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[2017] ZALCJHB 212
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Kekana v Amalgamated Beverages Industries (ABI), A division of the South African Beverages Ltd and Others (J1009/13) [2017] ZALCJHB 212 (5 June 2017)
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Not
Reportable
Case
no: J1009/13
In
the matter between:
SEOKA
DAVID
KEKANA
Applicant
and
AMALGAMATED
BEVERAGES INDUSTRIES
(ABI),
A DIVISION OF THE SOUTH AFRICAN
BEVERAGES
LTD
First Respondent
CINDY
MULLER
Second and further
(named
in annexure “A” hereto)
Respondents
Heard:
02 December 2016
Order:
02 December 2016
Date
of Reasons: 05 June
2017
REASONS
FOR ORDER
PRINSLOO
J
Introduction
[1]
On 2 December 2016 this matter served
before Court as a contempt application.
The
application was opposed.
[2]
The following order was made:
1.
The
application is dismissed with costs.
2.
Mr
Sebola is not entitled to charge a fee for the heads of argument he
drafted and that were filed on 10 October 2016 and any fee
charged
and received for the heads of argument, is to be refunded to the
Applicant within 7 days of date of this order.
3.
Mr
Sebola has to file an affidavit within 14 days of date of this order
to confirm his compliance with this order.
[3]
The Applicant subsequently requested
reasons for the order issued on 2 December 2016 and I set out the
reasons
infra.
The
background facts
[4]
The Applicant was employed by the First
Respondent (ABI) as a warehouse operator and after he was dismissed
on 19 March 2010, he
referred an unfair dismissal dispute to the
Commission for Conciliation, Mediation and Arbitration (CCMA). An
arbitration award
was issued on 17 August 2010, finding the
Applicant’s dismissal substantively unfair and reinstating him
with effect from
6 September 2010.
[5]
ABI filed an application for review on 6
October 2010 and the review application as well as the Rule 7A(6))
and (8) notices were
served on the Food and Allied Workers Union
(FAWU) that represented the Applicant during the arbitration
proceedings. FAWU did
not oppose the application for review and at no
stage did either the Applicant or FAWU inform ABI that the Applicant
was no longer
a member of FAWU or that FAWU was no longer
representing the Applicant.
[6]
The
arbitration award was certified in terms of the provisions of section
143 of the Labour Relations Act
[1]
(the Act) on 3 June 2011.
[7]
The said arbitration award was reviewed and
set aside by this Court on 21 August 2012.
[8]
On 10 January 2013 the Applicant filed an
application under case number J 3273/12 in terms of the provisions of
section 158(1)(c)
of the Act to make the certified arbitration award
an order of Court.
[9]
The Applicant demanded compliance with the
certified award on 22 April 2013, failing which contempt proceedings
would be instituted.
On 23 April 2013 ABI’s attorneys responded
and indicated that ABI would not comply with the award as it was
reviewed and
set aside by this Court on 21 August 2012 under case
number JR 2547/10.
[10]
On 24 May 2013 the Applicant filed a
contempt of Court application under case number J 1009/2013, which
ABI opposed on the basis
that the award the Applicant seeks to
enforce, has been reviewed and set aside.
The
relief sought
[11]
To provide a proper context to the reasons
why the application was dismissed and not to paraphrase the relief
sought incorrectly,
the relief sought by the Applicant is captured
verbatim.
I
say so as any person with a slight understanding of Court processes
might think that the relief sought is captured incorrectly
as the
relief sought is not only impossible but also contradictory and
incompatible. The relief sought is:
“
1.
Finding the managers i.e. Ms Cindy Muller (HR Manager), Mr. Justice
Phetha, (Industrial
Relations Manager) and Charlene Wilson
(Employment Relations Specialist) of the First Respondent, guilty of
being in contempt of
Court on account of their wilful or mala fide
refusal, failure, omission or delay to comply with the certified
arbitration award
of the CCMA under case number: GATW6506-10 (marked
hereto as “CCMA1”);
2.
Imposing penalty of 25 days’
imprisonment without option of fine;
3.
Suspending 25 days’ imprisonment
without option of fine on condition the Applicant is reinstated
within seven (7) days of
this order, with full retrospective effect
to the date of the First Respondent’s receipt of the
arbitration award, 26
th
August 2010, and on the terms and the condition of employment which
are not less favourable than the terms and conditions of employment
that applied on the date of his dismissal, 13 March 2010,
4.
Directing the Respondents to pay the costs
of this contempt of Court application, jointly and severally, the one
paying another
to be absolved,
5.
