party asked for indulgence. The
next crucial question is whether the order
sought by Applicant
competent if his papers were in order or duly amended. The Applicant
conceded that the Respondent did comply
fully with the order on 12
th
October 2016. The removal of his powers on 18
th
November 2016 as the cause of complaint suggested that the
Respondents acted in contempt of the Order. It is common cause
that the Court Order was made, the Respondents were made aware of it
and it was eventually complied with.
[5]
The circumstances arising after such compliance cannot be read into
the scheme of contempt of court. In
Abdullah
v Kouga Municipality
[1]
the intervening conduct of the employer by dismissing the employee
prior to complying with an order lifting suspension only renders
the
order inoperative and cannot give rise to contempt. In this instant
matter the restrictions of functions imposed on the Applicant
are
certainly different subject matter consistent with changes to the
terms and conditions of his employment. Contempt cannot
as such
be found hence the application was dismissed.
_____________________
BALOYI AJ
Acting
Judge of the Labour court of South Africa
Appearances
:
For
the Applicant: (appeared in person)
For
the Third Respondent: Adv. Gerber
Instructed
by Welman and Bloem Inc.
[1]
2012 ILJ (LC) at Paragraph 16