In the event the Court cannot grant the
Contempt of Court application or relief in the light of the CCMA
certified award marked
as “CCMA1”, granting further
and/or alternative relief in the following terms:
5.1.
declaring that the proceeding under case number JR2547/10 in as far
as the non-joinder of Seoka David Kekana as
a party and judgment
Creditor to arbitration award under case NO: GATW6506-10 is null and
void
ab initio
and of no force and effect and that the order
of the Labour Court dated 21 August 2012 granted under case no:
JR2547/10 (attached
hereto marked “LC1”) is of no force
and effect and is to be disregarded without the necessity of formal
order setting
it aside,
5.2.
alternatively, rescinding such case no: JR2547/10 order dated 21
August 2012 in the order having reviewed and set
aside the
arbitration award issued by Commissioner Khomotjo Daniel Matji under
the auspices of Commission for Conciliation, Mediation
and
Arbitration (CCMA) under case No: GATW6506-10 (attached hereto marked
“K1”) for reasons that Seoka David Kekana
as a judgment
Creditor if the award was not cited or joined as a party in those
proceedings, and thus the order was granted in
the absence of the
Applicant who is affected by the order,
5.3.
Consolidating Case No: J3273/12 proceedings with the present case
J1009/2013 proceedings,
5.4.
making the arbitration award dated 17 August 2010 and issued by
Commissioner Khomotjo Daniel Matji under the auspices
of Commission
for Conciliation, Mediation and Arbitration (CCMA) under case No:
GATW6506-10 (attached hereto marked “K1”)
an order of
Court in terms of section 158 (1) (c) of Act 66 of 1995, as amended,
5.5.
directing the First Respondent, Amalgamated Beverages Industries
(ABI), a Division of the South African Beverages
Ltd:
5.5.1
to reinstate the Applicant within seven (7) days pf this order with
full retrospective effect to the date of the First Respondent’s
receipt of the arbitration award, 26
th
August 2010, and on
the terms and the conditions of employment which are not less
favourable than the terms and condition of employment
that applied on
the date of his dismissal, 13 March 2010,
5.5.2.
to pay the costs of this application,
5.6.
Further and/or alternative relief.
”
[12]
It
is evident from prayers 1 to 4 that the Applicant pursued a contempt
application. There are a number of difficulties with that.
Firstly,
the Practice Manual for the Labour Court
[2]
provides that a contempt application should be brought on an
ex
parte
basis
on a Friday and prescribes the order that should be sought in the
notice of motion.
[13]
This application was filed after the
effective date of the Practice Manual and the Applicant should have
followed the prescripts
of the Practice Manual.
[14]
In
Ralo
v Transnet Port Terminals and Others
[3]
the purpose of the provisions of the Practice Manual was stated as
follows:
“
The
practice manual contains a series of directives, which the Judge
President is entitled to issue. In essence, the manual sets
out what
is expected of practitioners so as to meet the imperatives
of respect for the court as an institution,
and the expeditious
resolution of labour disputes […]. While the manual
acknowledges the need for flexibility in its application
[…]
its provisions are not cast in the form of a guideline, to be
adhered to or ignored by parties at their convenience.”
[15]
The
status of the Practice Manual was recently considered by the Labour
Appeal Court in
Rumba
Samuels v Old Mutual
Bank
[4]
where
it was held that:
“
The
consolidated practice manual which came into operation on 2 April
2013 constitutes a series of directives issued by the Judge
President
over a period of time. Its purpose is,
inter
alia
,
to provide access to justice by all those whom the Labour Court
serves; promote uniformity and/or consistency in practice and
procedure and set guidelines on standards of conduct expected of
those who practise and litigate in the Labour Court. Its objective
is
to improve the quality of the court’s service to the public,
and promote the statutory imperative of expeditious dispute
resolution.”
[16]
The
Labour Appeal Court further held that the provisions in the Practice
Manual are binding
[5]
.
[17]
The Applicant’s application for
contempt is not compliant with the Practice Manual and stands to be
dismissed for that reason
alone. However, there are more reason to
dismiss the application as the arbitration award the Applicant seeks
to compel compliance
with, was reviewed and set aside on 21 August
2012. In the absence of a court order or certified arbitration award,
contempt of
Court is not possible and the Applicant’s contempt
application has to fail.
[18]
It follows that the main relief sought by
the Applicant is not competent and cannot be granted.
[19]
In his heads of argument Mr Sebola for the
Applicant submitted that ABI’s only defence in respect of the
contempt of Court
proceedings is that the arbitration award was
reviewed and set aside and that this defence could not succeed as it
was ‘solely
founded upon wrong legal advice.’ Mr Sebola
submitted that it was insufficient for ABI, who was in breach of a
Court order
(i.e the certified arbitration award) to rely on legal
advice and that they should be found to be in contempt of Court and
punished
accordingly.
[20]
This argument goes to the second main
relief Mr Sebola sought and persisted with in his heads of argument
namely a declaratory order
to the effect that the Labour Court order
issued on 21 August 2012 under case number JR 2547/10, wherein the
arbitration award
was reviewed and set aside, be declared to be of no
force and effect and is to be disregarded without the necessity of a
formal
order setting it aside.
[21]
Mr Sebola submitted that “
Rabkin-Naiker
J has no jurisdiction to review and set aside the certified award
deemed to be made an order of the Labour Court”
and
that insofar as a certified award is deemed to be an order of the
Labour Court, the Labour Court is not competent to review
and set
aside its own orders.
[22]
This argument shows a shocking lack of
understanding of the status of a certified arbitration award and
indicates an inability to
interpret judgments on this issue.
In
casu
Mr Sebola, as a practitioner in
this Court, displayed nothing but a gross lack of understanding of
Court process and the heads of
argument filed and arguments advanced
in this matter, highlighted his lack of understanding and insight.
[23]
In the alternative the Applicant seeks the
rescission of the Court order of 21 August 2012 on the ground that it
was served on FAWU
and not the individual personally. The Applicant’s
referral to the CCMA was made by FAWU on the Applicant’s
behalf,
at the arbitration the Applicant was represented by a FAWU
official and on the arbitration award the contact details of the
Applicant
are those of FAWU. ABI’s review application was
served on FAWU and there is no evidence that the Applicant
communicated to
ABI at any stage that he is no longer a member of
FAWU or that he was no longer represented by FAWU.
[24]
The Applicant’s case that the Court
order of 21 August 2012 should be rescinded because it was served on
FAWU and not upon
him personally, is without merit.
[25]
The alternative relief sought by the
Applicant also shows the lack of understanding of Court processes and
without dealing with
the remainder of the relief sought in detail, I
will illustrate this point with reference to the relief sought in
paragraph 5.3
of the notice of motion wherein the Applicant seeks for
the arbitration award issued on 17 August 2010 to be made an order of
Court.
This is the same arbitration award that was reviewed and set
aside on 21 August 2012 and the same award Mr Sebola has argued could
not be reviewed as it was already an order of this Court.
[26]
I made an order that Mr Sebola is not
entitled to charge a fee for the heads of argument he filed.
[27]
In
Early
Bird Farm (Pty) Ltd v Food and Allied Workers Union and others
[6]
the Labour
Appeal Court held that:
“
Before
concluding this judgment, there is one further matter that we wish to
deal with. In this appeal the respondents' attorney
was required to
file heads of argument succinctly setting out the points to be argued
at the hearing of the appeal. A document
purporting to be heads of
argument was timeously filed on behalf of the respondents. However,
it was of such poor quality that
it can hardly be described as heads
of argument. This court could not derive any assistance from that
document nor was the attorney
helpful to the court at the hearing of
the appeal. Properly prepared heads of argument play an important
role in the adjudication
of a matter - especially in an appeal court.
Useful heads of argument cannot be prepared unless the person
preparing them has taken
the trouble to study the record and has done
such research on the legal issues raised by the matter or appeal as
may be necessary.
Where heads of argument are drawn without the
necessary understanding of the facts or the evidence in the record
and/or without
doing the necessary research on the legal issues that
arise in the appeal, such heads - and it is very easy to recognize
this in
heads of argument - are bound to be of no assistance to the
court hearing the appeal. That kind of conduct on the part of a
practitioner
is unacceptable. A practitioner should not accept
instructions or a brief in a matter if he does not have the time to
do justice
to a client's case. It is inexcusable for a practitioner
to file heads of argument the contents of which bear no relation to
the
issues raised.
In
this case the document purporting to be heads of argument filed by
the respondents' attorney was totally unacceptable. The fault
lies
solely with the practitioner concerned and not with the respondents.
Accordingly,
as a mark of its disapproval for this type of conduct, this court
will make an order precluding the respondents' attorney
from charging
fees in connection with the heads of argument as well as for his
appearance in this court.”
[28]
In
Minister
of Safety and Security v Mashego and others
[7]
it was held that
“
It
is not acceptable that practitioners should merely send up heads
which are not helpful, which do not cite authorities and which
suggest hurriedness of preparation. Counsel draw heads for the
purpose of assisting the court. Whilst, in the end, the court does
its own research, and seeks to satisfy itself that the authorities
referred to actually say what counsel say they say, it goes
without
saying that in a case where counsel have worked hard and produced
material that shows that they have researched the topic
of
contestation, the courts become hugely indebted to the practitioners
when they have to give their reasoned judgments.”
[29]
In casu
the
heads of argument prepared by Mr Sebola indicated that he has no
understanding of the issues and has not researched the topics
he
addressed properly. The heads of argument were of no assistance to
this Court and therefore Mr Sebola is not entitled to charge
a fee
for that.
[30]
It is for these reasons that I issued the
order as I did on 2 December 2016.
_____________________
Connie
Prinsloo
Judge
of the Labour Court
Appearances:
For
the Applicant : Advocate Sebola
Instructed
by
: Nchupetng Attorneys
For
the Respondent : Advocate Z.M Navsa
Instructed
by
: Bowman Gilfillan Attorneys
[1]
Act
66 of 1995 as amended.
[2]
Came
into effect from 2 April 2013
[3]
[2015]
ZAECPEHC 68 (17 June 2015)
[4]
Case
no DA30/15 handed down on 25 January 2017.
[5]
Rumba
Samuels
at para 15
[6]
(2004)
25 ILJ 2135 (LAC)
par
50
[7]
(
2003)
24 ILJ 1690 (LC)